I.L.R. (2014) 2 DELHI Part-II (April, 2014) P.S.D. 25.04.2014 (Pages 1223-1594) 600

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Pages

1. Comparative Table...... (i) 2. Statute Section ...... (v) 3. Nominal Index ...... (vii) 4. Subject Index...... (ix)

5. Case Law ...... 1-442 (ii) COMPARATIVE TABLE 1511 No Equivalent ILR (DS) 2014 (2) = OTHER JOURNAL 1395 No Equivalent APRIL, PART-II 1407 No Equivalent Page No. Journal Page No. 1523 No Equivalent 1501 No Equivalent 1469 No Equivalent 1565 No Equivalent 1464 No Equivalent 1449 No Equivalent 1283 No Equivalent 1551 No Equivalent 1442 No Equivalent 1534 No Equivalent 1362 2014 (141) DRJ 205: 1545 No Equivalent 1276 2014 AIR (DEL) 86 1288 2014 (3) RAJ 137 : 1457 No Equivalent 1288 2014 (207) DLT 713 : 1489 No Equivalent 1288 2014 (57) PTC 495 1428 No Equivalent 1237 2014 (2) AD (D) 491 : 1237 2014 (141) DRJ 339 1410 No Equivalent 1555 No Equivalent 1507 No Equivalent 1223 No Equivalent 1276 2014 (3) AD (D) 226 : 1276 2014 (141) DRJ 658 1496 No Equivalent 1591 No Equivalent 1425 No Equivalent 1230 No Equivalent 1246 2014 (207) DLT 78 : 1276 2014 (141) DRJ 295 : 1246 2014 (3) (AD) (D) 329 : 1246 2014 (1) Crimes 571 (SN) : 1276 2014 AIR (DEL) 46

(i) COMPARATIVE TABLE OTHER JOURNAL = ILR (DS) 2014 (I) APRIL, PART-II

Journal Name Page No. ILR (DS) 2014 (II) Page No.

2014 (2) AD (D) 491 ILR (DS) 2014 (II) 1237 2014 (3) AD (D) 226 ILR (DS) 2014 (II) 1276 2014 (3) (AD) (D) 329 ILR (DS) 2014 (II) 1246 2014 AIR (DEL) 46 ILR (DS) 2014 (II) 1276 2014 AIR (DEL) 86 ILR (DS) 2014 (II) 1276 2014 (1) Crimes 571 (SN) ILR (DS) 2014 (II) 1246 2014 (207) DLT 713 ILR (DS) 2014 (II) 1288 2014 (207) DLT 78 ILR (DS) 2014 (II) 1246 2014 (141) DRJ 339 ILR (DS) 2014 (II) 1237 2014 (141) DRJ 295 ILR (DS) 2014 (II) 1276 2014 (141) DRJ 658 ILR (DS) 2014 (II) 1276 2014 (141) DRJ 205 ILR (DS) 2014 (II) 1362 2014 (57) PTC 495 ILR (DS) 2014 (II) 1288 2014 (3) RAJ 137 ILR (DS) 2014 (II) 1288

(iii) (vi)

PP Jewellers Pvt. Ltd. v. Modern New Kapoor Jewellers NOMINAL-INDEX Pvt. Ltd...... 1425 VOLUME-2, PART-I Praveen Kumar v. Govt. of NCT of Delhi & Ors...... 1230 APRIL, 2014 Preeti Satija v. Raj Kumari and Anr...... 1246

All India Institute of Medical Sciences & Anr. v. Ram Kishore Ranjeet v. State (NCT of Delhi) ...... 1511 & Anr...... 1501 Renu Agrawal and Anr. v. Delhi Development Authority Aman Nath v. Atul Nath and Ors...... 1565 and Ors...... 1395

Ashwani Kumar Goel v. Income Tax Settlement SBL Pvt. Ltd. v. V.B. Shukla & Ors...... 1407 Commission & Ors...... 1449 S.K. Mathur v. The President Secretariat Represented by the Chandan @ Babar v. The State (NCT of Delhi) ...... 1551 Secretary and Anr...... 1523

GE Capital Services India v. Prasanta Ghose & Anr. B+ ...... 1534 Salam Kaviraj @ Chuha v. State (Govt. of NCT of Delhi)...... 1469

Harakaran Dass Deep Chand v. Viren Agrotech Pvt. Ltd...... 1545 Sanwar @ Razzak v. State ...... 1464

Hindustan Unilever Limited v. Reckitt Benckiser India Limited...... 1288 Shekhar @ Chhotu v. The State (NCT of Delhi)...... 1283

Jai Singh & Anr. v. Man Singh & Ors...... 1237 Subhash Chandra v. Union of India & Anr...... 1442

K.L. Bhasin v. Punjab National Bank and Anr...... 1410 Swaran Lata and Ors. v. Shri Kulbhushan Lal and Ors...... 1362

Mahesh Chand Aggarwal v. Mukesh Kalia & Ors...... 1555 Vikram @ Ganja v. State ...... 1457

Mahipal Singh v. The Commissioner, Municipal Wasim (Passa in J.C) v. State of Delhi ...... 1489 Corporation of Delhi & Ors...... 1507 Yogendra Nath v. Commissioner Kendriya Vidyalaya Sangathan ...... 1428 Miglani Kerosene Oil Depot v. Govt. of NCT of Delhi & Ors...... 1223

Mohd. Ashikian Qureshi v. D.D.A. Through Its Chairman & Ors...... 1276

National Council of Education Research and Training v. Parash Ram & Ors...... 1496

Nutan v. Mukesh Rani & Anr...... 1591

(v) (viii) SUBJECT-INDEX VOLUME-2, PART-II So far as the contention that the same have been wrongfully APRIL, 2014 denied is concerned, the Supreme Court in (2008) 8 Supreme Court Cases 648 entitled Union of India and Others vs. Tarsem ADMINISTRATIVE TRIBUNAL ACT, 1985—Section 21— Singh has held that the court would consider the same— Denial of the benefits under the Assured Career Progression However, the relief of arrears would be restricted to a period Scheme (ACPS)—Petitioner aggrieved by the violation of of three years prior to the date of invoking remedy before the Rules by the respondents pension fixation correctly keeping court of tribunal—The challenge of the petitioner and his in view his entitlement based on denial of financial benefits prayers in the instant matter has to be considered in the light under the first ACPS with effect from 9th August, 1999 as of these principles—It cannot be disputed that denial of the well as financial benefits under second ACPS with effect from ACP benefits to the petitioner and wrongful fixation would 1st January 2002-- petitioner did not make any grievance either result in erroneous fixation of all his emoluments and by way of representations or by way of an application filed entitlements—In case, such emoluments were correctly fixed, within the period specified under Section 21 of the upon superannuation the petitioner's pension may have also Administrative Tribunal Act, 1985-Relief in respect of the same been appropriately fixed, perhaps at a figure which is more was hopelessly barred by limitation on 1st May, 2012 When that the amount to which he has been found entitled by the the petitioner had filed the petition before the Tribunal and respondents. The petitioner retired on 31st January, 2005, On sought the reliefs of Quashing/Setting aside the impugned order application of the principles laid down by the Supreme Court dated 17.7.2006 passed by the Respondent no.1, whereby the therefore, it would appears that thought the prayers made by appeal was disposed against the appellants, Quashing/Setting the petitioner at sl. nos. (i) to (iv) are concerned, the same aside the order dated 25.8.2003 passed by the Respondent are admittedly barred by limitation—However, the factual no.3, whereby the penalty of censure was imposed against challenge on which these prayers were made, does survive the appellants, directing the Respondents to grant first ACP and would require to be considered as the same is necessary under the financial upgradation scheme w.e.f. 9.8.1999 with to consider the prayer made at sl. no.(v). This consideration arrears and further grant second ACP w.e.f. 1.1.2002 from is also essential in order to appropriately mould the relief which the date of entitlement, directing the Respondents to grant the petitioner may be found entitled—In view of the above, w.e.f. 16.7.2001 instead of 29.1.2004 and count his 3 years the order dated 30th April, 2013 passed by the Central seniority towards the financial benefits accruing to the Administrative Tribunal dismissing the O.A No.1659/2012 on applicant as per the existing rules and directing the the ground of limitations is hereby set aside and quashed — Respondents to fix the pension and retirement benefits of the Tribunal directed to consider on merits the challenge to the applicant in terms of the reliefs sought for in the denial of the first and second ACPS—Even if the Tribunal aforementioned paras and pay the arrears thereof sustains the challenge, the petitioner shall not be entitled to immediately—However the petitioner restricts the challenge to the grant of financial benefits. the denial of the benefits under the ACPs only so far as they effect fixation of his pension. Held: it is trite that so far as Subhash Chandra v. Union of India & Anr...... 1442 claims involving issues of seniority or promotion which effects CCS (CCA) RULES, 1965—Sub-Rule (1) of Rule 10 & Rule others are concerned, would be rendered stale and the doctrine 10 (6) and (7)—Respondents were placed under suspension of limitation would apply in case of such belated challenges— vide orders dated 17th and 19th July, 2012 in terms of sub- (vii) rule (1) of Rule 10 of the CCS (CCA) Rules, 1965— (ix) (x) Suspension was reviewed by the Review Committee extending the time being, the same has to be restricted up to 1st August, for another period of three months—Respondents premised 2013—Parties shall abide by the adjudication by the Tribunal their application before the Tribunal on the plea that the review so far as the petitioners are bound to comply with the order of suspension was due in accordance with law on 17th dated 6th November, 2013—Appropriate orders to be passed October, 2012—As such, the suspension not having been within 15 days—Writ petition and the stay application reviewed within the time prescribed under Rule 10 (6) and dismissed. (7) of the CCS (CCA) Rules, 1965, the continued suspension National Council of Education Research and beyond 90 days after the issuance of the order dated 17th July, Training v. Parash Ram & Ors...... 1496 2012 and 19th July, 2012 was null and void—This contention of the respondents was accepted by the Tribunal placing CODE OF CIVIL PROCEDURE, 1908—Section 107, 151 r/ reliance upon sub-rule (6) and (7) of Rule 10 of CCS (CCA) w Order 41 Rule 27—Additional documents—Brief Facts— Rules, 1965—The Tribunal has also placed reliance on a Respondents had filed Photocopies of twenty five documents pronouncement of Supreme Court reported in (2010) 2 SSC under an index dated 22.05.2002, which was subsequent to 222 entitled Union of India and others vs. Dipak Mali wherein their filing the written statement in the trial court—The said it has been held that by operation of Rule 10 (6), the list of documents includes copies of the lease deeds dated suspension order would not survive after a period of 90 days 11.08.1953 and 11.02.1954 executed by the Delhi unless it stood extended after review—Tribunal directed that improvement Trust in respect of the subject in favour of the the orders of suspension in these cases would be deemed to respondents No.1 and 2, who were then minors, under the have been revoked from the expiry of the prescribed period Guardianship of their father, Shri Ram Singh—The said i.e. 17th October, 2012 and 19th October, 2012—The Tribunal documents also include copies of two sale deeds, both dated directed that the applicants shall be treated on duty on the 06.09.1940, executed by the legal heirs of Shri Budhu, the aforesaid dates with all consequential benefits, including arrears original lessee of the subject Premises, in favour of the of pay and allowances. The respondents were directed to pass respondents/defendants No.1 and 2, that have been mentioned an order in terms thereof within a period of 15 days from the at Sr. No. 1 and 10 of the documents—Respondents/ date of receipt of coy of that order—Hence the present defendants No.1 & 2 states that the aforesaid documents are petition. Held In compliance of the order of the Tribunal, the very material for deciding the suit instituted by the appellants/ petitioner has passed an order dated 21st November, 2013 plaintiffs praying inter alia for a decree of partition of the revoking the suspension of three persons, namely. Smt. Kamal subject plots—However, the counsel who was conducting the Sharma, Smt. Premlata Gianey and Sh. Dinesh K. Tokas with case committed a blunder by failing to place on record the effect from 17th October, 2012 and has also granted all original documents or producing the same at the time of consequential benefits including arrears of pay and admission and denial of documents, so that they could have allowances—No reason is forthcoming for why the present been exhibited—As a result, the trial court did not have an respondents are not entitled to the same relief—Petitioners have opportunity to examine the aforesaid documents, the issued a fresh order of suspension dated 1st August, 2013 defendants having failed to exhibit them—Respondents state against the present respondents which stands challenged that they ought not to be made to suffer for the folly of their before the Tribunal—Given the fact that the order dated 1st counsel and interest of justice demands that the said documents August, 2013 is subjudice before the Tribunal, so far as grant be permitted to be produced by way of additional evidence of consequential benefits to the respondents is concerned, for and be taken into consideration—In the accompanying appeal, (xi) (xii) the appellants/plaintiffs have assailed the judgment dated defendants be looked into to arrive at a just and correct 25.09.2009 passed by the trial court dismissing their suit for decision—Accordingly, the originals of the documents relating partition and permanent injunction in respect of the subject to the title of the subject premises, photocopies whereof were properties—Now the respondents/defendants have filed the filed by the respondents/defendants in the trial court under present application seeking leave to produce the original index 22.5.2002 are permitted to be taken on record as documents, photocopies whereof were already placed on additional evidence—However, considering the fact that it is record by them before the trial court, and grant of permission on account of failure on the part of the respondents/defendants to have the admission and denial thereof conducted so that they to file the original title documents that had an important bearing can be exhibited in accordance with law and a fresh decision on the case and were material for the consideration of the trial taken by the trial court. Held: Section 107 of the CPC court, for purposes of satisfactorily adjudication the present empowers the appellate court "to take additional evidence or suit, it is deemed appropriate to allow this application subject to require such evidence to be taken", "subject to such to payment of Rs. 50,000/- as casts to the other side within conditions and limitation as may be prescribed"—Rule 27 of four weeks—Resultantly, the appeal is allowed and the Order 41 of the CPC prescribes the conditions and limitations impugned judgment is set aside. placed on this discretion—Rules starts by laying down that the Jai Singh & Anr. v. Man Singh & Ors...... 1237 parties to an appeal shall not be entitled to produce additional whether oral or documentary, in the appellate court—It then — S. 9—Suit—Suit for possession—Order XII Rule 6—Decree proceeds to carve out two circumstances where the appellate on admission—Admission unequivocal—Held—Court cannot court may allow additional evidence to be produced—The first base their decision to a decree on the basis of particular circumstance is where the court appealed from has refused pleading or admission—rather overall effect of pleadings and to admit such evidence that ought to have been admitted and documents of the concerned parties are to be weighed. the second circumstance is where the appellate court requires Preeti Satija v. Raj Kumari and Anr...... 1246 such evidence either to enable it to pronounce judgment or for any other substantial cause—As observed by the Supreme — S. 9—Suit—Suit for partition possession—Hindu Joint Family Court in the case of Wedi Vs. Amilal & Ors. reported as Property—Co-parcenerary property—Hindu Succession Act— MANU/0729/2002MANU/SC/0729/2002: 2004 (1) SCALE 82, Amendment of S. 6—Appellants were three sisters—filed suit "invocation of clause (b) does not depend upon the vigilance for partition against two brothers and two sisters—Third or negligence of the parties for it is not meant for them—It is brother Sudharshan Lal died on 01.02.1978—Father Bakshi for the appellant to resort to it when on a consideration of Ram died on 10.02.1960—Mother Smt. Chanan Devi died material on record, it feels that admission of additional evidence 03.08.1978—Suit dismissed by learned Single Judge— is necessary to pronounce a satisfactory judgment in the case. Appellant contended before the partition of the country the "In the present case, for the issue of title of the subject family was a Hindu Undivided Family (HUF) and father ran properties to be established satisfactorily, it was necessary that various businesses in the name of Bakshi Ram & Sons in a the ownership documents came on record—For purposes of part of Punjab now in Pakistan—Post partition—Bakshi Ram dispelling the obscurity on the issue of title, which is of allotted various properties in lieu of those left properties paramount consideration in a suit of partition, interest of justice numbering 08 and various businesses run by using the funds demands that the documents of title relating to the subject of HUF—Respondent contended—The various properties self premises and in the power and possession of the respondents/ acquired properties and not co-parcernery properties— (xiii) (xiv)

Secondly the properties already partitioned post the death of absence of written contract or acknowledged liability— Bakshi Ram— Thirdly since partition had already taken place Question as to jurisdiction—In purview of the Loan Agreement hence the 2005 Amendments of Section 6 of Hindu Succession stipulating for execution by defendant at Delhi—Loan Act not operation — lastly the properties governed by disbursed from Delhi, promissory note were signed and Succession Rules under Delhi Land Reforms Act and subject payable at Delhi—Held—Part cause of action has arisen in matter beyond the jurisdiction of the Court — Held In Delhi, thereby no merit in defendants contention qua lack of concurrence with Ld. Single judge that various properties were jurisdiction. Leave to Defend—Defendant urged that the Hindu Joint Family Property — further held — deemed statement of accounts sought to be relied upon by the Plaintiff partition cannot be said to have taken place merely on the death is not signed by the Defendant and that the Promissory not of family member — instead — the operation of S. 6 does not contain the liquidated debt due—Without expressing Amendment would not depend on date of institution of the any opinion on the merits of the matter Held—It is triable issue suit or at the time of intermediate order—But on whether the and granted conditional leave to defend. partition actually took place either through by registered deed GE Capital Services India v. Prasanta Ghose of partition or by decree of the court before or after 2005 & Anr. B+...... 1534 Amendment—In the present case the partition was yet to take place—Further Held—2005—Amendment to the Hindu — Order 37—Suit under Order 37 of CPC for recovery of Rs. Succession Act would be operative and finally held subject 60,36,522/- pendente lite & future interest @ 18% p.a.— matter of Land Reform Act —rural—agriculture properties Defendant served by publication under order 5 rule 20 of rather than urban land—The case in present appeal—No CPC—Plaintiff a partnership firm—Defendant approached at limitation on the jurisdiction of the court—Finding and its Delhi office for the supply of Palm Stearine Oil—Contract judgment of learned single judge set aside—Suit remitted for between the parties for final price & other terms-oil supplied— further proceedings to carry out partition of the property in Cheques received—Owing to the financial crunch the accordance with the law—Appeal allowed. defendant’s company has been facing, the cheques not Swaran Lata and Ors. v. Shri Kulbhushan Lal presented on the request of Defendant—Assurance of and Ors...... 1362 defendant that cheques could be presented for payment— Cheques dishonoured despite assurances. Held—Invoice/bill — Order 37—Plaintiff filed suit U/o 37 of Code praying for not covered within definition of written contract—Defendant recovery of amount with pendente lite and future interest on failed to enter appearance in the matter despite substituted basis of invoices issued by defendant company—Defendant service also failed to make payments—Suit decreed in favor failed to file application seeking leave to defend—Plaintiff or plaintiff. prayed for decree of suit. Held:- In the absence of any Harakaran Dass Deep Chand v. Viren Agrotech application for leave to defend, as per Rule 3(5) of Order 37, Pvt. Ltd...... 1545 the suit is to be decreed. PP Jewellers Pvt. Ltd. v. Modern New Kapoor Jewellers — Order 39 Rule 1 & 2 and Order 39 Rule 4—Plaintiff suit for Pvt. Ltd...... 1425 injunction against three defendants i.e. his two brothers and one sister and his maternal uncle was impleaded as defendant — Order 37 Rule 3 (5)—Leave defend—Defendant assailing no. 4—According to Plaintiff, he along with his minor daughter Petitioners claim on grounds of lack of jurisdiction and and deceased mother was in possession of ground floor in (xv) (xvi) suit property which was owned by his mother-Mother arbitrary—similarly situated persons got relief from the executed will which was registered and defendant no. 4 was court—reliance on the stale material not justified—action named as Executor of will—As per Will, ground floor of suit arbitrary—Further contended—cancellation proceedings based property was bequeathed to him first floor to defendant no. on conviction order passed against husband in the year 1994— 1, second floor to defendant no. 2, third floor, if and when the action not initiated within reasonable time—after—also constructed, to defendant no. 3 (sister) etc.—Plaintiff also unjustified—respondent allowed the change of moved application seeking interim injunction which was proprietorship—by their own act condoned the act of deceased contested by defendant no. 1 though supported by defendant husband—respondent contested—once the order of conviction nos. 2 to 4. Held:- The relief of interlocutory mandatory passed respondent well within the right to cancel the licence injunctions are thus granted generally to preserve or restore in terms of Clause 6 of Control Order, 1962—the previous the status quo of the last non-contested status which preceded committed breach—convicted—the respondent bound to the pending controversy until the final hearing when full relief cancel the licence—Held—statutory authority required to act may be granted or to compel the undoing of those acts that reasonable, fairly and expeditiously—no reasonable explanation have been illegally done or the restoration of that which was for long delay —thus respondent waived their right for taking wrongfully taken from the party complaining. any action—respondent reliance on Wadhwa Committee Aman Nath v. Atul Nath and Ors...... 1565 constituted by Supreme Court of India also did not entitle the respondent to get the benefit of their own inaction—writ CONSTITUTION OF INDIA, 1950—Article 226—Writ petition allowed. Petition—Delhi Kerosene Oil (Export & Price) Control Order, Miglani Kerosene Oil Depot v. Govt. of NCT of Delhi 1962 (Control Order, 1962 in short)—Clause 6 —Cancellation & Ors...... 1223 of licence —Conviction—petitioner firm issued licence for distribution of kerosene oil in 1981—Proprietor Sh. Kanahya — Article 226—Writ Petition—Essential Commodities Act, Lal died on 02.10.2003—on his death, wife Smt. Leela Kumari, 1955—Delhi Specified Articles (Regulation & Distribution) Present Proprietor carried on affairs of oil depot after taking Order, 1981—Clause 7—Cancellation of authorization of Fair permission of the respondent—necessary amendment carried Price Shop (FPS)—Probation of Offenders Act, 1958 (PO out in official record—licence transferred in the name of Act)—S. 12—Conviction—Disqualification—The licence of present proprietor vide order dated 30.12.2003—licence FPS granted to Sh. Puran Mal-father of petitioner on renewed from time to time till 09.09.2008—on complaint 06.06.1977—Puran Mal as sole proprietor carried out business against petitioner since the transfer of licence in the name of till 09.01.2002-died-petitioner approached the department for the present proprietor —in Sept, 2007 show cause notice transfer of licence in his name—On 14.06.2002 application issued—based on—conviction order passed against the allowed—Licence renewed from time to time—Lastly renewed husband of present Proprietor under Essential Commodities from 24.04.2006 to 23.04.2009—Show cause notice issued Act, 1955 in the year 1994—Present Proprietor submitted on 17.08.2007 to petitioner—Alleging—Puran Mal convicted reply —firm under control and supervision of deceased under Essential Commodities Act—Petitioner appeared before husband when conviction passed—she had no knowledge Assistant Commissioner-pointed out-father released on about conviction and fine—explanation not accepted—licence probation for one year—Explanation not found satisfactory— cancelled on 15.11.2007—preferred writ petition— Licence cancelled on 29.10.2007—Preferred writ petition— Contended—order unreasonable—non-application of mind and Contended—Once the fine of Rs. 5000/- imposed after (xvii) (xviii)

releasing his father on probation for one year—Therefore the number of factual disputes raised for consideration which petitioner could not be punished twice for the same offence— could not be determined in writ proceedings—evidence Further contended in view of S. 12 of PO Act—Petitioner required to be led before coming to any conclusion—Court could not suffer any disqualification-action initiated has became observed —having to the facts that civil court seized of the stale - violation - if any-stood condoned-licence renewed issue being agitated in the petition—court not inclined to subsequently for 11 years—Respondent contended—Entitled entertain the same with respect to relief sought—with regard to take action as per Clause 7 of Order of 1981—Once father to relief of removal of illegal wall—observed—wall of 1 1/2 of petitioner committed breach-convicted-respondent bound to 2 feet would hardly be treated as obstruction to the to cancel the licence—Delay procedural as many Assistant petitioner to have free access to the masjid—further there were Commissioner transferred in 10 years—Held—Statutory two gates affixed on the boundary to regulate vehicular and authority required to act reasonably and expeditiously— pedestrian traffic—further observed—simply because the Transfer of licence of FPS in the name of the petitioner upon petitioner desire free access to the masjid did not mean that the death of his father condoned the earlier conviction— safety and security of residents living within gated colony Further as per the provision of PO Act—The person released could be compromised—DDA also stated that the wall in on probation shall not suffer from any disqualification attached question not raised illegally—Held—petition ought to await the to the conviction—Writ petition allowed. decision of civil suit—petition and pending application disposed Praveen Kumar v. Govt. of NCT of Delhi & Ors. . 1230 off accordingly. Mohd. Ashikian Qureshi v. D.D.A. Through Its — Article 226—Writ Petition —Disputed questions of facts— Chairman & Ors...... 1276 cannot be taken up in writ petition—civil suit pending on same issue—decision of civil court to be awaited-right of offering — Article 226—Writ Petition—Delhi Development Act, 1957— namaz—raising of boundary wall of colony—do not amount S. 30(1)—S. 31(A)—Unauthorized construction—Section of to restriction of right—petitioner a resident of Kalkaji—had building plans—Structural safety—National Capital Territory been offering namaz in Madini Masjid near Gate No.7, of Delhi Laws (Special Provisions) Bill, 2009—One Smt. Alaknanda Apartments, Alaknanda, New Delhi—due to cars Shakuntala Devi mother of petitioner no. 2 and Respondent illegally parked near Masjid his—ingress—egress—other No. 3—Owner of—The Property at Shivalik Malviya Nagar, namajis into the masjid obstructed—car parked in the open New Delhi—Shakuntala Devi executed a Gift Deed in respect courtyard of masjid—not meant for car parking—an of basement-ground-mezzanine floor-in-favour of her unauthorized wall has been constructed near the masjid which daughter-in-law Respondent No. 4/ Ms. Manju Agrawala— ought to be removed—namajis form the adjoining locality Registered on 02.06.2005—Also executed gift deed in respect facing difficulty in offering namaz due to lack of apace— of first floor and terrace in favour of her other daughter-in- Respondent DDA contested—filed affidavit—stated that relief law petitioner no. 1—Registered on 26.10.2005—Mutation prayed in writ petition subject matter of civil suit instituted with respect to first floor and terrace done in favour of by local Managing Committee of Madini Masjid and Dargah petitioner no.1 in the record of MCD—Mutation in respect Pending in the court of Sr. Civil Judge, Saket, New Delhi— of basement-ground floor-mezzanine floor carried out in said suit after Division Bench of High Court in LPS in case favour of respondent no.4 on 27.10.2011 petitioner submitted titled Aravali Residents Welfare Association and Others v. plans to respondent no. 1 and 2 for carrying out—Addition— DDA and Others. had expressed an opinion that there were Alteration on the first floor—Construction of proposed (xix) (xx) second—Third floor alongwith requisite fees—Respondent did embargo on DDA and on civic authority from taking an action not sanction the plan—Instead issued a show cause notice on in respect of non compoundable deviation/misusers till 05.03.2012—Petitioner no. 1 and respondent no. 4 to explain December, 2014 in terms of National Capital Territory of Delhi as to why demolition of unauthorized and illegal development Laws (Special Provisions) Bill, 2009—It can hardly be ground be not undertaken on 02.04.2012 petitioner submitted reply— of refusing the sanction of building plane submitted by Reiterated request for sanction—Aggrieved by inaction on the petitioner for their portion of subject property or from part of respondent no. 1 and 2—Preferred writ petition— preventing them from raising construction in their portion of During the hearing submitted by petitioner that respondent no. subject premises in accordance with law—(c) structural safety 3 and 4 not co-operative with petitioner—On account of their certificate placed on record shall be duly considered by DDA non-corporation—Resistance in raising any construction— and if it needs stipulated requirement the same shall be Respondent no. 2 declined to grant sanction to the proposed accepted—If there is any requirement of meeting alternation building plan—However—Respondent 3 and 4 denied— in the building plan on account of structural concern the same Submitted building plan may be sanctioned subject to ensuring shall be intimated to the DDA by petitioner in writing—Petition that the structural strength of the existing built-up structure disposed off. not adversely affected—Petitioner submitted a tabulated chart Renu Agrawal and Anr. v. Delhi Development in respect of deviation mentioned in the show cause notice— Authority and Ors...... 1395 Pointed out deviation in the portion of premises under the occupation of petitioner and mezzanine floor—Either — Article 226-227—Writ Petition—Service law—Departmental compoundable nature or did not concern them—Chart Enquiry (DE)—Dismissal-findings on all charges—Petitioner furnished to respondent no. 1 and 2—Director (Building), joined New Bank of India on 01.04.1969—Which merged with DDA directed to take into consideration the chart for an Respondent No. 1 was serving as Manager at Defence Colony, efficacious resolution of the dispute—directed to pass New Delhi Branch—Certain loan advances sanctioned under reasoned order dealing with contention raised by petitioner and his vigil-approved by superior w.r.t. sanctioning of advances keeping in mind the decision rendered in WP(C) No.3535/2001 an investigation was conducted and secret report generated entitled as Ashok kapoor and Ors. v. MCD—An order dated by vigilance department qua petitioner—One Sh. P.K. Salia, 02.09.2013 Passed by Director Building) for sealing—Cum- Chartered Accountant and the Assistant General Manager— Demolition—order challenged by the petitioner— Petitioner himself filed two FIRs against some of the borrowers Contending-Contrary to the guidelines laid down in above in around 21/22.03.1990—Though petitioner complainant but mentioned case—Court observed—The facts in the case of at some stage arrayed as an accused in the criminal Ashok Kapoor similar to the present case where the subject proceedings in the interregnum on 17.07.1990 petitioner placed property segregated in different portion and mutated in under suspension-served with charge sheet alongwith six article individual names specifying the portion of the property— of charges—First charge—Acted in a manner prejudicial to Held—(A) when segregation of interest of different co— the interest of bank other five charges related to this each Owner recognized by the MCD by mutation of different charge independent to each other—Enquiry officer appointed— portion in individual named of different persons there cannot Submitted report on 26.02.1993—On the basis of the report— be any requirement of signature of all the co—Owners in Disciplinary authority dismissed the petitioner from the considering the sanction of building plan of one of Co—Owner services—The appellate authority sustained the punishment— of the subject property in his/her portion (b) even if there is In the interregnum—The petitioner acquitted in the Criminal (xxi) (xxii) case—Preferred writ petition—Contended—Findings of compulsory retirement with all consequential benefit—Writ disciplinary authority perverse—Enquiry officer returned the petition disposed of. findings qua the first charge only and not on other charges— K.L. Bhasin v. Punjab National Bank and Anr...... 1410 Disciplinary authority overlooked this aspect—Proceeded on the basis that all charges had been dealt with by enquiry — Article 226-227—Writ Petition—Central Administrative officer—Further contended—Punishment disproportionate to Tribunal (CAT)—Service law—Termination—Education Code the gravity of alleged misconduct—Further contended at time of Kendriya Vidyalaya Sangathan (Code)—Article 81 (b)— sanctioning the loan advanced to the five entities—No practice Termination without right to cross—Examine witnesses—Case of conducting a pre-sanction inspection—Practice brought into of immoral sexual behaviour towards student—Petitioner a force much later—Petitioner recommended the loan at the end Post Graduate Teacher (PGT) posted with Kendriya Vidyalaya of the day approved by superior authority AGM— Yol Cantonment—Complaints received from students—Lady Recommendation of sanction made inter-alia on the basis of teachers—Parents in the office of Assistant Commissioner, opinion rendered by lawyer w.r.t. security furnished by Regional Office, Jammu—Alleging petitioner indulged in moral borrowers—Lawyers discharged in criminal proceedings— turpitude involving in immoral sexual behaviour towards the Respondent contended—Court could not re-appreciate the girls students-Fact finding enquiry ordered—Enquiry evidence while exercising jurisdiction under Article 226—The Committee conducted the proceedings-Committee interacted enquiry officer has given findings on the main charge the with 07 victim girls students—One victim lady parent—Three remaining charges off-short of first charge—The acquittal of staff members recorded their statement—Submitted report the petitioner in the criminal proceedings could not be ground dated 18.08.2002 to Commissioner, KVS—Prima—Facie to set aside the departmental proceedings as standard of proof finding petitioner guilty of moral turpitude involving immoral in criminal proceedings is different—Court observed—Court sexual behaviour—Commissioner considered entire matter cannot re-appreciate the evidence in a proceedings under including the enquiry report—Formed an opinion-Finding of Articles 226 unless a case of no evidence or case of enquiry committee substantiated by material on record— perversity—Certainly interdict the proceedings if the authorities Exercising jurisdiction under Article 81 (b) of the code— below not followed the principles of natural justice or have Opined—not expedient to hold regular enquiry under CCS failed to return the finding qua all charges—Held—Enquiry (CCA) Rules, 1965—Would cause serious embarrassment to officer has recorded the findings only on the first charge— the students—Cause trauma to them because of their tender Impugned order of disciplinary authority is liable to be set age—Memorandum dated 08.04.2003 setting out charges aside—Even if—Accepted that remaining five charges were communicated—Called upon the show case—Why his off shoot of the first charge—The quantum of punishment services be not terminated under Article 81 (b)—with the need modification—Although the standard of proof different memorandum—copies of preliminary enquiry and report of in criminal proceedings and departmental proceedings— the committee served upon the petitioner—given full However acquittal in criminal proceedings relevant for opportunity to submit his representation—Petitioner submitted reviewing the quantum of punishment—Observed—Normally his reply dtd. 15.05.2013—On consideration of entire record— such cases remanded back for fresh enquiry—But in view of commissioner passed order dated 07.01.2004 terminating the the facts of the case of prolong litigation of 20 years-advance services of the petitioner—Petitioner preferred appeal— age of petitioner with the consent of both the parties modified Rejected being time barred-Filled O.A before CAT-Assailed the the quantum of punishment of dismissal of the service to order of appellate authority-CAT disposed off holding the (xxiii) (xxiv)

appellate authority rejected again recording reasons—Petitioner Additional Director (Horticulture) on their representation pay filed O.A before CAT—O.A dismissed—Preferred writ scale upgraded to 14300-18300 w.e.f. 01.01.1996—Office petition-Contended -Complaints against petitioner false—had order passed on 06.10.1999 and 28.08.2001—Petitioner made unblemished record for 9 years with Govt. of Himachal several representation based on revised recommendation to Pradesh—25 years service with KVA—entitle to an calculate the retirement benefit on this basis-representation opportunity to cross—Examine the witnesses-Held the spirit— rejected by President’s Secretariat by several order-last order Purpose—Intent—Of incorporating article 81 (b) of the Code dated 13.06.2008 preferred O.A. before CAT for issuance of to prevent traumatization of victim of such immoral sexual appropriate order to refix the revised pay scale and pay the behaviour—The Commissioner specifically opined that the consequential benefit including retirement benefit alongwith cross-Examination of witnesses would cause serious interest @ 10% per annum on the basis of pay scale 14300- embarrassment to the student and would cause trauma to them 18300—Tribunal rejected the application—Tribunal observed because of their tender age-Further there was no procedural nature of work carried by the petitioner as Garden lacuna in the case—Further held—Tribunal rightly rejected the Superintendent in President’s Secretariate not similar to nature grievances of the petitioner that punishment of termination of or function of Director/Additional Director (Horticulture) or services disproportionate to the charges—Writ petition Superintendent Engineer working in CPWD pay parity pre- dismissed. supposes the work equal and inexplicable pay difference alone Yogendra Nath v. Commissioner Kendriya can be looked upon as discriminatory against an employee- Vidyalaya Sangathan ...... 1428 absent in the present case-prerogative of the executive which has considered the representation and rejected the same would — Article 226-227—Writ Petition—Central Administrative upset the constitutional principle of separation of power among Tribunal (CAT)—Service law-equal pay for equal work pay the three organs of the State—Petitioner preferred writ scale-equivalent to his counterpart in the cadre of origin— petition—Contended-post of Garden Superintendent in the Petitioner an Assistant Director (Horticulture), CPWD sent on President’s Secretariate is equivalent to that of Deputy Director deputation to DDA in same capacity sent to President’s (Horticulture), CPWD upgradation recommended by 3rd and Secretariat at the President’s Garden, Rashtrapati Bhawan on 4th Central Pay Commission awarded to the petitioner no 19.12.1970 as Garden Superintendent on 08.04.1974 reason to withhold the revised recommendation of 5th Central permanently to Deputy Director (Horticulture) in CPWD—Post Pay Commission upgrading the pay scale from 12000-16500 upgraded to Director in the pay scale of 3700-5000 on to 14300-18300—Respondent contended—Requirement of 30.04.1996 as per 4th Central Pay Commission—Order passed pay parity both groups should not only work in the indentical by President’s Secretariat on 30.04.1996 to this effect condition but should also discharge the same duty—Held— mentioned upgraded scale purely personal to petitioner as and Granting earlier pay scale in 4th and 5th Pay Commission— when he would leave the post—Pay scale of the post would Implicitly recognition of the fact that nature of duties and be brought down to its earlier level—On 5th Pay Commission responsibilities of both petitioner and Additional Director Report President’s Secretariat revised the pay scale for the (Horticulture) in CPWD same—Revision of that pay scale on post of Superintendent at 12000-16500—Petitioner granted the 02.07.2001 to 14300-18300 should logically followed and scale—Retired on 01.04.1998 dues calculated on the said scale could not be denied—Respondent directed to calculate to in the meantime revised recommendation made by 5th Central retirement benefit of the petitioner accordingly pay 10 % Pay Commission for the post of Director (Horticulture) and interest as due on the date of payment—Writ Petition allowed. (xxv) (xxvi)

S.K. Mathur v. The President Secretariat Represented Petitioner no. 1 and respondent no. 4 to explain as to why by the Secretary and Anr...... 1523 demolition of unauthorized and illegal development be not undertaken on 02.04.2012 petitioner submitted reply— COURT FEES ACT, 1870—Section 16A—Plaintiff filed suit for Reiterated request for sanction—Aggrieved by inaction on the permanent and mandatory injunction along with damages part of respondent no. 1 and 2—Preferred writ petition— against defendants—Defendant no. 1 was employed with During the hearing submitted by petitioner that respondent no. plaintiff company who resigned and joined defendant no. 2 3 and 4 not co-operative with petitioner—On account of their company of which defendant no. 3 and 4 were Directors— non-corporation—Resistance in raising any construction— Plaintiff apprehended that defendant no. 1 would share Respondent no. 2 declined to grant sanction to the proposed confidential and internal information of plaintiff company with building plan—However—Respondent 3 and 4 denied— defendant no. 2 company for which he was seeking restrain Submitted building plan may be sanctioned subject to ensuring order— However, parties consented before Court and resolved that the structural strength of the existing built-up structure disputes amicably— Plaintiff, thus, prayed for refund of court not adversely affected—Petitioner submitted a tabulated chart fees. Held:- when matter stands resolved before framing of in respect of deviation mentioned in the show cause notice— issues, plaintiff entitled to refund of court fees in terms of Pointed out deviation in the portion of premises under the Act. occupation of petitioner and mezzanine floor—Either SBL Pvt. Ltd. v. V.B. Shukla & Ors...... 1407 compoundable nature or did not concern them—Chart furnished to respondent no. 1 and 2—Director (Building), DELHI DEVELOPMENT ACT, 1957—S. 30(1)—S. 31(A)— DDA directed to take into consideration the chart for an Unauthorized construction—Section of building plans— efficacious resolution of the dispute—directed to pass Structural safety—National Capital Territory of Delhi Laws reasoned order dealing with contention raised by petitioner and (Special Provisions) Bill, 2009—One Smt. Shakuntala Devi keeping in mind the decision rendered in WP(C) No.3535/2001 mother of petitioner no. 2 and Respondent No. 3—Owner of— entitled as Ashok kapoor and Ors. v. MCD—An order dated The Property at Shivalik Malviya Nagar, New Delhi— 02.09.2013 Passed by Director Building) for sealing—Cum- Shakuntala Devi executed a Gift Deed in respect of basement- Demolition—order challenged by the petitioner— ground-mezzanine floor-in-favour of her daughter-in-law Contending-Contrary to the guidelines laid down in above Respondent No. 4/ Ms. Manju Agrawala—Registered on mentioned case—Court observed—The facts in the case of 02.06.2005—Also executed gift deed in respect of first floor Ashok Kapoor similar to the present case where the subject and terrace in favour of her other daughter-in-law petitioner property segregated in different portion and mutated in no. 1—Registered on 26.10.2005—Mutation with respect to individual names specifying the portion of the property— first floor and terrace done in favour of petitioner no.1 in the Held—(A) when segregation of interest of different co— record of MCD—Mutation in respect of basement-ground Owner recognized by the MCD by mutation of different floor-mezzanine floor carried out in favour of respondent no.4 portion in individual named of different persons there cannot on 27.10.2011 petitioner submitted plans to respondent no. 1 be any requirement of signature of all the co—Owners in and 2 for carrying out—Addition—Alteration on the first considering the sanction of building plan of one of Co—Owner floor—Construction of proposed second—Third floor of the subject property in his/her portion (b) even if there is alongwith requisite fees—Respondent did not sanction the embargo on DDA and on civic authority from taking an action plan—Instead issued a show cause notice on 05.03.2012— in respect of non compoundable deviation/misusers till (xxvii) (xxviii)

December, 2014 in terms of National Capital Territory of Delhi proceeded in accordance with law in exercise of Statutory Laws (Special Provisions) Bill, 2009—It can hardly be ground power—Hence the present petition primarily on the ground of refusing the sanction of building plane submitted by that no opportunity order and that his special circumstances petitioner for their portion of subject property or from including the responsibility of three children and wife etc. preventing them from raising construction in their portion of deserved to be compassionately considered. Held: Under the subject premises in accordance with law—(c) structural safety proviso to sub-Section (2) of Section 95 of the Delhi certificate placed on record shall be duly considered by DDA Municipal Corporation Act, it is specifically provided that and if it needs stipulated requirement the same shall be where an officer or employee is dismissed on the ground of accepted—If there is any requirement of meeting alternation conduct which has led to his conviction on a criminal charge, in the building plan on account of structural concern the same no opportunity of showing cause against the proposed action shall be intimated to the DDA by petitioner in writing—Petition to be taken is required to be given—Provisions contained in disposed off. Regulation 9 (i) of the DMC Services (Control & Appeal) Renu Agrawal and Anr. v. Delhi Development Regulations, 1959 which also provide that no departmental Authority and Ors...... 1395 enquiry is essential for imposition of penalty upon the municipal employee on the ground of conduct leading to his DELHI LAND REFORM ACT, 1954 (DLR ACT)—S.185—Bar conviction in a criminal case—The challenge by the petitioner of the jurisdiction of the Civil Court—The Bar only applies on the ground of denial of opportunity to show cause is to rural—Agriculture properties—The area notified as therefore contrary to the specific statutory prescription and urbanized—Out of the purview of DLR ACT—Held—Does is untenable—Tribunal has not given liberty to the petitioner not bar the jurisdiction of the Civil Court. that in the event of his success in the criminal appeal preferred by him against his conviction, he would be entitled to work Swaran Lata and Ors. v. Shri Kulbhushan Lal and Ors...... 1362 out his claim of reinstatement in accordance with law and dismissal of his case would not come in the way of DELHI MUNICIPAL CORPORATION ACT, 1957—Section 95 consideration of his request—In view of the above, the (2) (a): Dismissal of an employee—Brief Facts—Petitioner impugned order of respondents and the Tribunal cannot be stands convicted by judgment dated 24th January, 2012 passed faulted on any legally tenable ground—The writ petition and by Special Judge, Anti corruption Branch, Delhi for the application are hereby dismissed. commission of offence under Sections 7 and 13 (i) (d) of Mahipal Singh v. The Commissioner, Municipal Prevention of Corruption Act, 1988—In view of the Corporation of Delhi & Ors...... 1507 conviction of the petitioner, the respondents proceeded to take action the petitioner under Section 95 (2) (a) of the Delhi DELHI SPECIFIED ARTICLES (REGULATION & Municipal Corporation Act, 1957 which empowers the DISTRIBUTION) ORDER, 1981—Clause 7—Cancellation of Municipal Corporation of Delhi to dismiss an employee on the authorization of Fair Price Shop (FPS)—Probation of ground of conduct which led to his conviction on a criminal Offenders Act, 1958 (PO Act)—S. 12—Conviction— charge—Vide an order dated 9th July, 2012, the petitioner was Disqualification—The licence of FPS granted to Sh. Puran thus dismissed from service—Petitioner challenged his Mal-father of petitioner on 06.06.1977—Puran Mal as sole dismissal by way of O.A. No. 2811/2013—Tribunal rejected proprietor carried out business till 09.01.2002-died-petitioner the challenge on the ground that the respondents had approached the department for transfer of licence in his (xxix) (xxx) name—On 14.06.2002 application allowed—Licence renewed daughter in law in respect of one bed room—a bathroom and from time to time—Lastly renewed from 24.04.2006 to small kitchen—suit property belong to plaintiff’s deceased 23.04.2009—Show cause notice issued on 17.08.2007 to husband—died on 30.06.2008—leaving behind a registered petitioner—Alleging—Puran Mal convicted under Essential Will dated 20.11.2006—bequeathed a suit property in favour Commodities Act—Petitioner appeared before Assistant of the Plaintiff—after her husband's death—She become sole Commissioner-pointed out-father released on probation for one and absolute owner—back Portion of the suit property in the year—Explanation not found satisfactory—Licence cancelled possession of defendent no. 1 her daughter-in-law and on 29.10.2007—Preferred writ petition—Contended—Once defendant no. 2 her son—Alleged—Since the relationship the fine of Rs. 5000/- imposed after releasing his father on between her and defendants became estranged—She wanted probation for one year—Therefore the petitioner could not be them to vacate the property filed application for decree on punished twice for the same offence—Further contended in admission defendant contested that the plaintiff not absolute view of S. 12 of PO Act—Petitioner could not suffer any owner—WILL had not been granted probate intestate in law disqualification-action initiated has became stale - violation - without being probated the WILL could not come into force— if any-stood condoned-licence renewed subsequently for 11 Ld. Single Judge opined—Not disputed due execution of years—Respondent contended—Entitled to take action as per WILL—No legal effect because it had not been probated— Clause 7 of Order of 1981—Once father of petitioner Therefore an admission—Further held—inessential to seek a committed breach-convicted-respondent bound to cancel the probate—Thus WILL being admitted remain operative licence—Delay procedural as many Assistant Commissioner between the parties—Decreed the suit on admission—Court transferred in 10 years—Held—Statutory authority required observed—Appellant had relied upon the provision of to act reasonably and expeditiously—Transfer of licence of protection of woman from violence as per DV Act before Ld. FPS in the name of the petitioner upon the death of his father Single Judge—Also filed a suit before Civil Judge Rohini Court condoned the earlier conviction—Further as per the provision pending—However—Ld. Single Judge rejected the arguments of PO Act—The person released on probation shall not suffer with respect to applicability of the provision of DV Act— from any disqualification attached to the conviction—Writ Holding—Suit property could not considered as a shared petition allowed. household preferred appeal against the order of Single Judge— Contended—No unambiguous admission of the kind Praveen Kumar v. Govt. of NCT of Delhi & Ors. . 1230 warranted exercise of discretion under Order XII Rule 6 DOMESTIC VIOLENCE ACT, 2005 (DV ACT)—Sec. 2(a)— CPC—Further argued entitled to right to live in the suit definition—aggrieved person—Sec. 2(f)—domestic property under domestic violence Act, 2005 keeping in mind relationship—Sec.2.(s)—shared households—Sec.2(q) — the proviso to definition of respondent in S.2(q) which included repondent—Sec.3(a)—domestic violence—economic abuse— relatives of male respondent in the domestic relationship with Sec.26(1)—relief in any legal proceedings—terms respondent aggrieved wife—S. 19 (1) (f) of the Act also allowed grant includes female relatives of husband—right of residence— of residence order against the respondent to provide disowning of sons—through public notice—a mere accommodation equivalent to that enjoyed by aggrieved party proclamation—does not have dispositive legal effect— in the share household—Plaintiff/respondent contended— respondent—plaintiff—mother—in—law of the defendent— Definition of share household was conclusively laid down in petitioner—filed a suit for possession/eviction of dependent previous cases since the husband being disowned had no right of ownership in the household—The wife could not claimed (xxxi) (xxxii)

any right of residence in it—Held—The intent of the committed breach-convicted-respondent bound to cancel the Parliament to secure the right of residence in the household licence—Delay procedural as many Assistant Commissioner of respondent (including his relatives) even if the household transferred in 10 years—Held—Statutory authority required is one in which respondent is tenant or one in which he jointly to act reasonably and expeditiously—Transfer of licence of or singly had any right—Title interest in law or equity—Thus FPS in the name of the petitioner upon the death of his father enabling a wife of deceased male/estranged male to claim a condoned the earlier conviction—Further as per the provision domestic relationship with the mother-in-law—This right not of PO Act—The person released on probation shall not suffer dependent on husband having any right—Share or title in the from any disqualification attached to the conviction—Writ premises by secular or Hindu Law—Even if mere fact of petition allowed. residence was sufficient and consequently the aggrieved Praveen Kumar v. Govt. of NCT of Delhi & Ors. . 1230 woman could claim right of residence in any such household of the husband—Appeal allowed. HINDU SUCCESSION (AMENDMENT) ACT. 2005—S.6— Preeti Satija v. Raj Kumari and Anr...... 1246 Amendment—S.6(1)—not applicable partition or testamentary disposition of property before 20th December, 2004— ESSENTIAL COMMODITIES ACT, 1955—Delhi Specified Prospective in nature—Applicable to pending suits— Articles (Regulation & Distribution) Order, 1981—Clause 7— Preliminary partition decree—Does not amount to partition— Cancellation of authorization of Fair Price Shop (FPS)— Would not apply to partition by way of settlement—Registered Probation of Offenders Act, 1958 (PO Act)—S. 12— instrument of partition-By oral arrangements of the parties— Conviction—Disqualification—The licence of FPS granted to Decree of the court—Held—Amendment applicable as partition Sh. Puran Mal-father of petitioner on 06.06.1977—Puran Mal yet to take place. as sole proprietor carried out business till 09.01.2002-died- Swaran Lata and Ors. v. Shri Kulbhushan Lal petitioner approached the department for transfer of licence and Ors...... 1362 in his name—On 14.06.2002 application allowed—Licence renewed from time to time—Lastly renewed from 24.04.2006 INCOME TAX ACT, 1961—Section 25—F(1), 132, 142, 142- to 23.04.2009—Show cause notice issued on 17.08.2007 to (2)A, 158BE, 245(1), 245—A(b), 245—C, 245—D(4), petitioner—Alleging—Puran Mal convicted under Essential 245(E), 245—F(2)—On 07-08-1997, search and seizure Commodities Act—Petitioner appeared before Assistant operations were conducted at residential and business Commissioner-pointed out-father released on probation for one premises in respect of petitioner, his wife and other year—Explanation not found satisfactory—Licence cancelled relatives-Several articles and documents were seized—Upon on 29.10.2007—Preferred writ petition—Contended—Once receipt of notice, petitioner filed a return for period from the fine of Rs. 5000/- imposed after releasing his father on 01.04.1986 to 07.04.1986—As accounts indicated sufficient probation for one year—Therefore the petitioner could not be complexities, Special Auditor submitted his report-During punished twice for the same offence—Further contended in pendency of these proceedings Settlement Commission view of S. 12 of PO Act—Petitioner could not suffer any entertained application made to it—While Settlement disqualification-action initiated has became stale - violation - Commission's proceedings were pending petitioner contended if any-stood condoned-licence renewed subsequently for 11 that entire proceedings had become time barred—Settlement years—Respondent contended—Entitled to take action as per Commission rejected petitioner's argument—Order challenged Clause 7 of Order of 1981—Once father of petitioner before High Court—Plea taken, since Assessing Officer did (xxxiii) (xxxiv)

not complete assessment within time period permitted by law, prosecution case-ocular testimony in consonance with medical Settlement Commission which was invested with his power evidence- could not likewise have proceeded further—Per contra plea taken, power of Assessing Authority to make order does not — Merely because blood was not found on the knife at the time allow applicant approaching Settlement Commission to of its production in the court, cogent and credible statement contend that jurisdiction ceases automatically if assessment of victim cannot be discarded. is not framed—Held—Pre—Condition for Commission to receive application is that a case should be pending as on date — Use of brick to cause injuries in an attempt to get released of its presentation-No objection as to jurisdiction of Settlement co-accused only from the clutches of the victim and to Commission was made when application was admitted— commit robbery, cannot be considered 'use of a deadly Observation in impugned order of Commission that to re— weapon' to attract and prove commission of an offence U/ Visit order would in effect amount to impermissible review section 398 IPC. is, in opinion of this Court, sound reasoning—Authority of a Shekhar @ Chhotu v. The State (NCT of Delhi)..... 1283 Settlement Commission to make such orders as are necessary in regard to matters before it also extends to other matters — Section 395/397 IPC—Dacoity while armed with deadly relating to case not covered by application but referred to in weapon—Causing hurt while committing dacoity—Appellant report of Commission—Settlement Commission is empowered and his associated committed dacoity of 28 bags of plastic to re—Open any proceeding connected with case in respect raw material—One Salim @ khan found in possession of 28 of which assessment too has been completed—Given these bags filled with plastic raw material—case FIR no.158/07 u/ powers, fact as to whether Assessing Officer was in process s,395/397 IPC registered at P.S Civil Lines—Appellant and his of making assessment or not becomes irrelevant—A associates arrested in case FIR No161/07 u/s. 399/402/34 IPC machinery provision in Income Tax Act cannot be subjected P.S Civil Lines—made disclosures—Involvement in present to literal or strict rule of construction that is adopted to case emerged 28 bags recovered—Statements of complainant interpret a charging Section—Consequence of accepting and witnesses recorded—Charge-sheet filed against all the argument of assessee would be that even though there was a accused persons—One accused faced proceedings before search of his premises under Section 132 of Act which yielded juvenile justice Board—Accused person duly charged— incriminating material, proceedings arising out of which he Prosecution examined 14 witnesses in statement u/s. 313 cr. wanted to settle by approaching Settlement Commission, he P.C the accused persons pleaded false implication accused would still end up not paying any tax, as block assessment persons convicted of offences u/s 395/97 IPC two accused became barred by time and there would also be no settlement persons confessed their guilt and their appeals disposed of order under Section 245D(4)—Such a situation could not have aggrieved appellant preferred appeal Held—complainant's (PW- been intended by statute-There is no merit in petition and it is 3) statement recorder at the earliest point of time—Gave accordingly dismissed. detailed account of the occurrence—Complainant supported Ashwani Kumar Goel v. Income Tax Settlement his version given to the police without variation—Identified Commission & Ors...... 1449 the assailants—Attributed specific role to the appellant— Appellant did not cross examine the witness despite INDIAN PENAL CODE, 1860—Section 452/394/398- minor opportunity—Testimony of complainant unchallenged and contradictions and discrepancies do not affect the core of the unrebutted—No motive assigned to complainant to falsely (xxxv) (xxxvi)

implicate the appellant—No prior acquaintance or animosity give explanation for his presence at the spot were armed with with the appellant—No explanation furnished by the accused various weapons—No theft taken place—No cutting material to the incriminating circumstance as appearing against him— etc. found or recovered no marks of hammer on the shutter— prosecution established doubt of having committed dacoity— Mere preparation or attempt to commit house breaking with No injuries inflicted on complainant by any weapon—Weapon intention to commit theft—Violence/hurt was unconnected used in the crime not recovered—No description, size or with theft—No property delivered by the complainant under dimension of knife used give—Broad featured of the weapon fear of instant hurt—No dacoity conviction u/s. 395/398 IPC used not described—Evidence lacking on possession and use not permissible—Offence u/s. 379 r/w s. 511 IPC and section of deadly weapon—Conviction u/s. 397 IPC not permissible— 324 IPC proved—Conviction u/s. 395/398 IPC set aside— Appellant at par with another convict—Conviction u/s. 397 Sentence modified. IPC set aside—Sentence u/s. 395 IPC modified and reduced. Sanwar @ Razzak v. State ...... 1464 Vikram @ Ganja v. State ...... 1457 — Sec. 396—Conviction on the basis of the disclosure — Sections 395—Punishment for dacoity—Section 398 attempt statements made by a juvenile Akram about his and others to commit robbery or dacoity when armed with deadly ‘Involvement in the dacoity—Certain allegedly recovered weapon—Arms Act, 1950—Section 27 use of prohibited articles not mentioned in the crime scene report—Recovery arm—Complainant a security guard outside the godown of disbelieved—Non holding of the TIP and delay in filing FIR— EIT at Alipur—Notices two tempos moving towards godown Non fatal to the prosecution case as witness had sufficient at about 2:15 am—Raised alarm saying daku daku—Two time to watch and observed the culprits and it was not the assailants caught hold of him—Other assailants attacked him case of fleeing glimpse—Mere recovery of stolen property with a knife—Two police men arrived on motorcycle— from an accused—Not sufficient to prove conviction u/s 396 Assailants fled from the spot tempos were stopped after or 449 or 412 IPC. chase—Four accused persons alighted and started running Salam Kaviraj @ Chuha v. State (Govt. of NCT overpowered and apprehended—Knife recovered tempos of Delhi) ...... 1469 seized—Statement of the complainant recorded FIR No. 72/ 08 u/s. 395/397/398 IPC r/w. Section 25/27 Arms Act — Appellants convicted u/s 307/34—Conviction challenged— registered charge-sheet filed—All the accused persons charged Appellant had stabbed the injured with a ‘vegetable knife’ in and brought to trial—Prosecution examined seven witnesses— an auto parking of a metro station—Trial Court charged the Statements u/s. 313 Cr. P.C. of the accused persons accused u/s 307/34 IPC—Conviction challenged on ground— recorded—Pleaded false implication—Three accused persons No intention to kill and no premeditation. Held—No including appellant convicted two accused persons acquitted preparation or motive found to kill injured—Injuries received aggrieved appellant preferred appeal—Held testimony of simple in nature—Alteration of conviction into 324 IPC— complainant and police witnesses is similar—No prior Appellate released for the period already undergone. animosity with the appellant—No ulterior motive to falsely Wasim (Passa in J.C) v. State of Delhi ...... 1489 implicate the appellant—Complainant had no reason to let the real culprit go scot free—Injury on the person of complainant — Sec. 307 & Sec. 379—Head constable stabbed at railway opined to be simple caused by sharp weapon tempos track—No eye witness—Appellant arrested and made a recovered from the possession of assailants—Appellant did not disclosure statement which confirmed his involvement in the (xxxvii) (xxxviii) case—Appellant refused Test Identification Parade (TIP) on B/392 IPC however maintained. the ground that he had been shown to the injured in the Chandan @ Babar v. The State (NCT of Delhi) ..... 1551 hospital—Trial Court held him guilty u/s 307/309 IPC—Appeal by the accused on the ground that he is falsely implicated and INJUNCTION—Appeal directed against a decree for permanent that conviction is solely based on identification of the PW7— injunction: Brief Facts—Plaintiff (hereafter "Reckitt") sought No adverse inference can be drawn against him on account to restrain the defendent Hindustan Lever Ltd. (hereafter of his refusal to participate in TIP—No recovery of stolen "HUL") by permanent injunction from telecasting the article and knife from him. Held—The plea taken by the advertisement or otherwise disparaging Reckitt’s goodwill and appellant is contrary to the proven facts and also the other reputation and its product sold under the trade mark DETTOL, plea taken by the appellant stand falsified at the face of the in any other advertisements and in all media—Reckitt also proven facts and therefore adverse inference can be drawn sought damages to the tune of Rs.20,00,050/- towards on his refusal to participate in TIP—Nature of injuries and disparagement, denigration and tarnishment of ist goodwill and the wounds on the vital body parts of the accused prove that reputation by the impugned advertisement—A claim for the injured had intention to kill—Convicting the appellant u/s exemplary damages too was made in the suit—Reckitt is 307 IPC suffers no infirmity & Based on cogent evidence. involved in the manufacture of the famous antiseptic disinfectant under the trade mark DETTOL for over 70 years. — Falsely implicated—Disclosure statement of the appellant is It was averred that the mark DETTOL is synonymous with hit by section 24 of the Indian Evidence Act—No evidence good hygience and, today, it is a household name and is the to connect the appellant with the commission of offence of most widely used antiseptic disinfectant in the country— theft—Conviction of appellant not sustainable u/s 379 IPC— Reckitt became aware that the HUL introduced an The appellant is a drug addict and a habitual criminal previously advertisement on television, which intentionally and deliberately involved in 11 cases—The amount of punishment and disparages Reckitt’s soap under the trade mark DETTOL and conviction u/s 307 is maintained—Acquitted of the charges the unique and distinctive packaging —The offending u/s 379 IPC. advertisement concerns the defendant’s LIFEBUOY soap— Impugned decree for permanent injunction was issued by the Ranjeet v. State (NCT of Delhi) ...... 1511 learned Single Judge in a claim alleging that the defendant/ — Section 120B/392/397—Conviction—Appeal against. Held, appellant’s advertisement had disparaged the plaintiff’s good evidence of prosecution on the aspect of use of deadly weapon —The impugned judgment also directed payment of punitive at the time of committing robbery deficient. PW1 & 4 not damages to the extent of Rs. 5 lakhs to the plaintiff—Hence certain if knife was used by the appellant at the time of Present Appeal—The Plaintiff/respondent argued that the robbery. No knife recovered in presence of the witnesses. The Dettol had been famous as an antiseptic/disinfectant, and had knife allegedly recovered in another case not shown to the become synonymous with good hygiene as a household name, witnesses to ascertain if it was the same knife used by the and that the defendant had subjected the Dettol Toilet soap appellant. Witnesses did not give particulars i.e. size, dimension (in which its the distinctive and unique shape, unique orange etc of the knife to establish that it was a deadly weapon. No colour were clearly visible, albeit without the logo) and the injuries inflicted with any weapon to the victims. Conviction green, distinctive packaging to intentional and deliberate with the aid of Sec. 397 unsustainable and appellant deserves disparagement by depicting it to be the type of “normal benefit of doubt on that score. Conviction under section 120 antiseptic soaps that make the skin dry...” thereby “permitting (xxxix) (xl)

the germs to enter the cracks in the skin”, unlike the recollection refer to an natural attribute of a reasonable or defendant’s soap. The appellant argued that, first, Dettol is average man, what needs closer scrutiny is whether the neither an antiseptic soap (as held in a previous judgment of standard applicable in judging disparagement claims is if a the Delhi HC) nor an unbranded soap, second, that the particular class of user (in this case the Dettol user) feels that respondent neither had a monopoly over the colour, shape or the statement is disparaging—There appears to be an packaging of the soap, nor had registered the shape, contours overwhelming consensus of judicial opinion that to determine and curvatures of its soap under the Designs Act to create whether a statement disparages or defames the view point to an exclusive right of use, third, that “totality of impression” be considered is that of the general public (the refinements (and not either the “test of confusion” applied in passing off of whether such “right thinking” or “reasonable” persons actions, or the isolated frame-by-frame approach) must be belong to a “respectable” section of the public, apart). Thus, used as the test of disparagement, so that the intent, manner, whenever an argument that sectarian approach (i.e. applying story line and message of the advertisement is conveyed, the standpoint of members of a section of the public) is to be fourth, that the audience of the impugned advertisement must adopted, Courts have tended to reject it time and again. be considered to be the reasonable man with imperfect recollection, and the consumer/user base of the soap, by virtue — The first question here is as to the manner in which such of being acquainted with what the product looks like, would advertisements are to be viewed, and secondly, the legal not have imperfect recollection and fifth, that the test of malice standard against which the advertisement is to be judged— was not fulfilled i.e. nothing was done with the direct object On this question, the advertisement must be seen as a viewer of injuring the other person’s business—Appellant/defendant would normally view it in the course of the television challenged the grant of punitive damages while the respondent/ programme, and not specifically with a view it in the course plaintiff argued that general or compensatory damages ought of the television programme, and not specifically with a view to have been awarded, first. to catch an infringement—This distinction is thin, but important: in trying to determine whether commercial — Held: Slander of goods is a species or branch of the law of disparagement has occurred, the relevant consideration is how defamation—It is widely accepted that to be defamatory, an the viewer (i.e. the individual to whom the alleged imputation must tend to lower the claimant in the estimation disparagement is addressed) would see the advertisement— of right thinking members of society generally, (i.e., the This consideration is important also because of the manner reference to the ‘common’ or reasonable’ man)—In the in which the advertisement is appreciated—Whether as a present case, the learned Single Judge correctly described the running reel or frame by frame—The answer to this guiding principles after discussing the case law on the subject necessarily is the former, for two clear reasons—First, when and even brought home the distinction between passing off deciding such matters, the judge is to consider (as will be actions—Which are concerned with deceptively similarity or discussed below) how an average, reasonable man would view confusion between the two marks for which the test of the advertisement as it appears on the television or electronic impression gathered by an average woman or man with medium, as in the present case. In order to do this, the imperfect recollection is applicable and disparagement—Whilst endeavour of the Court is to substitute its judgment for that there can be no quarrel with the fact that a reasonable man of the average/reasonable man. Undoubtedly, when the and an average man refer to the same metaphor and imperfect advertisement is displayed on the television, it is nor scrutinized in ever detail by the viewers, but rather, taken as a whole as (xli) (xlii)

it is displayed. This simple proposition is of great relevance, Judge relied in Lokesh Srivastava and certain other rulings. since a judge, sits in an adversarial setting with the clear Here, since the Court is dealing with a final decree and a purpose of determining whether commercial disparagement contested one at that (unlike in the case of trademark and has occurred, and thus, on the look-out for any indication of intellectual property cases, where the Courts, especially a large the same, must equally remain cautious that the advertisement number of Single Judge decisions proceeded to grant such is viewed as viewers normally view it. punitive damages in the absence of any award of general or quantified damages for infringement or passing off), it would — In the present case, the plaintiff (Reckitt) has been able to be necessary to examine and re-state the governing prove, successfully, that HUL telecast the impugned 30 second principles—Punitive damages should invariably follow the advertisement on a large number of occasions (2763 times, award of general damages (by that the Court meant that it to be precise, according to Ex. PW-1/19)—The innuendo was could be an element in the determination of damages, or a cleverly designed to suggest that Rackitt’s DETTOL Original separate head altogether, but never completely without caused damage to the skin—The advertiser, i.e. HUL, was determination of general damages)—Impugned judgment fell conscious that it was crossing the boundary between into error in relying on the decision in Times Incorporated v. permissible “puffing” and what was prohibited in law—The Lokesh Srivastava 116 (2005) DLT 569—To say that civil evidence on record, in the form of HUL’s witnesses testimony, alternative to an overloaded criminal justice system is in public is that Rs. 2.5 crores was spent in July 2007 alone for interest would be in fact to sanction violation of the law— advertising its product—HUL also admitted during the trial that This can also lead to undesirable results such as casual and the DETTOL Original brand was worth Rs. 200 crores—Such unprincipled and eventually disproportionate awards— being the case, this Court holds that the Single Judge’s Consequently, this Court declares punitive damages, based on reluctance to award general damages was not justified—It the ruling in Lokesh Srivastava and Microsoft Corporation v. would be necessary to mention in this context that it may not Yogesh Papat and Another, 2005 (30) PTC 245 (Del) is be possible for an otherwise successful plaintiff, in a without authority. Those decisions are accordingly overruled— disparagement or slander of goods action to always quantify To award punitive damages, the Courts should follow and the extent of loss; there would necessarily be an element of categorization indicated in Rookes (Supra) and further grant dynamism in this, because of the nature of the product, the such damages only after being satisfied that the damages season it is sold in, the possible future or long term impact awarded for the wrongdoing is inadequate in the that may arise on account of the advertisement, etc. circumstances, having regard to the three categories in Rookes Therefore, courts the world over have resorted to some rough and also following the five principles in Cassel. The award of and ready calculations—In view of the evidence presented general damages through this judgment (although of a figure before this Court (i.e. the number of times the advertisement of Rs. 20 lakhs) is moderate, since the advertisement was aired was telecast, the quantum of advertisement expenses of HUL, over 2700 times and seen and intended to be seen by millions the amount spent by Reckitt, to advertise its product, etc.) of viewers. As observed in John (supra) “The extent of this Court is of opinion that the plaintiff is entitled to recover publication is also very relevant: a libel published to millions general damages to the tune of Rs. 20 lakhs. The impugned has a greater potential to cause damage than a libel published judgment and order is modified to that extent, and the cross to a handful of people...” Having regard to all these objection by Reckitt, is consequently allowed in these terms— circumstances, the Court is of opinion that the award of Rs. As far as punitive damages are concerned, the learned Single 5 lakhs as exemplary damages in the facts of this case was (xliii) (xliv)

justified and not disproportionate; it is accordingly upheld— Transfer of licence of FPS in the name of the petitioner upon In view of the above discussion, it is held that this appeal has the death of his father condoned the earlier conviction— no merit. It is accordingly dismissed, but with costs, Further as per the provision of PO Act—The person released quantified at Rs. 55,000/-. The cross objections however on probation shall not suffer from any disqualification attached succeed and the decree of the learned Single Judge shall be to the conviction—Writ petition allowed. impugned judgment, the plaintiff/Reckitt is also entitled to a Praveen Kumar v. Govt. of NCT of Delhi & Ors. . 1230 decree for Rs. 20 lakhs—Cross objections are allowed to that extent—Plaintiff shall in addition to the costs of the appeal, SERVICE LAW—Compulsory Retirement—Penalty of be also entitled to costs of the cross objection the counsel’s compulsory retirement on the basis of admission of guilt— fee, assessed at Rs. 25,000/-. Respondent was subjected to disciplinary proceedings based on the charge that while working as Masalchi/Bearer in the Hindustan Unilever Limited v. Reckitt Benckiser India Cafetaria Department, AIIMS, stolen, two gas cylinder from Limited ...... 1288 the gas manifold room and taken awayby three wheeler— PROBATION OF OFFENDERS ACT, 1958 (PO ACT)—S. Respondent disputed the charges levelled against him vide his 12—Conviction—Disqualification—The licence of FPS reply pointing out that prior to the charge sheet dated 7th granted to Sh. Puran Mal-father of petitioner on 06.06.1977— January, 2008, the petitioner had issued a charge memo dated Puran Mal as sole proprietor carried out business till 11th December, 2006 containing identical allegations which 09.01.2002-died-petitioner approached the department for were denied by him vide reply dated 22nd December, 2006 transfer of licence in his name—On 14.06.2002 application and no further action was taken thereon—However, the allowed—Licence renewed from time to time—Lastly renewed enquiry officer submitted a report dated holding that the from 24.04.2006 to 23.04.2009—Show cause notice issued charged officer had admitted the article of charge and therefore on 17.08.2007 to petitioner—Alleging—Puran Mal convicted it stood proved—Three years after the submission of the under Essential Commodities Act—Petitioner appeared before enquiry report, the Disciplinary Authority passed an order Assistant Commissioner-pointed out-father released on dated 15th November, 2011 accepting the report and imposing probation for one year—Explanation not found satisfactory— the penalty of compulsory retirement upon the respondent— Licence cancelled on 29.10.2007—Preferred writ petition— His appeal dated 14th December, 2011 was rejected by the Contended—Once the fine of Rs. 5000/- imposed after order dated 9th May, 2012—The respondent has challenged releasing his father on probation for one year—Therefore the these orders against him by way of O.A. No. 2047/2013 inter petitioner could not be punished twice for the same offence— alia on the ground that there was no evidence at all before Further contended in view of S. 12 of PO Act—Petitioner the enquiry officer and that a communication dated 23rd June, could not suffer any disqualification-action initiated has became 2008 had been wrongly treated as admission of guilt on his stale - violation - if any-stood condoned-licence renewed part—Petitioner assails the order dated 26th November, 2013 subsequently for 11 years—Respondent contended—Entitled passed by the Central Administrative Tribunal accepting the to take action as per Clause 7 of Order of 1981—Once father O.A. No. 2047/2012 which was filed by the respondent of petitioner committed breach-convicted-respondent bound challenging the order of the disciplinary authority dated 15th to cancel the licence—Delay procedural as many Assistant November, 2011 as well the appellate authority’s order dated Commissioner transferred in 10 years—Held—Statutory 9th May, 2012 whereby the respondent’s appeal was rejected. authority required to act reasonably and expeditiously— Held: Central Administrative Tribunal has considered the import (xlv) (xlvi)

of the statement made by the respondent in the letter dated to transfer the title of suit property in the plaintiff—Defendant 23rd June, 2008 holding that the respondent had not admitted delayed the matter & did not obtain No Objection Certificate guilt of the charge of theft but had only stated that on 24th from the Notification Branch of Revenue Department. April, 2008, he had been asked by another employee Prem Defendants also misled the plaintiffs as regards to the real Singh to load cylinders in an auto rickshaw—It was stated ownership of the property—Suit property originally belonged that these cylinders were unloaded on instructions of Prem to the Gaon Sabha of Village Libaspur as against the portrayal Singh at his residence (Prem Singh’ residence)—The Tribunal of the defendants that the same was purchased by one Sh. has also noted that even before the enquiry officer on 24th Manohar. Held—Plaintiff ready and willing to pay necessary April, 2008, the respondent had stated that he had simply acted amount—Proof of willingness available—Legal notice was sent as per the instructions of Prem Singh without intention of to the defendant with regard to the balance payment— committing theft—It is an admitted position that other than Defendant did not obtain the Non-Objection Certificate decreed the said letter dated 23rd June, 2008, the enquiry officer in the favor of the plaintiff and against the defendant. recorded no evidence at all–In his background, it was held Mahesh Chand Aggarwal v. Mukesh Kalia that the recommendations of the enquiry officer were based & Ors...... 1555 on no evidence and that there was no admission of the charge by the respondent as well—The Tribunal had therefore set SPECIFIC RELIEF ACT, 1963—Plaintiff filed suit seeking aside the inquiry report dated 5th August, 2008, the specific performance of agreement to sell, for possession, Disciplinary Authority’s order dated 15th November, 2011 and mandatory and permanent injunction against defendant no. 1 the Appellate Authority’s order dated 9th May, 2012—The & 2—Due to non-appearance, both defendants proceeded ex- petitioner has been given liberty to proceed afresh if deem parte—As per plaintiff, she was wiling to perform her part appropriate and pass appropriate orders in accordance with of contract by tendering balance sale consideration amount law—Petitioner has not pointed out any material which enables which was not accepted by defendant no. 1 on pretext suit us to take a view different than that taken by the Tribunal— property to be converted from lease-hold to free-hold. Held: There was no evidence in support of the charge against the If plaintiff is ready and willing to perform her part of the petitioner before the enquiry officer—No merit in the writ agreement and defendant neglects to perform his part of petition—The writ petition and the application are hereby agreement, the plaintiff entitled to decree for specific dismissed. performance of agreement on tendering balance sale consideration to defendant. All India Institute of Medical Sciences & Anr. v. Ram Kishore & Anr...... 1501 Nutan v. Mukesh Rani & Anr...... 1591

SPECIFIC PERFORMANCE—Suit for specific performance of an agreement (28.06.2005) & for permanent injunction— Plaintiff filed his evidence by way of affidavit—Despite several opportunities defendant failed to file evidence—Right to lead evidence closed on 06.12.2013. Plaintiff co-owner of the suit property entered into a sale agreement with Defendant—Down payment of Rs. 2.50 lacs—Repeated reminder by the plaintiff Miglani Kerosene Oil Depotv. Govt. of NCT of Delhi (G.S. Sistani, J.) 1223 1224 Indian Law Reports (Delhi) ILR (2014) II Delhi

ILR (2014) II DELHI 1223 A stale material not justified—action arbitrary—Further W.P. (C) contended—cancellation proceedings based on conviction order passed against husband in the year A 1994—the action not initiated within reasonable time— MIGLANI KEROSENE OIL DEPOT ....PETITIONER after—also unjustified—respondent allowed the change B VERSUS of proprietorship—by their own act condoned the act of deceased husband—respondent contested—once GOVT. OF NCT OF DELHI & ORS. ....RESPONDENTS the order of conviction passed respondent well within B the right to cancel the licence in terms of Clause 6 of (G.S. SISTANI, J.) C Control Order, 1962—the previous committed breach— W.P. (C) NO. : 8606/2007 DATE OF DECISION: 08.01.2014 convicted—the respondent bound to cancel the & CM NO. : 16222/2007 licence—Held—statutory authority required to act C reasonable, fairly and expeditiously—no reasonable explanation for long delay —thus respondent waived Constitution of India, 1950—Article 226—Writ Petition— D their right for taking any action—respondent reliance Delhi Kerosene Oil (Export & Price) Control Order, on Wadhwa Committee constituted by Supreme Court 1962 (Control Order, 1962 in short)—Clause 6 — of India also did not entitle the respondent to get the Cancellation of licence —Conviction—petitioner firm D benefit of their own inaction—writ petition allowed. issued licence for distribution of kerosene oil in 1981— Proprietor Sh. Kanahya Lal died on 02.10.2003—on his E Admittedly, no action was taken against the petitioner firm death, wife Smt. Leela Kumari, Present Proprietor for more than a period of 13 years. Thus in my view no carried on affairs of oil depot after taking permission E action lies against the present proprietor of petitioner firm of the respondent—necessary amendment carried out for the act committed by the previous licence holder. Even in official record—licence transferred in the name of otherwise having not taken action for 13 years and on the present proprietor vide order dated 30.12.2003— F contrary having renewed licence of the petitioner firm from licence renewed from time to time till 09.09.2008—on time to time would amount to condoning the act of the wrong complaint against petitioner since the transfer of F doer; and after 13 years, the respondents are estopped licence in the name of the present proprietor —in from taking action against the petitioner having waived off Sept, 2007 show cause notice issued—based on— their rights by their own conduct. The Government must act conviction order passed against the husband of G in fair, just and expeditious manner. The delay and inaction present Proprietor under Essential Commodities Act, G on the part of the respondent has resulted in creation of 1955 in the year 1994—Present Proprietor submitted valuable rights in favour of the petitioner. (Para 8) reply —firm under control and supervision of deceased husband when conviction passed—she had no It is settled law that a statutory authority is required to act H knowledge about conviction and fine—explanation not reasonably, fairly and expeditiously. The respondents have accepted—licence cancelled on 15.11.2007—preferred H not only slept over their right, but also there is no reasonable writ petition—Contended—order unreasonable—non- and plausible explanation for the gross delay, and, thus, the application of mind and arbitrary—similarly situated respondents waived their right for taking any action against the petitioner firm. Moreover, the respondents by agreeing persons got relief from the court—reliance on the I I Miglani Kerosene Oil Depotv. Govt. of NCT of Delhi (G.S. Sistani, J.) 1225 1226 Indian Law Reports (Delhi) ILR (2014) II Delhi

to transfer the licence in the name of the present proprietor A firm (Kanhaiya Lal) died on 02.10.2003 and upon his death, his wife of petitioner firm have condoned the act of the previous Smt. Leela Kumari (the present proprietor of the petitioner firm) stepped licence holder of the petitioner firm; further, the respondents into his shoes and carried on the affairs of M/s.Miglani Kerosene Oil have given a reasonable belief to the petitioner that his right A Depot, after taking prior permission from respondent. The necessary and title is good and shall not be disturbed, hence, the amendments were also carried out in the official record of the respondents licence of the present proprietor cannot be cancelled for the B to this effect. In support of this, counsel for the petitioner has relied acts of the previous licencee. (Para 9) upon the office order dated 30.12.2003 bearing No.FAC/NE/F & S/2003/ 5281 by which the licence was transferred in the name of the present Counsel for the respondent has placed reliance upon the B proprietor of the petitioner firm. report of Justice Wadhwa Committee constituted by the Supreme Court of India. In the light of the aforesaid facts C 2. Counsel for the petitioner has contended that thereafter the licence and observations, respondents cannot at this stage get of the petitioner firm was renewed from time to time, till 09.09.2008. A benefit of their inaction or the findings of the report. categorical submission has been made on behalf of the petitioner that C (Para 10) since taking over of the depot by Smt.Leela Kumari, upon demise of her husband (Sh.Kanhaiya Lal), there has been no complaint whatsoever D Important Issue Involved: (a) The statutory authority is against the petitioner. However, in September, 2007, the present proprietor required to act reasonably, fairly and expeditiously. (b) the of the petitioner firm was served with a show cause notice, based on a conviction order passed against the husband of the present proprietor delay in taking action amounts to waiving off their right for D taking any action (c) delay and inaction on the part of under the Essential Commodities Act, in the year 1994, as to why the licence of the petitioner be not cancelled. The present proprietor submitted respondent results in creation of valuable right in favour of E petitioner. reply to the show cause in which it was stated that at the time when the order of conviction was passed, the petitioner firm was under the control E and supervision of Sh.Kanhaiya Lal (the deceased husband of the present [Gu Si] proprietor) and she had no knowledge regarding conviction and fine. However, the respondents did not accept the explanation tendered by the APPEARANCES: F FOR THE PETITIONER : Mr. R.P. Luthra, Advocate. present proprietor and by order dated 15.11.2007 respondent no.2 cancelled F the licence of the petitioner with immediate effect, which led to filing of FOR THE RESPONDENT : Mr. S.D. Salwan and Mr.Latika the present petition. Dutta, Advs. 3. It is submitted by counsel for the petitioner that the impugned RESULT: Writ Petition allowed. G order suffers from unreasonableness, non-application of mind and is arbitrary. It is also submitted that similarly situated persons had approached G.S. SISTANI (ORAL) G this court by filing writ petition bearing No.4030/2006, which was allowed 1. Rule. With the consent of counsel for the parties, present petition primarily on the ground that reliance on stale material could not be is set down for final hearing. Necessary facts for disposal of this petition justified and action was arbitrary. It is thus contended that the cancellation are that the petitioner, M/s.Miglani Kerosene Oil Depot was issued a H proceedings based on order of conviction passed against the husband of licence No.2302/81 for distribution of kerosene oil. The said Kerosene H the present proprietor in the year 1994, should have been initiated/ passed Oil Depot was being run from the premises bearing No.50 Mansarover by the respondents within a reasonable period of time and not after a Park, Shahdara, Delhi. The petitioner firm is a licence holder for span of 13 years. distribution of kerosene oil since 1981. The proprietor of the petitioner I I Miglani Kerosene Oil Depotv. Govt. of NCT of Delhi (G.S. Sistani, J.) 1227 1228 Indian Law Reports (Delhi) ILR (2014) II Delhi

4. It is submitted by counsel for the petitioner that the action of the A (3) Notwithstanding anything contains in this clause, where a respondents of cancelling the licence of KOD after a long period is licencee is convicted by a court of law for breach of the unjustified, in light of the fact that the respondents had allowed the terms and conditions of the licence or contravention of the provision of this order the licensing authority may by change of the proprietor’s name. Even otherwise after issuing a fresh A licence in the name of the present proprietor, the respondent by their order in writing, cancel his licence. B conduct have condoned the act of the deceased, Sh. Kanhaiya Lal. It is Provided that no such order shall be passed until the also submitted that no action survives against the present proprietor, as appeal, if any, filed against such conviction is dismissed the same is stale and the act stands condoned in light of the fact that the and where no such appeal is filed until the period of B show cause notice was issued after a gap of more than 13 years and limitation for filing an appeal expires.” during this period the licence was renewed from time to time, moreover C 6. Counsel for the respondent submits that once the previous in the name of the present proprietor as well. The second argument of proprietor had committed breach and was convicted the respondents the counsel for the petitioner is that once the previous proprietor has were bound to cancel the licence of the petitioner firm. been convicted, the petitioner firm cannot be punished twice for the C same offence. 7. I have heard counsel for the parties and also perused the petition as also the annexures filed along with the petition. The basic facts are 5. Mr.Salwan, learned counsel for the respondent has opposed the D not in dispute that business of the petitioner firm, M/s.Miglani Kerosene present petition on the ground that once the order of conviction had been Oil Depot was initially carried out by late Sh. Kanhaiya Lal and he was passed, the respondents were well within their right to cancel the licence D granted a licence as far back as in the year 1981. The order of conviction of the petitioner firm, in terms of Clause 6 of Delhi Kerosene Oil (Export in this case against Sh.Kanhaiya Lal was passed in the year 1994. It is and Price) Control Order 1962, which reads as under: E also not in dispute that Sh. Kanhaiya Lal expired on 02.10.2003 on which “6. Contravention of the terms and conditions of licence: date the order of conviction had already been passed. It is undisputed (1) If any licencee or his agent or servant or any other person E that as long as the husband of the present proprietor was alive, no action acting on his behalf contravenes any of the terms and was taken against him in terms of Clause (6) of the Delhi Kerosene Oil (Export and Price) Control Order 1962. However, the respondents who condition or directions or any provisions of this order F then without prejudice to any other action that may be were aware of the order of conviction, at that stage, decided to ignore the same and allowed his wife, Smt.Leela Kumari (the present proprietor taken against licensee according to law, his licence can be F suspended by order in writing by the Commissioner. of the petitioner firm) to step into the shoes of her husband; and upon her request, the respondents carried out necessary amendments and issued Proviso to clause 6(1) order vide Dt. 15.2.80. subsequent licence and renewed the same from time to time in favour of (2) Without prejudice to the provisions of sub-clause 1 if the G Smt.Leela Kumari (the present proprietor of the petitioner firm), who is Commissioner is satisfied that the licensee has contravened G a separate entity. It is only after a gap of more than 13 years, show any of the terms and conditions of a licence or the cause notice for cancellation of the KOD was issued and the licence was directions issued under clause 3-D or any provision of cancelled as according to the respondents, petitioner had incurred a this order and cancellation of his licence is called for, may disqualification having been convicted by a criminal court, in terms of the H after giving the licencee a reasonable opportunity of stating 1962 Order. his case against the proposed cancellation by order in H 8. Admittedly, no action was taken against the petitioner firm for writing cancel his licence and shall forward a copy thereof more than a period of 13 years. Thus in my view no action lies against to the licensee. the present proprietor of petitioner firm for the act committed by the I I Miglani Kerosene Oil Depotv. Govt. of NCT of Delhi (G.S. Sistani, J.) 1229 1230 Indian Law Reports (Delhi) ILR (2014) II Delhi previous licence holder. Even otherwise having not taken action for 13 A petitioner firm, and despite the order of conviction no action was initiated years and on the contrary having renewed licence of the petitioner firm by the respondent against the petitioner during the lifetime of the previous from time to time would amount to condoning the act of the wrong doer; licence holder i.e. Sh.Kanhaiya Lal, the action of the respondents amounts and after 13 years, the respondents are estopped from taking action A to condoning the offence committed. Accordingly, the impugned order against the petitioner having waived off their rights by their own conduct. of cancellation is quashed. The Government must act in fair, just and expeditious manner. The delay B 13. Rule is made absolute. Petition and the application stand disposed and inaction on the part of the respondent has resulted in creation of of in above terms. Parties shall bear their own costs. valuable rights in favour of the petitioner. B 9. It is settled law that a statutory authority is required to act reasonably, fairly and expeditiously. The respondents have not only slept C over their right, but also there is no reasonable and plausible explanation ILR (2014) II DELHI 1230 for the gross delay, and, thus, the respondents waived their right for W.P. (C) taking any action against the petitioner firm. Moreover, the respondents C by agreeing to transfer the licence in the name of the present proprietor D of petitioner firm have condoned the act of the previous licence holder PRAVEEN KUMAR ....PETITIONER of the petitioner firm; further, the respondents have given a reasonable VERSUS belief to the petitioner that his right and title is good and shall not be D disturbed, hence, the licence of the present proprietor cannot be cancelled GOVT. OF NCT OF DELHI & ORS. ....RESPONDENT for the acts of the previous licencee. E (G.S. SISTANI, J.) 10. Counsel for the respondent has placed reliance upon the report of Justice Wadhwa Committee constituted by the Supreme Court of E W.P. (C) NO. : 8350/2007 DATE OF DECISION: 08.01.2014 India. In the light of the aforesaid facts and observations, respondents cannot at this stage get benefit of their inaction or the findings of the report. F Constitution of India, 1950—Article 226—Writ Petition— Essential Commodities Act, 1955—Delhi Specified 11. In view of the aforesaid, present proprietor of the petitioner F Articles (Regulation & Distribution) Order, 1981—Clause firm cannot be penalized, at this stage even more so since the published 7—Cancellation of authorization of Fair Price Shop act was never committed by the present license holder. A party is bound (FPS)—Probation of Offenders Act, 1958 (PO Act)—S. to act reasonably more so a statutory authority. The authority was under G 12—Conviction—Disqualification—The licence of FPS a duty to act reasonably and without prejudice to the rights of the G granted to Sh. Puran Mal-father of petitioner on petitioner. Given that the authority has itself renewed the licence of the 06.06.1977—Puran Mal as sole proprietor carried out petitioner, they themselves have condoned the earlier conviction. Further business till 09.01.2002-died-petitioner approached the by not acting within a reasonable period of time and by agreeing to renew department for transfer of licence in his name—On the licence in the name of the present proprietor of the petitioner firm, H 14.06.2002 application allowed—Licence renewed from the respondents have given her a reasonable cause to believe that a right H time to time—Lastly renewed from 24.04.2006 to has accrued in her favour. 23.04.2009—Show cause notice issued on 17.08.2007 12. Taking into consideration the fact that the respondents decided to petitioner—Alleging—Puran Mal convicted under to transfer the licence in the name of the present proprietor of the I Essential Commodities Act—Petitioner appeared before I Praveen Kumar v. Govt. of NCT of Delhi & Ors. (G.S. Sistani, J.) 1231 1232 Indian Law Reports (Delhi) ILR (2014) II Delhi

Assistant Commissioner-pointed out-father released A an offence under any law’.” (Para 15) on probation for one year—Explanation not found satisfactory—Licence cancelled on 29.10.2007— In view of the aforesaid, present petitioner cannot be penalized, at this stage even more so since the published Preferred writ petition—Contended—Once the fine of A Rs. 5000/- imposed after releasing his father on act was never committed by the present license holder. A probation for one year—Therefore the petitioner could B party is bound to act reasonably more so a statutory not be punished twice for the same offence—Further authority. The authority was under a duty to act reasonably contended in view of S. 12 of PO Act—Petitioner could and without prejudice to the rights of the petitioner. Given not suffer any disqualification-action initiated has B that the authority has itself renewed the license of the became stale - violation - if any-stood condoned- petitioner, they themselves have condoned the earlier C licence renewed subsequently for 11 years— conviction. Further, by not acting within a reasonable period Respondent contended—Entitled to take action as per of time and by agreeing to renew the license in the name of Clause 7 of Order of 1981—Once father of petitioner C petitioner, the respondents have given the petitioner a committed breach-convicted-respondent bound to reasonable cause to believe that a right has accrued in his cancel the licence—Delay procedural as many Assistant D favour. Petitioner is also entitled to the benefit of Section 12 Commissioner transferred in 10 years—Held—Statutory of the Probation of Offenders Act. Accordingly, the impugned authority required to act reasonably and expeditiously— show cause notice dated 17.8.2007 and cancellation order Transfer of licence of FPS in the name of the petitioner D dated 29.10.2007 are quashed. (Para 17) upon the death of his father condoned the earlier conviction—Further as per the provision of PO Act— E Important Issue Involved: (a) The statutory authority is The person released on probation shall not suffer required to act reasonably, fairly and expeditiously. (b) from any disqualification attached to the conviction— E convict dealt with under S. 3 & 4 of Probation of Offenders Writ petition allowed. Act, shall not suffer disqualification attached to the conviction under any law. It is settled law that a statutory authority is required to act F reasonably, fairly and expeditiously. (Para 12) F [Gu Si] Moreover, in my view father of the petitioner has not APPEARANCES: incurred the disqualification of grant of license/authorization FOR THE PETITIONER : Mr. Sanjay Goel, Advocate. due to conviction, as it is settled law that a person released G FOR THE RESPONDENT : Mr. S.D. Salwan and Ms. Latika on probation under Section 12 of the Probation of Offenders G Act shall not suffer any disqualification. In the case of Dutta, Advs. Gulzar v. State of M.P., (2007) 1 SCC 618, it has been CASE REFERRED TO: held as under: H 1. Gulzar vs. State of M.P., (2007) 1 SCC 618. “‘.While Section 12 of the PO Act states that the H RESULT: Writ Petition allowed. person found guilty of an offence and dealt with under Section 3 or 4 of the PO Act shall not suffer G.S. SISTANI, J. (ORAL) disqualification, if any, attached to the conviction of I 1. Rule. With the consent of counsel for the parties, the present I Praveen Kumar v. Govt. of NCT of Delhi & Ors. (G.S. Sistani, J.) 1233 1234 Indian Law Reports (Delhi) ILR (2014) II Delhi petition is set down for final hearing and disposal. A violation, if any, by the father of petitioner stands condoned, as licence was renewed subsequently for 11 years and moreover in the name of the 2. In this case licence of Fair Price Shop under the name M/ present petitioner. s.Puran Mal Om Prakash, was granted to Sh.Puran Mal (father of the petitioner herein) on 06.06.1977. Sh.Puran Mal, as the sole proprietor A 6. Mr.Salwan, learned counsel for the respondent submits that in continued to carry on his business till 09.01.2002 on which date he B addition to the administrative action, respondents were entitled to take expired. Immediately the present petitioner (Sh.Praveen Kumar) approached action as per Clause 7 of the 1981 Order dated 12.01.1981, i.e. Delhi the department for transfer / change of licence in his own name, in Specified Articles (Regulations of Distribution) Order, 1981 which reads respect of Fair Price Shop. By order dated 14.06.2002, the application B as follows, and submits that once the father of the petitioner had committed of the petitioner was allowed and the licence of Fair Price Shop was breach and he was convicted, the respondents were bound to cancel the transferred in the name of present petitioner. From June, 2002, petitioner C licence of the petitioner: continued to carry out his business, without any adverse report from the “7. Cancellation of authorization upon Conviction.- department. The licence of the petitioner was renewed from time to time Notwithstanding anything contained in this clause where an and lastly renewed for the further period of three years i.e. from 24.04.2006 C authorized wholesaler or a fair price shop holder has been to 23.04.2009. D convicted by a court of law in respect of contravention of any 3. On 17.08.2007 a show cause notice was issued to the petitioner, of the provisions of this Order or any other order made under alleging that Sh.Puran Mal was convicted under the Essential Commodities Section 3 of the Essential Commodities Act, 1955 (10 of 1955), Act. The petitioner appeared before the Assistant Commissioner (SW) on D the Deputy Commissioner may, by order, in writing cancel his 22.08.2007 and pointed out that his father was released on probation of authorization forth with : one year and fine of Rs.5,000/- was imposed upon him. Since the E Provided that where such conviction is set aside in appeal or explanation was not found to be satisfactory, by an order dated 29.10.2007, revision the Deputy Commissioner may on application by the the licence was cancelled. E person whose authorization has been cancelled re-issue the 4. It is submitted by counsel for the petitioner that at the time when authorization to such person.” the offence was committed, the petitioner was barely 20 years of age and F 7. Counsel for the respondent submits that the delay is procedural, he was studying and had no knowledge about the said incident. It is as in the period of 18 years, 24 Assistant Commissioners had been further submitted that even otherwise, after the order was passed, the F transferred in one zone, and in another zone 12 Assistant Commissioners licence was renewed from time to time by the respondents; and that the were transferred in 10 years. department was aware of all facts. 8. In response to the above, the counsel for the petitioner stated 5. It is further submitted that once in the year 1996 a fine of G that in case the respondents were to rely upon Clause 7 of the order Rs.5000/- was imposed upon the father of the petitioner, after releasing G dated 12.1.1981, the same should have been invoked by them within a him on probation of one year, and therefore, the petitioner cannot be short period of time from the date of the cause of action and in any case punished twice for the same offence. The second argument of counsel within a reasonable period of time. It is further contended that on account for the petitioner is that in view of Section 12 of the Probation of H of delay, the respondents are estopped from relying on Clause 7 of the Offenders Act, 1958, petitioner does not suffer any disqualification. The Order dated 12.01.1981 which would be deemed to have been given up third argument of counsel for the petitioner is that the show cause notice H by the respondents, by virtue of their conduct; and on the contrary, dated 17.8.2007 and cancellation order dated 29.10.2007 are liable to be vested right has been created in favour of the petitioner by continuous quashed, as firstly the action initiated has become stale; and secondly, renewal of license, which cannot be taken away at this belated stage. I I Praveen Kumar v. Govt. of NCT of Delhi & Ors. (G.S. Sistani, J.) 1235 1236 Indian Law Reports (Delhi) ILR (2014) II Delhi

9. I have heard counsel for the parties and also perused the petition A 14. At this belated stage, the action of the respondent has become as also the annexures filed along with the petition. stale and more so when the authorization of person who was actually convicted has already been transferred to another, which transfer has 10. The basic facts are not in dispute that the license was granted A been carried out by the respondents’ department itself and the new to the father of the petitioner to run a Fair Price Shop. The father of the proprietor/authorization holder has been continuously running Fair Price petitioner was convicted and later on released on probation. It is not in B Shop for years. The above narration of facts would show that the dispute that as long as the father of the petitioner was alive, no action department has been extremely careless and casual in enforcing the terms was taken against him as per Clause 7 of the Delhi Specified Articles of the license, in accordance with law, and, thus, respondents’ action (Regulations of Distribution) Order 1981. Thereafter, licence was granted B cannot be sustained. in favour of the petitioner, who is a separate entity and further the said licence of the petitioner was renewed from time to time and only after C 15. Moreover, in my view father of the petitioner has not incurred a gap of more than 11 years, show cause for cancellation of the Fair the disqualification of grant of license/authorization due to conviction, as Price Shop was issued and the licence was cancelled as according to the it is settled law that a person released on probation under Section 12 of C respondent, petitioner had incurred a disqualification by virtue of his the Probation of Offenders Act shall not suffer any disqualification. In predecessor having been convicted by a criminal court, in terms of 1981 the case of Gulzar v. State of M.P., (2007) 1 SCC 618, it has been held Order. D as under: 11. Admittedly, no administrative action was taken by the respondent “....While Section 12 of the PO Act states that the person found against the petitioner for more than 11 years. In my view no action lies D guilty of an offence and dealt with under Section 3 or 4 of the against the present petitioner for the act committed by the previous PO Act shall not suffer disqualification, if any, attached to the licence holder. Even otherwise having not taken action for 11 years and E conviction of an offence under any law....” on the contrary having renewed licence of the petitioner from time to 16. Respondents’ counsel has placed reliance upon the report of time would amount to condoning the act of the wrong doer; and after E Justice Wadhwa Committee constituted by the Supreme Court of India. 11 years, the respondents are estopped from taking action against the Due to the aforesaid facts and observations, respondents cannot at this petitioner having waived off their rights by their own conduct. The stage get benefit of their inaction or the findings on the report. Government must act in fair, just and expeditious manner. The delay and F inaction on the part of the respondent has resulted in creation of valuable 17. In view of the aforesaid, present petitioner cannot be penalized, F rights in favour of the petitioner. at this stage even more so since the published act was never committed by the present license holder. A party is bound to act reasonably more 12. It is settled law that a statutory authority is required to act so a statutory authority. The authority was under a duty to act reasonably reasonably, fairly and expeditiously. G and without prejudice to the rights of the petitioner. Given that the 13. The respondents have not only slept over their right, but also G authority has itself renewed the license of the petitioner, they themselves there is no reasonable and plausible explanation for the gross delay, and, have condoned the earlier conviction. Further, by not acting within a thus, the respondents waived their right to take action against the petitioner. reasonable period of time and by agreeing to renew the license in the name of petitioner, the respondents have given the petitioner a reasonable Moreover, the respondents by agreeing to transfer the licence in the H name of the petitioner have condoned the act of the predecessor of the cause to believe that a right has accrued in his favour. Petitioner is also petitioner herein, hence, the licence of the present petitioner cannot be H entitled to the benefit of Section 12 of the Probation of Offenders Act. cancelled for the acts of the previous licencee. Accordingly, the impugned show cause notice dated 17.8.2007 and cancellation order dated 29.10.2007 are quashed. I I Jai Singh & Anr. v. Man Singh & Ors. (Hima Kohli, J.) 1237 1238 Indian Law Reports (Delhi) ILR (2014) II Delhi

18. Rule is made absolute. The petition stands disposed of in above A subject plots—However, the counsel who was terms. Parties shall bear their own costs. conducting the case committed a blunder by failing to place on record the original documents or producing A the same at the time of admission and denial of documents, so that they could have been exhibited— B As a result, the trial court did not have an opportunity ILR (2014) II DELHI 1237 to examine the aforesaid documents, the defendants RFA having failed to exhibit them—Respondents state that B they ought not to be made to suffer for the folly of their counsel and interest of justice demands that the JAI SINGH & ANR. ....APPELLANTS C said documents be permitted to be produced by way VERSUS of additional evidence and be taken into consideration—In the accompanying appeal, the MAN SINGH & ORS. ....RESPONDENTS C appellants/plaintiffs have assailed the judgment dated (HIMA KOHLI, J.) D 25.09.2009 passed by the trial court dismissing their suit for partition and permanent injunction in respect RFA NO. : 413/2009 DATE OF DECISION: 09.01.2014 of the subject properties—Now the respondents/ D defendants have filed the present application seeking Code of Civil Procedure, 1908—Section 107, 151 r/w leave to produce the original documents, photocopies Order 41 Rule 27—Additional documents—Brief Facts— E whereof were already placed on record by them before Respondents had filed Photocopies of twenty five the trial court, and grant of permission to have the documents under an index dated 22.05.2002, which E admission and denial thereof conducted so that they was subsequent to their filing the written statement can be exhibited in accordance with law and a fresh in the trial court—The said list of documents includes decision taken by the trial court. Held: Section 107 of copies of the lease deeds dated 11.08.1953 and F the CPC empowers the appellate court "to take 11.02.1954 executed by the Delhi improvement Trust F additional evidence or to require such evidence to be in respect of the subject in favour of the respondents taken", "subject to such conditions and limitation as No.1 and 2, who were then minors, under the may be prescribed"—Rule 27 of Order 41 of the CPC prescribes the conditions and limitations placed on Guardianship of their father, Shri Ram Singh—The G said documents also include copies of two sale deeds, this discretion—Rules starts by laying down that the both dated 06.09.1940, executed by the legal heirs of G parties to an appeal shall not be entitled to produce Shri Budhu, the original lessee of the subject Premises, additional whether oral or documentary, in the appellate in favour of the respondents/defendants No.1 and 2, court—It then proceeds to carve out two circumstances that have been mentioned at Sr. No. 1 and 10 of the H where the appellate court may allow additional evidence to be produced—The first circumstance is documents—Respondents/defendants No.1 & 2 states H that the aforesaid documents are very material for where the court appealed from has refused to admit deciding the suit instituted by the appellants/plaintiffs such evidence that ought to have been admitted and praying inter alia for a decree of partition of the the second circumstance is where the appellate court I I Jai Singh & Anr. v. Man Singh & Ors. (Hima Kohli, J.) 1239 1240 Indian Law Reports (Delhi) ILR (2014) II Delhi requires such evidence either to enable it to A taken”, “subject to such conditions and limitations as may be pronounce judgment or for any other substantial prescribed”. Rule 27 of Order 41 of the CPC prescribes the cause—As observed by the Supreme Court in the conditions and limitations placed on this discretion. The case of Wedi Vs. Amilal & Ors. reported as MANU/0729/ A Rules starts by laying down that the parties to an appeal 2002MANU/SC/0729/2002: 2004 (1) SCALE 82, "invocation shall not be entitled to produce additional evidence whether B of clause (b) does not depend upon the vigilance or oral or documentary, in the appellate court. It then proceeds negligence of the parties for it is not meant for them— to carve out two circumstances where the appellate court It is for the appellant to resort to it when on a may allow additional evidence to be produced. The first consideration of material on record, it feels that B circumstance is where the court appealed from has refused to admit such evidence that ought to have been admitted admission of additional evidence is necessary to C pronounce a satisfactory judgment in the case. "In the and the second circumstance is where the appellate court present case, for the issue of title of the subject requires such evidence either to enable it to pronounce properties to be established satisfactorily, it was C judgment or for any other substantial cause. As observed by necessary that the ownership documents came on the Supreme Court in the case of Wadi Vs. Amilal & Ors. record—For purposes of dispelling the obscurity on D reported as 2004 (1) SCALE 82, “invocation of clause (b) the issue of title, which is of paramount consideration does not depend upon the vigilance or negligence of the in a suit of partition, interest of justice demands that parties for it is not meant for them. It is for the appellant to the documents of title relating to the subject premises D resort to it when on a consideration of material on record, and in the power and possession of the respondents/ it feels that admission of additional evidence is necessary to defendants be looked into to arrive at a just and E pronounce a satisfactory judgment in the case.” (Para 9) correct decision—Accordingly, the originals of the In the present case, for the issue of title of the subject documents relating to the title of the subject premises, E properties to be established satisfactorily, it was necessary photocopies whereof were filed by the respondents/ that the ownership documents come on record. However, in defendants in the trial court under index 22.5.2002 are F the absence of the best evidence, the trial court had no permitted to be taken on record as additional option but to decide the issue of the locus standi of the evidence—However, considering the fact that it is on F appellants/plaintiffs and cause of action on the basis of account of failure on the part of the respondents/ secondary evidence including entries made in the revenue defendants to file the original title documents that records dating back to the year 1939-40 and 1943-44, had an important bearing on the case and were material G which could only throw light on the status of occupation of for the consideration of the trial court, for purposes the subject properties. For purposes of dispelling the obscurity of satisfactorily adjudication the present suit, it is G on the issue of title, which is of paramount consideration in deemed appropriate to allow this application subject a suit of partition, interest of justice demands that the to payment of Rs. 50,000/- as casts to the other side documents of title relating to the subject premises and in the within four weeks—Resultantly, the appeal is allowed H power and possession of the respondents/defendants be and the impugned judgment is set aside. H looked into to arrive at a just and correct decision. Section 107 of the CPC empowers the appellate court “to (Para 10) take additional evidence or to require such evidence to be I I Jai Singh & Anr. v. Man Singh & Ors. (Hima Kohli, J.) 1241 1242 Indian Law Reports (Delhi) ILR (2014) II Delhi

Accordingly, the originals of the documents relating to the A 11806, Gali No.6, Sat Nagar, Karol Bagh, in favour of the respondents title of the subject premises, photocopies whereof were filed No.1 and 2, who were then minors, under the guardianship of their by the respondents/defendants in the trial court under index father, Shri Ram Singh. The said documents also include copies of two sale deeds, both dated 06.09.1940, executed by the legal heirs of Shri dated 22.5.2002 are permitted to be taken on record as A additional evidence. (Para 11) Budhu, the original lessee of the subject premises, in favour of the B respondents/defendants No.1 and 2, that have been mentioned at Sr. However, considering the fact that it is on account of failure No.1 and 10 of the list of documents. Learned counsel states that the on the part of the respondents/defendants to file the original respondents/defendants No.1 and 2 had averred in para 9 of the preliminary title documents that had an important bearing on the case B objection taken in the written statement that they are owners of the and were material for the consideration of the trial court, for subject plots having purchased the same from the sons of late Shri C purposes of satisfactorily adjudicating the present suit, it is Budhu by virtue of two separate sale deeds, both dated 06.09.1940 and deemed appropriate to allow this application subject to that they are also owners of the built up structures that were constructed payment of Rs.50,000/- as costs to the other side within four C on the said plots. The respondents have further averred in para 3 on weeks. (Para 12) merits of the written statement that the subject plots were allotted by the Delhi Improvement Trust on the basis of Indentures dated 11.08.1953 D [Sa Gh] and 16.02.1954. APPEARANCES: 3. Learned counsel for the respondents/defendants No.1 & 2 states D FOR THE PETITIONER : Mrs. Rekha Palli, Advocate with Ms. that the aforesaid documents are very material for deciding the suit Amrita Prakash and Ms. Ankita instituted by the appellants/plaintiffs praying inter alia for a decree of Patnaik, Advs. E partition of the subject plots. However, the counsel who was conducting the case on behalf of the respondents/defendants in the trial court had FOR THE RESPONDENT : Mr. Kamal Jit Chhiber, Advocate. E committed a blunder by failing to place on record the original documents RESULT: Appeal allowed. or producing the same at the time of admission and denial of documents, so that they could have been exhibited. As a result, the trial court did not HIMA KOHLI, J. (Oral) F have an opportunity to examine the aforesaid documents, the defendants CM APPL. 19404/2013 (by the respondents/defendants u/O XLI Rule F having failed to exhibit them. He states that his clients ought not to be 27 read with Section 151 CPC and Section 165 of the Indian Evidence made to suffer for the folly of their counsel and interest of justice Act) demands that the said documents be permitted to be produced by way of additional evidence and be taken into consideration. 1. The present application has been filed by the respondents/ G defendants praying inter alia for permission to produce additional G 4. Though notice has not been issued on the present application, documentary evidence. learned counsel for the appellants/plaintiffs does not deny the fact that the aforesaid documents are necessary for purposes of adjudicating the 2. Learned counsel for the respondents/defendants states that his suit, particularly, in the light of the relief prayed for by them in the suit. clients had filed photocopies of twenty five documents under an index H 5. It is pertinent to note that in the accompanying appeal, the dated 22.05.2002, which was subsequent to their filing the written H statement in the trial court. The said list of documents includes copies appellants/plaintiffs have assailed the judgment dated 25.09.2009 passed of the lease deeds dated 11.08.1953 and 11.02.1954 executed by the by the trial court dismissing their suit for partition and permanent injunction Delhi Improvement Trust in respect of the subject premises No.11805- in respect of the subject properties. It is the case of the appellants/ I I Jai Singh & Anr. v. Man Singh & Ors. (Hima Kohli, J.) 1243 1244 Indian Law Reports (Delhi) ILR (2014) II Delhi plaintiffs that they are entitled to seek partition of the aforesaid properties A 40, 1943, 1944 and 1975-76. The said documents were placed on record that were owned by Shri Ram Singh, father of the appellant/plaintiff No.1 by the appellants/plaintiffs but they had claimed that they had been forged and defendants No.6 and 7 (sons from the second wife of Shri Ram and fabricated at the instance of the defendants No.1 and 2. The impugned Singh, Smt. Krishna Pyari) and defendants No.1 and 2 (sons of Shri Ram A judgment also took into consideration Ex.PW-1/8, an election identity Singh from his first wife, Smt. Badami). card of the respondent No.1 and Ex.PW-1/7, the school leaving certificate B of the respondent No.2, apart from the testimony of DW-1(defendant 6. The aforesaid suit was contested by the respondents/defendants No.1) to observe that during his cross-examination, nothing material had No.1 & 2 on the ground that the suit properties were not owned by Shri come on record to suggest that the subject properties were not owned Ram Singh, as alleged, but were owned by them. However, as noted B by the defendants or the construction was not raised with funds arranged above, while filing photocopies of the aforesaid indentures/sale deeds by their mother. Consequently, the trial court concluded that the appellants/ etc., the defendants had failed to file the originals thereof, much less C plaintiffs had failed to prove that they had any right in the subject properties produce the originals at the time of admission and denial. As a result, the or had the locus standi to institute the suit, much less any cause of action trial court did not have the benefit of perusing the said documents for to seek the relief as prayed for. As a result, the suit was dismissed. purposes of deciding the issues framed in the suit that are reproduced C hereinbelow for ready reference :- 8. Now the respondents/defendants have filed the present application D “1. Whether the plaintiffs have no locus standi to file the seeking leave to produce the original documents, photocopies whereof present suit? OPD were already placed on record by them before the trial court, and grant of permission to have the admission and denial thereof conducted so that 2. Whether the present suit is bad for non-joinder of the D they can be exhibited in accordance with law and a fresh decision taken necessary party? OPD-7 by the trial court. 3. Whether the present suit has not been properly valued for E the purpose of court fee? PD-7 9. Section 107 of the CPC empowers the appellate court “to take E additional evidence or to require such evidence to be taken”, “subject to 4. Whether the plaintiffs have no cause of action to file the such conditions and limitations as may be prescribed”. Rule 27 of Order present suit? OPD 41 of the CPC prescribes the conditions and limitations placed on this 5. Whether the plaintiffs are entitled to a preliminary decree F discretion. The Rules starts by laying down that the parties to an appeal of partition, as prayed for? OPP shall not be entitled to produce additional evidence whether oral or F 6. Whether the plaintiffs are entitled to a decree of permanent documentary, in the appellate court. It then proceeds to carve out two injunction, as prayed for? OPP circumstances where the appellate court may allow additional evidence to be produced. The first circumstance is where the court appealed from 7. Relief” G has refused to admit such evidence that ought to have been admitted and 7. The onus in respect of issues No.1 and 4 pertaining to their G the second circumstance is where the appellate court requires such locus standi and cause of action for the appellants/plaintiffs to institute evidence either to enable it to pronounce judgment or for any other the suit was placed on the respondents/defendants and after considering substantial cause. As observed by the Supreme Court in the case of Wadi the evidence available on record, the aforesaid issues were decided in Vs. Amilal & Ors. reported as 2004 (1) SCALE 82, “invocation of clause H favour of the respondents/defendants and against the appellants/plaintiffs. (b) does not depend upon the vigilance or negligence of the parties for The said decision is mainly based on the deposition of PW-1, i.e., the H it is not meant for them. It is for the appellant to resort to it when on appellant No.1 and on documents exhibited as Ex.PW-1/3 to PW-1/5, a consideration of material on record, it feels that admission of additional which are the Jamabandies of the suit plots pertaining to the years, 1939- evidence is necessary to pronounce a satisfactory judgment in the case.” I I Jai Singh & Anr. v. Man Singh & Ors. (Hima Kohli, J.) 1245 1246 Indian Law Reports (Delhi) ILR (2014) II Delhi

10. In the present case, for the issue of title of the subject properties A 15. In response, counsel for the respondents/defendants states that to be established satisfactorily, it was necessary that the ownership his clients undertake not to sell, transfer or alienate the suit properties in documents come on record. However, in the absence of the best evidence, any manner, till fresh adjudication of the suit is undertaken by the trial court. the trial court had no option but to decide the issue of the locus standi A of the appellants/plaintiffs and cause of action on the basis of secondary 16. While binding the respondents to their undertaking as recorded evidence including entries made in the revenue records dating back to the B above, the appeal is disposed of. year 1939-40 and 1943-44, which could only throw light on the status of occupation of the subject properties. For purposes of dispelling the 17. The parties are directed to appear before the trial court on 28th obscurity on the issue of title, which is of paramount consideration in a B February, 2014, for further proceedings. suit of partition, interest of justice demands that the documents of title C 18. The trial court record be released forthwith. relating to the subject premises and in the power and possession of the respondents/defendants be looked into to arrive at a just and correct decision. C 11. Accordingly, the originals of the documents relating to the title ILR (2014) II DELHI 1246 of the subject premises, photocopies whereof were filed by the D W.P .(C) respondents/defendants in the trial court under index dated 22.5.2002 are permitted to be taken on record as additional evidence. D 12. However, considering the fact that it is on account of failure PREETI SATIJA ....APPELLANT on the part of the respondents/defendants to file the original title documents E VERSUS that had an important bearing on the case and were material for the consideration of the trial court, for purposes of satisfactorily adjudicating E RAJ KUMARI AND ANR. ....RESPONDENT the present suit, it is deemed appropriate to allow this application subject (S. RAVINDRA BHAT & NAJMI WAZIRI, JJ.) to payment of Rs.50,000/- as costs to the other side within four weeks. F 13. Resultantly, the appeal is allowed and the impugned judgment RFA (OS) NO. : 24/2012, DATE OF DECISION:15.01.2014 CM APPL. NO. : 4236/2012, is set aside. In view of the fact that the additional evidence has been F allowed to be produced by the respondents/defendants, the case is 4237/2012 &5451/2013 &5451/2013 remanded back to the trial court for the parties to appear before the said Court, conduct admission and denial of the original title deeds of the G (A) Domestic Violence Act, 2005 (DV Act)—Sec. 2(a)— subject properties that shall be filed by the defendants and/or produced G definition—aggrieved person—Sec. 2(f)—domestic on the date that may be fixed and for further proceedings in accordance relationship—Sec.2.(s)—shared households—Sec.2(q) with law. —repondent—Sec.3(a)—domestic violence—economic 14. At this stage, counsel for the appellants/plaintiffs states that abuse—Sec.26(1)—relief in any legal proceedings— H during the pendency of the suit before the trial court, an interim order terms respondent includes female relatives of had been operating in favour of the appellants/plaintiffs, restraining the H husband—right of residence—disowning of sons— respondents/defendants from transferring, selling or alienating the suit through public notice—a mere proclamation—does not properties and the said protection may be extended to her clients till the have dispositive legal effect—respondent—plaintiff— mother—in—law of the defendent—petitioner—filed a trial court adjudicates the suit afresh. I I Preeti Satija v. Raj Kumari and Anr. (S. Ravindra Bhat, J.) 1247 1248 Indian Law Reports (Delhi) ILR (2014) II Delhi suit for possession/eviction of dependent daughter in A order against the respondent to provide law in respect of one bed room—a bathroom and small accommodation equivalent to that enjoyed by kitchen—suit property belong to plaintiff’s deceased aggrieved party in the share household—Plaintiff/ husband—died on 30.06.2008—leaving behind a A respondent contended—Definition of share household registered Will dated 20.11.2006—bequeathed a suit was conclusively laid down in previous cases since B property in favour of the Plaintiff—after her husband's the husband being disowned had no right of ownership death—She become sole and absolute owner—back in the household—The wife could not claimed any Portion of the suit property in the possession of right of residence in it—Held—The intent of the defendent no. 1 her daughter-in-law and defendant B Parliament to secure the right of residence in the no. 2 her son—Alleged—Since the relationship C household of respondent (including his relatives) even between her and defendants became estranged—She if the household is one in which respondent is tenant wanted them to vacate the property filed application or one in which he jointly or singly had any right—Title for decree on admission defendant contested that the C interest in law or equity—Thus enabling a wife of plaintiff not absolute owner—WILL had not been deceased male/estranged male to claim a domestic granted probate intestate in law without being D relationship with the mother-in-law—This right not probated the WILL could not come into force—Ld. dependent on husband having any right—Share or Single Judge opined—Not disputed due execution of title in the premises by secular or Hindu Law—Even if WILL—No legal effect because it had not been D mere fact of residence was sufficient and consequently probated—Therefore an admission—Further held— the aggrieved woman could claim right of residence inessential to seek a probate—Thus WILL being E in any such household of the husband—Appeal allowed. admitted remain operative between the parties— Decreed the suit on admission—Court observed— E (B) Code of Civil Procedure, 1908—S. 9—Suit—Suit for Appellant had relied upon the provision of protection possession—Order XII Rule 6—Decree on admission— of woman from violence as per DV Act before Ld. Admission unequivocal—Held—Court cannot base their F Single Judge—Also filed a suit before Civil Judge decision to a decree on the basis of particular pleading Rohini Court pending—However—Ld. Single Judge F or admission—rather overall effect of pleadings and rejected the arguments with respect to applicability of documents of the concerned parties are to be weighed. the provision of DV Act—Holding—Suit property could Courts cannot therefore base their decision to decree (or not considered as a shared household preferred G appeal against the order of Single Judge— not to grant a decree) in a suit in terms of Order XII Rule 6 Contended—No unambiguous admission of the kind G CPC only on the basis of a particular pleading or admission. warranted exercise of discretion under Order XII Rule Rather, the overall effect of the pleadings and documents of 6 CPC—Further argued entitled to right to live in the the concerned parties are to be weighed. The Court has to suit property under domestic violence Act, 2005 H be mindful that what seems plainly an admission could well be explained by the litigant making it, during the course of keeping in mind the proviso to definition of respondent H in S.2(q) which included relatives of male respondent the trial. Moreover, the controlling expression under Order in the domestic relationship with aggrieved wife—S. 12 Rule 6 is that Court “may” grant a decree on admissions. 19 (1) (f) of the Act also allowed grant of residence It is important to analyze this aspect because admissions I I Preeti Satija v. Raj Kumari and Anr. (S. Ravindra Bhat, J.) 1249 1250 Indian Law Reports (Delhi) ILR (2014) II Delhi either in the pleadings or in a document or in the course of A violence has taken place, pass a residence order - a statement cannot be viewed in isolation. (Para 10) (a) restraining the Respondent from dispossessing or These decisions, with respect, proceeded on an erroneous in any other manner disturbing the possession of the understanding of the statute. For this, it would be useful to A aggrieved person from the shared household, whether recollect the decision in Eveneet Singh v. Prashant B or not the Respondent has a legal or equitable Chaudhari, 177(2011) DLT 124 where it was held that: interest in the shared household....”

“11. The key to an understanding of the rights flowing B (Emphasis supplied) from the Domestic Violence Act, are concepts such as “domestic relationship’- which inter alia, is “a C The broad and expansive nature of the Court’s power relationship between two persons who live or have, at to make a residence order is also underlined by the any point of time, lived together in a shared household, amplitude of the definition of “shared household”, when they are related by consanguinity, marriage...”; C which is “where the person aggrieved lives or at any who is a “ Respondent”- a term not confined only to stage has lived- males who had lived with the aggrieved person, i.e. D (i) in a domestic relationship the complainant female, but also - by virtue of proviso to Section 2(q) to “a relative of the husband...” (in the D (ii) either singly or along with the Respondent and case where the domestic relationship is or was a includes such a household marriage). This aspect has been noticed, and clarified E in several rulings by various High Courts (Ref (a) whether owned or tenanted either jointly by the Afzalunnisa Begum v. The State of A.P., MANU/AP/ aggrieved person and the Respondent, or 0206/2009 : 2009 Cri.L.J. 4191; Archana Hemant E (b) owned or tenanted by either of them Naik v. Urmilaben Naik, MANU/MH/0994/2009 : 2010 Cri.L.J. 751 and Varsha Kapoor v. Union of India, F (iii) in respect of which either the aggrieved person WP (Crl.) No. 638 of 2010, Decided on: 03.06.2010, or the Respondent or both jointly or singly have any by a Division Bench of this High Court). It has been F right, title, interest or equity and includes held that when a law uses the same word in different parts of the same statute, there is a presumption that (iv) such a household which may belong to the joint that it is used in the same sense throughout (Suresh G family of which the Respondent is a member, irrespective of whether the Respondent or the Chand v. Gulam Chisti, : (1990) 1 SCC 593), unless G the context indicates otherwise (Bhogilal Chunnilal aggrieved person has any right, title or interest in the Pandya v. State of Bombay, 1959 Supp (1) SCC shared household. 593). Now, the relevant part of Section 19 reads as It is thus apparent that Parliamentary intention was to follows: H secure the rights of aggrieved persons in the shared H “19. Residence orders.-(1) While disposing of an household, which could be tenanted by the application under Sub-section (1) of Section 12, the Respondent (including relative of the husband) or in Magistrate may, on being satisfied that domestic respect of which the Respondent had jointly or singly I I Preeti Satija v. Raj Kumari and Anr. (S. Ravindra Bhat, J.) 1251 1252 Indian Law Reports (Delhi) ILR (2014) II Delhi

any right, title, interest, or “equity”. For instance, a A Hemant Naik (supra) in the following terms: widow living with a mother-in-law, in premises owned “If a wife or a woman to whom the proviso is applicable by the latter, falls within a “domestic relationship”; is compelled to seek residence order in respect of a even if the mother-in-law does not have any right, title A shared household only as against the male relatives or interest, but is a tenant, or entitled to “equity” in B of her husband or male partner, as the case may be, those premises, the same would be a “shared the order under Section19 of the said Act will be household”. In such circumstances, the widowed completely ineffective in as much as the female daughter-in-law, can well claim protection from B relatives of the husband or the male partner occupying dispossession, notwithstanding that her husband never the shared household will continue to disturb had any ownership rights, in the premises, because C possession of such wife or such female of the shared she lived in it; if the mother-in-law, is a tenant, then, household, or may continue to prevent entry of such on the ground that she is tenant, or someone having aggrieved wife or female to the shared household.” equity. It may, however, be noticed here that Section C 19, while referring to a “ Respondent”, lays down a (Emphasis supplied) limited exception under the proviso to 19(1)(b), D exempting women from being directed to remove 12. The Domestic Violence Act is a secular legislation, themselves from the shared household. However, no akin to Section 125 of the Code of Criminal Procedure, D such exception has been carved out for the other 1973. It was enacted “to provide more effective reliefs under Section 19, especially in respect of protection of the rights of women guaranteed under protection orders. Clearly, if the legislature had wanted E the Constitution who are victims of violence of any to create another exception in favor of women, it kind occurring within the family”. The introduction of could have done so. The omission here, seems E the remedy of right to residence is a revolutionary deliberate and in consonance with the rest of the and path breaking step, taken to further the objects of the Act, and any attempt at restricting the scope of scheme of the Act. Another instance of a domestic F relationship may be an orphaned sister, or widowed the remedy would reduce the effectiveness of the Act mother, living in her brother’s or son’s house; it falls F itself. Therefore, it would be contrary to the scheme within the definition of domestic relationship, (which is and the objects of the Act to restrict its application to one where the parties are related by consanguinity, only such cases where the husband owns some or marriage) constitutes a shared household, as the G property or has a share in it, as the mother-in-law can brother is clearly a Respondent. In such a case too, also be a Respondent in the proceedings under the G if the widowed mother or sister is threatened with Domestic Violence Act and remedies available under dispossession, they can secure reliefs under the Act, the same Act would necessarily need to be enforced notwithstanding exclusive ownership of the property, against her. by the son or brother. Thus, excluding the right of H 13. Again, to confine the reference to “joint” family residence against properties where the husband has H property by bringing in the concept of a HUF would be no right, share, interest or title, would severely curtail to restrict the application of the provision, to a point the extent of the usefulness of the right to residence. which is contrary to Parliamentary intention that the This was noted by the Bombay High Court in Archana I I Preeti Satija v. Raj Kumari and Anr. (S. Ravindra Bhat, J.) 1253 1254 Indian Law Reports (Delhi) ILR (2014) II Delhi

law is a non-sectarian one. The “joint” status of a A the definition casts a wide enough net. It is couched family here obviously is in a generic sense, and in inclusive terms and is not in any way, importing notions of HUF would unwittingly give greater exhaustive (S. Prabhakaran v. State of Kerala, benefits to one section of the community, which was A never the intention of Parliament. In a generic sense, 2009 (2) RCR 883. It states that “...includes such a it refers to a group of people, related either by blood B household whether owned or tenanted either jointly or marriage, residing in the same house and instances by the aggrieved person and the Respondent or of that can be found in almost all parts of India. The owned or tenanted by either of them in respect of general practice in India is that the son and his wife B which either the aggrieved person or the Respondent or both jointly or singly have any right, title, interest or reside in the house of the (husband’s) parents after C marriage. Even though a legal obligation to maintain equity and includes such a household which may a child ceases as soon as he attains majority, the belong to the joint family of which the Respondent is jural relationship between the parents and the child C a member, irrespective of whether the Respondent or continues. The concept of a “joint family” in law is the aggrieved person has any right, title or interest in the shared household peculiar to Hindu law. No concept of a “joint family’ D similar to that of an HUF can be found in Muslim Law, (Emphasis supplied). Christian Law or any other personal law. D 16. It would not be out of place to notice here that the 14. The danger of accepting a restricted interpretation use of the term “Respondent” is unqualified in the of joint family by equating it to a HUF would result in E definition nor is there any qualification to it under discrimination, because women living in a shared Sections 12, 17 or 19. Therefore, there is no reason household belonging to HU Fs (and therefore Hindus) E to conclude that the definition does not extend to a would have more security, by reason of their professing house which is owned by a mother-in-law or any other the Hindu faith than others who are not Hindus. Also, female relative, since they are encompassed under even among Hindus, women who are married into or F the definition of “Respondent” under Section 2(q).” live in HUFs, as compared with those living with (emphasis supplied) (Para 15) husbands, whose parents own the property - on an F application of Batra -would have the protection of the The other aspect, which this Court wishes to highlight, is Act; the latter would not have any protection. It is that the 2005 Act applies to all communities, and was precisely to avoid this anomaly that Parliament clarified G enacted “to provide more effective protection of the rights of that irrespective of title of the “Respondent” to the G women guaranteed under the Constitution who are victims “shared household”, a protection order can be made of violence of any kind occurring within the family”. The right under Section 19(1)(a). to residence and creation of mechanism to enforce is a ground breaking measure, which Courts should be alive to. H 15. The definition of “shared household” emphasizes Restricting the scope of the remedies, including in respect the factum of a domestic relationship and no H of the right to reside in shared household, would undermine investigation into the ownership of the said household the purpose of this enactment. It is, therefore, contrary to is necessary, as per the definition. Even if an inquiry the scheme and the objects of the Act, as also the is made into the aspect of ownership of the household, I I Preeti Satija v. Raj Kumari and Anr. (S. Ravindra Bhat, J.) 1255 1256 Indian Law Reports (Delhi) ILR (2014) II Delhi unambiguous text of Section 2(s), to restrict the application A whose parents own the property – on an application of Batra of the 2005 Act to only such cases where the husband – would have the protection of the Act, while the latter would alone owns some property or has a share in it. Crucially, the not. This inequity was addressed by the Parliament which mother-in-law (or a father-in-law, or for that matter, “a A stated in no uncertain terms that irrespective of title of the relative of the husband”) can also be a Respondent in the “Respondent” to the “shared household”, a protection order B proceedings under the 2005 Act and remedies available can be made under Section 19(1)(a). (Para 22) under the same Act would necessarily need to be enforced against them. (Para 21) The facts of this case contain the classic elements of a B husband seeking to evade his responsibilities upon marital Likewise, the interpretation preferred by some learned single discord breaking out. He allegedly disappeared and was C judges that where the husband has some rights (as a “disowned” by his mother. The appellant’s mother-in law member of the HUF, i.e. the Hindu Undivided Family) and if then instituted the suit, to dispossess the daughter in law those premises were the shared household, the wife can C and her grand-children, claiming that she no longer has any enforce her right to residence, also constitutes an internally relationship with her son or her daughter in law. She based incoherent and restrictive interpretation of the Act. As D her claim to ownership of the suit property on a will. The explained in Evneet Singh, such a construction is contrary to daughter in law has not admitted the will. Nor has it been Parliamentary intention that the law is a non-sectarian one. proved in probate proceedings. Often, sons move out, or Indeed, the “joint” status of a family referred to under D transfer properties or ownership rights, or shares in Section 2 (s) is in a generic sense. To equate it with a HUF immovable properties, at the hint of trouble or discord with would result in unintended benefits to one set of respondents, E their wives, in favour of their relatives. Likewise, the parents who are Hindus. Speaking generically, “joint family” refers to of the husband often in such cases “disown” them after the a group of people, related either by blood or marriage, E son moves out from the common or “joint” premises owned residing in the same house. Instances of that can be found by either or both his parents, when there is outbreak of in almost all parts of India. The general practice in India is marital discord. Courts have to be cautious in their approach, that the son and his wife reside in the house of the F while entertaining and short circuiting suits for possession, (husband’s) parents after marriage, though the legal which are in effect directed against the plaintiffs’ daughter- F obligation to maintain a child ceases as soon as she or he in law, or else the right of residence in shared households attains majority, the jural relationship between the parents would be a mere chimera, a teasing illusion which the law and the child continues. The concept of a “joint family” in law grandly promises, but is seldom, if ever, able to enforce. In G is peculiar to Hindu law. No concept of a “joint family” similar fact, the strategy of “disowning” sons, through public notices to that of an HUF can be found in Muslim law, Christian law G or advertisement, is not to be taken lightly. For example, or any other personal law. Therefore, a restrictive even if a son is disowned by either parent, the death of that interpretation of “joint family” by equating it to a HUF would parent would, if intestate, still lead to devolution of property result in implicit discrimination, because women living in a H upon that son. Indeed, a mere proclamation does not have shared household belonging to an HUF (and therefore, a dispositive legal effect, breaking all legally relevant familial Hindus) would have more security, by reason of their H ties. Thus, absent a deed of relinquishment or other formal professing the Hindu faith than others who are not Hindus. deed of partition of the family or separation between the In fact, even among Hindus, women who are married into or members, the Court must be cautious in denying statutory live in HUFs, as compared with those living with husbands, I I Preeti Satija v. Raj Kumari and Anr. (S. Ravindra Bhat, J.) 1257 1258 Indian Law Reports (Delhi) ILR (2014) II Delhi

rights to wives, as against members of the husband’s family, A 8. Western Coalfields Ltd. vs. M/s Swati Industires, AIR on the basis of such tentative facts. To the contrary, if the 2003 Bom 369. Court is to place reliance on such acts, benefits enacted by 9. Uttam Singh Duggal & Co. vs. United Bank of India & the 2005 Act in favour of the wife would be bypassed on A Ors 2000 (7) SCC 120. account of alleged, and possibly fleeting, discords between B 10. Gilbert vs. Smith, 1875-76 (2) Ch 686. the husband and his family. Indeed, such an approach is neither legally tenable, nor viable given the scheme of the RESULT: Appeal allowed. Act. (Para 23) B S. RAVINDRA BHAT, J. 1. The defendant appeals the judgment and order of a learned Single Important Issue Involved: (a) There must be clear and C unequivocal admission of the case on which decree can be Judge, who decreed the suit preferred by the respondent- plaintiff, her drawn on admission (b) the wife is entitled to right of mother in law, on admission, by invoking Order XII Rule 6, Code of residence in shared households owned by mother-in-law. C Civil Procedure (CPC). The plaintiff had sought a decree for possession/ eviction of the defendant/daughter-in-law. [Gu Si] D 2. The plaintiff had filed the suit for possession, permanent injunction and mesne profits against the defendants, her son and mother in-law, in APPEARANCE: D respect of a portion of property bearing No.2245, Hudson Lane, GTB FOR THE APPELLANT : Sh. Sudhir Mendiratta, Advocate. Nagar, Kingsway Camp, Delhi – 110 009 (hereafter referred to as “the suit property”). The first defendant is the plaintiff’s daughter-in-law and FOR THE RESPONDENT : Sh. Nishant Datta and Ms. Garima E Hooda, Advocates, for Resp. No.1. wife of her disowned son. The son was also arrayed as the second defendant. The suit property belonged to the plaintiff’s husband (Shri CASES REFERRED TO: E Tek Chand), who he died on 30.06.2008 leaving behind a registered Will 1. Varsha Kapoor vs. UOI & Ors. 2010 VI AD (Delhi) 472. dated 20.11.2006 by which he bequeathed the suit property to her. The plaintiff alleged that after her husband’s death, she became the sole and 2. Jeevan Diesel & Electricals Limited vs. Jasbir Singh F absolute owner of that property. The plaintiff claimed that the back Chadha & Another, (2010) 6 SCC 601. F portion of the suit property consisting of one bedroom, a bathroom and 3. Sandhya Manoj Wankhade vs. Manoj Bhimrao Wankhade, a small kitchen is in occupation of the defendants. She alleged that since [2011] 2 SCR 261. the relationship between her and the defendants became estranged, she 4. Eveneet Singh vs. Prashant Chaudhari (DB, FAO (OS) G wanted them to vacate the property. During the pendency of the suit, the 71-72/2011. plaintiff filed an application alleging her entitlement to a decree on alleged G admission. 5. Vimalben Ajitbhai Patel vs. Vatslabeen Ashokbhai Patel and Ors., 2008(4) SCC 649. 3. The appellant’s position in her reply to the application for decree on admission was that the plaintiff was not the absolute owner of the suit 6. S.R. Batra & Anr. vs. Smt. Taruna Batra, (2007) 3 H SCC169. property as the Will had not been granted probate and was as yet untested H in law and that without it being probated, the Will cannot come into 7. Shumita Didi Sandhu vs. Sanjay Singh Sandhu, 2007 (96) force. DRJ 697. 4. The learned Single Judge was of the opinion that since the I I Preeti Satija v. Raj Kumari and Anr. (S. Ravindra Bhat, J.) 1259 1260 Indian Law Reports (Delhi) ILR (2014) II Delhi defendant/appellant had not disputed the due execution of the Will, and A son disappeared. At the same time, the plaintiff “disowned” him after the had merely contested that it had no legal effect because it had not been matrimonial disputes started, and proceeded to file the suit. Counsel probated, there was in effect an admission. Further, he concluded that emphasized that it was precisely to overcome these strategies and devices it is inessential to seek a probate, and thus, the Will, being admitted, A that “shared household” was defined widely, and the wife, under the remains operative between the parties. The impugned order also mentioned 2005 Act, was given the right to reside in such premises, by virtue of the two notices issued on behalf of the plaintiff to the defendants and her B Section 17. It was also pointed out that by virtue of Section 26, the allegation that they were harassing her and continuing to live in the suit provisions of the 2005 Act could be invoked before any court in any premises. The Court also noticed that the appellant had filed a suit, before stage of the proceeding. It was argued that the appellant is in a pitiable the Civil Judge, North West, Rohini Courts, Delhi (Suit No.16/2010) B plight, because she has to maintain two school going children, who have which is still pending. Importantly, the Single Judge was also aware of been left untended and uncared by her husband and the orders of C the fact that the appellant had relied on provisions of the Protection of maintenance granted in her favour by the concerned magistrate have not Women from Domestic Violence Act, 2005 (hereafter “2005 Act”). been implemented. It was also pointed out that the wife has initiated criminal proceedings alleging that the husband had committed offences 5. In the impugned judgment, the learned Single Judge rejected the C punishable under Sections 406 and 498-A of the Indian Penal Code arguments of the appellant with respect to applicability of the provisions (IPC). of the 2005 Act. It was held that the suit property could not be considered D to be “shared household”. In view of this conclusion, the Single Judge 7. Counsel for the plaintiff justified the impugned order. He argued that the appellant had made an unambiguous admission entitling the plaintiff decreed the suit in part, holding that the defendant was liable to be D evicted. to a decree under Order 12 Rule 6. Counsel submitted that the decisions in Shumita Didi Sandhu and S.R. Batra were conclusive as to the limits 6. The appellant argued that the learned Single Judge failed to E of the right to residence of the wife in a shared household. Here, the suit consider that there was no unambiguous admission of the kind that premises belonged to the plaintiff and the appellant could not claim the warranted exercise of discretion under Order 12, Rule 6. In this regard, E right to reside in it, since her husband had no right – ownership or it was contended that the written statement had alleged collusion between otherwise in respect of those premises. the plaintiff and her son, the second defendant; it had not admitted due execution of the Will and stated that such circumstances would have to F 8. The first question which this court has to consider is whether be tested in probate proceedings. In these circumstances, the court should there were admissions in the pleadings of the type to enable the court to have not exercised its discretion in granting a decree on admission. It F draw a decree for possession on admission. The suit records were called was further argued that the Single Judge fell into error in relying on the for and have been gone into by this Court. In the written statement, the decision of the Supreme Court in S.R. Batra &Anr v. Smt. Taruna appellant had claimed that the suit was not maintainable because the suit Batra, (2007) 3 SCC169 and the ruling of this Court in Shumita Didi G premises were her matrimonial home where she was entitled to reside. Sandhu v. Sanjay Singh Sandhu, 2007 (96) DRJ 697. It was contended G At more than one place, (especially in reply to the plea that the plaintiff that those decisions overlooked the crucial definition of “shared household” is “absolute owner” of the property), the appellant unequivocally denied and that the respondent, was an expression not limited to male relatives the plaintiff’s title and stated that she was put to strict proof of the claim of the applicant, but also female relatives, by virtue of proviso to Section of sole ownership. In respect of the allegation that the ownership was H 2 (q) and Section 19 (1) (f). It was argued that in the present case the on account of testamentary devolution by virtue of late Tek Chand’s husband had not been served and had not entered appearance; there were H registered Will, the appellant denied them, stating that such was not the matrimonial disputes between him and the first defendant, i.e. the appellant. case “as per her knowledge”. Since she had no knowledge and the Counsel urged that the plaintiff and the second defendant colluded; the plaintiff was put to strict proof, the appellant went on to state that this I could be done by obtaining probate – a course which had not as yet been I Preeti Satija v. Raj Kumari and Anr. (S. Ravindra Bhat, J.) 1261 1262 Indian Law Reports (Delhi) ILR (2014) II Delhi resorted to. The gist of these averments, therefore, was that the appellant A statement as well as in the reply to the application under Order 12 Rule denied the plaintiff’s title. She did not admit the Will, and the clear 6 CPC was of denial of the plaintiff’s claim of absolute ownership. This admission that the written statement contained was as to the relationship denial was unequivocal. The appellant also claimed that the plaintiff and her husband had colluded and the suit was a step to achieve the object of the parties. A of that collusion. She relies on the copies of the complaint, criminal 9. The question here is whether the pleadings taken as a whole B proceedings and the orders made towards her maintenance, in support point to an unambiguous and clear admission contemplated by law. The of those submissions. That she added that the plaintiff ought to obtain standard spelt out in Uttam Singh Duggal & Co. v. United Bank of probate, is a matter of detail, in the written statement, which – with India & Ors 2000 (7) SCC 120 and Jeevan Diesel & Electricals B respect to the learned Single judge – was plucked out from the pleadings. Limited v. Jasbir Singh Chadha & Another, (2010) 6 SCC 601 that Whether a will is probated or not, it requires to be proved, once the the Courts have to adopt, while considering pleadings and considering if C ownership of the property is disputed and the claim to such title is solely a decree on admission is to be drawn, is whether there is a “clear and based on a will. This aspect gains importance because in the event of unequivocal admission of the case” (of the plaintiff, by the party defending C a trial it would have been necessary for the plaintiff to prove due the application). It is also not in dispute that there is no golden rule about execution of the will, in tune with provisions of the Indian Succession what constitute as “clear and unequivocal admission”. The Court has to Act and the Evidence Act. That part of the written statement and reply D proceed on a case fact dependent approach having due regard to the to the plaintiff’s application dealing with the plaintiff’s obligation to overall effect of the pleadings and documents. This is clear from the obtain probate, should not, in our view with respect to the impugned decision in Gilbert v. Smith, 1875-76 (2) Ch 686, which was relied D judgment, have been the exclusive basis for holding that the plaintiff upon by the Supreme Court in Jeevan Diesel (supra). The question was was entitled to a decree on admissions. The impugned judgment in amplified in Western Coalfields Ltd. v. M/s Swati Industires, AIR E effect assumes plaintiff’s title to the suit premises on the basis of due 2003 Bom 369. In Jeevan Diesel (supra), it was held that : execution of the Will, which was not proved. This court, therefore, is of opinion that the appellant’s pleadings cannot be considered as “whether or not there is a clear, unambiguous admission by one E party of the case of the other party is essentially a question of unequivocal or unqualified, and admissions, necessitating a decree on fact and the decision on this question depends on the facts of the admissions. case. This question, namely whether there is a clear admission F 12. The next question is whether the learned single judge was right or not cannot be decided on the basis of a judicial precedent.” F in holding that the provisions of the 2005 Act did not aid the appellant 10. Courts cannot therefore base their decision to decree (or not to and that she could not claim the suit premises to be “shared household”. grant a decree) in a suit in terms of Order XII Rule 6 CPC only on the 13. The question has to be examined in view of provisions of the basis of a particular pleading or admission. Rather, the overall effect of G 2005 Act. Section 2(a)of the Act states: the pleadings and documents of the concerned parties are to be weighed. G The Court has to be mindful that what seems plainly an admission could “2(a) “aggrieved person” means any woman who is, or has well be explained by the litigant making it, during the course of the trial. been, in a domestic relationship with the respondent and who Moreover, the controlling expression under Order 12 Rule 6 is that Court alleges to have been subjected to any act of domestic violence “may” grant a decree on admissions. It is important to analyze this aspect H by the respondent;” because admissions either in the pleadings or in a document or in the H Section 2(f) states that: course of a statement cannot be viewed in isolation. “2(f) “ domestic relationship” means a relationship between 11. In this case, the appellant’s consistent stand in the written two persons who live or have, at any point of time, lived I I Preeti Satija v. Raj Kumari and Anr. (S. Ravindra Bhat, J.) 1263 1264 Indian Law Reports (Delhi) ILR (2014) II Delhi together in a shared household when they are related by A children, if any, stridhan, property, jointly or separately owned consanguinity, marriage, or through a relationship in the nature by the aggrieved person, payment of rental related to the shared of marriage, adoption or are family members living together as household and maintenance.” a joint family;” A An aggrieved person under the Act can approach the Magistrate under Section 2(s) defines shared household as follows: B Section 12 for the relief mentioned in Section 12(2). Under Section 20(1)(d) the Magistrate can grant maintenance while disposing of the “2(s) “ shared household” means a household where the person application under Section 12(1). Section 26(1) provides that the relief aggrieved lives or at any stage has lived in a domestic relationship mentioned in Section 20 may also be sought in any legal proceeding, either singly or along with the respondent and includes such a B before a civil court, family court or a criminal court. household whether owned or tenanted either jointly by the C aggrieved person and the respondent, or owned or tenanted by 14. There are some decisions which have preferred the view that either of them in respect of which either the aggrieved person or since the ruling in S.R. Batra held that when the premises are not owned the respondent or both jointly or singly have any right, title, C by the husband, the applicant/wife cannot claim it to be a shared household interest or equity and includes such a household which may (for example, Neetu Mittal v. Kanta Mittal, (2008) DLT 691, which belong to the joint family of which the respondent is a member, D held that self-acquired property of the husband’s parents are not shared irrespective of whether the respondent or the aggrieved person household). has any right, title or interest in the shared household” D 15. These decisions, with respect, proceeded on an erroneous Section 2 (q) defines who is a respondent: “2(q) “respondent” understanding of the statute. For this, it would be useful to recollect the means any adult male person who is, or has been, in a domestic decision in Eveneet Singh v. Prashant Chaudhari, 177(2011) DLT relationship with the aggrieved person and against whom the E 124 where it was held that: aggrieved person has sought any relief under this Act” E “11. The key to an understanding of the rights flowing from the Section 3(a) states that an act will constitute domestic violence Domestic Violence Act, are concepts such as “domestic in case it relationship’- which inter alia, is “a relationship between two F persons who live or have, at any point of time, lived together in “harms or injures or endangers the health, safety, life, limb or a shared household, when they are related by consanguinity, well-being, whether mental or physical, of the aggrieved person F marriage...”; who is a “ Respondent”- a term not confined only or tends to do so and includes causing physical abuse, sexual to males who had lived with the aggrieved person, i.e. the abuse, verbal and emotional abuse and economic abuse;” or complainant female, but also - by virtue of proviso to Section (emphasis supplied) G 2(q) to “a relative of the husband...” (in the case where the G domestic relationship is or was a marriage). This aspect has The expression “economic abuse” has been defined to include: been noticed, and clarified in several rulings by various High “(a) deprivation of all or any economic or financial resources to Courts (Ref Afzalunnisa Begum v. The State of A.P., MANU/ which the aggrieved person is entitled under any law or custom AP/0206/2009 : 2009 Cri.L.J. 4191; Archana Hemant Naik v. H whether payable under an order of a court or otherwise or which Urmilaben Naik, MANU/MH/0994/2009 : 2010 Cri.L.J. 751 and the aggrieved person requires out of necessity including, but not H Varsha Kapoor v. Union of India, WP (Crl.) No. 638 of 2010, limited to, household necessities for the aggrieved person and Decided on: 03.06.2010, by a Division Bench of this High Court). her It has been held that when a law uses the same word in different I I Preeti Satija v. Raj Kumari and Anr. (S. Ravindra Bhat, J.) 1265 1266 Indian Law Reports (Delhi) ILR (2014) II Delhi parts of the same statute, there is a presumption that that it is A rights of aggrieved persons in the shared household, which could used in the same sense throughout (Suresh Chand v. Gulam be tenanted by the Respondent (including relative of the husband) Chisti, : (1990) 1 SCC 593), unless the context indicates otherwise or in respect of which the Respondent had jointly or singly any right, title, interest, or “equity”. For instance, a widow living (Bhogilal Chunnilal Pandya v. State of Bombay, 1959 Supp (1) A SCC 593). Now, the relevant part of Section 19 reads as follows: with a mother-in-law, in premises owned by the latter, falls B within a “domestic relationship”; even if the mother-in-law does “19. Residence orders.-(1) While disposing of an not have any right, title or interest, but is a tenant, or entitled application under Sub-section (1) of Section 12, the to “equity” in those premises, the same would be a “shared Magistrate may, on being satisfied that domestic violence B household”. In such circumstances, the widowed daughter-in- has taken place, pass a residence order - law, can well claim protection from dispossession, notwithstanding (a) restraining the Respondent from dispossessing or in C that her husband never had any ownership rights, in the premises, any other manner disturbing the possession of the aggrieved because she lived in it; if the mother-in-law, is a tenant, then, person from the shared household, whether or not the C on the ground that she is tenant, or someone having equity. It Respondent has a legal or equitable interest in the shared may, however, be noticed here that Section 19, while referring household....” to a “ Respondent”, lays down a limited exception under the D (Emphasis supplied) proviso to 19(1)(b), exempting women from being directed to remove themselves from the shared household. However, no such The broad and expansive nature of the Court’s power to make D exception has been carved out for the other reliefs under Section a residence order is also underlined by the amplitude of the 19, especially in respect of protection orders. Clearly, if the definition of “shared household”, which is “where the person E legislature had wanted to create another exception in favor of aggrieved lives or at any stage has lived- women, it could have done so. The omission here, seems deliberate and in consonance with the rest of the scheme of the Act. Another (i) in a domestic relationship E instance of a domestic relationship may be an orphaned sister, (ii) either singly or along with the Respondent and includes such or widowed mother, living in her brother’s or son’s house; it a household F falls within the definition of domestic relationship, (which is one (a) whether owned or tenanted either jointly by the aggrieved where the parties are related by consanguinity, or marriage) F person and the Respondent, or constitutes a shared household, as the brother is clearly a Respondent. In such a case too, if the widowed mother or sister (b) owned or tenanted by either of them is threatened with dispossession, they can secure reliefs under the G Act, notwithstanding exclusive ownership of the property, by the (iii) in respect of which either the aggrieved person or the son or brother. Thus, excluding the right of residence against Respondent or both jointly or singly have any right, title, interest G properties where the husband has no right, share, interest or or equity and includes title, would severely curtail the extent of the usefulness of the (iv) such a household which may belong to the joint family of right to residence. This was noted by the Bombay High Court in which the Respondent is a member, irrespective of whether the H Archana Hemant Naik (supra) in the following terms: Respondent or the aggrieved person has any right, title or interest H “If a wife or a woman to whom the proviso is applicable in the shared household. is compelled to seek residence order in respect of a shared It is thus apparent that Parliamentary intention was to secure the household only as against the male relatives of her husband I I Preeti Satija v. Raj Kumari and Anr. (S. Ravindra Bhat, J.) 1267 1268 Indian Law Reports (Delhi) ILR (2014) II Delhi or male partner, as the case may be, the order under A between the parents and the child continues. The concept of a Section19 of the said Act will be completely ineffective in “joint family” in law is peculiar to Hindu law. No concept of as much as the female relatives of the husband or the a “joint family’ similar to that of an HUF can be found in Muslim Law, Christian Law or any other personal law. male partner occupying the shared household will continue A to disturb possession of such wife or such female of the 14. The danger of accepting a restricted interpretation of joint shared household, or may continue to prevent entry of B family by equating it to a HUF would result in discrimination, such aggrieved wife or female to the shared household.” because women living in a shared household belonging to HU Fs (Emphasis supplied) B (and therefore Hindus) would have more security, by reason of their professing the Hindu faith than others who are not Hindus. 12. The Domestic Violence Act is a secular legislation, akin to Also, even among Hindus, women who are married into or live Section 125 of the Code of Criminal Procedure, 1973. It was C in HUFs, as compared with those living with husbands, whose enacted “to provide more effective protection of the rights of parents own the property - on an application of Batra -would women guaranteed under the Constitution who are victims of C have the protection of the Act; the latter would not have any violence of any kind occurring within the family”. The protection. It is precisely to avoid this anomaly that Parliament introduction of the remedy of right to residence is a revolutionary D clarified that irrespective of title of the “Respondent” to the and path breaking step, taken to further the objects of the Act, “shared household”, a protection order can be made under and any attempt at restricting the scope of the remedy would Section 19(1)(a). reduce the effectiveness of the Act itself. Therefore, it would be D contrary to the scheme and the objects of the Act to restrict its 15. The definition of “shared household” emphasizes the factum application to only such cases where the husband owns some E of a domestic relationship and no investigation into the ownership property or has a share in it, as the mother-in-law can also be of the said household is necessary, as per the definition. Even a Respondent in the proceedings under the Domestic Violence E if an inquiry is made into the aspect of ownership of the Act and remedies available under the same Act would necessarily household, the definition casts a wide enough net. It is couched need to be enforced against her. in inclusive terms and is not in any way, F 13. Again, to confine the reference to “joint” family property exhaustive (S. Prabhakaran v. State of Kerala, 2009 (2) RCR by bringing in the concept of a HUF would be to restrict the F 883. It states that “...includes such a household whether owned application of the provision, to a point which is contrary to or tenanted either jointly by the aggrieved person and the Parliamentary intention that the law is a non-sectarian one. The Respondent or owned or tenanted by either of them in respect of “joint” status of a family here obviously is in a generic sense, G which either the aggrieved person or the Respondent or both and importing notions of HUF would unwittingly give greater jointly or singly have any right, title, interest or equity and benefits to one section of the community, which was never the G includes such a household which may belong to the joint family intention of Parliament. In a generic sense, it refers to a group of which the Respondent is a member, irrespective of whether of people, related either by blood or marriage, residing in the the Respondent or the aggrieved person has any right, title or same house and instances of that can be found in almost all H interest in the shared household parts of India. The general practice in India is that the son and H (Emphasis supplied). his wife reside in the house of the (husband’s) parents after marriage. Even though a legal obligation to maintain a child 16. It would not be out of place to notice here that the use of ceases as soon as he attains majority, the jural relationship the term “Respondent” is unqualified in the definition nor is I I Preeti Satija v. Raj Kumari and Anr. (S. Ravindra Bhat, J.) 1269 1270 Indian Law Reports (Delhi) ILR (2014) II Delhi there any qualification to it under Sections 12, 17 or 19. Therefore, A “15. Having regard to the purpose which the DV Act seeks to there is no reason to conclude that the definition does not extend achieve and when we read Section 2(q) along with other to a house which is owned by a mother-in-law or any other provisions, out task is quite simple, which may in first blush female relative, since they are encompassed under the definition appear to be somewhat tricky. We are of the considered view A of “Respondent” under Section 2(q).” (emphasis supplied) that the manner in which definition of “respondent” is given B under Section 2(q) of DV Act, it has to be segregated into two 16. The above decision of a single judge was approved by the independent and mutually exclusive parts, not treating proviso Division Bench in Eveneet Singh v. Prashant Chaudhari (DB, FAO as adjunct to the main provision. These two parts are: (OS) 71-72/2011, decided on 08.11.2011) B a) Main enacting part which deals with those aggrieved persons, “12. Thus, at best it can be urged that while deciding an issue who are “in a domestic relationship”. Thus, in those cases where pertaining to a wife’s claim for residence in the shared household C aggrieved person is in a domestic relationship with other person the discussion must start with a presumption in favour of the against whom she has sought any relief under the DV Act, in wife that law leans in her favour to continue to reside in the C that case, such person as Respondent has to be an adult male shared household and only upon adequate circumstances being person. Given that aggrieved person has to be a female, such manifestly and objectively disclosed by the opposite party, could D aggrieved person in a domestic relationship can be a mother, a an order contemplated by clause (f) of sub-section 1 of Section sister, a daughter, sister-in-law, etc. 10 of the Act be passed. D b) Proviso, on the other hand, deals with limited and specific 13. In the instant case the circumstance to take recourse to class of aggrieved person, viz. a wife or a female living in clause (f) of sub-section 1 of Section 19 of the Act would be the extreme ill health of the mother-in-law of the appellant; medical E relationship in the nature of marriage. First time by this documents pertaining to whom would show that she suffers from legislation, the legislator has accepted live in relationship by ‘tachycardia’ with heart muscles functioning at about 20%. The E giving those female who are not formally married, but are living constant strife with the newly married daughter-in-law in her with a male person in a relationship, which is in the nature of house would certainly have an adverse effect on the mother-in- marriage, also akin to wife, though not equivalent to wife. This F law. Besides, the husband of the appellant is currently in proviso, therefore, caters for wife or a female in a live in Hyderabad and not at Delhi. F relationship. In their case, the definition of “respondent” is widened by not limiting it to “adult male person” only, but also 14. It is apparent that clause (f) of sub-section 1 of Section 19 including “a relative of husband or the male partner”, as the of the Act is intended to strike a balance between the rights of case may be. a daughter-in-law and her in-laws, if a claim to a shared G residence by the daughter-in-law pertains to a building in which G What follows is that on the one hand, aggrieved persons other the matrimonial home was set up belongs to her mother-in-law than wife or a female living in a relationship in the nature of or father-in-law.” marriage, viz., sister, mother, daughter or sister-in-law as aggrieved person can file application against adult male person 17. In an earlier decision, Varsha Kapoor v. UOI & Ors. 2010 VI H only. But on the other hand, wife or female living in a relationship AD (Delhi) 472 another Division Bench interpreted Section 2(q) of the H in the nature of marriage is given right to file complaint not Act also concluded that “respondent” can include female relatives of the only against husband or male partner, but also against his husband. The Division Bench held as under: relatives. I I Preeti Satija v. Raj Kumari and Anr. (S. Ravindra Bhat, J.) 1271 1272 Indian Law Reports (Delhi) ILR (2014) II Delhi 16. Having dissected definition into two parts, the rationale for A direction was given confirming the order relating to deletion of the names including a female/woman under the expression “relative of the of the ‘other members’ from the complaint filed by the Appellant. The husband or male partner” is not difficult to fathom. It is common judgment of the High Court was challenged before the Supreme Court. knowledge that in case a wife is harassed by husband, other Allowing the appeal, the Supreme Court held: A family members may also join husband in treating the wife cruelty “13. It is true that the expression “female” has not been used and such family members would invariably include female relatives B in the proviso to Section 2(q) also, but, on the other hand, if the as well. If restricted interpretation is given, as contended by the Legislature intended to exclude females from the ambit of the Petitioner, the very purpose for which this Act is enacted would complaint, which can be filed by an aggrieved wife, females be defeated. It would be very easy for the husband or other male B would have been specifically excluded, instead of it being provided members to frustrate the remedy by ensuring that the violence on in the proviso that a complaint could also be filed against a the wife is perpetrated by female members. Even when Protection C relative of the husband or the male partner. No restrictive meaning Order under Section 18 or Residence Order under Section 19 is has been given to the expression “relative”, nor has the said passed, the same can easily be defeated by violating the said C expression been specifically defined in the Domestic Violence orders at the hands of the female relatives of the husband. Act, 2005, to make it specific to males only. 19. It is also well-recognized principle of law that while D 14. In such circumstances, it is clear that the legislature never interpreting a provision in statute, it is the duty of the Court to intended to exclude female relatives of the husband or male give effect to all provisions. When aforesaid provisions are read D partner from the ambit of a complaint that can be made under conjointly keeping the scheme of the DV Act, it becomes the provisions of the Domestic Violence Act, 2005. abundantly clear that the legislator intended female relatives E 15. In our view, both the Sessions Judge and the High Court also to be Respondents in the proceedings initiated by wife or went wrong in holding otherwise, possibly being influenced by female living in relationship in the nature of marriage, the same E the definition of the expression “respondent” in the main body can easily be defeated by violating the said orders at the hands of Section 2(q) of the aforesaid Act.” of the female relatives of the husband. F 19. The ruling in Shumita Didi Sandhu, in this Court’s opinion, with 19. It is also well-recognized principle of law that while due respect, did not analyze the entirety of the definition of “shared interpreting a provision in statute, it is the duty of the Court to F household”. Nor did it link the concept and the right to residence granted give effect to all provisions. When aforesaid provisions are read by the 2005 Act with the definition of “respondent” which includes conjointly keeping the scheme of the DV Act, it becomes female relatives of the husband, and not just the male relatives. That abundantly clear that the legislator intended female relatives G decision was rendered much before the ruling in Varsha Kapoor, and the also to be Respondents in the proceedings initiated by wife or Supreme Court decision in Sandhya Manoj Wankhede. Its absence of any female living in relationship in the nature of marriage.” G discussion on the rights of women as against female relatives of the 18. This interpretation has been approved in Sandhya Manoj husband regardless of whether the respondent had any right, or interest Wankhade v. Manoj Bhimrao Wankhade, [2011] 2 SCR 261 by the in the property, in this Court’s opinion, results in limiting it to deciding Supreme Court. The learned Single Judge of the High Court had, in that H the facts of that case. It would be also necessary to notice a decision case, disposed off the writ petition with a direction to the Appellant to H of the Supreme Court in Vimalben Ajitbhai Patel v. Vatslabeen vacate her matrimonial house, which was in the name of the second Ashokbhai Patel and Ors., 2008(4) SCC 649. There, the wife was Respondent and also directed the Trial Court to expedite the hearing of beneficiary of a maintenance order, which was sought to be enforced the wife’s miscellaneous criminal application within six months. A further I through execution, against her mother in law’s property. The wife claimed I Preeti Satija v. Raj Kumari and Anr. (S. Ravindra Bhat, J.) 1273 1274 Indian Law Reports (Delhi) ILR (2014) II Delhi that since it was a “shared household”, the property could be attached. A of the Act. There can be other cases of domestic relationships such as Repelling the argument, the Supreme Court held that the obligation to an orphaned sister, or widowed mother, living in her brother’s or son’s provide maintenance was of the husband and any order in that regard house. Both are covered by the definition of domestic relationship, as the could be enforced against him, by attachment of his personal assets or A brother is clearly a Respondent. In such a case too, if the widowed properties. It was in this context that the Court held that a shared mother or sister is threatened with dispossession, they can secure reliefs household belonging to the mother in law could not be subject matter of B under the Act, notwithstanding exclusive ownership of the property by attachment. The context of that decision was different as the Supreme the son or brother. Thus, excluding the right of residence against properties Court, in this Court’s opinion, did not decide that despite the definition where the husband has no right, share, interest or title, would severely of “shared household” enabling a wife the right of residence in premises B curtail the extent of the usefulness of the right to residence. not owned by the husband, she could not claim to live there. Rather, in 21. The other aspect, which this Court wishes to highlight, is that proceedings for maintenance, the claim may not lie against the mother- C the 2005 Act applies to all communities, and was enacted “to provide in-law’s property – a domain that the present case does not touch upon. more effective protection of the rights of women guaranteed under the 20. Crucially, Parliament’s intention by the 2005 Act was to secure C Constitution who are victims of violence of any kind occurring within the the rights of aggrieved persons in the shared household, which could be family”. The right to residence and creation of mechanism to enforce is tenanted by the Respondent (including relative of the husband) or in D a ground breaking measure, which Courts should be alive to. Restricting respect of which the Respondent had jointly or singly any right, title, the scope of the remedies, including in respect of the right to reside in interest, or “equity”. For instance, a widow (or as in this case, a daughter shared household, would undermine the purpose of this enactment. It is, D in law, estranged from her husband) living with a mother-in-law, in therefore, contrary to the scheme and the objects of the Act, as also the premises owned by the latter, falls within a “domestic relationship”. The unambiguous text of Section 2(s), to restrict the application of the 2005 obligation not to disturb the right to residence in the shared household E Act to only such cases where the husband alone owns some property or would continue even if the mother-in-law does not have any right, title has a share in it. Crucially, the mother-in-law (or a father-in-law, or for or interest, but is a tenant, or entitled to “equity” (such as an equitable E that matter, “a relative of the husband”) can also be a Respondent in the right to possession) in those premises. This is because the premises proceedings under the 2005 Act and remedies available under the same would be a “shared household”. The daughter-in-law, in these Act would necessarily need to be enforced against them. F circumstances is entitled to protection from dispossession, though her 22. Likewise, the interpretation preferred by some learned single husband never had any ownership rights in the premises. The right is not F judges that where the husband has some rights (as a member of the dependent on title, but the mere factum of residence. Thus, even if the HUF, i.e. the Hindu Undivided Family) and if those premises were the mother-in-law is a tenant, then, on that ground, or someone having shared household, the wife can enforce her right to residence, also equity, she can be injuncted from dispossessing the daughter in law. In G constitutes an internally incoherent and restrictive interpretation of the case the mother in law is the owner, the obligation to allow the daughter Act. As explained in Evneet Singh, such a construction is contrary to in law to live in the shared household, as long as the matrimonial G Parliamentary intention that the law is a non-sectarian one. Indeed, the relationship between her and the husband subsists, continues. The only “joint” status of a family referred to under Section 2 (s) is in a generic exception is the proviso to 19(1)(b), which exempts women from being sense. To equate it with a HUF would result in unintended benefits to one directed to remove themselves from the shared household. No such H set of respondents, who are Hindus. Speaking generically, “joint family” exception has been carved out for the other reliefs under Section 19, espec H refers to a group of people, related either by blood or marriage, residing ally in respect of protection orders. Had the Parliament intended to create in the same house. Instances of that can be found in almost all parts of another exception in favor of women, it would have done so. This India. The general practice in India is that the son and his wife reside in omission was deliberate and in consonance with the rest of the scheme I the house of the (husband’s) parents after marriage, though the legal I Preeti Satija v. Raj Kumari and Anr. (S. Ravindra Bhat, J.) 1275 1276 Indian Law Reports (Delhi) ILR (2014) II Delhi obligation to maintain a child ceases as soon as she or he attains majority, A proclamation does not have a dispositive legal effect, breaking all legally the jural relationship between the parents and the child continues. The relevant familial ties. Thus, absent a deed of relinquishment or other concept of a “joint family” in law is peculiar to Hindu law. No concept formal deed of partition of the family or separation between the members, of a “joint family” similar to that of an HUF can be found in Muslim law, A the Court must be cautious in denying statutory rights to wives, as Christian law or any other personal law. Therefore, a restrictive against members of the husband’s family, on the basis of such tentative interpretation of “joint family” by equating it to a HUF would result in B facts. To the contrary, if the Court is to place reliance on such acts, implicit discrimination, because women living in a shared household benefits enacted by the 2005 Act in favour of the wife would be bypassed belonging to an HUF (and therefore, Hindus) would have more security, on account of alleged, and possibly fleeting, discords between the husband by reason of their professing the Hindu faith than others who are not B and his family. Indeed, such an approach is neither legally tenable, nor Hindus. In fact, even among Hindus, women who are married into or live viable given the scheme of the Act. in HUFs, as compared with those living with husbands, whose parents C own the property – on an application of Batra – would have the protection 24. In view of the above discussion, the impugned judgment and decree of the learned single judge is hereby set aside; parties are directed of the Act, while the latter would not. This inequity was addressed by C the Parliament which stated in no uncertain terms that irrespective of title to present themselves before the concerned single judge as per roster of the “Respondent” to the “shared household”, a protection order can allocation, on 6th February, 2014 for directions toward further proceedings D be made under Section 19(1)(a). in the suit. The appeal is allowed, under the above circumstances, without any order as to costs. 23. The facts of this case contain the classic elements of a husband D seeking to evade his responsibilities upon marital discord breaking out. He allegedly disappeared and was “disowned” by his mother. The appellant’s mother-in law then instituted the suit, to dispossess the daughter in law E and her grand-children, claiming that she no longer has any relationship ILR (2014) II DELHI 1276 with her son or her daughter in law. She based her claim to ownership E W.P. (C) of the suit property on a will. The daughter in law has not admitted the will. Nor has it been proved in probate proceedings. Often, sons move F MOHD. ASHIKIAN QURESHI ....PETITIONER out, or transfer properties or ownership rights, or shares in immovable properties, at the hint of trouble or discord with their wives, in favour F VERSUS of their relatives. Likewise, the parents of the husband often in such cases “disown” them after the son moves out from the common or D.D.A. THROUGH ITS CHAIRMAN & ORS. ....RESPONDENTS “joint” premises owned by either or both his parents, when there is G (HIMA KOHLI, J.) outbreak of marital discord. Courts have to be cautious in their approach, while entertaining and short circuiting suits for possession, which are in G W.P. (C) NO. : 1364/2013 AND C DATE OF DECISION: 16.01.2014 effect directed against the plaintiffs’ daughter-in law, or else the right of M APPL. NO. : 6324/2013 residence in shared households would be a mere chimera, a teasing illusion which the law grandly promises, but is seldom, if ever, able to H Constitution of India 1950—Article 226—Writ Petition enforce. In fact, the strategy of “disowning” sons, through public notices H —Disputed questions of facts—cannot be taken up in or advertisement, is not to be taken lightly. For example, even if a son writ petition—civil suit pending on same issue— is disowned by either parent, the death of that parent would, if intestate, decision of civil court to be awaited-right of offering still lead to devolution of property upon that son. Indeed, a mere I namaz—raising of boundary wall of colony—do not I Mohd. Ashikian Qureshi v. D.D.A. Thr. Its Chairman (Hima Kohli, J.)1277 1278 Indian Law Reports (Delhi) ILR (2014) II Delhi amount to restriction of right—petitioner a resident of A When the reliefs sought by the petitioner in the present Kalkaji—had been offering namaz in Madini Masjid petition are juxtaposed against those prayed for by the near Gate No.7, Alaknanda Apartments, Alaknanda, Local Managing Committee of the Masjid in the civil suit, it New Delhi—due to cars illegally parked near Masjid A is apparent that the relief (iii) in the plaint is almost the same his—ingress—egress—other namajis into the masjid as reliefs (i) & (iii) prayed for in the present petition. Having obstructed—car parked in the open courtyard of B regard to the fact that the Civil Court is seized of the issue masjid—not meant for car parking—an unauthorized that is being agitated in the present petition and that too in wall has been constructed near the masjid which a suit instituted by the Local Managing Committee of the ought to be removed—namajis form the adjoining B Masjid itself, this Court is not inclined to entertain the relief locality facing difficulty in offering namaz due to lack sought by the petitioner at prayer clauses (i) & (iii). C of apace—Respondent DDA contested—filed affidavit— (Para 7) stated that relief prayed in writ petition subject matter of civil suit instituted by local Managing Committee of C In the opinion of this Court, the subject boundary wall Madini Masjid and Dargah Pending in the court of Sr. cannot be treated as an obstruction to the ingress and egress of namazis to the Masjid for the reason that there Civil Judge, Saket, New Delhi—said suit after Division D Bench of High Court in LPS in case titled Aravali are two gates affixed on the said boundary wall to regulate Residents Welfare Association and Others v. DDA and vehicular traffic and pedestrian traffic. Simply because the Others. had expressed an opinion that there were D petitioner desires free access to the Masjid does not mean number of factual disputes raised for consideration that the safety and security of the residents living within a which could not be determined in writ proceedings— E gated colony can be compromised. Moreover, learned evidence required to be led before coming to any counsel for the respondent No.1/DDA has stated that the boundary wall in question has not been raised illegally. conclusion—Court observed —having to the facts that E civil court seized of the issue being agitated in the Therefore, there is no need to issue any directions for its petition—court not inclined to entertain the same with removal. (Para 9) respect to relief sought—with regard to relief of F Important Issue Involved: (a) The disputed question of removal of illegal wall—observed—wall of 1 1/2 to 2 F feet would hardly be treated as obstruction to the facts cannot be determined in the writ jurisdiction. petitioner to have free access to the masjid—further there were two gates affixed on the boundary to [Gu Si] G regulate vehicular and pedestrian traffic—further APPEARANCES: observed—simply because the petitioner desire free G access to the masjid did not mean that safety and FOR THE PETITIONER : security of residents living within gated colony could Mr. M.M. Kashyap, Advocate be compromised—DDA also stated that the wall in H FOR THE RESPONDENT : Mr. Rajiv Bansal, Advocate with Mr. question not raised illegally—Held—petition ought to H D. Ray Chaudhury, Advocate for R- await the decision of civil suit—petition and pending 1/DDA. Mr. G.D. Mishra, Advocate application disposed off accordingly. for R-2/SDMC. Ms. Mumtaz Ahmed and Mr. Brij Lal, Advocates for the I applicant in CM APPL. 6324/2013. I Mohd. Ashikian Qureshi v. D.D.A. Thr. Its Chairman (Hima Kohli, J.) 1279 1280 Indian Law Reports (Delhi) ILR (2014) II Delhi CASE REFERRED TO: A by the appellants/RWA therein to the effect that the subject Masjid itself was an unauthorised construction and an encroachment on public land. 1. Aravali Resident Welfare Association and Ors. vs. DDA However, after hearing the parties, the Division Bench had expressed an and Ors. LPA No.535-43/2006. opinion that there were a number of factual disputes raised for A RESULT: Writ Petition and pending application disposed off. consideration, which could not be determined in writ proceedings as B HIMA KOHLI, J. (Oral) evidence was required to be led before coming to any conclusion. The said disputed questions of facts included whether the mosque in question 1. The present petition has been filed by the petitioner praying inter had existed at the site on a particular date and as to what was the stage alia for issuance of directions to the respondents No.1 to 3 to restrain B at which it had come up. The other disputed questions of facts mentioned all persons from parking their cars in front of Madini Masjid, near Gate in the aforesaid decision included the status of an entity by the name of No.7, Alaknanda Apartments, Alaknanda, New Delhi, and further, take C Mulsim Janta Anjuman and its capacity to have proposed any settlement steps to remove the boundary wall allegedly raised in an illegal manner between the parties before the Division Bench. In the concluding para of and without obtaining any permission from the concerned authorities. C the aforesaid judgment, the Division Bench had observed as below:- 2. Learned counsel for the petitioner states that the petitioner who “12. We however cannot ignore the fact that mosque exists on is a resident of Kalkaji, is a Namazi and has been offering Namaz at D a particular area. The Namazis have a right to offer their Namaz Madini Masjid for the past several years, but due to cars being illegally at the mosque subject to the determination of the ultimate question parked near the Masjid, his ingress and egress and that of thousands of in Civil proceedings. Learned counsel for the Wakf Board submits other Namazis into the Masjid is being obstructed. It is contended by D that they will approach the concerned authorities for making learned counsel for the petitioner that cars are illegally being parked in the arrangements for a large number of Namazis to be accommodated open courtyard in front of the Masjid, which is actually not meant for E within the precincts of the Masjid by carrying out suitable car parking. He also states that there is an unauthorised wall that has constructions in accordance with law. This is of course for the been constructed near the Masjid, which ought to be removed as thousands E Wakf Board to do. of Namazis from the adjoining localities who visit the mosque in question 13. The rights of the Namazis to offer prayers at the mosque are facing difficulty in offering their prayers due to lack of space. Hence, the present petition. F however cannot imply a right to spill over into lanes and by-lanes and to occupy the area beyond the precincts of the mosque. The 3. An affidavit in opposition to the writ petition has been filed by F prayers must thus be offered within the boundary of the mosque. the respondent No.1/DDA, wherein it is stated that the reliefs prayed for This would of course entail possibly restricting the number of in present writ petition are the subject matter of a civil suit that has been Namazis into the mosque because the area itself is limited. It is instituted by the Local Managing Committee of Madani Masjid and Dargah G for the Wakf Board or the concerned authorities to work out as and the same is pending adjudication in the Court of the Senior Civil G to how best the area can be utilized for purpose of permitting a Judge, Saket. Learned counsel for the respondent No.1/DDA states that larger number of Namazis to offer prayers but the same should the aforesaid suit came to be instituted by the Managing Committee of be restricted to the area of the mosque. the Masjid on 04.10.2010, after an order dated 19.01.2009 was passed by the Division Bench in LPA No.535-43/2006 entitled Aravali Resident H 14. Learned counsel for the appellants submits that periodically police authorities have to be called. The Commissioner of police Welfare Association and Ors. vs. DDA and Ors. H is impleaded as respondent No.3 and is represented by a counsel. 4. A perusal of the aforesaid decision of the Division Bench reveals It is the bounden duty of the police authority to ensure that the that in the said case, the Court was considering the submissions made law of land is obeyed and law and order be maintained. It thus I I Mohd. Ashikian Qureshi v. D.D.A. Thr. Its Chairman (Hima Kohli, J.) 1281 1282 Indian Law Reports (Delhi) ILR (2014) II Delhi must be ensured that the areas beyond the boundary of the A defendant no.1 to 3 restraining them for parking their Masjid are kept clear for the allottees and residents of the area vehicles in the boundary of the masjid. and are not used for any other purpose than easementary rights (iv) Pass such other or further orders may kindly be passed of passage.” A in favour of the plaintiff and against the defendants in view of the facts and circumstances of the case in the 5. Learned counsel for the respondent No.1/DDA states that it was B after the aforesaid decision came to be passed in the appeal that the Local interest of justice.” Managing Committee of the Masjid had instituted a civil suit for the relief 7. When the reliefs sought by the petitioner in the present petition of permanent and mandatory injunction which is similar to the relief B are juxtaposed against those prayed for by the Local Managing Committee prayed for in the present petition. The reliefs prayed for by the petitioner of the Masjid in the civil suit, it is apparent that the relief (iii) in the plaint in the present petition are reproduced hereinbelow for ready reference:- C is almost the same as reliefs (i) & (iii) prayed for in the present petition. “(i) to give directions to respondents 1 to 3 to take steps to Having regard to the fact that the Civil Court is seized of the issue that is being agitated in the present petition and that too in a suit instituted by restrain the persons for illegal parking of cars in front of C Madini Masjid, near gate no.7, Alaknanda Apartments, the Local Managing Committee of the Masjid itself, this Court is not Alaknanda, New Delhi. inclined to entertain the relief sought by the petitioner at prayer clauses D (i) & (iii). (ii) to give direction to respondent 1 to 3 to take steps to remove the illegal wall raised at the boundary of courtyard 8. Coming to the relief sought by the petitioner at prayer clause (ii) by some persons without any permission of any authority. D which is for issuance of directions to the respondents to remove an (iii) to give direction to respondent no.3 to impound the illegal illegal wall raised outside the Masjid, a perusal of the photographs filed parked cars so that no car can be parked. E by the petitioner on record, particularly at page 21 shows that the same is only a toe wall with the height of approximately one and a half/two (iv) Pass such other order/orders as this Hon’ble Court may feet. The wall of such a height can hardly be treated as an obstruction deem fit and proper in the facts and circumstances of the E for the petitioner to have free access to the Masjid in question. As for case.” the submission of learned counsel for the petitioner that the grills installed 6. The reliefs prayed for by the Local Managing Committee of the F along the boundary wall of the Aravali Apartment Complex, Alaknanda is Masjid in the civil suit instituted by it, are reproduced hereinbelow:- an obstruction, learned counsel for the respondent No.1/DDA states on F “(i) Pass a decree for mandatory injunction against the instructions that it is a gated colony having seventeen gates and the defendant no.1 to 4 to demolish the illegal addition and boundary wall was constructed for the safety and security of the residents of the area, at the instance of the DDA itself. The aforesaid fact is alteration and unauthorised construction in the flats of G Arawali Apartments, Alaknanda, Kalkaji, New Delhi, which however disputed by the counsel for the petitioner. G caused great hardship to the plaintiffs and other residents 9. In the opinion of this Court, the subject boundary wall cannot of the area for Namaj. be treated as an obstruction to the ingress and egress of namazis to the (ii) Pass a decree for mandatory injunction against the Masjid for the reason that there are two gates affixed on the said boundary defendant no.2 to cancel the lease of the flat holders who H wall to regulate vehicular traffic and pedestrian traffic. Simply because have made addition and alteration and additional flats and H the petitioner desires free access to the Masjid does not mean that the illegal construction in their flats. safety and security of the residents living within a gated colony can be compromised. Moreover, learned counsel for the respondent No.1/DDA (iii) Pass a decree for permanent injunction against the has stated that the boundary wall in question has not been raised illegally. I I Shekhar @ Chhotu v. The State (NCT of Delhi) (S.P. Garg, J.) 1283 1284 Indian Law Reports (Delhi) ILR (2014) II Delhi Therefore, there is no need to issue any directions for its removal. A victim and to commit robbery, cannot be considered 'use of a deadly weapon' to attract and prove 10. For the reasons stated above, this Court declines to issue any directions in respect of prayer clause (ii) of the petition. For the remaining commission of an offence U/section 398 IPC. reliefs sought by the petitioner, as the said issue is under the active A [Di Vi] consideration of the Civil Court, in a suit instituted by the Local Managing B Committee of the Masjid, pursuant to an order passed by the Division APPEARANCES: Bench in LPA No.535-43/2006, the petitioner ought to await the decision FOR THE APPELLANT : Mr. S.B. Dandapani, Advocate and in the aforesaid suit. B Mr. Bhupesh Narula, advocate. 11. Accordingly, the petition is disposed of alongwith the pending C application. FOR THE RESPONDENT : Mr. M.N. Dudeja, APP. RESULT: Appeal dismissed. C S.P. GARG, J. D ILR (2014) II DELHI 1283 1. Shekhar @ Chhotu (A-1) and Hari Om (A-2) question the legality CRL.A. and correctness of a judgment dated 13.12.2010 in Sessions Case No. D 80/10 arising out of FIR No. 45/10 PS Gandhi Nagar by which they SHEKHAR @ CHHOTU ....APPELLANT were held guilty for committing offences punishable under Sections 452/ VERSUS E 394/398/34 IPC. A-1 was also held guilty under Section 25 Arms Act. By orders on sentence dated 15.12.2010, A-1 was awarded RI for three THE STATE (NCT OF DELHI) ....RESPONDENT E years with fine Rs. 200/- under Section 452 IPC; RI for five years with fine Rs. 500/- under Section 394 IPC; RI for seven years with fine Rs. (S.P. GARG, J) 500/- under Section 398 IPC and RI for one year with fine Rs. 200/- F under Section 25 Arms Act. A-2 was awarded similar prison terms under CRL.A. NO. : 1283/2011 & DATE OF DECISION: 31.01.2014 F Sections 452/394/398 IPC. The substantive sentences were to operate CRL.A. NO. : 1056/2011 concurrently.

Indian Penal Code, 1860—Section 452/394/398- minor 2. Allegations against the appellants were that on 21.02.2010 at G contradictions and discrepancies do not affect the about 08.30 P.M. at Swastik Hosiery, 9/6563, Nehru Gali, Gandhi Nagar, core of the prosecution case-ocular testimony in G they in furtherance of common intention with their associates (not arrested) consonance with medical evidence- committed house trespass and attempted to commit robbery. In the process, they caused injuries to Darshan Jain by a ’deadly’ weapon. Both Merely because blood was not found on the knife at H the appellants were apprehended at the spot. Daily Diary (DD) No. 31A the time of its production in the court, cogent and H was recorded at 2044 hours at PS Gandhi Nagar about the apprehension credible statement of victim cannot be discarded. of two assailants having knives. Daily Diary (DD) No. 32A was recorded Use of brick to cause injuries in an attempt to get at 2048 hours on getting information that the owner of the shop was assaulted with a knife by some assailants. The investigation was assigned released co-accused only from the clutches of the I I Shekhar @ Chhotu v. The State (NCT of Delhi) (S.P. Garg, J.) 1285 1286 Indian Law Reports (Delhi) ILR (2014) II Delhi to ASI Zile Singh who with Const. Jaswant went to the spot. Bhushan A declining to part with the money, A-1 again said ‘paise deta hai ki nahi’ Jain produced both the assailants to him. Darshan Jain had already been and attacked him with a dagger. He hit him on the palm of his right hand. taken to SDN Hospital by PCR. The Investigating Officer lodged First On his raising alarm, Bhushan Jain arrived there. A-2 asked him to Information Report after recording Darshan Jain’s statement (Ex.PW-1/ A release A-1 and on his refusal, he hit him with a brick on his head. He A). During investigation, statements of the witnesses conversant with the B was also caught hold by Bhushan Jain. The assailants were given beatings facts were recorded. After completion of investigation, a charge-sheet by the public. In the cross-examination, he admitted that there was no was filed against both the appellants; they were duly charged and brought blood stains on the knife (Ex.P1). He denied the suggestion that the boys to trial. The prosecution examined seven witnesses to substantiate the B who had run away from the spot had caused injuries to him or that the charges. In 313 statements, the accused persons pleaded false implication appellants were falsely implicated when they were coming to their house. and claimed that on that day they had gone to purchase pants. A-2 had C PW-5 (Bhushan Jain) corroborated PW-1 (Darshan Jain)’s statement on consumed liquor and was under its influence. They, however, did not material facts. He also identified A-2 to be the assailant who was examine any witness in defence. The trial resulted in their conviction as overpowered by him. He attributed definite role to A-1 who had the C aforesaid. handle of dagger and A-2 who had a brick in his hand. In the cross- examination, he explained that the occurrence took place in one or two 3. I have heard the learned counsel for the parties and have examined D minutes. He denied the suggestion that the appellants were wrongly identified the record. The incident took place at around 08.30 P.M. Darshan Jain by him in the Court at the instance of the police. who was injured in the occurrence was taken to SDN Hospital, Shahdara D by PCR. MLC (Ex.PW-2/A) records the arrival time of the patient at 4. On scrutinizing the testimonies of PW-1 and PW-5, it reveals 10.05 P.M. DD Nos. 31A and 32A were recorded soon after the incident that they have given consistent version regarding the incident and have E at 2044 hours and 2048 hours, respectively. The Investigating Officer proved the role played by each of the assailants in the occurrence without after recording statement of the victim lodged First Information Report major variation. Despite cross-examination, no material discrepancies could E without wasting time at 11.45 P.M. by making endorsement (Ex.PW-6/ be elicited or extracted to disbelieve or discard their statements. No B). In the complaint, the victim gave vivid description of the incident and ulterior motive was assigned to any of these public witnesses for falsely narrated as to how and under what circumstances, four intruders had F implicating the appellants with whom they had no prior acquaintance or entered inside his factory and one of them was armed with a knife. He animosity. The victim who had sustained injuries with a sharp weapon was directed to handover the cash at the point of knife. When he declined F was not expected to let the real culprit go scot free and to falsely to do so, he was injured by a knife. The assailant who was armed with implicate and identify innocent ones. The appellants were arrested at the a knife was caught hold by him. His associate in an attempt to get him spot and were given beatings by the public. They were taken for medical G release, hit him on his head with a brick. His neighbor Bhushan Jain examination. They have not denied their presence at the spot. They did succeeded to apprehend the said assailant. Two of their associates escaped G not adduce any evidence to prove that prior to arrival at the spot, they from the spot. Since the FIR was lodged without any delay, the had purchased pants from a specific shop. No such shopkeeper was complainant had no time to concoct a false story. He had no ulterior examined in defence. Nothing was revealed as to when and where A-2 motive to fake an incident of robbery. While appearing as PW-1, he H had consumed liquor as alleged. identified A-1 and A-2 to be among the four assailants who had committed trespass in his factory at about 08.30 P.M. when he was making accounts H 5. Minor contradictions and discrepancies highlighted by appellants’ for payment to the workers. He attributed specific role to A-1 who had counsel do not affect the core of the prosecution case. The ocular a knife and directed him to handover whatever money he had. On his testimony is in consonance with medical evidence. PW-2 (Dr.Gangotri I I Shekhar @ Chhotu v. The State (NCT of Delhi) (S.P. Garg, J.) 1287 1288 Indian Law Reports (Delhi) ILR (2014) II Delhi Singh) medically examined Darshan Jain and prepared MLC (Ex.PW-2/ A 9. A-1 and A-2 are directed to surrender before the Trial Court on A). Nature of injuries was opined as ’simple’ caused by sharp weapon. 7th February, 2014 to serve the remaining period of sentence (if any). In the cross-examination, she categorically stated that the patient had 10. Trial Court record be sent back immediately. A copy of the bruises on his head. She denied the suggestion that the said injury on the A head was not possible with brick (Ex.P2). Injury on the palm was judgment be sent to the Superintendent Jail for information. B described as ’simple’ caused by sharp edged weapon. Merely because blood was not found on the knife at the time of its production in the Court, cogent and credible statement of the victim cannot be discarded. B The medical evidence is certain that the injuries were caused by a ’sharp’ ILR (2014) II DELHI 1288 object. In 313 statements, the accused persons did not give plausible C RFA (OS) explanation to the incriminating circumstances proved against them. No pant or cash was recovered during their search as depicted in their HINDUSTAN UNILEVER LIMITED ....PETITIONER personal search memos. The findings are based upon fair appraisal of the C evidence and require no interference. VERSUS D 6. A-2, admittedly, did not have any ’deadly’ weapon at the time RECKITT BENCKISER INDIA LIMITED ....RESPONDENTS of occurrence. Only when he attempted to get release A-1 from the D (S. RAVINDRA BHAT & R.V. EASWAR, JJ.) clutches of the victim, he hit him with a ’brick’ on his head. Under these circumstances, the ’brick’ cannot be considered as a ’deadly’ weapon to RFA (OS) NO. : 50/2008, DATE OF DECISION: 31.01.2014 attract section 398 IPC. Conviction under Section 398 IPC qua A-2 is E CM. APPL. : 17116/2008 set aside. E 7. A-1 has been awarded minimum sentence prescribed under Section Injunction—Appeal directed against a decree for 398 IPC which cannot be altered or modified. A-2’s nominal roll dated permanent injunction: Brief Facts—Plaintiff (hereafter F 03.01.2012 reveals that he has suffered custody in this case for one year, "Reckitt") sought to restrain the defendent Hindustan Lever Ltd. (hereafter "HUL") by permanent injunction ten months and eleven days besides earning remission for four months F from telecasting the advertisement or otherwise and four days as on 03.01.2012. Nominal roll further reveals that he is disparaging Reckitt’s goodwill and reputation and its not a previous convict and is not involved in any other criminal case. His product sold under the trade mark DETTOL, in any overall jail conduct is satisfactory. He was enlarged on bail by an order G other advertisements and in all media—Reckitt also dated 21.03.2013. Nothing has emerged if he misused the liberty or G sought damages to the tune of Rs.20,00,050/- towards indulged in any such crime after his release. Considering these mitigating disparagement, denigration and tarnishment of ist circumstances, the substantive sentence under Section 394 IPC qua A- goodwill and reputation by the impugned 2 is reduced from five years to four years. H advertisement—A claim for exemplary damages too was made in the suit—Reckitt is involved in the 8. In the light of above discussion, appeal filed by A-1 is dismissed. H While maintaining A-2’s conviction under Section 452/394 IPC, substantive manufacture of the famous antiseptic disinfectant sentence under Section 394 IPC will be RI for four years. Other terms under the trade mark DETTOL for over 70 years. It was averred that the mark DETTOL is synonymous with and conditions in the sentence order shall remain unaltered. I I Hindustan Unilever Ltd.v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.)1289 1290 Indian Law Reports (Delhi) ILR (2014) II Delhi good hygience and, today, it is a household name and A that the audience of the impugned advertisement is the most widely used antiseptic disinfectant in the must be considered to be the reasonable man with country—Reckitt became aware that the HUL imperfect recollection, and the consumer/user base introduced an advertisement on television, which A of the soap, by virtue of being acquainted with what intentionally and deliberately disparages Reckitt’s soap the product looks like, would not have imperfect under the trade mark DETTOL and the unique and B recollection and fifth, that the test of malice was not distinctive packaging —The offending advertisement fulfilled i.e. nothing was done with the direct object of concerns the defendant’s LIFEBUOY soap—Impugned injuring the other person’s business—Appellant/ decree for permanent injunction was issued by the B defendant challenged the grant of punitive damages learned Single Judge in a claim alleging that the while the respondent/plaintiff argued that general or C defendant/appellant’s advertisement had disparaged compensatory damages ought to have been awarded, the plaintiff’s good —The impugned judgment also first. directed payment of punitive damages to the extent of C Rs. 5 lakhs to the plaintiff—Hence Present Appeal— Held: Slander of goods is a species or branch of the The Plaintiff/respondent argued that the Dettol had D law of defamation—It is widely accepted that to be been famous as an antiseptic/disinfectant, and had defamatory, an imputation must tend to lower the become synonymous with good hygiene as a claimant in the estimation of right thinking members household name, and that the defendant had subjected D of society generally, (i.e., the reference to the the Dettol Toilet soap (in which its the distinctive and ‘common’ or reasonable’ man)—In the present case, unique shape, unique orange colour were clearly E the learned Single Judge correctly described the visible, albeit without the logo) and the green, guiding principles after discussing the case law on distinctive packaging to intentional and deliberate E the subject and even brought home the distinction disparagement by depicting it to be the type of “normal between passing off actions—Which are concerned antiseptic soaps that make the skin dry...” thereby with deceptively similarity or confusion between the “permitting the germs to enter the cracks in the skin”, F two marks for which the test of impression gathered unlike the defendant’s soap. The appellant argued F by an average woman or man with imperfect that, first, Dettol is neither an antiseptic soap (as held recollection is applicable and disparagement—Whilst in a previous judgment of the Delhi HC) nor an there can be no quarrel with the fact that a reasonable unbranded soap, second, that the respondent neither G man and an average man refer to the same metaphor had a monopoly over the colour, shape or packaging and imperfect recollection refer to an natural attribute of the soap, nor had registered the shape, contours G of a reasonable or average man, what needs closer and curvatures of its soap under the Designs Act to scrutiny is whether the standard applicable in judging create an exclusive right of use, third, that “totality of disparagement claims is if a particular class of user (in impression” (and not either the “test of confusion” H this case the Dettol user) feels that the statement is applied in passing off actions, or the isolated frame- H disparaging—There appears to be an overwhelming by-frame approach) must be used as the test of consensus of judicial opinion that to determine disparagement, so that the intent, manner, story line whether a statement disparages or defames the view and message of the advertisement is conveyed, fourth, point to be considered is that of the general public I I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.)1291 1292 Indian Law Reports (Delhi) ILR (2014) II Delhi (the refinements of whether such “right thinking” or A commercial disparagement has occurred, and thus, on “reasonable” persons belong to a “respectable” the look-out for any indication of the same, must section of the public, apart). Thus, whenever an equally remain cautious that the advertisement is argument that sectarian approach (i.e. applying the A viewed as viewers normally view it. standpoint of members of a section of the public) is to be adopted, Courts have tended to reject it time and B In the present case, the plaintiff (Reckitt) has been again. able to prove, successfully, that HUL telecast the impugned 30 second advertisement on a large number The first question here is as to the manner in which B of occasions (2763 times, to be precise, according to such advertisements are to be viewed, and secondly, C Ex. PW-1/19)—The innuendo was cleverly designed to the legal standard against which the advertisement is suggest that Rackitt’s DETTOL Original caused damage to be judged—On this question, the advertisement to the skin—The advertiser, i.e. HUL, was conscious must be seen as a viewer would normally view it in C that it was crossing the boundary between permissible the course of the television programme, and not “puffing” and what was prohibited in law—The evidence specifically with a view it in the course of the television D on record, in the form of HUL’s witnesses testimony, programme, and not specifically with a view to catch is that Rs. 2.5 crores was spent in July 2007 alone for an infringement—This distinction is thin, but important: advertising its product—HUL also admitted during the in trying to determine whether commercial D trial that the DETTOL Original brand was worth Rs. 200 disparagement has occurred, the relevant crores—Such being the case, this Court holds that the consideration is how the viewer (i.e. the individual to E Single Judge’s reluctance to award general damages whom the alleged disparagement is addressed) would was not justified—It would be necessary to mention in see the advertisement—This consideration is important E this context that it may not be possible for an otherwise also because of the manner in which the advertisement successful plaintiff, in a disparagement or slander of is appreciated—Whether as a running reel or frame by goods action to always quantify the extent of loss; frame—The answer to this necessarily is the former, F there would necessarily be an element of dynamism in for two clear reasons—First, when deciding such F this, because of the nature of the product, the season matters, the judge is to consider (as will be discussed it is sold in, the possible future or long term impact below) how an average, reasonable man would view that may arise on account of the advertisement, etc. the advertisement as it appears on the television or G Therefore, courts the world over have resorted to electronic medium, as in the present case. In order to some rough and ready calculations—In view of the do this, the endeavour of the Court is to substitute its G evidence presented before this Court (i.e. the number judgment for that of the average/reasonable man. of times the advertisement was telecast, the quantum Undoubtedly, when the advertisement is displayed on of advertisement expenses of HUL, the amount spent the television, it is nor scrutinized in ever detail by H by Reckitt, to advertise its product, etc.) this Court is the viewers, but rather, taken as a whole as it is H of opinion that the plaintiff is entitled to recover displayed. This simple proposition is of great general damages to the tune of Rs. 20 lakhs. The relevance, since a judge, sits in an adversarial setting impugned judgment and order is modified to that with the clear purpose of determining whether extent, and the cross objection by Reckitt, is I I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1293 1294 Indian Law Reports (Delhi) ILR (2014) II Delhi

consequently allowed in these terms—As far as A and intended to be seen by millions of viewers. As punitive damages are concerned, the learned Single observed in John (supra) “The extent of publication is Judge relied in Lokesh Srivastava and certain other also very relevant: a libel published to millions has a rulings. Here, since the Court is dealing with a final A greater potential to cause damage than a libel decree and a contested one at that (unlike in the case published to a handful of people...” Having regard to B of trademark and intellectual property cases, where all these circumstances, the Court is of opinion that the Courts, especially a large number of Single Judge the award of Rs. 5 lakhs as exemplary damages in the decisions proceeded to grant such punitive damages facts of this case was justified and not disproportionate; in the absence of any award of general or quantified B it is accordingly upheld—In view of the above damages for infringement or passing off), it would be C discussion, it is held that this appeal has no merit. It necessary to examine and re-state the governing is accordingly dismissed, but with costs, quantified at principles—Punitive damages should invariably follow Rs. 55,000/-. The cross objections however succeed the award of general damages (by that the Court C and the decree of the learned Single Judge shall be meant that it could be an element in the determination impugned judgment, the plaintiff/Reckitt is also entitled of damages, or a separate head altogether, but never D to a decree for Rs. 20 lakhs—Cross objections are completely without determination of general allowed to that extent—Plaintiff shall in addition to the damages)—Impugned judgment fell into error in relying costs of the appeal, be also entitled to costs of the on the decision in Times Incorporated v. Lokesh D cross objection the counsel’s fee, assessed at Rs. Srivastava 116 (2005) DLT 569—To say that civil 25,000/-. alternative to an overloaded criminal justice system is E Slander of goods is a species or branch of the law of in public interest would be in fact to sanction violation defamation. It is widely accepted that to be defamatory, an of the law—This can also lead to undesirable results E imputation must tend to lower the claimant in the estimation such as casual and unprincipled and eventually of right thinking members of society generally, (i.e., the disproportionate awards—Consequently, this Court F reference to the ‘common’ or ‘reasonable’ man). The standard declares punitive damages, based on the ruling in that the statement must amount to ‘disparagement of ... the rep Lokesh Srivastava and Microsoft Corporation v. F tation in the eyes of right thinking men generally’ w Yogesh Papat and Another, 2005 (30) PTC 245 (Del) is spelt out without authority. Those decisions are accordingly overruled—To award punitive damages, the Courts G in Leetham v. Rank (1912) 57 SJ 111, and also applied should follow and categorization indicated in Rookes G and followed in Byrne v. Deane, [1937] 1 KB 818 and in (Supra) and further grant such damages only after Campbell v. Toronto Star, (1990) 73 DLR 190. Whilst the being satisfied that the damages awarded for the Canadian and Australian approach appears to be largely in wrongdoing is inadequate in the circumstances, having tune with the English law [ref Campbell (supra), a Canadian regard to the three categories in Rookes and also H decision; and Reader’s Digest Services Pty Ltd v. Lamb following the five principles in Cassel. The award of H (1982) 150 CLR 500, an Australian decision], the approach general damages through this judgment (although of of the US Supreme Court appears to be a bit different. In a a figure of Rs. 20 lakhs) is moderate, since the case where the plaintiff, a teetotaller, sued the publisher of advertisement was aired over 2700 times and seen a news item that he used to drink whiskey, in the course of I I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1295 1296 Indian Law Reports (Delhi) ILR (2014) II Delhi

its judgment, the US Supreme Court held that there could be A latter, i.e., non-users may be unaware of the unique curvature no general consensus or opinion that to drink whiskey was shape, packaging etc. of the Dettol soap sufficiently to link wrong and yet at the same time observed [ref. Peck v. it with Reckitt’s product as to possibly associate the Tribune Co 214, US 185 (1909)] as follows: A advertised product with Dettol, since the bar of soap in the impugned advertisement is some unbranded soap. However, “if the advertisement obviously would hurt the plaintiff B as far as the former category is concerned, the learned in the estimation of an important and respectable part Single Judge held the Dettol users would “immediately of the community, liability is not a question of a recognize the bar of soap shown in the advertisement as majority vote... No falsehood is through about or even B referring to the plaintiff original Dettol soap”. This was on known by all the world. No conduct is hated by all. account of familiarity by reason of use of such soap and That it will be known by a larger number and will lead C knowledge of its shape, colour, size, contours and packaging. an appreciable fraction of that number to regard the (Para 41) plaintiff with contempt is enough to do her practical C harm... It seems to be impossible to say that the There appears to be an overwhelming consensus of judicial obvious tendency of what is imputed to the plaintiff by opinion that to determine whether a statement disparages or D this advertisement is not seriously to hurt her standing defames the viewpoint to be considered is that of the with a considerable and respectable class in her general public (the refinements of whether such “right community.” (Para 37) D thinking” or “reasonable” persons belong to a “respectable” section of the public, apart). Thus, whenever an argument This Court is of the opinion that the approach and that a sectarian approach (i.e. applying the standpoint of understanding of the learned Single Judge while discussing E members of a section of the public) is to be adopted, Courts the law generally applicable as to disparagement and have tended to reject it time and again. In Tolly v. Fry, 1931 permissible limits of puffing is correct and does not call for E AC 333, the House of Lords had to decide if the depiction any interference. At the same time, his allusion or reference of the plaintiff, an amateur golfer – without his consent – in to “average man with imperfect recollection using Dettol F an advertisement defamed or caused injury to his amateur soap” requires some elaboration. Whilst there can be no status (which was during the times regarded as valuable for quarrel with the fact that a reasonable man and an average F a golfer). The advertisement contained a limerick and also man refer to the same metaphor and imperfect recollection the plaintiff’s picture. It was argued unsuccessfully by the refer to an natural attribute of a reasonable or average plaintiff that the governing test was whether the knowing man, what needs closer scrutiny is whether the standard G public (i.e. those aware about the nature of the game, and applicable in judging disparagement claims is if a particular G the valuable status of an amateur, at that time) would regard class of user (in this case the Dettol user) feels that the the depiction and the statement as defamatory. The House statement is disparaging. The learned Single Judge’s of Lords, which had to decide whether the judgment which discussions and conclusions on this are based upon his left the matter to the judge, instead of the jury, was a correct analysis of what perceptions are discernible from the H one, held that the guiding principle was one of perception of impugned advertisement. This is elaborately discussed in H the general public and not the golf knowing citizens. This paragraph 24 of the impugned judgment where two kinds of was emphasized in the judgement: users, i.e., the Dettol users and those who do not use that soap are noticed. The learned Single Judge held that the “The question here does not depend upon a state of I I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1297 1298 Indian Law Reports (Delhi) ILR (2014) II Delhi facts known only to some special class of the A frame by frame. The answer to this necessarily is the community, but to the inference which would be drawn former, for two clear reasons. First, when deciding such by the ordinary man or woman from the facts of the matters, the judge is to consider (as will be discussed below) publication.” A how an average, reasonable man would view the advertisement as it appears on the television or electronic Similarly, in Gillick v. Brook Advisory Centres [2001] B medium, as in the present case. In order to do this, the EWCA Civ 1263, the following approach was adopted: endeavour of the court is to substitute its judgment for that of the average/reasonable man. Undoubtedly, when the “the court should give the article the natural and B ordinary meaning which it would have conveyed to the advertisement is displayed on the television, it is not scrutinized in every detail by the viewers, but rather, taken ordinary reasonable reader reading the article once. C Hypothetical reasonable readers should not be treated as a whole as it is displayed. This simple proposition is of as either naive or unduly suspicious. They should be great relevance, since a judge, sits in an adversarial setting treated as being capable of reading between the lines C with the clear purpose of determining whether commercial and engaging in some loose thinking, but not as disparagement has occurred, and thus, on the look-out for being avid for scandal. The court should avoid an D any indication of the same, must equally remain cautious over-elaborate analysis of the article, because an that the advertisement is viewed as viewers normally view it. ordinary reader would not analyse the article as a (Para 49) D lawyer or accountant would analyse documents or In the present case, the plaintiff (Reckitt) has been able to accounts. Judges should have regard to the impression E prove, successfully, that HUL telecast the impugned 30 the article has made upon them themselves in second advertisement on a large number of occasions considering what impact it would have made on the (2763 times, to be precise, according to Ex. PW-1/19). The E hypothetical reasonable reader. The court should innuendo was cleverly designed to suggest that Reckitt’s certainly not take a too literal approach to its task.” DETTOL Original caused damage to the skin. The advertiser, (Para 44) F i.e. HUL, was conscious that it was crossing the boundary between permissible “puffing” and what was prohibited in The first question here is as to the manner in which such F advertisements are to be viewed, and secondly, the legal law. The evidence on record, in the form of HUL’s witnesses, standard against which the advertisement is to be judged. testimony, is that Rs.2.5 crores was spent in July 2007 alone On this question, the advertisement must be seen as a for advertising its product. HUL also admitted during the trial G viewer would normally view it in the course of the television that the DETTOL Original brand was worth Rs.200 crores. programme, and not specifically with a view to catch an G Such being the case, this Court holds that the Single ‘infringement’. This distinction is thin, but important: in trying Judge’s reluctance to award general damages was not to determine whether commercial disparagement has justified. It would be necessary to mention in this context that it may not be possible for an otherwise successful plaintiff, occurred, the relevant consideration is how the viewer (i.e. H the individual to whom the alleged disparagement is in a disparagement or slander of goods action to always H addressed) would see the advertisement. This consideration quantify the extent of loss; there would necessarily be an is important also because of the manner in which the element of dynamism in this, because of the nature of the advertisement is appreciated – whether as a running reel or product, the season it is sold in, the possible future or long I term impact that may arise on account of the advertisement, I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1299 1300 Indian Law Reports (Delhi) ILR (2014) II Delhi etc. Therefore, courts the world over have resorted to some A The later decision in Cassell & Co. Ltd. v. Broome, 1972 rough and ready calculations. (Para 63) AC 1027, upheld the categories for which exemplary damages could be awarded, but made important clarificatory In view of the evidence presented before this Court (i.e. the A observations. Those relevant for the present purpose are number of times the advertisement was telecast, the quantum reproduced below: of advertisement expenses of HUL, the amount spent by B Reckitt, to advertise its product, etc) this Court is of opinion “A judge should first rule whether evidence exists that the plaintiff is entitled to recover general damages to which entitles a jury to find facts bringing a case within the tune of Rs. 20 lakhs. The impugned judgment and order B the relevant categories, and, if it does not, the question is modified to that extent, and the cross objection by Reckitt, of exemplary damages should be withdrawn from the is consequently allowed in these terms. C jury’s consideration. Even if it is not withdrawn from (Para 64) the jury, the judge’s task is not complete. He should C remind the jury: (i) that the burden of proof rests on As far as punitive damages are concerned, the learned the plaintiff to establish the facts necessary to bring Single Judge relied in Lokesh Srivastava and certain other the case within the categories. (ii) That the mere fact D rulings. Here, since the Court is dealing with a final decree that the case falls within the categories does not of – and a contested one at that (unlike in the case of itself entitle the jury to award damages purely trademark and intellectual property cases, where the courts, D exemplary in character. They can and should award especially a large number of Single Judge decisions nothing unless (iii) they are satisfied that the punitive proceeded to grant such punitive damages in the absence E or exemplary element is not sufficiently met within the of any award of general or quantified damages for figure which they have arrived at for the plaintiff’s infringement or passing off), it would be necessary to solatium in the sense I have explained and (iv) that, in E examine and re-state the governing principles. (Para 65) assessing the total sum which the defendant should Rookes v. Barnard, [1964] 1 All ER 367, is the seminal pay, the total figure awarded should be in substitution authority of the House of Lords, on the issue of when F for and not in addition to the smaller figure which would have been treated as adequate solatium, that is punitive or exemplary (or sometimes alluded to as F “aggravated”) damages can be granted. The House defined to say, should be a round sum larger than the latter three categories of case in which such damages might be and satisfying the jury’s idea of what the defendant awarded. These are: ought to pay. (v) I would also deprecate, as did Lord G Atkin in Ley v. Hamilton, 153 L.T. 384 the use of the a. Oppressive, arbitrary or unconstitutional action any G word “fine” in connection with the punitive or exemplary the servants of the government; element in damages, where it is appropriate. Damages remain a civil, not a criminal, remedy, even where an b. Wrongful conduct by the defendant which has been exemplary award is appropriate, and juries should not H calculated by him for himself which may well exceed be encouraged to lose sight of the fact that in making the compensation payable to the claimant; and c. Any H such an award they are putting money into a plaintiff’s case where exemplary damages are authorised by pocket, and not contributing to the rates, or to the the statute. revenues of central government.” (emphasis supplied). I I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1301 1302 Indian Law Reports (Delhi) ILR (2014) II Delhi The House of Lords, in its discussion, remarked crucially A describe its effect. that there is a considerable subjective element in the award of damages in cases involving defamation and similar actions. The expression “at large” should be used in general Courts, it remarked, used terminology to reflect overlapping, to cover all cases where awards of damages may A and sometimes undesirable ideas underlining the include elements for loss of reputation, injured feelings, considerations weighing grant of damages: B bad or good conduct by either party, or punishment, and where in consequence no precise limit can be set “In my view it is desirable to drop the use of the in extent. It would be convenient if, as the appellants, phrase “vindictive” damages altogether, despite its B counsel did at the hearing. it could be extended to use by the county court judge in Williams v. Settle include damages for pain and suffering or loss of [1960] 1 W.L.R. 1072. Even when a purely punitive C amenity. Lord Devlin uses the term in this sense in element is involved, vindictiveness is not a good Rookes v. Barnard [1964] A.C. 1129, 1221, when motive for awarding punishment. In awarding C he defines the phrase as meaning all cases where “aggravated” damages the natural indignation of the “the award is not limited to the pecuniary loss that can court at the injury inflicted on the plaintiff is a perfectly be specifically proved.” But I suspect that he was D legitimate motive in making a generous rather than a there guilty of a neologism. If I am wrong, it is a more moderate award to provide an adequate solatium. convenient use and should be repeated. But that is because the injury to the plaintiff is actually D greater and, as the result of the conduct exciting the Finally, it is worth pointing out, though I doubt if a indignation, demands a more generous solatium. change of terminology is desirable or necessary, that E there is danger in hypostatising “compensatory,” Likewise the use of “retributory” is objectionable “punitive,” “exemplary” or “aggravated” damages at because it is ambiguous. It can be used to cover both E all. The epithets are all elements or considerations aggravated damages to compensate the plaintiff and which may, but with the exception of the first need not, punitive or exemplary damages purely to punish the F be taken into account in assessing a single sum. defendant or hold him up as an example. They are not separate heads to be added F mathematically to one another.” (Para 66) As between “punitive” or “exemplary,” one should, I would suppose, choose one to the exclusion of the In India, the Supreme Court has affirmed the principles in other, since it is never wise to use two quite Rookes (supra) and Cassel (supra). Interestingly, however, G interchangeable terms to denote the same thing. the application in those cases has been in the context of Speaking for myself, I prefer “exemplary,” not because G abuse of authority leading to infringement of Constitutional “punitive” is necessarily inaccurate, but “exemplary” rights or by public authorities (ref. Ghaziabad Development better expresses the policy of the law as expressed in Authority v. Balbir Singh, (2004) 5 SCC 6; Lucknow the cases. It is intended to teach the defendant and H Development Authority v. M.K. Gupta, 1994 SCC (1) others that “tort does not pay” by demonstrating what 243). As yet, however, the Supreme Court has not indicated H consequences the law inflicts rather than simply to the standards which are to be applied while awarding make the defendant suffer an extra penalty for what punitive or exemplary damages in libel, tortuous claims with he has done, although that does, of course, precisely economic overtones such as slander of goods, or in respect I I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1303 1304 Indian Law Reports (Delhi) ILR (2014) II Delhi

of intellectual property matters. The peculiarities of such A (7th Cir. 2003) the factors underlying the grant of cases would be the courts. need to evolve proper standards punitive damages were discussed and it was observed to ensure proportionality in the award of such exemplary or that one function of punitive damages is to relieve the punitive damages. The caution in Cassel that “[d]amages A pressure on an overloaded system of criminal justice remain a civil, not a criminal, remedy, even where an by providing a civil alternative to criminal prosecution B exemplary award is appropriate, and juries should not be of minor crimes. It was further observed that the encouraged to lose sight of the fact that in making such an award of punitive damages serves the additional award they are putting money into a plaintiff’s pocket....” can purpose of limiting the defendant’s ability to profit never be lost sight of. Furthermore – and perhaps most B from its fraud by escaping detection and prosecution. If a to tortfeasor is caught only half the time he crucially –the punitive element of the damages should follow C the damages assessed otherwise (or general) damages; commits torts, then when he is caught he should be exemplary damages can be awarded only if the Court is punished twice as heavily in order to make up for the “satisfied that the punitive or exemplary element is not C times he gets away This Court feels that this approach sufficiently met within the figure which they have arrived at is necessitated further for the reason that it is very for the plaintiff’s solatium”. In other words, punitive damages D difficult for a plaintiff to give proof of actual damages should invariably follow the award of general damages (by suffered by him as the defendants who indulge in that the Court meant that it could be an element in the such activities never maintain proper accounts of their determination of damages, or a separate head altogether, D transactions since they know that the same are but never completely without determination of general objectionable and unlawful. In the present case, the damages). (Para 67) E claim of punitive damages is of Rs.5 lacs only which can be safely awarded. Had it been higher even, this This court is of the opinion that the impugned judgment fell E court would not have hesitated in awarding the same. into error in relying on the decision in Times Incorporated This Court is of the view that the punitive damages v. Lokesh Srivastava 116 (2005) DLT 569. A Single Judge should be really punitive and not flee bite and quantum articulated, in his ex parte judgment in a trademark F thereof should depend upon the flagrancy of infringement action, as follows: F infringement.” “This Court has no hesitation in saying that the time With due respect, this Court is unable to subscribe to that has come when the Courts dealing actions for reasoning, which flies on the face of the circumstances spelt infringement of trade-marks, copy rights, patents etc. G out in Rookes and later affirmed in Cassel. Both those should not only grant compensatory damages but G judgments have received approval by the Supreme Court award punitive damages also with a view to discourage and are the law of the land. The reasoning of the House of and dishearten law breakers who indulge in violations Lords in those decisions is categorical about the with impunity out of lust for money so that they realize circumstances under which punitive damages can be H that in case they are caught, they would be liable not awarded. An added difficulty in holding that every violation only to reimburse the aggrieved party but would be H of statute can result in punitive damages and proceeding to liable to pay punitive damages also, which may spell apply it in cases involving economic or commercial causes, financial disaster for them. In Mathias v. Accor such as intellectual property and not in other such matters, Economy Lodging, Inc. reported in 347 F.3d 672 I would be that even though statutes might provide penalties, I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1305 1306 Indian Law Reports (Delhi) ILR (2014) II Delhi prison sentences and fines (like under the Trademarks Act, A falls in one of the three categories mentioned in Rookes (to the Copyrights Act, Designs Act, etc) and such provisions quote Cassel again – such event “does not of itself entitle invariably cap the amount of fine, sentence or statutory the jury to award damages purely exemplary in character”). compensation, civil courts can nevertheless proceed A (Para 68) unhindered, on the assumption that such causes involve criminal propensity, and award “punitive” damages despite B Reverting to the facts of this case, the defendant clearly was the plaintiff’s inability to prove any general damage. Further, aware about its wrong doing and the harm which would the reasoning that “one function of punitive damages is to ensue to HUL because of the published disparagement. Yet relieve the pressure on an overloaded system of criminal B it went ahead and aired it in almost all the national and a justice by providing a civil alternative to criminal prosecution large number of regional channels with repetitiveness. The C of minor crimes” is plainly wrong, because where the law deliberation points at an aim to denigrate the plaintiff’s provides that a crime is committed, it indicates the punishment. product and harm its reputation. At no stage did it – even No statute authorizes the punishment of anyone for a libel- C in these proceedings – offer to make amends. In the or infringement of trademark with a huge monetary fine- circumstances, the award of punitive damages was warranted. The award of general damages through this judgment which goes not to the public exchequer, but to private D coffers. Moreover, penalties and offences wherever (although of a figure of Rs.20 lakhs) is moderate, since the prescribed require the prosecution to prove them without advertisement was aired over 2700 times and seen – and reasonable doubt. Therefore, to say that civil alternative to D intended to be seen – by millions of viewers. As observed an overloaded criminal justice system is in public interest in John (supra) would be in fact to sanction violation of the law. This can E “The extent of publication is also very relevant: a libel also lead to undesirable results such as casual and published to millions has a greater potential to cause unprincipled and eventually disproportionate awards. E damage than a libel published to a handful of people..” Consequently, this court declares that the reasoning and formulation of law enabling courts to determine punitive Having regard to all these circumstances, the court is of damages, based on the ruling in Lokesh Srivastava and F opinion that the award of Rs.5 lakhs as exemplary damages Microsoft Corporation v. Yogesh Papat and Another, 2005 F in the facts of this case was justified and not disproportionate; (30) PTC 245 (Del) is without authority. Those decisions are it is accordingly upheld. (Para 69) accordingly overruled. To award punitive damages, the courts should follow the categorization indicated in Rookes (supra) In view of the above discussion, it is held that this appeal G and further grant such damages only after being satisfied has no merit. It is accordingly dismissed, but with costs, that the damages awarded for the wrongdoing is inadequate G quantified at Rs. 55,000/-. The cross objections however in the circumstances, having regard to the three categories succeed and the decree of the learned Single Judge shall in Rookes and also following the five principles in Cassel. be modified. In addition to injunction and punitive damages assessed by the impugned judgment, the plaintiff/Reckitt is The danger of not following this step by step reasoning H would be ad hoc judge centric award of damages, without also entitled to a decree for Rs.20 lakhs. The cross objections H discussion of the extent of harm or injury suffered by the are allowed to that extent. The plaintiff shall in addition to plaintiff, on a mere whim that the defendant’s action is so the costs of the appeal, be also entitled to costs of the cross wrong that it has a “criminal” propensity or the case merely objection and counsel’s fee, assessed at Rs.25,000/-. I (Para 70) I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1307 1308 Indian Law Reports (Delhi) ILR (2014) II Delhi Important Issue Involved: While puffing i.e. exaggerated/ A Parekh, Sh. Kumar Shashank and commendatory advertising without false representations was Sh. Nitin Thukral, Advocates. permitted, the generic disparagement of a class of rival products was objectionable as long as the rival good falls FOR THE RESPONDENTS : Sh. C.M. Lall with Ms. Ekta Sarin, A within the class. Slander of goods is to be tested by referring Advocates. to whether the imputation lowers the claimant in the eyes B CASES REFERRED TO: of the “right thinking members of society generally” and not a section of the public that is the “knowing public”— 1. Interflora Inc vs. Marks & Spencer Plc, 2013 (2) All ER Advertisement must be viewed in the manner in which B 663. advertisements are normally viewed by viewers, and not 2. Robert Crow vs. Boris Johnson, [2012] EWHC 1982 (QB). with a view to detect infringement—Thus the Court found C 3. Glaxo Smithkline Consumer Healthcare Limited & ors vs. that Dettol was disparaged in the advertisement, because Heinz India Private Limited & Anr., I.A. No.15233/2008 the combined effect of the message with the visuals and C in CS (OS) No.2577/2008, decided on 12.11.2010. was to convey to an ordinary viewer that the soap being disparaged was the Reckitt product, albeit in the nature of 4. Petra Ecclestone vs. Telegraph Media Group Ltd, 2009 D a double entendre such that the hidden meaning was intended EWHC 2779 (QB). to impact the viewer more than the obvious facial one. 5. Applause Store Productions Limited and Firscht vs. D Raphael [2008] EWHC 1781. 6. Iin Jameel vs. Wall Streeet Journal 2007 (1) AC 379. Defamation entitles a successful plaintiff to recover E compensation for damage to reputation without having to 7. Colgate Palmolive vs. Mr. Patel 2005 (31) PTC 583 show actual monetary damage; damage is presumed once (Del). E defamation is proved and thus general damages were 8. Ghaziabad Development Authority vs. Balbir Singh, (2004) awarded—Mere fulfilment of the common law criteria for 5 SCC 6. punitive damages, without a satisfaction that a punitive F 9. Dabur India Ltd. vs. Colgate Palmolive India Ltd, 2004 element is met in the compensation awarded in general (29) PTC 401 (Del). damages is not enough to award punitive damages—It was F stressed that damages are a civil remedy, and that the award 10. Pepsi Co Inc. & Ors. vs. Hindustan Coca Cola Ltd & of even pecuniary damages (while intended punitively) results Anr., 2003 (27) PTC 305 (Del) (DB). in putting money into a plaintiffs pocket, i.e. private hands, G 11. Reckitt Benckiser India Limited vs. Naga Ltd., 104 (2003) and thus must always follow the award of general damages— G DLT 490. In doing so, the Court overruled Lokesh Srivastava v. Yogesh 12. DSG Retail Ltd. vs. Comet Group, PLC (2002) EWHC Papat, 2005 (30) PTC 245 (Del). 116 (QBD). 13. Arab News Network vs. Al Khazen [2001] EWCA Civ 118 [Sa Gh] H at [30]). H APPEARANCES: 14. Gillick vs. Brook Advisory Centres [2001] EWCA Civ FOR THE APPELLANT : Sh. Sandeep Sethi, Sr. Advocate with 1263. Sh. Aditya Narayan, Sh. Sameer I I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1309 1310 Indian Law Reports (Delhi) ILR (2014) II Delhi 15. Jupiter Unit Trust Managers Trust Ltd. vs. Johnson Fry A 37. Leetham vs. Rank (1912) 57 SJ 111. Asset Managers, (2000) Unreported 19 April, QBD. 38. Peck vs. Tribune Co 214, US 185 (1909)]. 16. Reckitt & Colman of India Ltd. vs. M.P. Ramchandran & Anr., 1999 PTC (19) 741. A 39. Bubbuck vs. Wilkinson, 1899 (1) OB 86. 40. Allen vs. Flood, 1898 AC 1. 17. Reckitt & Coleman of India Ltd. vs. Jyothi Laboratories B Ltd., Cal LT 1999 (2) HC 230. 41. White vs. Mellin, 1895 AC 154. 18. Colgate Palmolive vs. Hindustan Lever, 1999 (7) SCC 1. 42. South Hetton Coal Company Limited vs. North-Eastern 19. Hindustan Lever Ltd. vs. Colgate Palmolive (I) Ltd. and B News Association Limited, [1894] 1 QB 133. Anr., 1998 (1) SCC 720. C RESULT: Appeal dismissed. 20. John vs. MGN Ltd [1997] QB 586. S. RAVINDRA BHAT, J. 21. Vodaphone Group Plc. vs. Orange Personal C 1. This is a defendant’s appeal directed against a decree for Communications Services Ltd., [1997] F.S.R. 34. permanent injunction issued by the learned Single Judge in a claim alleging 22. Kiam vs. Neil, 1996 EMLR 493. D that the defendant/appellant’s advertisement had disparaged the plaintiff’s 23. Lucknow Development Authority vs. M.K. Gupta, 1994 goods. The impugned judgment also directed payment of punitive damages SCC (1) 243). to the extent of Rs. 5 lakhs to the plaintiff. The parties will be referred D 24. Skuse vs. Grenada, [1993] EWCA Civ 34. to by their original description in the suit for the sake of convenience. 25. Keays vs. Murdock Magazines, 1991 (1) WLR 1184. E 2. The plaintiff (hereafter “Reckitt”) sought to restrain the defendant 26. Campbell vs. Toronto Star, (1990) 73 DLR 190. Hindustan Lever Ltd. (hereafter “HUL”) by permanent injunction from telecasting the impugned advertisement or otherwise disparaging Reckitt’s E 27. Lakhanpal vs. MRTP Commission, AIR 1989 SC 1692. goodwill and reputation and its product sold under the trade mark 28. Reader’s Digest Services Pty Ltd vs. Lamb (1982) 150 DETTOL, in any other advertisements and in all media, from using the CLR 500. F depiction of Reckitt’s soap or any other soap deceptively similar to that 29. Cassell & Co. Ltd. vs. Broome, 1972 AC 1027. of Reckitt’s in its advertisement or in any other manner disparaging the F goodwill and reputation of Reckitt and its product sold under the trade 30. Slim vs. Daily Telegraph, [1968] 2 QB 157. mark DETTOL, and finally, from using any other indicia whatsoever to 31. Rookes vs. Barnard, [1964] 1 All ER 367. associate with/depict Reckitt or its products in its advertisements issued 32. Lewis vs. Daily Telegraph [1963] 2 All E.R. 151. G in any and all media whatsoever including the electronic media. Reckitt also sought damages to the tune of Rs.20,00,050/- towards disparagement, 33. Cellacite & British Uralite vs. Robertson [The Times, G denigration and tarnishment of its goodwill and reputation by the impugned July 23rd, 1957 (CA)]. advertisement. A claim for exemplary damages too was made in the suit. 34. Story Parchment Co. vs. Paterson Parchment Paper Co., 282 U.S. 555 (1931). H 3. Reckitt is involved in the manufacture of the famous antiseptic disinfectant under the trade mark DETTOL for over 70 years. It was 35. Tolly vs. Fry, 1931 AC 333. H averred that the mark DETTOL is synonymous with good hygiene and, 36. Imperial Tobacco Company vs. Albert Bonnan, AIR 1928 today, it is a household name and is the most widely used antiseptic Cal 1. disinfectant in the country. The plaint also mentioned the history of I I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1311 1312 Indian Law Reports (Delhi) ILR (2014) II Delhi

DETTOL dating back to 1929 when the DETTOL antiseptic liquid was A practice of hygiene at the family level. Reckitt allocated a budget of about developed. As an antiseptic germ disinfectant, it was argued, DETTOL Rs.5 crores for the programme. had an unparalleled reputation in the medical profession and that it 5. Reckitt became aware that the HUL introduced an advertisement continuously evolved to meet modern day demands, and now incorporates A on television, which intentionally and deliberately disparages Reckitt’s a range of innovative antiseptic, disinfectant and cleaning products ranging soap under the trade mark DETTOL and the unique and distinctive from antiseptic liquid, hand wash and the DETTOL toilet soap which has B packaging. The offending advertisement concerns the defendant’s been manufactured and sold by Reckitt continuously since 1981. Reckitt LIFEBUOY soap. Reckitt alleges that a bare viewing of the said relied on the new modern, distinctive and unique shape of the DETTOL advertisement would convince this Court of the defendant’s malicious toilet soap, which was subjected to intentional and deliberate disparagement B intent to increase the market share of its LIFEBUOY soap by tarnishing by the defendant is identified by the members of the trade and public by C the goodwill and reputation of Reckitt’s soap i.e. DETTOL Original its colour. Reckitt stated that on the front of the soap the trade mark Soap. The disparaged soap, alleged Reckitt, is its product. The contours “DETTOL” and the sword device is clearly visible. Reckitt contended and the curvature in the middle on the toilet soap in the defendant’s that consumer-recognition of its products is by the colour and distinctive C advertisement are identical to the contours of Reckitt’s DETTOL Original shape of the soap, and also through its distinctive green coloured soap. The only difference is that Reckitt’s product and the logo are not packaging. In 1981, the DETTOL soap was launched as a rectangular D shown in the advertisement. The colour of the soap in the defendant’s shaped, orange coloured bar without any curves. Reckitt adopted the advertisement is virtually identical to that of the DETTOL Original soap present shape with the curves instead of edges in May, 2006. It was of Reckitt. The packaging of the toilet soap used in the defendant’s argued that this new improved soap with curvature in the middle and D advertisement is likewise similar to that of Reckitt’s soap’s packaging. curved edges helps consumers to easily identify and distinguish the product The defendant’s advertisement is designed to give an impression to the from others. Unlike other orange coloured soaps in the market, Reckitt’s E buyers that the offending soap is Reckitt’s DETTOL Original soap. The product is the only one with such distinctive shape. Three variants of the learned Single Judge describes the disparagement alleged, in the following new soap are available in the market, i.e. DETTOL Original; DETTOL E manner: Skincare (a white soap) and DETTOL Cool (a blue soap). Of the three variants, the DETTOL Original bar is an orange coloured and is the most (i) The advertisement begins with a couple returning home after popular. According to the plaint, the sale of DETTOL Original constitutes F getting wet in the rain. The wife then proceeds to take a new 80% of the total DETTOL soap sales. soap to go and have a bath. The green coloured packaging, the F orange coloured soap and the distinctive DETTOL shape is clearly 4. Reckitt argued that the soap packaging has always been of a visible in the advertisement. The intention of this scene is to distinctive green and white colour combination and such packaging is convey to the audience that the offending soap pertains to an synonymous with Reckitt’s famous DETTOL brand. In this line of G established soap i.e., DETTOL Original soap presently being argument, Reckitt argues that the purchasing public perceives the orange G used by the family. coloured bar with its distinctive shape and the distinctive green and white packaging to be synonymous with the DETTOL Original soap. Reckitt (ii) The next frame shows the husband, a medical doctor, and claims that it continuously and uninterruptedly marketed its DETTOL the children telling the lady of the house not to use the soap and products with such distinctive green and white colour combination H the vocals state: “Oh God bachaa lena naadaan ko aql packaging, including the sword device in India since the year 1933. It H dena....Hum sab ko bachaa lena”. claims to have announced in a press release that it was contemplating It is alleged that the use of a doctor protagonist is once again introducing new variants of its flagship brand DETTOL and it launched relevant as DETTOL is an established brand in the medical a new ad campaign – “Surakshit Parivar” – to create awareness of the I I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1313 1314 Indian Law Reports (Delhi) ILR (2014) II Delhi profession. A 16.7.2007 was alleged to indicate its mala fide intentions as against Reckitt’s product as HUL was aware that the soap depicted in its (iii) The next frame shows the doctor husband explaining to the advertisement was Reckitt’s soap and also knew that Reckitt would wife the reason as to why she should not use the offending soap initiate action against it. and, instead, should use the Defendant’s LIFEBUOY soap by A stating that normal antiseptic soaps make the skin dry leading to B 7. The defendant, in its written statement, denied that Reckitt had cracks in the skin thereby permitting the germs to enter the any cause of action or that the action could be adjudicated in the civil cracks in the skin while the defendant’s soap fights germs and courts, since the allegations pertained to unfair competition and were keeps the skin protected. According to the plaintiff this scene is B properly the subject matter of proceedings under the Monopolies and clearly intended to give out the message that the Plaintiff’s soap Restrictive Trade Practices Act, 1969 (hereafter referred to as the ‘MRTP is not effective against fighting germs whereas the Defendant’s C Act’) and the Consumer Protection Act, 1986. The advertisement, in soap is effective against fighting germs. The words used in the question, stated the defendant referred to ordinary antiseptic soaps; advertisement are:- “Dua ki zarurat padegi is dawa ke saath. Reckitt’s soap is neither an antiseptic soap, nor an ordinary (unbranded) Aam antiseptic sabun twacha ko rukha kar dete hai jis se dararon C soap. It relied on the judgment in Reckitt Benckiser (India) Limited mein kitanu ghus jaate hain...isi liye naya Lifebuoy skin guard v. Naga Limited & Others: 2003 (26) PTC 535 (Del.), where it was jo kare kitanuon per waar aur banaye suraksha ki bhi deevar.” D allegedly held that Reckitt’s soap is not an antiseptic soap. The defendant alleged that Reckitt does not have a monopoly over the colour or over According to the plaintiff it is relevant to mention that as the shape of the soap and cannot claim exclusivity over the colour, shape DETTOL is used in respect of an extremely well known brand of D or packaging of the soap. The defendant further stated that the shape, antiseptic liquid, the use of the term “dawa” (medicine) is clearly contours and curvatures of Reckitt’s orange coloured soap DETTOL intended to draw the attention of the viewer to the Plaintiff’s E was not registered under the Design’s Act to give it an exclusive right product. to use it. (iv) In the next frame the lady is then shown to go and have a E 8. The defendant stated that it marketed several toilet soaps including bath with the Defendant’s soap and come out very satisfied with one under the brand name “LIFEBUOY” through an extensive marketing the same. According to the plaintiff, this falsely indicates that F network across the country and that it enjoys considerable goodwill and the defendant’s soap is effective against fighting germs while reputation among the Indian consumers. It is stated that LIFEBUOY is the plaintiff’s DETTOL soap is not.” F a global brand which was launched in the United Kingdom in 1894 as a 6. Reckitt alleged that the defendant’s advertisement is a slanderous product for personal hygiene and that it is India’s oldest toilet soap brand attempt to increase the market share of its LIFEBUOY soap by defaming and has been synonymous with health and hygiene in India since 1895. and disparaging the worth and reputation of Reckitt’s product. It was G The defendant alleged that the said product sold under the brand name also alleged that the said advertisement outreaches the limits of allowed G LIFEBUOY for over 110 years has acquired substantial goodwill in the competitive advertising and blatantly denigrates the reputation and goodwill market and has become a household name. The defendant denied that its of Reckitt’s well established and leading brand. It not only showed that advertisement disparaged Reckitt’s product and said that it aims at HUL’s product was good (i.e. puffery) but also very clearly depicts that educating the consumers and public at large to understand the difference Reckitt’s product is completely worthless. Further, the use of the soap H between toilet soaps containing glycerine, which have a moisturizing bar including its unique curved shape and the distinctive packaging which H effect on the skin and give a long term benefit on the one hand and is virtually identical to that of Reckitt’s by HUL resulted in dilution and ordinary antiseptic soaps in the market on the other which may not debasement of the hard earned reputation and goodwill of Reckitt’s world- contain glycerin and do not give to the consumers the benefit of moisturizing the skin and removing the possibility of formation of cracks known and widely used products. HUL’s conduct in filing a caveat dated I I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1315 1316 Indian Law Reports (Delhi) ILR (2014) II Delhi which is a breeding ground for germs. It is further stated that the A 12. The following issues were framed in the suit, for adjudication: defendant’s claims about its soap being better than any other ordinary “1. Whether the depiction in the advertisement of the defendant antiseptic soap is based on the laboratory test conducted by it. of soap refers to the Dettol soap of the plaintiff? (OPP) 9. The defendant urged that its TV advertisement had to be seen in A 2. Whether the advertisement of the defendant disparages or totality and not in an isolated and unnatural manner, frame by frame. The B denigrates the soap of the plaintiff? (OPP) defendant contended that the intent, manner, story line and message of its advertisement are that its soap is better than ordinary antiseptic soaps 3. Whether the impugned advertisement seeks only to promote because it is rich in glycerin and vitamin E. Further, the defendant stated B the superiority of the defendant LIFEBUOY soap over an ordinary that Reckitt’s soap, a Rs.200 crore brand, cannot be termed as an antiseptic soap? (OPD) ordinary soap and in any event, is not an antiseptic soap. In the entire C 4. Whether the plaintiff is guilty of suppression of material advertisement, there is no reference whatsoever to the trademark DETTOL facts? If so, its effect? (OPD) or the sword device and, therefore, there is no reference to Reckitt’s product, argues the defendant. C 5. Whether the impugned advertisement constitutes an attack on the goodwill and reputation of the Dettol brand of the plaintiff? 10. Denying that the impugned advertisement described Reckitt’s D (OPP) soap, the defendant outlined points of distinction. Again, the narration of the Single Judge in this regard is set out below: 6. Whether the present suit is barred on account of the provisions D of the MRTP Act, 1969 and/or the Consumer Protection Act, “(a) The colour of the soap shown in defendant’s advertisement 1986? (OPD) is yellow in comparison to the plaintiff’s orange soap; (b) The soap shown in defendant’s advertisement is taken out of a pale E 7. Whether the plaintiff is entitled to any damages for green single-colour packaging, whereas the plaintiff’s DETTOL disparagement, denigration, loss of goodwill and reputation? If TOTAL is sold in green and white and its other variants are sold E so, the extent thereof? (OPP) in blue and white packaging; (c) There are many other soaps in the market with curvatures and contours similar to the plaintiff’s 8. Whether the plaintiff is entitled to punitive and exemplary F soap. (d) The brand name DETTOL and/or the Sword device are damages? If so, the extent thereof ? (OPP) embossed on all the plaintiff’s products but the same are admittedly F 9. Relief.” missing from the soap shown in the defendant’s advertisement.” 13. Reckitt relied on documents, Ext. PW1/1 to PW1/19 and PW1/ 11. Without prejudice to its pleas that the impugned advertisement DX1. HUL relied on Ext. DW1/1 to DW1/18 and DW2/1 to DW2/9. The did not describe or refer to Reckitt’s product, the defendant stated, G video clip of the advertisement was filed in a compact disc (Ext. PW1/ arguendo, if the soap shown in the defendant’s advertisement was that G 2). Reckitt produced one witness (PW-1) – Mr. Mohit Marwah, its of Reckitt, nevertheless a tradesman is entitled to declare his goods to be Brand Manager. The defendant relied on testimonies of three witnesses the best in the world, irrespective of the truth of that statement. It can - (1) Mr. Anuj Kumar Rustagi, Global Marketing Manager, Lifebuoy be said that a tradesman’s goods are better than his competitors; though Soaps (DW1); (2) Dr. Rajan Raghavachari, Regional Senior Product H such statement may be untrue. To say that one’s goods are the best in Development Manager of the defendant (DW2) and (3) Dr Hemangi the world or are better than that of the competitors one can even spell H Jerajani, Dermatologist (DW3). Affidavits of the witnesses in the first out the advantages of his goods over that of others. Reckitt itself has instance formed their examination in chief and they were subjected to been showing that its soap is better than that of the defendant’s in its cross-examination by the opposing counsel. various advertisements, both in India and abroad. I I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1317 1318 Indian Law Reports (Delhi) ILR (2014) II Delhi 14. The Court had the benefit of considering the suit records, A the cracks. At this juncture the male voice-over states: “..Jis se including the video clip of the offending advertisement (Ext. PW1/2). dararon me kitanu ghus jate hain” (.. as a result of which, The observations of the Single Judge describing the story board are germs get into the cracks). Simultaneously, the following words extracted below: appear on the bottom left of the screen:- “Aam antiseptic sabun” A (ordinary antiseptic soap) “1. A man and his wife returning home on a rainy day. The wife B exclaims “Kya baarish hai” (what rain). The man places his 9. Then there is a cut to a water shot, where we see a bar of the white coat and stethoscope which indicates that he is a doctor. red LIFEBUOY soap emerging out of the water. On the top left He goes and sits with his children (boy and girl) on the sofa. B hand corner of the screen, the words “Glycerine” and “vitamin The children are watching a cricket match on television. E” appear and the male voice-over states “Isi liye naya Lifebuoy Skin Guard” (that is why, new Lifebuoy Skin Guard). 2. The next frames show that his wife plans to take a bath saying C “chalo main naha leti hoon” (come, let me take a bath). She is 10. Then there is a cut again showing a part of the arm under then shown taking out an orange bar of soap from a green C a magnifying glass and the green germs are seen getting washed wrapper. away. The male voice-over states that : 3. On seeing the orange soap in his wife’s hand, the husband D “.. jo kare kitanuon pe waar” (.. which attacks the germs). has a shocked look on his face and says “Oh God, bachaa lena” 11. The next frames show a layer of glycerine flowing from left (Oh God, Save her). D to right under the magnifying glass and the voice-over states: 4. The next frames show the husband and children pointing at “.. aur banaye suraksha ki bhi deevar” (..and also builds a the wife and singing a song in chorus “Naadaan ko aql dena, E protective wall). ham sab ko bachaa lena...... ” ( show reason to the naive, save 12. The clip then proceeds to a new cut showing the wife, us all .....). E apparently after having had a bath, coming into the living room 5. The wife has a surprised look on her face and asks “Kya kar where the husband and children are watching the cricket match rahe ho” (what are you doing?). on television. On seeing her they, once again break into the F same song “Bachaa lena” (Save us). 6. The next frames show the husband displaying the orange soap in his raised right hand and looking at his wife and saying “Dua F 13. The wife stops them and, referring to the cricket match being ki zarurat padegi iss dawaa ke saath” (prayers would be required shown on TV, says “Aa hah, doctor saheb dua inke liye bachaa with this medicine). lena” (Aa hah, doctor saheb, save the prayers for them). G 7. This is followed by a cut to a bathing shot where a woman 14. The next frames show that the wife joins her husband and G is shown using the said orange bar of soap. In this cut, there is children at the sofa and says: a male voice-over stating: “Hame koi dar nahin” (we have no fear). “Aam antiseptic sabun twacha ko rukha kar dete hain..” H 15. The next shot shows the LIFEBUOY Skinguard bar of soap (Ordinary antiseptic soaps make the skin dry..). H and its package and the LIFEBUOY logo zooms onto the package. At this juncture the male voice-over announces: “Naya Lifebuoy 8. Then there is a close-up of the upper-arm under a magnifying Skin Guard” (new Lifebuoy Skin Guard). glass which reveals skin with cracks and green germs lodged in I I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1319 1320 Indian Law Reports (Delhi) ILR (2014) II Delhi

16. This is followed by a cut to the Hindustan Lever Limited A 16. The learned Single Judge conceded that though Reckitt’s soap logo and the advertisement ends there.” was not an antiseptic soap, and therefore, facially the defendant was not referring to DETTOL, yet the long association of Reckitt with antiseptic 15. After making a detailed frame by frame description of the products and medications in the general public’s mind led to the belief offending advertisement, the learned Single Judge held that: A that the offending soap was that of Reckitt, and an antiseptic one at that. “The new shape of the DETTOL Original toilet soap with the B The Single Judge then rejected the defendant’s argument that there had curved edges and the curvature in the middle is clearly displayed to be proof of disparagement through oral testimony of witnesses: on the product packaging, which is further indicative of the “It has been contended on behalf of the defendant that the importance given to the shape by the plaintiff in its marketing B plaintiff has not produced any evidence of consumers to indicate of the product. The packaging (Ext. PW1/8) also establishes the that the orange bar of soap in the said advertisement appears to fact that although white is also used, green is the pre-dominant C be the plaintiff’s DETTOL Original soap. In response the learned colour. Although, the brand name, logo or the sword device does counsel for the plaintiff submitted that producing such evidence not appear in the orange bar of soap shown in the advertisement C would be counter-productive and is not necessary. He submitted (Ext. PW1/2), there can be no misgiving that the bar of soap that the plaintiff could produce witnesses stating that the orange which has been shown in the said advertisement is of a colour D bar of soap shown in the advertisement had reference to the similar to that of the plaintiff’s DETTOL soap. The contours, plaintiff’s DETTOL Original soap. Similarly, the defendant could curvature as well as the overall shape of the orange bar of soap also produce witnesses to state the contrary. Ultimately, it would in the advertisement itself, are virtually the same as that of the D be for the court to make a judgment from the perspective of an contours, curvature and overall shape of the plaintiff’s DETTOL average person with imperfect recollection, a test which has Original soap. Moreover, the clear impression given in the E been well established, particularly in passing off cases. Though advertisement is that the said orange bar of soap has been taken slander of goods and disparaging advertisements stand on a out from a green wrapper/ packaging. It must also be noted that E slightly different footing to passing off cases, I find myself to the design of the plaintiff’s soap has been registered by the be in agreement with the submissions made by the learned counsel plaintiff as indicated by Ext. PW1/DX-1. While it is true that for the plaintiff. Ultimately it is a question of perception and the there may be other orange coloured soaps and other soaps sold F perception has to be determined from the stand point of an in the pre-dominantly green packaging and other soaps which average person man with imperfect recollection but, with a have an oval shape, it is also true that it is only the plaintiff’s F corollary, which shall stated be shortly. One could normally soap which has a combination of all the three elements, i.e., expect that there would be a difference in perception between orange colour, curved oval shape and pre-dominantly green two distinct classes of persons — (1) Persons who are using packaging. Apart from this, it is only the plaintiff’s soap which G DETTOL Original soap and (2) persons who do not use that has contours in the manner indicated in the bar of soap in the G soap. A person belonging to the latter category may not be said advertisement. No evidence has been produced by the aware of the orange coloured bar of soap of the plaintiff with defendant to show that there is any ordinary antiseptic soap with its distinctive shape, curvature and contours. He may also not be the same combination of the aforesaid elements of colour, shape, aware of the packaging employed by the plaintiff. Therefore, design and packaging. I have absolutely no doubt that the orange H such a person may not link the bar of soap shown in the bar of soap shown in the advertisement refers to the plaintiff’s H advertisement with the plaintiff’s product when he sees the DETTOL Original soap.” advertisement or when he comes upon the plaintiff’s product in a shop. Such a person, in all likelihood, would perceive the I I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1321 1322 Indian Law Reports (Delhi) ILR (2014) II Delhi

orange bar of soap shown in the advertisement as being some A On the second issue, i.e. whether the impugned advertisement unbranded bar of soap. On the other hand, a person belonging promoted the defendant’s product, the Court held that the advertisement to the former category, being a user of the plaintiff’s DETTOL could be divided into two parts: one of those disparaged Reckitt’s product Original soap, would immediately recognise the bar of soap A and the other sought to promote the defendant’s product. It was held shown in the advertisement as referring to the plaintiff’s DETTOL that though an attempt at promoting the defendant’s product – which Original soap. This is because, such a person is familiar with the B was permissible – was discernible, yet the net result of the advertisement plaintiff’s product. He is “intimately” aware of the look and was to disparage Reckitt’s DETTOL Original. The Court held that the feel of the soap because he uses it everyday.” materials relied on by Reckitt were insufficient to entitle it to compensatory B or general damages. However, Hindustan Lever’s conduct was held to After the above analysis, the impugned judgement proceeded to be such as to entitle Reckitt to punitive damages, which the learned hold as follows: C Single Judge quantified at Rs. 5,00,000/-. Appellant’s contentions “The difference in approach in a passing off action and one for 17. The appellant/HUL contends that Reckitt could not have disparagement must also be highlighted. In a case of passing C maintained the suit since it was guilty of unfair conduct. It was submitted off, the question invariably is whether the trade mark or trade in this regard that though Reckitt concedes that its product is not an dress employed by A for his product is so deceptively similar to D antiseptic soap but at the same time it unfairly maintains that the impugned the established mark or trade dress of B’s product that A’s advertisement disparages and denigrates its products. It is submitted in product could be confused by or passed off to consumers as B’s this regard that the advertisement merely cautions the viewers and the product? Here the comparison is of rival products having a D members of the public that antiseptic soap tends to injure the skin. It is similar trade mark, get-up or trade dress. Familiarity with the not Reckitt’s contention that its soap is an antiseptic soap. This important established mark, trade dress or get-up is presumed. Because, it E aspect escaped the notice of the learned Single Judge. The suit, therefore, is this familiarity that the person intending to pass off his goods was not maintainable at all. Learned counsel in this context relied upon as those of the famous or more popular, exploits. In the case of E the observations of the learned Single Judge in paragraph 23 of the disparagement, the one who disparages another’s product, does impugned judgment to the effect that Reckitt’s soap – Dettol Original – not seek to make his product similar to the disparaged product, is not an antiseptic soap whereas the soap in the advertisement is referred but to distinguish it from the disparaged product. The object of F to as an “ordinary antiseptic soap”. However, it was argued that disparagement is to make the disparaged product appear to be nevertheless the impugned judgment erroneously held that the public at as near or similar to the competitor’s product. The comparisons, F large carried an impression that all Dettol products are antiseptic. therefore, in cases of passing off and in cases of disparagement Furthermore, submitted learned counsel, Reckitt even had claimed that its are different. Consequently, the comparison must be from the product was recommended by the Indian Medical Association (IMA) – perspective of an average person with imperfect recollection but, G advertised prominently on the cover too. that person must be picked from the category of users of the G product allegedly sought to be disparaged or slandered. 18. Elaborating on this aspect, learned counsel submitted that Reckitt did not in fact have a cause of action at all because the Dettol Original 27. Considered from the standpoint of an average man with is a toilet soap, concededly bearing BIS specification IS:2888; 2004. imperfect recollection who is also a user of the DETTOL Original H However, the comparison made in the advertisement is against an ordinary soap, the inescapable conclusion would be that the soap shown H antiseptic soap, an entirely different article or product falling within the in the advertisement refers to the plaintiff’s DETTOL Original BIS specification IS:11479; 1985. Learned counsel relied upon the ruling soap. Consequently Issue No 1 is decided in favour of the plaintiff of this Court in Reckitt Benckiser India Limited v. Naga Ltd., 104 and against the defendant.” I (2003) DLT 490. It was argued next that the learned Single Judge did I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1323 1324 Indian Law Reports (Delhi) ILR (2014) II Delhi not apply the proper test applicable in disparagement of goods/products A materials on record, that there was disparagement of Reckitt’s Dettol disparagement cases. Learned counsel here submitted that the appropriate Original soap. test applicable is whether a reasonable man with average intelligence can 19. Learned Senior counsel, Shri Sandeep Sethi, underlined that to identify Reckitt’s products in the advertisement. It was emphasized that A arrive at such a conclusion it was essential for Reckitt to have led the overall or the totality of impression test in the same medium (of c B evidence by way of oral testimony of some consumers who saw the mmunication) has to be a advertisement of Dettol ordinary and found that its effect was to run- down the reputation and goodwill or cause injury in their eyes. The plied in this context. Learned counsel faulted the learned Single absence of this material, submitted counsel, undermined the findings of Judge for applying the test of confusion, properly applicable in passing- B the learned Single Judge. Reliance was placed upon the decision Colgate off actions. Reliance was placed upon the meaning of the expression C Palmolive v. Hindustan Lever, 1999 (7) SCC 1. Reliance was also “disparagement” given in the New International Webster’s Comprehensive placed upon Reckitt and Coleman of India Ltd. v. Jyothi Laboratories, Dictionary, i.e. “to speak of slightingly or undervalue or bring discredit 1999 (2) Cal. LT 230. Learned counsel argued that none of the witnesses or dishonor upon ...” It was submitted that in considering whether a C produced by Reckitt could be characterized as genuine members of the statement is denigrating or otherwise, the Court should give the statement public since they were all either its officials or associated with it. or material in question its natural and ordinary meaning. In this context, D learned counsel relied upon the decision reported as Gillic v. British 20. HUL further argued, through senior counsel, Sh. Sandeep Sethi, Broadcasting Corporation 1996 EMLR and the discussion in Clerk and that the impugned advertisement has not been considered in its totality by Lindsells Treatise or Torts (20th Edition) Common Law Library, published D the learned Single Judge, but considered it frame-by-frame and in bits by Sweet & Maxwell, it was emphasized that the question whether the and pieces to hold that it disparaged Reckitt’s Dettol Original soap. statement is defamatory or disparaging depends on the probability of the E Learned counsel relied upon the decision of the Supreme Court in case and the natural tendency of the publication, having regard to the Lakhanpal v. MRTP Commission, AIR 1989 SC 1692. It was next surrounding circumstances and not the intention of the defendant. Reliance E urged that since the impugned findings do not apply the proper test of was placed upon the judgment reported as Keays v. Murdock Magazines, overall effect but was based upon an intense frame-by-frame analysis of 1991 (1) WLR 1184. It was submitted further that the learned Single the advertisement, highlighting the soap, the packaging, the colours and Judge fell into error in holding that the target group of persons to whom F the shape, the conclusions were distorted. It was also emphasized that the impugned advertisement was made, was the one who used the product the learned Single Judge fell into error in holding that the impugned as they would know how it looks. It was stressed that this conclusion F advertisement contains a combination of three elements, i.e. orange colour, was illogical because then it would not be a case of imperfect recollection. curved shape and prominently green packaging. Learned counsel relied Besides, argued counsel, this flies on the face of the well-accepted upon the decision reported as Colgate Palmolive v. Mr. Patel 2005 proposition that words are not defamatory if they may damage the man G (31) PTC 583 (Del) to say that no one can claim monopoly over colours in the eyes of a section of community unless they amount to disparagement G and consequently Reckitt could neither claim monopoly over the orange in the eyes of the right-thinking people of the entire general public. colour nor the overall green packaging which were common colours. Counsel also took exception to what he termed as a minute and elaborate However, the comparison made in the advertisement was with ordinary analysis of the impugned advertisement by the learned Single Judge. He antiseptic soap. Learned counsel further stressed that intense frame-by- argued that the Court should have considered the overall effect, rather H frame scrutiny has prejudiced the mind of the learned Single Judge since than a bits and pieces approach in detailed scrutiny of the various elements H it completely overshadowed the overall effect. The time given for depicting of the advertisement. Counsel relied on Skuse v. Grenada [1993] EWCA the shape (with colour), packaging of HUL’s soap and the so-called Civ 34, in support of this argument. It was next argued that the learned disparaging comments having regard to the overall length of the Single Judge could not have found, upon the fair assessment of the advertisement, was miniscule and disproportionately low – less than five I I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1325 1326 Indian Law Reports (Delhi) ILR (2014) II Delhi per-cent. This could not have resulted in disparagement at all – a very A i.e. with intent to cause injury. Reliance was placed upon the decisions important aspect overlooked by the learned Single Judge. Learned counsel reported as White v. Mellin, 1895 AC 154; Imperial Tobacco Company also submitted that in this intensive analysis, the impugned judgment v. Albert Bonnan, AIR 1928 Cal 1. It was submitted that the learned overlooked a very significant aspect which was that Reckitt’s packaging Single Judge failed to consider the evidence led by HUL to establish that A of its Dettol soap, claimed in the plaint was the white and green colour the laboratory test reports produced as DW-2/1, DW-2/2, DW-2/3 and combination. The impugned judgment, on the other hand, erroneously B DW-2/7 substantiated the claim that ordinary antiseptic soaps were not held that the green packaging depicted in the advertisement was a pointed of the same standard as HUL’s “Skin Guard”. Thus, the truth of the reference to that of Reckitt’s product. In other words, submitted the statement that Reckitt’s advertisement regarding its Skin Guard toilet counsel, Reckitt’s case was that its white and green colour combined B soap which had moisturizing content was more beneficial than antiseptic packaging had attained distinctiveness whereas the impugned advertisement soaps which had the tendency to cause injury to the skin. This error, in was green and no evidence was led by Reckitt to establish that it packaged C the submission of HUL’s counsel, clearly goes to the root of the matter its products in that manner. since Reckitt could not have in these circumstances stated that the claims made in the advertisement were false. Thus, the second element, i.e. the 21. Sh. Sandeep Sethi next argued that the learned Single Judge C truth of the statement having been proved was established by HUL, the failed to consider the evidence of HUL and in particular, the affidavit suit had to necessarily fail. evidence of DW-1 along with the photographs, DW-1/1, DW-1/2 and D DW-1/3. These documents were photographs of various branded and 24. Learned counsel faulted the impugned judgment in granting unbranded orange coloured soaps (DW-1/1); of various orange coloured plaintiff’s claim for punitive damages even after holding that no special D antiseptic soaps (DW-1/2) and green and while packaging (DW-1/3). It damage had been proved. Reliance was placed upon the decision of the was argued in this context that orange is a common product colour in Supreme Court referred to as Organo Chemical Industries v. Union of the market in both branded and unbranded soaps and that there are E India, 1979 (4) SCC 1. It was stated that this approves the grant of such several orange coloured antiseptic soaps with green and white packaging. punitive damages. Learned counsel also relied upon the judgment of the E Court of Appeals in Broome v. Cassel and Co., 1972 AC 1027 to submit 22. Learned counsel also submitted that Reckitt could have led that grant of punitive or special damages even while the Court is unable appropriate survey evidence that consumers involved in all orange coloured to grant any general or compensatory damages, is without authority of soaps in a curvature and green packaging associated them with the Dettol F law. Learned counsel further relied upon the decision in Microsoft Original toilet soap. There was complete lack of such evidence. In these Corporation v. Deepak Rawal, 2007 (35) PTC 478 (Delhi) to say that circumstances, the appropriate course for the learned Single Judge was F the rationale of awarding punitive damages is to deter the wrong-doer to draw an adverse inference against Reckitt and not to decide the case from indulging in unlawful activities which have a criminal propensity. on the basis that such evidence or the lack of it was of no consequence. He submitted that the reliance on Times Corporation v. Lokesh Srivastava, This led to failure of justice because the evidence led by the defendant, G 2005 (30) PTC 3 (Del) by the learned Single Judge was inappropriate. i.e. HUL was not taken into consideration. Likewise, submitted learned G Learned counsel emphasized that the latter decision had discredited the counsel, the finding that the customer associated the term “ordinary binding judgment of the Supreme Court in Organo Chemical Industries antiseptic soap” referred to in the impugned advertisement with Reckitt’s (supra). product is based upon an assumption and does not rest on any material or evidence. H Contentions of Reckitt Reckitt Benckiser H 23. Learned senior counsel next submitted that to succeed in its suit 25. It was argued on behalf of Reckitt Benckiser, the plaintiff, by for disparagement, not only did Reckitt have to prove that the impugned Mr. C.M. Lall, learned counsel that an overall reading of the rival pleadings, statement was concerning his goods but also that it was false and malicious, particularly the allegations in paragraph 23 of the plaint and the I I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1327 1328 Indian Law Reports (Delhi) ILR (2014) II Delhi corresponding averments in the written statement clearly demonstrate A written statement. It reads as: that the claim was in respect of reputation and goodwill of Reckitt soap “23 ... It is further submitted that the defendant advertisement under the trademark Dettol with its new curved shape, orange colour, is dissuading the public from using the unbranded antiseptic distinct green and white packaging and the reputation it enjoyed. Learned A soap” (emphasis supplied) counsel emphasized that to establish this claim, adequate evidence in the form of design registration of the soap, Ex. DW-1/DX-1 and the Design B This averment, submits Reckitt, is relevant as it establishes that the Act, conferred exclusivity. However, PW-1, in the deposition clearly attack is on the rival product and not mere puffery of HLL’s product. stated that the soap, Ex.PW-1/8 and the wrapper served as a trademark Counsel underlined that this constitutes an admission of malice and passes and was displayed in the product packaging and that no other soap was B the test of malice set out in Imperial Tobacco Co. (i.e. it is “done with available in that unique shape in India or elsewhere. Learned counsel the direct object of injuring the other person’s business.”). Likewise, the C underlined that there was no cross-examination on this issue. Likewise, averment in paragraph 20 of the plaint is relied to say that it lists the there was no cross-examination about the sales figures at the time of its denigration made and includes the representation that use of DETTOL launch in May 2006, in the form of statement, Ex.PW-1/10. Likewise, C soap in fact invites germs to the body which are then killed and washed PW-1 had asserted that the orange colour of the soap and the green away with the LIFEBUOY soap of the defendant. Counsel highlights that coloured packaging were identifying features for Reckitt’s Dettol toilet D in the story line the husband (a doctor) and the children, the most soap. On this too, there was no cross-examination. influential people in the life of a housewife, repeatedly mock at the mother for using DETTOL by use of the term “bacha lena” (save) 26. Learned counsel next submitted that in another suit filed by D repeatedly. This clearly constitutes denigration. This is a direct attack on HUL, a copy of which was produced as Ex. PW-1/16, an admission was Reckitt’s “surakshit parivar” (secure family) advertisement campaign, made that Dettol had launched a toilet soap. That suit claimed relief which is alluded to in paragraph 14 of the plaint. Counsel also relies on against the advertisement which were produced in the present case, i.e. E the following averments to say that denigration and malice are specifically DW-1/11, DW-1/12, DW-1/13 and DW-1/14. It was submitted that the pleaded in the plaint, in particular: orange coloured Dettol soap with unique shape could be seen in the story E board in that suit. Learned counsel relied upon the examination-in-chief “.....a bare viewing of the said advertisement will be sufficient of DW-1 and the evidence, DW-1/15, produced in the form of sales data to convince this Hon’ble Court of the malicious intention of the F collected by an independent agency, IMRB to establish that sales figure Defendant to increase the market share of its LIFEBUOY soap of Dettol Original undergo changes in summers and winters. Learned F by tarnishing the goodwill and reputation of the plaintiff’s popular counsel emphasized that the written statement admitted the extensive product.” (paragraph 18) sales of Reckitt’s product, in paragraph 9 and DW-1 had admitted to “....the impugned advertisement is nothing but a slanderous purchasing Dettol Original soap and thereafter developing the offending G attempt of the defendant to increase market share of its advertisement. In this regard, learned counsel relied upon paragraph 11. LIFEBUOY soap by defaming and disparaging the worth and It was contended that the impugned judgment has adopted the correct G reputation of the plaintiff’s product.” (paragraph 21). approach with respect to proof of disparagement. Learned counsel submitted that the conclusion arrived at by the learned Single Judge, i.e. It is argued that the impugned advertisement not only shows that the that evidence of consumers would tend to cancel out the effect of each H defendant’s product is good but also very clearly depicts that Reckitt’s other, was a common sense and a practical method at resolving what H product is completely worthless. was obviously to be decided by the Court. 28. Mr. Lal contends that Reckitt has led positive evidence, Ex.PW- 27. On the question whether HUL’s advertisement disparages or 1/13 in the form of a test report of an independent agency to establish denigrates Reckitt’s soap, Shri Lal relies on an admission in the former’s I I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1329 1330 Indian Law Reports (Delhi) ILR (2014) II Delhi that DETTOL soap is 10 times more efficacious at reducing bacterial and A upon “laboratory test conducted” by it. (paragraph 6 of the written fungal cell counts than LIFEBUOY. It is submitted that PW-1 was cross- statement). DW-1 has admitted that “prior to the launch of Lifebuoy examined on this issue and that HUL’s representation that DETTOL Skin Guard soap”, he procured the Dettol Original soap of Reckitt and causes germ formation is therefore completely false. It is urged that HUL only “thereafter” developed the offending advertisement (paragraph 11). A too admits that DETTOL is more than 10 times more efficacious than All tests conducted by HUL are after the launch of the impugned its LIFEBUOY soap with actives, and a reference is made to Ex. PW- B advertisement. Reckitt’s test report, that DETTOL is 10 times more 1/17, where in a previous judgment, a learned Single Judge of this court efficacious was available with HUL. This clearly established malice on its recorded that admission (by HUL, plaintiff in that suit) in the following part, it is argued. terms: B 30. On the fourth issue, i.e. if Reckitt was guilty of suppress of “The statement in the advertisement that DETTOL is 10 times C material facts, it is urged that Reckitt Benckiser (India) v. Naga Ltd. more efficacious is in comparison with those soaps which are [104 (2003) DLT 490] related to a different advertising campaign of without actives. Therefore, this statement would not have any Reckitt and against a different defendant and was based on completely reference to the plaintiff’s LIFEBUOY soaps and even otherwise C different facts and had no relevance to the present proceedings. It is the said statement is claimed to be true by the defendant no.1 argued that Reckitt has always been careful in ensuring that the distinction and the plaintiff could not dispute that if DETTOL soap is to D between its DETTOL liquid and DETTOL toilet soap is maintained in the be compared with soaps without actives, then this statement is plaint and in the market place. The description of DETTOL soap as a factually correct.” toilet soap can be seen in paragraphs 7, 8, 9, 19(i) and 19(iii) of the suit, D and discuss how the DETTOL brand has been extended from an antiseptic It is stated that HUL itself has led evidence to establish that Reckitt’s liquid to a toilet soap. However nowhere is a claim made that DETTOL soap and its soap are comparable in reducing bacterial count; Ex.DW-2/ E has any antiseptic quality. On the fifth issue, i.e. whether the impugned 1 and Ex.DW-2/3 are referred to for this purpose. These, submits Reckitt, advertisement constitutes an attack on Reckitt’s goodwill and reputation, establish that Dettol Original (0.961%) has higher levels of Trichloro E the arguments based on HUL’s evidence is reiterated. Carbanilide (TCC), which is the ingredient that helps reduce bacterial count, when compared to Lifebuoy Skin Guard (0.227%). That TCC is 31. It is argued further that the proceedings in the present case an anti-microbial active is admitted on in Para (vii) of the written statement. F being a civil claim are not barred. Reckitt’s counsel relies on Section 9, It is argued that the plaintiff, Reckitt, has discharged the onus that the CPC which outlines jurisdiction of civil courts and states that such depiction of Dettol, as the standard of proof indicated in Reckitt & F power can ousted where cognizance is “expressly or impliedly barred.” Coleman of India Ltd. v. Jyothi Laboratories Ltd., Cal LT 1999 (2) In this context, Section 4 of the MRTP Act is relied on to say that HC 230, has thus been discharged. Counsel additionally submits that application of other laws is not barred. Even the provisions of Section Ex.DW-2/7 further establishes that out of a sample of 31 people on G 12B of the said Act – points out Mr. Lal – clarify that the powers of the whom tests were conducted with the rival products, on four people G MRTP Commission are “without prejudice to the right of such Government, Dettol Original caused less dryness and irritation to the skin than Lifebuoy trader or class of traders or consumer or institute a suit.” Reliance is Skin Guard. On six people, the irritation levels were the same. On 8 placed on the judgment of a learned Single Judge in Citicorp. v. Todi people, the irritation count was less than three. Therefore, they did not Investors, 2006 (23) PTC 631 (Del). It is, therefore, argued that there get skin irritation from either product. On 12 people HUL’s product H is no express or implied bar in the MRTP Act and on the contrary, a caused skin irritation of the level of four or above. HUL’s own report, H specific provision saves the rights under other laws. Furthermore, counsel therefore, established the falsity of its claims made in the advertisement. submits that the common law remedy of false advertising existed prior to the enactment of the MRTP Act which came into existence in 1969. 29. It is next urged that HUL’s entire written statement is based It did not bar the common law remedies. Learned counsel also argues I I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1331 1332 Indian Law Reports (Delhi) ILR (2014) II Delhi that the MRTP Act is essentially a consumer protection statute and not A that there were sufficient materials on record, empirically, to realistically a statute designed to protect the rights of one competitor against the evaluate general damages in the manner known to law. Counsel stressed other. Such a competitor therefore must only approach the Civil Court that though the advertisement was for 30 seconds, its impact was and not the MRTP Commission. Consumers on the other hand must widespread, since the defendant HUL had targeted every channel that had A approach the MRTP and not the Civil Courts. been used by Reckitt; it was pointed out that the advertisement was B telecast no less than 4441 times between end June and August, 2007. Damages: Reckitt’s counter claim Furthermore Reckitt’s DETTOL brand admittedly was worth Rs. 200 32. As to the issue of damages, it is contended that Reckitt established crores at that time. It was also urged that a total quantity of 9132 tons in Issue No.1 and 5 its reputation in its DETTOL soaps. HUL in its B of the article, DETTOL Original, was manufactured during the period written statement admitted to “plaintiff’s soap being a Rs.200 crore January to June, 2007 and that the marketing expenses for that soap, in C brand.” Therefore, any denigration caused will be caused to at least a Rs. its new shape was Rs. 23.6 crores for the latter half of that year. 200 crore brand. This will be the first important consideration for evaluating Counsel pointed out that the admitted advertising expense in respect of damages. Reliance is placed on Ex.PW-1/19, a comparative table of the C LIFEBUOY which was the subject of the impugned advertisement for channels in which advertisements of both products appear. This, Mr. Lal one month alone (July 2007) was Rs. 2.5 crores, according to the testimony of DW-1. Based on these facts, the learned Single Judge argues, establishes how HUL targeted many of channels on which Reckitt D advertises. This fact is set out in Para 23 of the examination-in-chief of should have awarded general (or compensatory) damages, upon a fair PW-1. Likewise, counsel relied on Ex.DW-1/12 to DW-1/14, assessment. It was submitted that in disparagement (of products and advertisements by Reckitt. In each advertisement a mother is portrayed D goods) or slander to title, it is not easy to assess the extent of harm or encouraging her child to bathe with DETTOL soap. The defendant’s injury as it might not be always discernible in the short term and may advertisement has denigrated and undermined this entire advertisement E have long term effect, having regard to market forces. campaign which admittedly was run ‘on various TV channels” and was 33. HUL argues and its counsel, Mr Sethi, submits that the learned “viewed by consumers and public at large” “on almost daily basis during E Single Judge correctly evaluated the evidence and held that general different hours.” Admittedly, these advertisements “are telecast during damages should not be awarded. Counsel submitted that production figures children’s houses for TV viewing and also shown prominently in between or amounts spend towards publicity or even the number of times that the family serials for universal viewing” (counsel points out that all these are F impugned advertisement was published has little relevance to the issue of averments from the written statement). HUL’s advertisement has seriously damages. What is important is that the plaintiff has to establish that it damaged Reckitt’s campaign by showing the children now mocking at F suffered injury capable of assessment in monetary terms, which it could their mother for using DETTOL soap. This fact was spoken to by PW- not, in the facts of the present case. Therefore, counsel concluded that 1 in his examination-in-chief. It is submitted that the extent of damages the findings of the learned Single Judge did not call for interference. can be determined by how extensively HUL used the offending G advertisement. Ex.DW-1/16 to Ex.DW-1/18 establish the extent of this G Analysis and conclusions usage. A channel-wise break-up of the advertisement and the times that 34. The law recognizes that tradesmen and manufacturers may it was repeated is clearly set out in Ex.DW-1/18. It is contended that commend their goods and state that they are better than those of rival DW-1/17 shows how sales of HUL’s soap in the advertisement have traders. Yet this is with an important caution that the publisher or advertiser increased. A large part of this is attributable to the advertisement in issue. H should not make any false representation as to the quality or character This is specifically mentioned in the evidence of PW-1 at paragraph 26. H of the rival or competitor’s goods or products. If no such false Mr. Lal also urged the Court to set aside the findings of the learned representation (as to the character or quality of the rival’s goods) is Single Judge with respect to refusal to grant any general damages and made, the advertisement of a tradesman howsoever commendatory or pressed the counter claim of Reckitt, limited to this extent. He submitted I I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1333 1334 Indian Law Reports (Delhi) ILR (2014) II Delhi exaggerated cannot result in an actionable claim. Exaggerated claims sans A tradesman’s article without specifically referring or alluding to it and such false representations are known as ‘puffing’. This license – to puff observed that disparagement of a class of goods can result if the rival’s – was recognized in Bubbuck v. Wilkinson, 1899 (1) OB 86 where the goods fall within a class and can be identified. We notice that this judgment was taken into consideration by the learned Single Judge, as Lindlay MR observed that mere statement that the defendant’s goods are A better than the plaintiff would not be actionable. This reasoning was also two later English decisions, i.e., Jupiter Unit Trust Managers upheld in Allen v. Flood, 1898 AC 1. Lindlay MR held that mere puffing B Trust Ltd. v. Johnson Fry Asset Managers, (2000) Unreported 19 would not be actionable because it would “open a very wide door to April, QBD and DSG Retail Ltd. v. Comet Group, PLC (2002) EWHC litigation and might expose every man who said its goods were better 116 (QBD). B than another’s to the risk of action”. This was echoed in White v. 36. HUL complains that the impugned judgment does not err in its Mellin, 1895 AC 154 (widely cited by Indian Courts): C understanding of the law or the guiding principles but as to their application. “Indeed the Courts of Law would be turned into machinery for It is contended that the learned Single Judge even after noticing the law advertising rival productions by obtaining judicial determination incorrectly concluded that HUL’s products disparage Reckitt’s Dettol C which of the two was the better”. Original. In its argument, HUL mainly contends that a frame by frame analysis of the advertisement coupled with the ‘average man with imperfect The determinative considerations were described in Cellacite & British D recollection’ test applied by the learned Single Judge has resulted in Uralite v. Robertson [The Times, July 23rd, 1957 (CA)] in the following, distorted conclusions. It is also emphasized in this context that the Court if one may so term – legal ‘catch phrase’: ‘the general proposition is: overlooked that the plaintiff did not present any or evidence proof and D Comparison – Yes but Disparagement – No.. In De Beers Abrasive v. that instead the Single Judge sought to judge the advertisement from the International General Electric Co., 1975 (2) All ER 599, the Court elaborated stand point of a common or reasonable man without any witnesses. this as follows: “In order to draw the line one must apply this test, E deposition that could have been tested through cross examination. This namely, whether a reasonable man would take the claim being made as Court proposes to address each of these submissions in turn. a serious claim.” E 37. Slander of goods is a species or branch of the law of defamation. 35. Indian Courts have recognized actions for damages in a claim It is widely accepted that to be defamatory, an imputation must tend to for slander of goods. In Imperial Tobacco Company v. Albert Bonnan, F lower the claimant in the estimation of right thinking members of society AIR 1928 Calcutta 1 (DB), the Court held that to succeed in an action generally, (i.e., the reference to the ‘common’ or ‘reasonable’ man). of slander of goods, the plaintiff has to allege and prove that the statement F The standard that the statement must amount to ‘disparagement of ... the complained of was made concerning his goods and that it must be with reputation in the eyes of right thinking men generally’ was spelt out in the direct object of injuring his business. In India, the decisions of Leetham v. Rank (1912) 57 SJ 111, and also applied and followed in various Courts, namely, Hindustan Lever Ltd. v. Colgate Palmolive G Byrne v. Deane, [1937] 1 KB 818 and in Campbell v. Toronto Star, (I) Ltd. and Anr., 1998 (1) SCC 720, Pepsi Co Inc. & Ors. v. G (1990) 73 DLR 190. Whilst the Canadian and Australian approach appears Hindustan Coca Cola Ltd & Anr., 2003 (27) PTC 305 (Del) (DB), to be largely in tune with the English law [ref Campbell (supra), a Reckitt & Colman of India Ltd. v. M.P. Ramchandran & Anr., 1999 Canadian decision; and Reader’s Digest Services Pty Ltd v. Lamb PTC (19) 741, have followed the English precedents on the subject, (1982) 150 CLR 500, an Australian decision], the approach of the US especially the five guiding principles outlined in De Beers Abrasive H Supreme Court appears to be a bit different. In a case where the plaintiff, (supra). In Dabur India Ltd. v. Colgate Palmolive India Ltd, 2004 H a teetotaller, sued the publisher of a news item that he used to drink (29) PTC 401 (Del), the peculiarity of generic disparagement of rival whiskey, in the course of its judgment, the US Supreme Court held that products without specifically pin pointing the rival goods was held to be there could be no general consensus or opinion that to drink whiskey objectionable. The Court noticed that clever advertisement of a rival was wrong and yet at the same time observed [ref. Peck v. Tribune Co I I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1335 1336 Indian Law Reports (Delhi) ILR (2014) II Delhi

214, US 185 (1909)] as follows: A judgment, the test applied in the present case is “stand point of an “if the advertisement obviously would hurt the plaintiff in the average man with imperfect recollection who is also a user of Dettol estimation of an important and respectable part of the community, original soap” to hold that Dettol original was disparaged by the impugned liability is not a question of a majority vote... No falsehood is A advertisement. through about or even known by all the world. No conduct is B 41. This Court is of the opinion that the approach and understanding hated by all. That it will be known by a larger number and will of the learned Single Judge while discussing the law generally applicable lead an appreciable fraction of that number to regard the plaintiff as to disparagement and permissible limits of puffing is correct and does with contempt is enough to do her practical harm... It seems to B not call for any interference. At the same time, his allusion or reference be impossible to say that the obvious tendency of what is imputed to “average man with imperfect recollection using Dettol soap” requires to the plaintiff by this advertisement is not seriously to hurt her C some elaboration. Whilst there can be no quarrel with the fact that a standing with a considerable and respectable class in her reasonable man and an average man refer to the same metaphor and community.” imperfect recollection refer to an natural attribute of a reasonable or C 38. An interesting and fascinating discussion on the subject may be average man, what needs closer scrutiny is whether the standard applicable in judging disparagement claims is if a particular class of user (in this found in Gatley on Libel and Slander (10th Edition) (2004) (the Common D Law Library, Sweet & Maxwell, paragraphs 2.10 to 2.14). There, the case the Dettol user) feels that the statement is disparaging. The learned expression “right thinking person” was described as being “as much an Single Judge’s discussions and conclusions on this are based upon his abstraction as the “reasonable man”: both serve as metaphors for what D analysis of what perceptions are discernible from the impugned is in fact the judge’s view of what is capable of being recognized as advertisement. This is elaborately discussed in paragraph 24 of the impugned judgment where two kinds of users, i.e., the Dettol users and acceptable public opinion. Perhaps the American approach makes this E issue more open to argument. those who do not use that soap are noticed. The learned Single Judge held that the latter, i.e., non-users may be unaware of the unique curvature 39. In the present case, the learned Single Judge in our opinion, E shape, packaging etc. of the Dettol soap sufficiently to link it with correctly described the guiding principles after discussing the case law Reckitt’s product as to possibly associate the advertised product with on the subject and even brought home the distinction between passing F Dettol, since the bar of soap in the impugned advertisement is some off actions – which are concerned with deceptively similarity or confusion unbranded soap. However, as far as the former category is concerned, between the two marks for which the test of impression gathered by an F the learned Single Judge held the Dettol users would “immediately recognize average woman or man with imperfect recollection is applicable – and the bar of soap shown in the advertisement as referring to the plaintiff disparagement. The impugned judgment notices this distinction and original Dettol soap”. This was on account of familiarity by reason of comments that G use of such soap and knowledge of its shape, colour, size, contours and packaging. “in the case of disparagement, the one who disparages another’s G product, does not seek to make his product similar to the 42. The question which this Court, therefore, has to address itself disparaged product, but to distinguish it from the disparaged to is whether the learned Single Judge faulted in his approach towards product. The object of disparagement is to make the disparaged applying the test of a reasonable man with imperfect recollection as H product appear to be as near or similar to the competitor’s being a particular class of such citizens, i.e., Dettol users and then product. The comparisons, therefore, in cases of passing off H proceeding to hold that such class can clearly identify the soap in the and in case of disparagement are different.” impugned advertisement as the plaintiff “Dettol original”. 40. Nevertheless, thereafter, in paragraph 27 of the impugned 43. The previous discussion on the question as to whose perception I I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1337 1338 Indian Law Reports (Delhi) ILR (2014) II Delhi is to be considered in an action for defamation or disparagement has A consent – in an advertisement defamed or caused injury to his amateur revealed that the law of defamation recognizes that it is the standard of status (which was during the times regarded as valuable for a golfer). the right thinking or reasonable men and women of the community from The advertisement contained a limerick and also the plaintiff’s picture. It whose stand point the imputation requires to be judged. In the case of was argued unsuccessfully by the plaintiff that the governing test was A disparagement of a rival’s product, it may also be necessary to keep in whether the knowing public (i.e. those aware about the nature of the view the possibility that potential users of the product could be warned B game, and the valuable status of an amateur, at that time) would regard away by the advertisement, thus widening the “target group”. The the depiction and the statement as defamatory. The House of Lords, American Court’s refinement to this is that the standpoint should be that which had to decide whether the judgment which left the matter to the of “respectable men and women” of the community to which the claimant B judge, instead of the jury, was a correct one, held that the guiding belongs and not to all kinds of people. Not infrequently, Courts have been principle was one of perception of the general public and not the golf confronted with the argument that the target audience is not a specific C knowing citizens. This was emphasized in the judgement: one, but of all reasonable men and women generally. This has been “The question here does not depend upon a state of facts known described in Gatley (supra), at paragraph 2.15) as follows: C only to some special class of the community, but to the inference “...... First, it is plain that to say that the statement must lower which would be drawn by the ordinary man or woman from the the claimant in the estimation of right-thinking persons generally D facts of the publication.” does not mean that the statement must be readily comprehensible Similarly, in Gillick v. Brook Advisory Centres [2001] EWCA Civ to people in general: a defamatory statement may be made in a D 1263, the following approach was adopted: foreign language or in a highly technical scientific journal. In such cases there must be a publication to persons who do in fact “the court should give the article the natural and ordinary understand the statement in the sense of which the claimant E meaning which it would have conveyed to the ordinary reasonable complains but the issue then seems to be “if this were explained reader reading the article once. Hypothetical reasonable readers to the ordinary citizen would it reflect on the plaintiff’s reputation E should not be treated as either naive or unduly suspicious. They in his eyes? Secondly, in many cases it may be possible to show should be treated as being capable of reading between the lines that a charge of conduct which in itself is obnoxious only to a and engaging in some loose thinking, but not as being avid for F limited group is defamatory because the statement carries the scandal. The court should avoid an over-elaborate analysis of additional imputation that the claimant is thereby guilty of conduct, F the article, because an ordinary reader would not analyse the such as disloyalty or hypocrisy, which is regarded as discreditable article as a lawyer or accountant would analyse documents or by reasonable people generally even though they may be indifferent accounts. Judges should have regard to the impression the article to the tenets of the group which is directly offended...” G has made upon them themselves in considering what impact it would have made on the hypothetical reasonable reader. The 44. There appears to be an overwhelming consensus of judicial G court should certainly not take a too literal approach to its opinion that to determine whether a statement disparages or defames the task.” viewpoint to be considered is that of the general public (the refinements of whether such “right thinking” or “reasonable” persons belong to a 45. In Petra Ecclestone v. Telegraph Media Group Ltd, 2009 “respectable” section of the public, apart). Thus, whenever an argument H EWHC 2779 (QB), the imputations against which the claimant sued that a sectarian approach (i.e. applying the standpoint of members of a H Telegraph Media Group were that Sir Paul McCartney’s public call for section of the public) is to be adopted, Courts have tended to reject it “Meat free Mondays” did not impress the plaintiff/claimant who is reported time and again. In Tolly v. Fry, 1931 AC 333, the House of Lords had to have said that she was not a “veggie” and did not have time for people to decide if the depiction of the plaintiff, an amateur golfer – without his I like McCartney. The Court rejected the submission of defamatory I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1339 1340 Indian Law Reports (Delhi) ILR (2014) II Delhi imputation and observed that: A “7. Where no true innuendo is pleaded and the published words “It might be that a sector of the public (i.e. those who disapproved clearly related to the plaintiff, the issue of libel or no libel can be determined by asking whether hypothetical referees - Lord of the use of leather or eating animal products) could think the less of the Claimant for taking the opposite stance, and might A Selborne’s reasonable men (Capital and Counties Bank v. Henty (1882) LR 7 App Cas 741, at p 745 ) or Lord Atkin’s right- even do so because of what she is reported to have said about B the McCartneys and Annie Lennox. But the test is not whether thinking members of society generally (Sim v. Stretch (1936) 52 TLR 669, at p671 or Lord Reid’s ordinary men not avid for a sector of the public could think less of the Claimant for what scandal (Lewis v. Daily Telegraph Ltd. (1964) AC, at p 260 ) she is alleged to have said (see Arab News Network v Al Khazen B [2001] EWCA Civ 118 at [30]), but whether ordinary reasonable - would understand the published words in a defamatory sense. That simple question embraces two elements of the cause of people in our society as a whole - or to use Mr Barca’s phrase C ‘the public’ generally could do so. In our society people hold action: the meaning of the words used (the imputation) and the defamatory character of the imputation. Whether the alleged different (and sometimes strong) views on any number of issues including the use of animal products. In a democratic society C libel is established depends upon the understanding of the where freedom of expression is a protected right, people are hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, entitled to hold strong views, and to express them within the D limits laid down by law.” moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral The point was again brought home in yet another later decision, D or social standard by which to judge the defamatory character Robert Crow v. Boris Johnson, [2012] EWHC 1982 (QB), of that imputation (Byrne v. Deane (1937) 1 KB 818, at p 833 which also cited Tolley (supra): E , being a standard common to society generally (Miller v. David (1874) LR 9 CP 118 ; Myroft v. Sleight (1921) 90 LJKB 883 “The law can conveniently be taken from the judgment of Thomas ; Tolley v. J.S. Fry &Sons Ltd. (1930) 1 KB 467, at p 479...” LJ in Modi v Clarke [2011] EWCA Civ 937 paras 10 to 12: E 47. Thus, the conclusion of the above discussion is that the learned “12. It was also accepted that there is a distinction between Single Judge’s appreciation of the law, i.e. that the perspective of the “people generally” and a section of people. The distinction is F Dettol users guides the court in considering whether HUL disparaged set out in a number of authorities but the one relied on before Reckitt’s soap is erroneous, as it is based on a sectarian and “section of the judge was that of Greer LJ in Tolley v Fry [1930] 1 KB 467 F the public” point of view and not of the “right thinking” or “reasonable” at 479 where he said: “Words are not defamatory, however member of the public generally. As to whether this approach has resulted much they may damage a man in the eyes of a section of the in a wrong conclusion, is another matter, which the Court would consider community unless they also amount to disparagement of his G presently. reputation in the eyes of right thinking men generally. To write G or say of a man something that would disparage him in the eyes 48. The next aspect to be considered is the nature of judicial scrutiny. of a particular section of the community but will not affect his HUL complains that the learned Single Judge fell into error in making a reputation in the eyes of the average right thinking man is not frame by frame, bit by bit analysis of the impugned advertisement and H actionable within the law of defamation.” thereby overlooked the guiding test that the advertisement or publication H has to be seen as a whole, rather than in a sectional manner, to decide 46. The discussion may be usefully summed up in the words of the if it denigrates or disparages a rival product. Australian High Court in Reader’s Digest (supra): 49. The first question here is as to the manner in which such I I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1341 1342 Indian Law Reports (Delhi) ILR (2014) II Delhi advertisements are to be viewed, and secondly, the legal standard against A Neither letter can have taken a literate reader of that newspaper which the advertisement is to be judged. On this question, the advertisement more than 60 seconds to read before passing on to some other, must be seen as a viewer would normally view it in the course of the and perhaps more interesting, item. Any unfavourable inference television programme, and not specifically with a view to catch an about the plaintiffs. characters or conduct which he might have A ‘infringement’. This distinction is thin, but important: in trying to determine drawn from what he read would have been one of first impression. whether commercial disparagement has occurred, the relevant B Yet in this court three lords justices and four counsel have spent consideration is how the viewer (i.e. the individual to whom the alleged the best part of three days upon a minute linguistic analysis of disparagement is addressed) would see the advertisement. This every phrase used in each of the letters. If this protracted exercise consideration is important also because of the manner in which the B in logical positivism has resulted in our reaching a conclusion advertisement is appreciated – whether as a running reel or frame by as to the meaning of either letter different from the first frame. The answer to this necessarily is the former, for two clear reasons. C impression which we formed on reading it, the conclusion reached First, when deciding such matters, the judge is to consider (as will be is unlikely to reflect the impression of the plaintiffs. character discussed below) how an average, reasonable man would view the C or conduct which was actually formed by those who read the advertisement as it appears on the television or electronic medium, as in letters in their morning newspaper in 1964.” the present case. In order to do this, the endeavour of the court is to D 51. The importance of returning to the meaning conveyed at first substitute its judgment for that of the average/reasonable man. Undoubtedly, impression, which for the viewer, at least in so far as advertisements when the advertisement is displayed on the television, it is not scrutinized such as the present one are concerned, is also the final impression, is in every detail by the viewers, but rather, taken as a whole as it is D crucial. This was also stated in McDonalds v. Burger King, (1986) FSR displayed. This simple proposition is of great relevance, since a judge, 45, in noting that: sits in an adversarial setting with the clear purpose of determining whether E commercial disparagement has occurred, and thus, on the look-out for “advertisements are not to be read as if they are testamentary any indication of the same, must equally remain cautious that the E provisions in a will or a clause in some agreement with every advertisement is viewed as viewers normally view it. word being carefully considered and the words as a whole being compared.” 50. These concerns have been echoed by several courts – for F example, in Skuse v. Grenada, [1993] EWCA Civ 34, the Court noted 52. On this question, we must examine the approach of the learned that F Single Judge closely – in that the Court applied the legal standard (which will be discussed below) on a frame by frame appreciation of the impugned “[w]hile limiting its attention to what the defendant has actually advertisement. Such approach, with due respect, in this court’s opinion, said or written, the court should be cautious of an over-elaborate is incorrect. The conclusions apart, the method employed in determining analysis of the material in issue.” G whether disparagement has occurred (and crucially, the effect on the Earlier, in Slim and Others v. Daily Telegraph and Others, [1968] 2 G consumer’s mind) must be considered by Courts in such cases. The QB 157, a case concerning libel, Lord Justice Diplock struck an important learned Single Judge has, at paragraph 21 of the impugned judgment, point: considered each frame of the advertisement in detail, and further, in paragraph 22, considered some still pictures from the advertisement where “In the spring of 1964 two short letters appeared in the H the Dettol soap is alleged to be shown. Relying on these photographs, the correspondence columns of the “Daily Telegraph.” Written by H learned Single Judge reached the conclusion that the soap displayed in the Mr. Herbert, they formed part of a robust though desultory advertisement does indeed refer to the Dettol soap. This, in the opinion controversy about the prospective use by motor vehicles of a of the Court, cannot be the correct approach; the appropriate method of public footpath forming part of Upper Mall in Hammersmith. I I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1343 1344 Indian Law Reports (Delhi) ILR (2014) II Delhi viewing the advertisement objected to would be to consider its overall A millions of readers of a popular newspaper, the chances are that effect. if the words are reasonably capable of being understood as bearing more than one meaning, some readers will have Was the impugned judgment in error in its appreciation of the evidence understood them as bearing one of those meanings and some will A 53. HUL complains that the impugned judgment is in error because have understood them as bearing others of those meanings. But the learned Single Judge held that in the final analysis the judge has to B none of this matters. What does matter is what the adjudicator decide, after considering the advertisement and its effect: at the trial thinks is the one and only meaning that the readers as reasonable men should have collectively understood the words “It has been contended on behalf of the defendant that the B to bear. That is ‘the natural and ordinary meaning’ of words in plaintiff has not produced any evidence of consumers to indicate an action for libel.” that the orange bar of soap in the said advertisement appears to C be the plaintiff’s DETTOL Original soap. In response the learned In Vodaphone Group Plc. v. Orange Personal Communications counsel for the plaintiff submitted that producing such evidence Services Ltd., [1997] F.S.R. 34, the Court held as follows: would be counter-productive and is not necessary. He submitted C “The meaning is for the court to determine when a judge sits that the plaintiff could produce witnesses stating that the orange without a jury. Evidence of the meaning to others is inadmissible. bar of soap shown in the advertisement had reference to the D The question: plaintiff’s DETTOL Original soap. Similarly, the defendant could also produce witnesses to state the contrary. Ultimately, it would ‘Is not one of construction in the legal sense. The ordinary man D be for the court to make a judgment from the perspective of an does not live in an ivory tower and he is not inhibited by the average person with imperfect recollection, a test which has rules of construction. So he can and does read between the lines been well established, particularly in passing off cases.” E in the light of his general knowledge and experience of worldly affairs ... what the ordinary man would infer without special HUL relies on Imperial Tobacco and Colgate Palmolive in support of the E knowledge has generally been called the natural and ordinary submissions. As this court reads those authorities, the Courts did not meaning of the word. But that expression is rather misleading in prohibit the judge presiding over the trial to consider the meaning of the that it conceals the fact that there are two elements in it. term or advertisement in issue, nor stated that as an invariable rule, the F Sometimes it is not necessary to go beyond the words themselves, ritual of one or a set of witnesses stating that it amounted to slander of as where the plaintiff has been called a thief or a murderer. But goods and another (for the defendants) stating otherwise, had to be F more often the sting is not so much in the words themselves as ritualistically followed. The learned Single Judge’s approach, to a great in what the ordinary man will infer from them, and that is also extent, is based on common sense and pragmatism. So long as the origin regarded as part of their natural and ordinary meaning” per of the advertisement or publication (i.e. who caused it to be telecast or G Lord Reid in Lewis v The Daily Telegraph’. broadcast, or published in the print media), its contents, duration etc. are G not in dispute (as in the present case) whether the content disparages is The Court notices that even in recent English decisions (Cruddas v. a decision that would ultimately depend on the judge’s reading and Calvert, 2013 EWHC 1427 (QB) delivered on 5th June, 2013 and appreciation of the advertisement taken as a whole, based on a proper Interflora Inc v. Marks & Spencer Plc, 2013 (2) All ER 663) – though application of the law on the subject. This view is supported by the H in analogous cases relating to ad-word and trademark infringement claims- decision in Slim v. Daily Telegraph, [1968] 2 QB 157, where Lord H it was held that evidence as to the meaning of common words and Justice Diplock expressed the rule in a clear statement: phrases in advertisements or their effect, is by and large inadmissible. In Interflora, (supra) after an elaborate review of past cases, the Court of “...Where, as in the present case, words are published to the I Appeal held: I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1345 1346 Indian Law Reports (Delhi) ILR (2014) II Delhi “In previous cases, it had been held that evidence of members A wife plans to bathe and the takes out an orange bar of soap from a green of the public could not stand proxy for the legal construct of the wrapper. This part of the film is less than two seconds. The husband, average consumer. In the context of Ad-Words, the average at this stage exclaims that that his wife can only be saved by God; later consumer had been replaced by the reasonably well-informed he and the children sing out that naadan (the ignorant) should be given A and reasonably observant internet user, but the underlying concept, wisdom and all of them should be saved from naivetT; the wife, surprised of a legal construct, was the same, BACH and BACH FLOWER B at this, questions them. Next, the husband holds up the orange soap (this REMEDIES Trade Marks [2000] R.P.C. 513 applied (see paras for about 2 seconds) and says that with such cure, a blessing too would 40-44 of judgment). In cases involving ordinary consumer goods be necessary. In the next scene, a bathing lady is shown raising the said and services, the judge could reach a conclusion from his own B orange bar of soap; it is accompanied by a male voice over which states experience without evidence from consumers ...” that ordinary antiseptic soaps dry up the skin; the camera then zooms to C the upper arm, shown under a magnifying glass revealing cracked skin In view of the above discussion, it is held that there is no merit in HUL’s with green germs lodged in them The male voice then comments that argument that the judge fell into error in not considering oral testimony germs get into the cracks (of the skin). As if to emphasize the idea, the of the parties as to whether the impugned advertisement amounted to C term “ordinary antiseptic soap” appears on the screen. Next in a water slander of goods, or denigration of Reckitt’s DETTOL Original. shot, a bar of red LIFEBUOY soap emerges out of the water. This scene D Did the impugned advertisement disparage or denigrate Reckitt’s DETTOL highlights the words “Glycerine” and “Vitamin E” and the male voice- Original over states this is why, new Lifebuoy Skin Guard). To underline the idea, D the arm under the magnifying glass is shown again, this time with a voice 54. This court has previously observed that the correct test is over stating that it (LIFEBUOY) attacks germs; the scene then shows whether the impugned advertisement, or the publication complained of glycerine flowing – and the voice over adding that (LIFEBUOY) also disparaged the plaintiff’s goods in the eyes of the right thinking members E builds a protective wall. The next scenes show that the wife allays the of the public or reasonable men and women. The Court had further held fears of her family, and all of them saying that they have no fear (thus that while considering the question of disparagement, the applicable test E suggesting that the wife accepted the suggestion to stop using the antiseptic would not be whether a “target audience” or “target group” i.e. a section soap and had started to use LIFEBUOY). The final part of the advertisement of the general public would perceive the advertisement to be disparaging, F shows a LIFEBUOY Skinguard bar of soap and its package with the but if all reasonable men and women would regard it to be so. Now, the LIFEBUOY logo zooming onto the package and the male voice-over all-important question of whether the impugned advertisement in fact F announcing “Lifebuoy Skin Guard”; the Hindustan Lever Limited logo is disparaged or denigrated the plaintiff’s DETTOL Original has to be decided then focused and the advertisement ends then. in the light of the evidence. 57. Facially, HLL’s argument that the exposure to the orange coloured 55. As observed in an earlier part of this judgment, the advertisement G soap is for about 5% of the entire advertisement – and the attendant was of a total duration of 30 seconds and was telecast at the relevant G submission that this renders the possibility of any lasting impact improbable, time, in a multitude of television channels. This Court had the opportunity is attractive. That however, is not the main consideration which the court of viewing the advertisement, a recording of which was filed as part of should be alive to. As discussed earlier, it is the overall effect of the the record and was also played at the time of the hearing of the appeal. advertisement rather than a frame by frame analysis which is relevant. The court finds that the storyline has been accurately described by the H To focus only on the manner that the orange soap bar is shown in the learned Single Judge. H advertisement would therefore, be falling into the same trap which HLL 56. It would be necessary to briefly summarize the whole cautioned the court from avoiding. It is not only the total time devoted advertisement. A doctor and his wife return home on a rainy day. The in the entire advertisement by which the orange bar is shown (in all about I I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1347 1348 Indian Law Reports (Delhi) ILR (2014) II Delhi

4 seconds, on three occasions) which is to be considered, but its contextual A something more than what is spoken, is one such device. Tolley (supra) setting. The learned Single Judge accepted Reckitt’s argument that though was a case which used a pun and a limerick; there have been other it did not market an antiseptic soap, yet the repeated allusions to antiseptics instances where different suggestions and innuendos have been held to and how they result in cracks in the skin, provided the powerful contextual A be slanderous or disparaging. In Kiam v. Neil, 1996 EMLR 493, the background for the entire advertisement. HLL is no doubt right in saying claimant, a prominent businessman had appeared in advertisements and that there were several orange bars of soaps; some with curvature and B liked a razor so much that he bought the company. The complained a few had green coloured packaging. Yet, the one shot (in which one newspaper publication alleged that a Bank stated that the plaintiff had protagonist) holds up the orange soap bar shows the curvature of the defaulted on a GBP ú 13.5 million loan and that he had filed for bankruptcy, orange bar, and the unique indented shape within, which leaves no room B neither of which was true. The newspaper apologized. However, the for any doubt that it is DETTOL Original. The absence of the Dettol C claimant alleged a libel, based on an innuendo to members of the public symbol (cross) does not in any manner – in the opinion of the court- who had bought razors relying on a promise of a refund if they were not detract from this impression (of the ordinary reasonable viewer) as to the satisfied, that the plaintiff had induced them to purchase when he was identity of the soap bar. This the Court holds because the evidence on C not in a position to fulfil the promise. The innuendo was founded on record, in the form of the story board in Reckitt’s advertisement campaign packaging for the razor which bore a photograph of the plaintiff and a for DETTOL Original (to which umbrage was taken by HLL, in a previous D statement about a refund. The defendants did not admit the innuendo. suit, filed in this Court – produced as Ex. PW-1/16) shows that the soap The court upheld the decision that the innuendo was defamatory of the was launched in May, 2006. HLL filed the suit some-time in June, 2006; plaintiff. This discussion is best summed up with in the words of Lord interim injunction was refused by a reasoned judgment and order dated D Reid in Lewis v. Daily Telegraph [1963] 2 All E.R. 151, that the ordinary 17-11-2006. This story board (i.e concerning Reckitt’s DETTOL Original, sense and context of words is not their “legal sense” because: in the previous suit by HLL) was produced as DW-1/11 and DW-1/12, E by HLL’s witness, DW-1. This material clearly depicts Reckitt’s DETTOL “The ordinary man does not live in an ivory tower and he is not Original advertisement, which contains the same – or identical oval shaped inhibited by the rules of construction. So he can and does read E orange soap – as in the impugned advertisement. That advertisement too between the lines in the light of his general knowledge and was published in the same media, in television channels. Reckitt led experience of worldly affairs ... What the ordinary man would evidence (PW-1/19) disclosing that the advertisement was widely and F infer without special knowledge has generally been called the extensively telecast in numerous channels, on 2763 occasions, during the natural and ordinary meaning of the words. But that expression whole of July till 11 August, 2007. F is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the 58. As this Court understands, the plaintiff’s grievance is not that words themselves, as where the plaintiff has been called a thief HUL simplistically depicted its DETTOL Original in a bad light or denigrated G or a murderer. But more often the sting is not so much in the it. That argument would have been natural if Reckitt alleged that the soap words themselves as in what the ordinary man will infer from G shown in the advertisement alone constituted denigration of its product. them, and that is also regarded as part of their natural and However, the overall effect on the viewer – the shape of the soap, the ordinary meaning.” (emphasis supplied) green packaging, the number of times the soap was shown, the suggestion 59. In the present case, the Court has to be sensitive and alive to made that antiseptic soaps are bad for the skin, as they allow germ build H up – is complained to constitute what is termed as a defamatory innuendo. the fact that viewership of television channels and electronic media is H This court had, earlier in Dabur India, recognized that clever advertising diverse and widespread. The learned Single Judge found, and we see no can suggest something which is plainly not said, and create the desired infirmity in this regard, that DETTOL’s market leadership in the antiseptic impact in the mind of the viewer. The innuendo, or the suggestion of liquid market made it particularly vulnerable in the impugned advertisement. I I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1349 1350 Indian Law Reports (Delhi) ILR (2014) II Delhi In this context, the Court usefully recollects what was stated in a previous A justified in saying that antiseptic soaps cause skin damage; however that disparagement action (Glaxo Smithkline Consumer Healthcare Limited is not the point it seeks to drive home in the impugned advertisement; the & ors v. Heinz India Private Limited & Anr., I.A. No.15233/2008 in plaintiff Reckitt does not claim that its product is an antiseptic soap, nor CS (OS) No.2577/2008, decided on 12.11.2010) though in the course of does it say that such result can follow from use of such class of soaps. A interlocutory injunction proceedings): What is relevant is that the message conveyed through the impugned B advertisement is loud and clear: that Reckitt’s soap (the depiction of an “This Court is conscious of the powerful and lasting impact that “ordinary antiseptic soap”) is bad for the skin. Likewise, though HUL has audio visual images have on viewers. Unlike the printed word, produced Exhibits DW-1/1, DW1/2 and DW-1/3 to show that other oval which is processed analyzed, and assimilated uniquely by each B shaped, orange coloured and green wrapper packaged soaps exist, it individual, an advertisement in the electronic media, particularly, made no attempt to co-relate the shapes and colour with specific products. has a different impact. First, it has a wider spread; it is perceived C Nor was its witness, DW-1 able to do so. In these circumstances, the aurally through different senses, such as sound, visual, and printed. argument that the plaintiff could not complain about being targeted by the The suggestive power of this medium is greater. Second, such impugned advertisement is insubstantial and unpersuasive. advertisements use several different tools, like music, dialogue, C colors, and other aids, to bring home the message. Advertisements Correctness of the approach of the Single Judge as to damages through this medium can, and do operate at conscious and D 61. In this section of the judgment, this court proposes to discuss subconscious levels; their power of suggestion extends not just to the correctness of award of damages by the learned Single Judge in the the discerning, or educated viewer, but to an entire range of D impugned judgment. As noticed previously, the Single Judge felt that the viewership, with diverse income earning capacities, educational plaintiff, Reckitt had been unable to prove the damages suffered on attainments, tastes, and so on. They influence even children. The account of disparagement; yet award of punitive damages were called impact of a catchy phrase, a well acted skit or story line, or even E for. The defendant, HUL questions the grant of punitive damages whereas distinctive sounds or distinctive collocation of colors, can well the plaintiff Reckitt complains that general or compensatory damages define the brand or product’s image, by imprinting it in the E ought to have been awarded. public memory forever.” 62. It is an accepted principle in English law that general damages Here, though at a superficial level, HUL targeted antiseptic soaps and F are “at large” in the case of defamation, including disparagement, slander, elaborated the ill-effects of antiseptics on the skin, the combined effect etc. This was first stated in South Hetton Coal Company Limited v. of this message with the three visuals, two distinctly (though briefly) F North-Eastern News Association Limited, [1894] 1 QB 133 that “if the showing Dettol soap, with its unique colour, curvature and shape suggested case be one of libel - whether on a person, a firm, or a company - the powerfully to ordinary and reasonable viewer that the soap being spoken law is that damages are at large. It is not necessary to prove any particular against in the advertisement was none other than a Reckitt product. G damage; the jury may give such damages as they think fit, having regard Though not strictly accurate, the innuendo was in the nature of a G to the conduct of the parties respectively, and all the circumstances of commercial double entendre where the hidden meaning was intended to the case.” It is important that a successful plaintiff is allowed to recover impact the viewer more than the obvious, superficial one. This plainly is such damages as would compensate for the loss of its reputation. These disparagement, and a slander of Reckitt’s DETTOL Original; the Single principles were re-stated in John v MGN Ltd [1997] QB 586, where the Judge arrived at the correct finding in that regard and the Court hereby H Court of Appeal held that: affirms it. H “The successful plaintiff in a defamation action is entitled to 60. As far as HUL’s argument with respect to its test reports go, recover, as general compensatory damages, such sum as will this Court is of opinion that they are of little relevance. HUL may be I compensate him for the wrong he has suffered. That sum must I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1351 1352 Indian Law Reports (Delhi) ILR (2014) II Delhi compensate him for the damage to his reputation; vindicate his A damages is less in a case where some vindication is provided by good name; and take account of the distress, hurt and humiliation a reasoned judgment.” which the defamatory publication has caused. In assessing the This was followed in Applause Store Productions Limited and Firscht appropriate damages for injury to reputation the most important A v. Raphael [2008] EWHC 1781, where the plaintiff complained of libel factor is the gravity of the libel; the more closely it touches the on account of a fake Facebook identity which falsely described the plaintiff’s personal integrity, professional reputation, honour, B claimant’s sexual orientation, his relationship status (that is to say, whether courage, loyalty and the core attributes of his personality, the he was single or in a relationship), his birthday, and his political and more serious it is likely to be. The extent of publication is also religious views. Not all this information was truthful or accurate, and very relevant: a libel published to millions has a greater potential B besides all of it was private information. The Court of appeal followed to cause damage than a libel published to a handful of people. John (supra) and awarded substantial damages. Earlier, Iin Jameel v. A successful plaintiff may properly look to an award of damages C Wall Streeet Journal 2007 (1) AC 379, the rule was re-stated as to vindicate his reputation: but the significance of this is much follows: greater in a case where the defendant asserts the truth of the C libel and refuses any retraction or apology than in a case where “...under the current law of England and Wales a trading company the defendant acknowledges the falsity of what was published D with a trading reputation in this country may recover general and publicly expresses regret that the libellous publication took damages without pleading or proving special damage if the place. It is well established that compensatory damages may and publication complained of has a tendency to damage it in the should compensate for additional injury caused to the plaintiff’s D way of its business.” feelings by the defendant’s conduct of the action, as when he In the same judgment, the Court also reiterated the existing law that once persists in an unfounded assertion that the publication was true, E defamation s proved, the law presumes damage- a proposition which or refuses to apologise, or cross-examines the plaintiff in a applies to a trading company also. Further, the Court held that: wounding or insulting way.” 76. Of course, a company stands in E a slightly different position, for it has no feelings to hurt, and “The presumption of damage it follows that considerations of aggravation which might be 119. Defamation constitutes an injury to reputation. Reputation relevant if the claimant is an individual do not apply. However, F the entitlement of a company to recover general damages has is valued by individuals for it affects their self-esteem and their recently been affirmed by the House of Lords: see Jameel v F standing in the community. Where reputation is traduced by a Wall Street Journal [2007] 1 AC 359. A company’s good name libel “the law presumes that some damage will flow in the ordinary is a thing of value, but it can only be hit in its pocket, and there course of things from the mere invasion of the plaintiff’s rights” is no evidence here of actual financial loss. That is not to say G (Bowen LJ in Ratcliffe v Evans [1892] 2 QB 524 at 528). It is accepted that the rule applies and should continue to apply to that it may not merit vindication. The function of damages for G vindication was well explained by Lord Hailsham in Broome v individuals. But it is argued that it should no longer be applied Cassell [1972] AC 1027 at 1071c-e in terms of the need, ‘in to corporations. Corporations, it is said, have no feelings to be case the libel, driven underground, emerges from its lurking hurt and cannot feel shame. If they are to sue for libel they place at some future date’, for the claimant (whether personal H should be required to show that the libel has caused them actual or corporate) to be able to point to a sum sufficient to convince H damage. a bystander of the baselessness of the charge. Of course, those 120. These arguments, in my opinion, miss the point. The words were spoken in the context of a jury award, and it could reputation of a corporate body is capable of being, and will fairly be said that the need for vindication by an award of I usually be, not simply something in which its directors and I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1353 1354 Indian Law Reports (Delhi) ILR (2014) II Delhi shareholders may take pride, but an asset of positive value to it. A suit of an individual, without the need to prove that any actual Why else do trading companies pay very substantial sums of damage has been caused. In the South Hetton Coal Co Ltd case money in advertising their names in TV commercials which usually [1894] 1 QB 133 the plaintiff, a colliery company, complained say next to nothing of value about the services or products on A of a libel that had attacked the company in respect of its offer from the company in question but endeavour to present an management of company houses in which some of its colliery image of the company that is attractive and likely to cement the B workers lived. The Court of Appeal held that the libel was name of the corporation in the public memory? Why do actionable per se and, at p 140, that “... the plaintiffs would be commercial companies sponsor sporting competitions, so that entitled to damages at large, without giving any evidence of one has the XLtd Grand National or the YLtd Open Golf B particular damage.” Championship or the ZLtd Premiership? It is surely because reputation matters to trading companies and because these C In the United States of America, too, the difficulty which a defamed or sponsorship activities, associating the name of the company with slandered claimant, particularly a commercial enterprise is put to in proving popular sporting events, are believed to enhance the sponsor’s empirically and accurately the damages or injury to its reputation and C Story Parchment reputation to its commercial advantage. The organisers of a enterprise has been recognized. It was thus, held in Co. v. Paterson Parchment Paper Co., variety of activities some sporting, some cultural, some charitable, 282 U.S. 555 (1931) that: D are constantly on the look-out for sponsorship of the activity in “ Where the tort itself is of such a nature as to preclude the question by some commercial company. The choice of sponsor ascertainment of the amount of damages with certainty, it is and the reputation of the sponsor matter to these organisers. D enough if the evidence show the extent of the damages as a Who would these days choose a cigarette manufacturing company matter of just and reasonable inference, although the result be to sponsor an athletic event or a concert in aid of charity? If E only approximate. The wrongdoer is not entitled to complain reputation suffers, sponsorship invitations may be reduced, that they cannot be measured with the exactness and precision advertising opportunities may become difficult, customers may E that would be possible if the case, which he alone is responsible take their custom elsewhere. If trade suffers, profits suffer. for making, were otherwise..... If the damage is certain, the fact that its extent is uncertain does not prevent a recovery.” 121. It seems to me plain beyond argument that reputation is of F importance to corporations. Proof of actual damage caused by 63. In the present case, the plaintiff (Reckitt) has been able to the publication of defamatory material would, in most cases, F prove, successfully, that HUL telecast the impugned 30 second need to await the next month’s financial figures, but the figures advertisement on a large number of occasions (2763 times, to be precise, would likely to be inconclusive. Causation problems would usually according to Ex. PW-1/19). The innuendo was cleverly designed to be insuperable. Who is to say why receipts are down or why G suggest that Reckitt’s DETTOL Original caused damage to the skin. The advertising has become more difficult or less effective? Everyone advertiser, i.e. HUL, was conscious that it was crossing the boundary G knows that fluctuations happen. Who is to say, if the figures are between permissible “puffing” and what was prohibited in law. The not down, whether they would have been higher if the libel had evidence on record, in the form of HUL’s witnesses. testimony, is that not been published? How can a company about which some Rs.2.5 crores was spent in July 2007 alone for advertising its product. libel, damaging to its reputation, has been published ever obtain H HUL also admitted during the trial that the DETTOL Original brand was an interlocutory injunction if proof of actual damage is to become H worth Rs.200 crores. Such being the case, this Court holds that the the gist of the action? Single Judge’s reluctance to award general damages was not justified. It 122. There is no doubt that, as the case law now stands, a libel would be necessary to mention in this context that it may not be possible is actionable per se at the suit of a corporation as it is at the for an otherwise successful plaintiff, in a disparagement or slander of I I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1355 1356 Indian Law Reports (Delhi) ILR (2014) II Delhi goods action to always quantify the extent of loss; there would necessarily A “A judge should first rule whether evidence exists which entitles be an element of dynamism in this, because of the nature of the product, a jury to find facts bringing a case within the relevant categories, the season it is sold in, the possible future or long term impact that may and, if it does not, the question of exemplary damages should be arise on account of the advertisement, etc. Therefore, courts the world withdrawn from the jury’s consideration. Even if it is not A over have resorted to some rough and ready calculations. withdrawn from the jury, the judge’s task is not complete. He B should remind the jury: (i) that the burden of proof rests on the 64. In view of the evidence presented before this Court (i.e. the plaintiff to establish the facts necessary to bring the case within number of times the advertisement was telecast, the quantum of the categories. (ii) That the mere fact that the case falls within advertisement expenses of HUL, the amount spent by Reckitt, to advertise B the categories does not of itself entitle the jury to award damages its product, etc) this Court is of opinion that the plaintiff is entitled to purely exemplary in character. They can and should award nothing recover general damages to the tune of Rs. 20 lakhs. The impugned C unless (iii) they are satisfied that the punitive or exemplary judgment and order is modified to that extent, and the cross objection by element is not sufficiently met within the figure which they have Reckitt, is consequently allowed in these terms. C arrived at for the plaintiff’s solatium in the sense I have explained 65. As far as punitive damages are concerned, the learned Single and (iv) that, in assessing the total sum which the defendant should pay, the total figure awarded should be in substitution Judge relied in Lokesh Srivastava and certain other rulings. Here, since D the Court is dealing with a final decree – and a contested one at that for and not in addition to the smaller figure which would have (unlike in the case of trademark and intellectual property cases, where been treated as adequate solatium, that is to say, should be a the courts, especially a large number of Single Judge decisions proceeded D round sum larger than the latter and satisfying the jury’s idea of to grant such punitive damages in the absence of any award of general what the defendant ought to pay. (v) I would also deprecate, as or quantified damages for infringement or passing off), it would be E did Lord Atkin in Ley v. Hamilton, 153 L.T. 384 the use of the necessary to examine and re-state the governing principles. word “fine” in connection with the punitive or exemplary element in damages, where it is appropriate. Damages remain a civil, 66. Rookes v. Barnard, [1964] 1 All ER 367, is the seminal E not a criminal, remedy, even where an exemplary award is authority of the House of Lords, on the issue of when punitive or appropriate, and juries should not be encouraged to lose sight of exemplary (or sometimes alluded to as “aggravated”) damages can be F the fact that in making such an award they are putting money granted. The House defined three categories of case in which such into a plaintiff’s pocket, and not contributing to the rates, or to damages might be awarded. These are: F the revenues of central government.” (emphasis supplied). a. Oppressive, arbitrary or unconstitutional action any the servants The House of Lords, in its discussion, remarked crucially that there is of the government; G a considerable subjective element in the award of damages in cases b. Wrongful conduct by the defendant which has been calculated involving defamation and similar actions. Courts, it remarked, used by him for himself which may well exceed the compensation G terminology to reflect overlapping, and sometimes undesirable ideas payable to the claimant; and c. Any case where exemplary underlining the considerations weighing grant of damages: damages are authorised by the statute. “In my view it is desirable to drop the use of the phrase H The later decision in Cassell & Co. Ltd. v. Broome, 1972 AC 1027, “vindictive” damages altogether, despite its use by the county upheld the categories for which exemplary damages could be awarded, H court judge in Williams v. Settle [1960] 1 W.L.R. 1072. Even but made important clarificatory observations. Those relevant for the when a purely punitive element is involved, vindictiveness is not present purpose are reproduced below: a good motive for awarding punishment. In awarding “aggravated” damages the natural indignation of the court at I I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1357 1358 Indian Law Reports (Delhi) ILR (2014) II Delhi the injury inflicted on the plaintiff is a perfectly legitimate motive A considerations which may, but with the exception of the first in making a generous rather than a more moderate award to need not, be taken into account in assessing a single sum. They provide an adequate solatium. But that is because the injury to are not separate heads to be added mathematically to one the plaintiff is actually greater and, as the result of the conduct another.” A exciting the indignation, demands a more generous solatium. B 67. In India, the Supreme Court has affirmed the principles in Likewise the use of “retributory” is objectionable because it is Rookes (supra) and Cassel (supra). Interestingly, however, the application ambiguous. It can be used to cover both aggravated damages to in those cases has been in the context of abuse of authority leading to compensate the plaintiff and punitive or exemplary damages B infringement of Constitutional rights or by public authorities (ref. purely to punish the defendant or hold him up as an example. Ghaziabad Development Authority v. Balbir Singh, (2004) 5 SCC 6; Lucknow Development Authority v. M.K. Gupta, 1994 SCC (1) 243). As between “punitive” or “exemplary,” one should, I would C As yet, however, the Supreme Court has not indicated the standards suppose, choose one to the exclusion of the other, since it is which are to be applied while awarding punitive or exemplary damages never wise to use two quite interchangeable terms to denote the C in libel, tortuous claims with economic overtones such as slander of same thing. Speaking for myself, I prefer “exemplary,” not goods, or in respect of intellectual property matters. The peculiarities of because “punitive” is necessarily inaccurate, but “exemplary” D such cases would be the courts, need to evolve proper standards to better expresses the policy of the law as expressed in the cases. ensure proportionality in the award of such exemplary or punitive damages. It is intended to teach the defendant and others that “tort does The caution in Cassel that “[d]amages remain a civil, not a criminal, not pay” by demonstrating what consequences the law inflicts D remedy, even where an exemplary award is appropriate, and juries should rather than simply to make the defendant suffer an extra penalty not be encouraged to lose sight of the fact that in making such an award for what he has done, although that does, of course, precisely E they are putting money into a plaintiff’s pocket....” can never be lost describe its effect. sight of. Furthermore – and perhaps most crucially –the punitive element The expression “at large” should be used in general to cover all E of the damages should follow the damages assessed otherwise (or general) cases where awards of damages may include elements for loss of damages; exemplary damages can be awarded only if the Court is “satisfied reputation, injured feelings, bad or good conduct by either party, that the punitive or exemplary element is not sufficiently met within the F or punishment, and where in consequence no precise limit can be figure which they have arrived at for the plaintiff’s solatium”. In other set in extent. It would be convenient if, as the appellants. counsel F words, punitive damages should invariably follow the award of general did at the hearing, it could be extended to include damages for damages (by that the Court meant that it could be an element in the pain and suffering or loss of amenity. Lord Devlin uses the term determination of damages, or a separate head altogether, but never in this sense in Rookes v. Barnard [1964] A.C. 1129, 1221, G completely without determination of general damages). when he defines the phrase as meaning all cases where “the 68. This court is of the opinion that the impugned judgment fell into award is not limited to the pecuniary loss that can be specifically G error in relying on the decision in Times Incorporated v. Lokesh proved.” But I suspect that he was there guilty of a neologism. Srivastava 116 (2005) DLT 569. A Single Judge articulated, in his ex If I am wrong, it is a convenient use and should be repeated. parte judgment in a trademark infringement action, as follows: Finally, it is worth pointing out, though I doubt if a change of H “This Court has no hesitation in saying that the time has come terminology is desirable or necessary, that there is danger in H when the Courts dealing actions for infringement of trade-marks, hypostatising “compensatory,” “punitive,” “exemplary” or copy rights, patents etc. should not only grant compensatory “aggravated” damages at all. The epithets are all elements or damages but award punitive damages also with a view to I I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1359 1360 Indian Law Reports (Delhi) ILR (2014) II Delhi

discourage and dishearten law breakers who indulge in violations A under the Trademarks Act, the Copyrights Act, Designs Act, etc) and with impunity out of lust for money so that they realize that in such provisions invariably cap the amount of fine, sentence or statutory case they are caught, they would be liable not only to reimburse compensation, civil courts can nevertheless proceed unhindered, on the assumption that such causes involve criminal propensity, and award the aggrieved party but would be liable to pay punitive damages A also, which may spell financial disaster for them. In Mathias v. “punitive” damages despite the plaintiff’s inability to prove any general Accor Economy Lodging, Inc. reported in 347 F.3d 672 (7th B damage. Further, the reasoning that “one function of punitive damages Cir. 2003) the factors underlying the grant of punitive damages is to relieve the pressure on an overloaded system of criminal justice by were discussed and it was observed that one function of punitive providing a civil alternative to criminal prosecution of minor crimes” is damages is to relieve the pressure on an overloaded system of B plainly wrong, because where the law provides that a crime is committed, it indicates the punishment. No statute authorizes the punishment of criminal justice by providing a civil alternative to criminal C prosecution of minor crimes. It was further observed that the anyone for a libel- or infringement of trademark with a huge monetary award of punitive damages serves the additional purpose of fine-which goes not to the public exchequer, but to private coffers. limiting the defendant’s ability to profit from its fraud by C Moreover, penalties and offences wherever prescribed require the escaping detection and prosecution. If a to tortfeasor is caught prosecution to prove them without reasonable doubt. Therefore, to say that civil alternative to an overloaded criminal justice system is in public only half the time he commits torts, then when he is caught he D should be punished twice as heavily in order to make up for the interest would be in fact to sanction violation of the law. This can also times he gets away This Court feels that this approach is lead to undesirable results such as casual and unprincipled and eventually necessitated further for the reason that it is very difficult for a D disproportionate awards. Consequently, this court declares that the plaintiff to give proof of actual damages suffered by him as the reasoning and formulation of law enabling courts to determine punitive defendants who indulge in such activities never maintain proper E damages, based on the ruling in Lokesh Srivastava and Microsoft accounts of their transactions since they know that the same are Corporation v. Yogesh Papat and Another, 2005 (30) PTC 245 (Del) is without authority. Those decisions are accordingly overruled. To award objectionable and unlawful. In the present case, the claim of E punitive damages is of Rs.5 lacs only which can be safely punitive damages, the courts should follow the categorization indicated in awarded. Had it been higher even, this court would not have Rookes (supra) and further grant such damages only after being satisfied hesitated in awarding the same. This Court is of the view that F that the damages awarded for the wrongdoing is inadequate in the the punitive damages should be really punitive and not flee bite circumstances, having regard to the three categories in Rookes and also and quantum thereof should depend upon the flagrancy of F following the five principles in Cassel. The danger of not following this infringement.” step by step reasoning would be ad hoc judge centric award of damages, without discussion of the extent of harm or injury suffered by the plaintiff, With due respect, this Court is unable to subscribe to that reasoning, G on a mere whim that the defendant’s action is so wrong that it has a which flies on the face of the circumstances spelt out in Rookes and later G “criminal” propensity or the case merely falls in one of the three categories affirmed in Cassel. Both those judgments have received approval by the mentioned in Rookes (to quote Cassel again – such event “does not of Supreme Court and are the law of the land. The reasoning of the House itself entitle the jury to award damages purely exemplary in character”). of Lords in those decisions is categorical about the circumstances under which punitive damages can be awarded. An added difficulty in holding H 69. Reverting to the facts of this case, the defendant clearly was aware about its wrong doing and the harm which would ensue to HUL that every violation of statute can result in punitive damages and proceeding H to apply it in cases involving economic or commercial causes, such as because of the published disparagement. Yet it went ahead and aired it intellectual property and not in other such matters, would be that even in almost all the national and a large number of regional channels with though statutes might provide penalties, prison sentences and fines (like repetitiveness. The deliberation points at an aim to denigrate the plaintiff’s I I Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. (S. Ravindra Bhat, J.) 1361 1362 Indian Law Reports (Delhi) ILR (2014) II Delhi product and harm its reputation. At no stage did it – even in these A ILR (2014) II DELHI 1362 proceedings – offer to make amends. In the circumstances, the award RFA (OS) of punitive damages was warranted. The award of general damages through this judgment (although of a figure of Rs.20 lakhs) is moderate, A since the advertisement was aired over 2700 times and seen – and SWARAN LATA AND ORS. ....APPELLANTS intended to be seen – by millions of viewers. As observed in John B VERSUS (supra) SHRI KULBHUSHAN LAL AND ORS. ....RESPONDENTS “The extent of publication is also very relevant: a libel published B to millions has a greater potential to cause damage than a libel (S. RAVINDRA BHAT & NAJMI WAZIRI, JJ.) published to a handful of people..” C RFA (OS) NO. : 11/2010, DATE OF DECISION: 31.01.2014 Having regard to all these circumstances, the court is of opinion that the C.M. NO. : 1950/2010 award of Rs.5 lakhs as exemplary damages in the facts of this case was C justified and not disproportionate; it is accordingly upheld. (A) Code of Civil Procedure, 1908—S. 9—Suit—Suit for 70. In view of the above discussion, it is held that this appeal has D partition possession—Hindu Joint Family Property— no merit. It is accordingly dismissed, but with costs, quantified at Rs. Co-parcenerary property—Hindu Succession Act— 55,000/-. The cross objections however succeed and the decree of the D Amendment of S. 6—Appellants were three sisters— learned Single Judge shall be modified. In addition to injunction and filed suit for partition against two brothers and two punitive damages assessed by the impugned judgment, the plaintiff/Reckitt E sisters—Third brother Sudharshan Lal died on is also entitled to a decree for Rs.20 lakhs. The cross objections are 01.02.1978—Father Bakshi Ram died on 10.02.1960— allowed to that extent. The plaintiff shall in addition to the costs of the Mother Smt. Chanan Devi died 03.08.1978—Suit E appeal, be also entitled to costs of the cross objection and counsel’s fee, dismissed by learned Single Judge—Appellant assessed at Rs.25,000/-. contended before the partition of the country the F family was a Hindu Undivided Family (HUF) and father ran various businesses in the name of Bakshi Ram & F Sons in a part of Punjab now in Pakistan—Post partition—Bakshi Ram allotted various properties in lieu of those left properties numbering 08 and various G businesses run by using the funds of HUF— G Respondent contended—The various properties self acquired properties and not co-parcernery properties— Secondly the properties already partitioned post the death of Bakshi Ram— Thirdly since partition had H already taken place hence the 2005 Amendments of H Section 6 of Hindu Succession Act not operation — lastly the properties governed by Succession Rules under Delhi Land Reforms Act and subject matter I I Swaran Lata and Ors. v. Shri Kulbhushan Lal (S. Ravindra Bhat, J.) 1363 1364 Indian Law Reports (Delhi) ILR (2014) II Delhi beyond the jurisdiction of the Court — Held In A Indeed, this question has been considered by the Supreme concurrence with Ld. Single judge that various Court in Ganduri Koteshwaramma and Anr. v. Chakiri properties were Hindu Joint Family Property — further Yanadi and Anr., 2011 (12) SCR 968. There, a suit for held — deemed partition cannot be said to have taken A family partition was filed prior to the 2005 amendment, and place merely on the death of family member — instead moreover, two preliminary decrees were passed by the Trial — the operation of S. 6 Amendment would not depend B Court on 19.03.1999 and 27.09.2003, indicating the shares on date of institution of the suit or at the time of of the parties. Accordingly, the question before the Supreme intermediate order—But on whether the partition Court was: actually took place either through by registered deed B of partition or by decree of the court before or after “In light of a clear provision contained in the Explanation C 2005 Amendment—In the present case the partition appended to Sub-section (5) of Section 6, for was yet to take place—Further Held—2005— determining the non-applicability of the Section, what Amendment to the Hindu Succession Act would be C is relevant is to find out whether the partition has operative and finally held subject matter of Land been effected before December 20, 2004 by deed of partition duly registered under the Registration Act, Reform Act —rural—agriculture properties rather than D urban land—The case in present appeal—No limitation 1908 or by a decree of a court. In the backdrop of the on the jurisdiction of the court—Finding and judgment above legal position with reference to Section 6 brought of learned single judge set aside—Suit remitted for D in the 1956 Act by the 2005 Amendment Act, the further proceedings to carry out partition of the question that we have to answer is as to whether the property in accordance with the law—Appeal allowed. E preliminary decree passed by the trial court on March 19, 1999 and amended on September 27, 2003 deprives the Appellants of the benefits of 2005 (B) Delhi Land Reform Act, 1954 (DLR Act)—S.185—Bar of E Amendment Act although final decree for partition has the jurisdiction of the Civil Court—The Bar only not yet been passed.” (Para 27) applies to rural—Agriculture properties—The area F notified as urbanized—Out of the purview of DLR In answering that question, Court held that neither the filing ACT—Held—Does not bar the jurisdiction of the Civil F of the suit nor a preliminary decree constitutes a partition Court. within the meaning of the amended Section 6. Thus, the newly created rights would be available to the parties. (C) Hindu Succession (Amendment) Act. 2005—S.6— G Specifically, the Court noted: Amendment—S.6(1)—not applicable partition or G testamentary disposition of property before 20th “16. The legal position is settled that partition of a December, 2004—Prospective in nature—Applicable Joint Hindu family can be effected by various modes, to pending suits—Preliminary partition decree—Does inter-alia, two of these modes are (one) by a registered not amount to partition—Would not apply to partition H instrument of a partition and (two) by a decree of the court. In the present case, admittedly, the partition by way of settlement—Registered instrument of H partition-By oral arrangements of the parties—Decree has not been effected before December 20, 2004 of the court—Held—Amendment applicable as partition either by a registered instrument of partition or by a yet to take place. decree of the court. The only stage that has reached I I Swaran Lata and Ors. v. Shri Kulbhushan Lal (S. Ravindra Bhat, J.) 1365 1366 Indian Law Reports (Delhi) ILR (2014) II Delhi in the suit for partition filed by the Respondent No. 1 A the interest of the daughters finally, and that any rights is the determination of shares vide preliminary decree accruing to them at a later stage which grant an interest in dated March 19, 1999 which came to be amended on the coparcenary property are unenforceable, is contrary to September 27, 2003 and the receipt of the report of A the terms and the spirit of the proviso to Section 6 as it the Commissioner. existed before the 2005 Amendment and the letter of the B amendment itself. Sai Reddy (supra), Prema (supra) and 17. A preliminary decree determines the rights and Ganduri Koteshwaramma (supra) have all consistently interests of the parties. The suit for partition is not held that the mere severance in status, sought to be disposed of by passing of the preliminary decree. It is B brought about by the institution of a partition suit, does not by a final decree that the immovable property of joint result in immutable shares. These decisions also took note C Hindu family is partitioned by metes and bounds. After of Phoolchand & Anr v. Gopal Lal AIR 1967 SC 1470 and the passing of the preliminary decree, the suit even an older decision (of the Privy Council) in Jadunath continues until the final decree is passed. If in the C Roy and Ors. v. Parameswar Mullick and Ors., AIR 1940 interregnum i.e. after passing of the preliminary decree PC 11, where it was held that even after a preliminary and before the final decree is passed, the events and D decree in a partition suit is made, the Court is not only supervening circumstances occur necessitating change powerless, but has the duty to reflect later developments, in shares, there is no impediment for the court to which could necessitate re-adjustment of shares (of the amend the preliminary decree or pass another D parties) on account of fluctuation in the coparcenary or the preliminary decree redetermining the rights and joint family. (Para 32) interests of the parties having regard to the changed E situation.” (Para 28) This matter has been previously considered by this Court. A learned Single Judge in Trikha Ram v. Sahib Ram, 69 E It is clear from the decisions in Sai Reddy (supra), Ganduri (1997) DLT 749, held that where an area is urbanized under Koteshwaramma (supra) and Prema (supra) that a partition a notification under Section 507 of the Delhi Municipal of the Hindu Joint Family – that crystallizes each member’s F Corporation Act, 1957, the provisions of the Delhi Land interest, and thus makes the interests immune to further Reforms Act would cease to apply. This decision was followed changes in the law – can only take place in the manner F by another Single Judge in Madho Prasad v. Shri Ram prescribed by the HSA. A deemed partition under the Kishan and Ors., 2001 (7) AD (Delhi) 72. However, given proviso to Section 6, HSA is not an actual partition that a contrary opinion in WP(C) No. 4143/2003, dated crystallizes the interest of all members of the HUF, but only G 25.08.2004, the matter was referred to a Division Bench of a legal construction introduced by the legislature to determine G this Court, in a decision reported as Smt. Indu Khorana v. how the interests of the deceased would devolve upon his Gram Sabha and Ors., MANU/DE/0969/2010, where the heirs if a Class I female relative is alive. The purpose of this reference was categorically answered in the following terms: fiction of deemed partition (as opposed to following the simple rule of survivorship otherwise) is that Class I female H “11. We thus hold that once rural area is urbanized heirs also receive a share in the coparcenary property of H by issuance of notification under Section 507(a) of the deceased male, as they would otherwise be excluded the Delhi Municipal Corporation Act, 1957, provisions (not being coparcenors themselves, pre the 2005 of Delhi Reforms Act will cease to apply. The reference Amendment). To argue that such deemed partition crystallizes stands answered accordingly.” (Para 39) I I Swaran Lata and Ors. v. Shri Kulbhushan Lal (S. Ravindra Bhat, J.) 1367 1368 Indian Law Reports (Delhi) ILR (2014) II Delhi That decision was subsequently sought to be impugned and A 3. Smt. Indu Khorana vs. Gram Sabha and Ors., MANU/ referred to a larger bench in Narain Singh and Anr. v. DE/0969/2010. Financial Commissioner and Ors., in LPA No. 591/2008, 4. Narain Singh and Anr. vs. Financial Commissionerand decision dated 22.11.2012, where the Division Bench of this A Ors., in LPA No. 591/2008. Court confirmed the view in Indu Khorana (supra), holding 5. Mukesh vs. Bharat Singh, 149 (2008) DLT 114. that “the very purport of a Notification under Section 507(a) B of the DMC Act is to convert the land from agricultural to 6. D.S. Lakshmaiah and Anr.vs. L. Balasubramanyam and urban.” In view of these consistent findings, it is clear that Anr., 2003 (7) SCALE 1. the effect of the notification under Section 507 in this case B 7. Madho Prasad vs. Shri Ram Kishan and Ors., 2001 (7) were to remove the four properties from the purview of the C AD (Delhi) 72. Delhi Land Reforms Act as the subject-matter of the Act is 8. Trikha Ram vs. Sahib Ram, 69 (1997) DLT 749. rural agricultural properties, rather than urban lands. 9. S. Sai Reddy vs. S. Narayana Reddy and Ors., (1991) 3 Accordingly, this finding of the learned Single Judge that the C SCC 647. four properties in question were not to devolve upon the appellant here in the share ratio above specified is liable to D 10. Phoolchand & Anr vs. Gopal Lal AIR 1967 SC 1470. be set aside. (Para 27) 11. Jadunath Roy and Ors. vs. Parameswar Mullick and Ors., AIR 1940 PC 11. Important Issue Involved (a) Neither the filling of the suit D RESUT: Appeal Allowed. nor a preliminary decree constitutes a partition within the meaning of amended S.6 of Hindu Succession Act (b) A E S. RAVINDRA BHAT, J. partition of the joint Hindu family can be effected by various C.M. NO. 1950/2010 (for condonation of delay) modes, viz. by a family settlement, by a registered instrument E of partition, by oral arrangement by the parties, or by a For the reasons mentioned in the application, C.M. No. 1950/2010 decree of the court (c) The Land Reform Act is not applicable is allowed. to the properties which are urbanized F RFA (OS) 11/2010 F [Gu Si] 1. This is an appeal from an order of the learned Single Judge, whereby a suit for partition filed by sisters was dismissed. The orders APPEARANCES: G of 19.04.2012 and 11.01.2013 reveal that the first three respondents FOR THE APPELLANTS : Sh. Suresh Singh and Sh. Rajneesh (contesting parties in the suit) were served, despite which appearance Chaudhry, Advocates. G had not been entered by them. The order of 11.01.2013 accordingly recorded that service was complete. It was in these circumstances that FOR THE RESPONDENTS : Nemo. the appeal was heard finally and reserved for judgment. Before addressing CASES REFERRED TO: H the specifics of the properties involved in this partition suit, it is useful to record the family structure involved in this case. 1. Prema vs. Nanje Gowda and Ors., 2011 (6) SCALE 28. H 2. Ganduri Koteshwaramma and Anr. vs. Chakiri Yanadi 2. The plaintiffs, three sisters filed the suit in 1990 [CS (OS) 2400/ and Anr., 2011 (12) SCR 968. 1990] against two brothers (the first two defendants/respondents) and two sisters (third and fourth defendants). A third brother, Sudarshan Lal, I I Swaran Lata and Ors. v. Shri Kulbhushan Lal (S. Ravindra Bhat, J.) 1369 1370 Indian Law Reports (Delhi) ILR (2014) II Delhi had died on 1st February, 1978, before the institution of the suit, as a A “whether in his personal name or in the name of Bakshi Ram & Sons, bachelor. The family thus had consisted of five sisters and three brothers. a Joint Hindu Family firm ...” Their father was Bakshi Ram, who died on 10th February, 1960, and 5. The suit alleged that post partition Bakshi Ram was allotted their mother was Smt. Chanan Devi, who died on 3rd August, 1978. As A various properties in lieu of those left behind in Pakistan. First, the regards Sudarshan Lal, the son of Madan Mohan Sharma, the second Burmah Shell Company allotted a petrol pump in Badarpur, Tehsil Mehrauli, defendant, one Prem Prakash Sharma claimed that Lal had left a will in B Delhi to M/s. Bakshi Ram & Sons, a HUF firm, of which Bakshi Ram his favour, and that under the will so set up, any share in the property was karta. In addition, the plaintiffs allege that some compensation amount Lal had stood bequeathed to him. For this, he relied on Probate Case No. was also paid to Bakshi Ram, which was used by him to carry various 34/1988, which he had filed before the institution of the present suit in B businesses in Delhi and in connection with the improvement of properties respect of Lal’s will. Although the probate case was decided in Prem in question. These were Plot No. 43 at Badarpur, Tehsil Mehrauli, Delhi Prakash Sharma’s favour by an order dated 19th August, 2005 (the C (for a consideration of Rs. 950/-), one ‘Kutti Machine’ at Village Azadpur, appeal against which, filed by Swaran Lata, as FAO(OS) 103/2005 was Delhi, belonging to the Custodian of Evacuee Property (on a rental basis), dismissed), the learned Single Judge by order dated 25th April, 2008 did C and finally Bakshi Ram was also acting as a contractor of “rehra” stand not allow him (Prem Prakash Sharma) to be impleaded in the suit. at Farash Khana, GB Road, Delhi. Further, the plaintiffs allege that as However, the senior counsel for Prem Prakash Sharma was also heard D against the amounts that Bakshi Ram was entitled to against his assessed by the Single Judge. claims, by way of compensation, a property – House No. XVI/318-323, 3. The case of the plaintiffs was that prior to the partition, the late Joshi Road, Karol Bagh, New Delhi was acquired by Bakshi Ram by D Bakshi Ram and his family were settled in a part of Punjab that is now adjusting a part of the compensation amount against the price of the said in Pakistan. At the time, the family was a HUF and Bakshi Ram, as karta, property. Crucially, the plaintiffs claim that the businesses etc. were run was running various businesses (as a contractor, and running a petrol E in the name of the HUF firm of Bakshi Ram & Sons, as it was being pump) at the time. These businesses, it is claimed, were being run under carried out earlier in Pakistan, till Bakshi Ram died on 10th February, the name and style of “Bakshi Ram & Sons”. It is alleged that after E 1960. It is claimed that Sudharshan Lal acted as the karta till his death partition, Bakshi Ram alongwith his family shifted from Pakistan to India, in 1987. and submitted his claims with the Ministry of Rehabilitation (in India) F 6. The plaintiffs claim that after the purchase of these various with regard to various assets and properties concerning his businesses properties (i.e. after migration from Pakistan), the family business (i.e. and also houses and other property left behind by him in Pakistan. The F the Hindu Joint Family as it existed then) gradually prospered, and various name of the applicant was “Bakshi Ram & Sons”, through Bakshi Ram other properties were acquired by the family from the funds generated. as the karta, and the address mentioned was 16/229, Joshi Road, Karol These were: Bagh, New Delhi. Thus, the plaintiff urged that the claim was made by G the late Bakshi Ram as the karta on behalf of a HUF. (a) a plot bearing Khasra No. 2609/727-728, situated in G Tughlakabad, Tehsil Mehrauli, Delhi, measuring 5 bighas, 1 biswa, 4. As regards the properties left behind in Pakistan, the plaintiffs was obtained by the family, and is being used to run a petrol claimed that Bakshi Ram had purchased a factory site in the name of the pump. This plot, firm “Bakshi Ram & Sons” sometime in the year 1930. Further, the plaintiffs state that he was the sole proprietor of a rice flour mill. The H “as far as the plaintiffs know has been obtained by M/ plaintiffs also claim that Bakshi Ram owned a petrol pump of the Burmah H s. Bakshi Ram & Sons, a Joint Hindu Family firm and Shell Company, which he was running in Sheikhpura (which is now in the Petrol Pump that is being run on the said plot also Pakistan). Finally, the plaintiffs state that various business assets as well belongs to M/s. Bakshi Ram & Sons.” as various residential properties were acquired/built by Bakshi Ram I I Swaran Lata and Ors. v. Shri Kulbhushan Lal (S. Ravindra Bhat, J.) 1371 1372 Indian Law Reports (Delhi) ILR (2014) II Delhi (b) a plot, No. B-43, Friends Colony, New Delhi, which was A etc. standing in the name of late Sudarshan Lal as also the allotted by the DDA in lieu of the DDA having acquired a part various Bank Accounts and Fixed Deposits etc. in the name of of the family land. Thus, the plaintiffs allege that “this plot was Joint Hindu Family firm M/s. Bakshi Ram & Sons and other allotted by the DDA in lieu of acquisition of the Joint Hindu firms stated in the suit. The details in this behalf are within the A Family land ...” special knowledge of defendants No. 1 and 2. The plaintiffs are B trying to ascertain the details in his behalf and shall furnish the (c) a plot bearing Khasra No. 32/28/1 and 32/28/2 measuring 2 same as soon as the same are known to the plaintiffs or are bighas, 5 biswas as also a plot No. 32/28/3 were “acquired by otherwise disclosed by the defendant Nos. 1 and the Joint Hindu Family in the name of M/s Bakshi Ram & Sons” B 2...... ” in village Badarpur, Tehsil Mehrauli, Distt. Delhi. This plot too, the plaintiffs allege, “belongs to M/s. Bakshi Ram & Sons, the C 8. Based upon these facts alleged in the suit, the plaintiffs claimed Joint Hindu Family firm.” that as Class I heirs of Bakshi Ram and Smt. Chanan Devi, under the Hindu Succession Act, 1956 (hereafter “the HSA”), they were entitled to (d) a plot bearing Khasra No. 231, measuring 2 bighas, 13 biswas, C one-seventh equal shares (i.e. sharing between the five sisters, and two in village Tajpaul, Tehsil Mehrauli, Distt. Delhi, “in the name of brothers, except for Sudarshan Lal, who died as a bachelor), in the HUF M/s. Bakshi Ram & Sons and thus this was also a Joint Hindu D properties and in the properties left behind by their mother. Further, as Family Property”, in the plaintiff’s averments. regards Sudarshan Lal’s properties, it was argued that the plaintiffs (e) a plot bearing Khasra No. 36/28/2 and 36/29/2 measuring 15 alongwith the defendants, are his Class II legal heirs under the HSA, and D biswas, which the plaintiffs allege, “was also acquired by the thus entitled to a 1/7th share in all properties that stood in his name as family out of the Joint Hindu family funds in Village Badarpur, well. As an alternative plea, it was argued that the properties of Sudarshan Tehsil Mehrauli, Delhi.” However, the plaintiffs further aver that E Lal were actually properties belonging to the HUF, and thus, the 1/7th out of love and affection, this plot was purchased in the name share stood established on that count. of Smt. Chanan Devi, the widow of Bakshi Ram, i.e. the mother E 9. Furthermore, the plaintiffs claim that till the death of Bakshi Ram of the parties before the Court today. or till the death of Smt. Chanan Devi, or even till the death of Sudarshan (f) Residential house II-K/44, Lajpat Nagar, New Delhi, was F Lal, no partition of the family properties had taken place and the properties again, the plaintiffs claim, “acquired out of the Joint Hindu Family as such continue to be joint with all the parties having their respective Funds.” F undivided share in the same. 7. Further, the plaintiffs claimed that apart from the family business 10. The first two defendants (i.e. the two brothers) filed a common and income (i.e. the rental income from the above properties, and the G written statement; the third and fourth defendants did not appear and income from businesses run), the brothers of the plaintiffs, i.e. the first were set down ex parte. The two brothers pleaded that: (1) the first two two defendants, “had not carried on any other business nor they had any G plaintiffs, and non-contesting appellants in the present appeal, were married other source of income whatsoever.” After Bakshi Ram’s death, the in 1944 and 1951, i.e. before the HSA in 1956, and thus, as such they plaintiffs claim that Sudarshan Lal carried on various businesses, held were not members of the HUF; (2) that when Bakshi Ram died on 10th numerous bank accounts, fixed deposits and shares of various companies, H February, 1960, subsequently, on 21st February, 1960 all the members of the HUF assembled at the Kriya ceremony and agreed to severe the all of which, though in the name of Sudarshan Lal, actually belonged to H the HUF. However, the plaintiffs stated as follows: HUF, and apportion the property. In this connection they made an unambiguous and definite declaration of their intention to separate. “10...... The plaintiffs at the moment are not aware of Accordingly, it was argued that the plaintiffs, being party to such the entire details of the various Bank Accounts/Fixed Deposits I I Swaran Lata and Ors. v. Shri Kulbhushan Lal (S. Ravindra Bhat, J.) 1373 1374 Indian Law Reports (Delhi) ILR (2014) II Delhi agreement, were estopped from questioning the validity of the partition; A his own personal fund and by registered sale deed dated 11th June, 1960 (3) that the suit was time barred under Article 113, Limitation Act, 1963; and Bakshi Ram and Sons had nothing to do with the said land. He had (4) as regards the plaintiff’s claim over the house No. XVI/318-323, leased out a part of the plot to Burmah Shell for the petrol pump and the Joshi Road, Karol Bagh, New Delhi, the brothers claimed that in terms petrol pump in the name and style of BE-AR Sales (Auto Grit) was A of a settlement made between the members of the family (including the functioning there since 1961 in partnership, between Sudarshan Lal and plaintiffs), the plaintiffs had relinquished their right/claim over the plot B the Defendant No.1; subsequently Prem Prakash Sharma joined the said under a registered document in favour of Sudarshan Lal; (5) that the firm. It was denied that the petrol pump (Auto Grit) belonged to Bakshi petrol pump in Pakistan belonged not to the HUF but to the partnership Ram and Sons; it was further averred that the land underneath this was firm comprising Bakshi Ram, Sudarshan Lal and Kulbhushan Lal; (6) B acquired and Sudarshan Lal had filed a writ petition in this Court challenging similarly, that the petrol pump allotted in 1947 by M/s. Burmah Shell in the said acquisition; during the pendency of the writ petition Sudarshan Badarpur by an agreement dated 01.12.1948 was to the partnership firm C Lal expired and Prem Prakash Sharma was substituted in his place; (14) (and not the HUF); (7) the existence of the kutti machine and the rehra Sudarshan Lal had with his own monies in the year 1968 acquired the stand was denied; (8) that at the time of the demise of Sh. Bakshi Ram, C land measuring 2 bighas and 10 biswas at village Tehkhand and the sale the joint family properties comprised only of the above mentioned house deed thereof was in his name only and was his exclusive property; the at Joshi Road, Karol Bagh; plot number 43 of khasra number 36/28/2 and same was acquired and in lieu thereof plot No. B-43 Friends Colony, D 36/29/2 in village Badarpur, and land bearing khasra numbers 32/28/1 and New Delhi was allotted to Sudarshan Lal; (15) with respect to the land 32/28/2 in village Badarpur; (9) that the Karol Bagh house was acquired in Khasra No.32/28/1 & 32/28/2 in village Badarpur it was stated that as against the compensation amount payable to Bakshi Ram and his three D though it belonged to Bakshi Ram but on his demise the lands were sons (as the partnership firm) in his name, and after his death, all parties mutated in favour of his three sons under provisions of the Delhi Land to the present case relinquished their rights in the property in favour of E Reforms Act; the said lands were acquired; the acquisition was also Sudarshan Lal by a registered deed, and further, that the property was challenged by the three sons only of Bakshi Ram; (16) that there was no thus mutated in favour of Sudarshan Lal in the records of the MCD and land bearing Khasra No.32/28/3 described by the plaintiffs; (17) land E the DDA; (9) Plot No.43 (bearing Khasra No.36/28/2 & 36/29/2) at measuring 2 bighas 16 biswas in Khasra No.231, Village Tajpaul, Tehsil Badarpur was acquired by Bakshi Ram from Ministry of Rehabilitation Mehrauli was the exclusive property of Sudarshan Lal acquired in 1957 against the claims. On his demise and dissolution of the HUF the said plot F and that in 1968 Sudarshan Lal had formed HUF in the name and style vested in the mother of the parties Smt. Chanan Devi. She had in or of Bakshi Ram and Sons and was its karta. (18) the house at Lajpat about the year 1960 filed a suit in the court of Senior Sub-Judge, Delhi F Nagar was in the tenancy of the second defendant since 1958; it was with respect to the plot No.43 seeking declaration of her rights as owner averred that the said house was purchased by Prem Prakash Sharma by and Bhumidar thereof on the statement of her three sons. A decree for sale deed dated 10th August, 1989; the house has since been sold; (18) declaration was granted declaring her to be the owner and Bhumidar of G BE-AR Sales was a partnership of Sudarshan Lal and the first defendant the said lands; the said lands were also mutated in her name in the G and it was carrying on business in the name and style of Auto Rest, Auto revenue records; (10) the plot in Khasra No.32/28/1 & 32/28/2 vested in Rink and Auto Grit; subsequently Prem Prakash Sharma too joined the terms of the family settlement in the three sons of Bakshi Ram and also said firm. The petrol pump Auto Yard was the sole proprietary concern mutated in their names; (11) that on the dissolution of HUF, three brothers of the second defendant since April, 1966 and it had been converted into had agreed to pay ‘10,000/- to each of the sisters and which stood paid; H a partnership firm of the defendant No.2 and his wife since February (12) that since September, 1958 all the brothers had been residing H 1987. The existence of any firm in the name and style of Sharma and separately; it was denied that any of the businesses were of the HUF; Company was denied. (13) with respect to land admeasuring 5 bighas and 1 biswas in Tuglakabad 11. On 8th September, 1994, and later, on 11th December, 2001, it was stated that the same had been acquired by Sudarshan Lal out of I I Swaran Lata and Ors. v. Shri Kulbhushan Lal (S. Ravindra Bhat, J.) 1375 1376 Indian Law Reports (Delhi) ILR (2014) II Delhi the following issues were framed by the Court: A OPP 11A. Whether the suit is properly valued for the purpose of court fee and jurisdiction? If not its effect? “1. Whether plaintiffs 1 and 2 have any subsisting right and interest in the Joint Family Property despite their marriages in 12. Relief.” 1994 (1944) and 1951 respectively? OPP A 12. It would be useful, at this juncture to tabulate the various 2. Whether plaintiffs have a right to sue for partition of Joint B properties that are sought to be partitioned by the appellant. Family Property? Property Details 3. Whether the suit is barred by time under Article 113 of the B Petrol Pump Badarpur, Tehsil Mehrauli One Kutti Machine Azadpur Limitation Act? OPD1D2 Rehra Stand Farash Khana, GB Road, Delhi Plot measuring 5 bigha, 1 C 4. Whether there was severance of status of Joint Hindu Family Village Tughlakabad, Tehsil biswas Mehrauli Plot No. B-43 Friends Colony, of Bakshi Ram & Sons on 21.2.60? OPD1D2 New Delhi Plots of land bearing khasra numbers 36/28/1-3 Village Badarpur, Tehsil Mehrauli Plot measuring 15 bighas, bearing khasra number 36/28/ 5. What properties were held by Bakshi Ram & Sons at the time C 2 and 29/2 Village Badarpur, Tehsil Mehrauli House No. II-K/44 Lajpat of death of Sh. Bakshi Ram on 10.2.60 OPP D Nagar, New Delhi Businesses in the name of a) Auto Grit in Tughlakabad, 6. What was the share of Bakshi Ram in the Joint Family Property Tehsil Mehrauli; b) Auto Rink at Badarpur, Tehsil Mehrauli, c) Auto Rest at the time of his death? OPP at Badarpur, d) Auto Yard on Mathura Road, e) BE AR Sales at Badarpur, D f) a business in the name of Sharma and Company in Badarpur. Various 7. To what share of the share of late Bakshi Ram in the Joint other bank accounts, fixed deposits and jewellery, though details of these Family Property is each plaintiff entitled? OPP E items have not been provided in the plaint, or the appeal memorandum. 8. Whether the plaintiffs who alongwith defendant No.4 House No. 16/229 Joshi Road, Karol Bagh, New Delhi Plot of land relinquished their right/claim over house No.XVI/318 and 323, E bearing number 231 Village Tejpaul, Tehsil Mehrauli, Delhi Joshi Road, Karol Bagh, New Delhi, in favour of their brother 13. The learned Single Judge considered the evidence on record, Sudarshan Lal under registered documents can still lay claim and held that the amendment to Section 6 of the Hindu Succession Act, over that house? OPP F 1956 in 2005 (that made female members of the HUF members of the 9. Whether the plaintiffs can claim any share in lands bearing F coparcenary as well) would not be applicable as the amendment was, in khasra Nos.32/28/1 and 32/28/2 which were mutated on the death view of the dictum in Mukesh v. Bharat Singh, 149 (2008) DLT 114, of Bakshi Ram in the name of his three sons under the Delhi not retrospective. The learned Single Judge consequently held that as the Land Reforms Act? OPP G suit was instituted before the amendment, and further, as the demise of Bakshi Ram was 35 years prior to the amendment, the plaintiffs – as 10. Whether the plaintiffs can claim any share in plot No.43 G female members of the HUF – would have no right as co-parcenors. bearing khasra No.36/28/2 and 36/29/2 situated in village Furthermore, the learned Single Judge held that there was a deemed Badarpur, Delhi, which was mutated in the name of their mother partition on the date of the death of Bakshi Ram, and the shares in the Chanan Devi on 18.2.63, after she had been declared as H coparcenary property would be decided according to that event. However, Bhumidar? OPP H the plaintiffs would, the learned Single Judge held, be entitled to a share 11. Whether the plaintiffs can claim a share in any other property by way of succession as Class I heirs under Section 8 of the HSA of which was purchased or acquired by defendants 1 and 2 out of late Bakshi Ram’s share in the coparcenary property. Thus, on this latter their own funds after the death of their father Bakshi Ram? ground, it was held that the plaintiffs did have the right to sue, but not I I Swaran Lata and Ors. v. Shri Kulbhushan Lal (S. Ravindra Bhat, J.) 1377 1378 Indian Law Reports (Delhi) ILR (2014) II Delhi as coparcenors. On the question of limitation, the learned Single Judge A of the family would be entitled to the land, and the plaintiffs would be held the first two defendants’ plea –that the suit was time-barred because excluded from any share. Thus, in conclusion, the learned Single Judge partition took place on the demise of Bakshi Ram in 1960 – was incorrect. held that the only properties in which the plaintiffs could have a share It was held that this partition was not proved. On the contrary, the first are those which were admitted in the partnership deed dated 1st April, A and second defendants admitted existence of the HUF in the partnership 1968 minus those over which the claim was relinquished, or that were deed of 1st April, 1968 and in WP(C) No. 1921/1986. With regard to the B regulated by the Delhi Land Reforms Act. This, the learned Single Judge various business allegedly run by the HUF, the learned Single Judge noted noted, left three properties in which the plaintiffs had a share, i.e. a) plot that it was proved, by way of the partnership deed produced as Ex.P- of land bearing khasra number 32/28/1 and 32/28/2 at village Badarpur, 20, that they were taken out of the HUF with effect from 01.04.1968, B Delhi, b) plot of land bearing number 231, village Tejpaul, Tehsil Mehrauli, nearly 22 years prior to institution of the suit, and carried on in partnership Delhi and finally, c) a plot of land in Tughlakabad. However, the learned between the male members of the family. With respect to claim to C Single Judge held that Section 185 of the Land Reform Act bars the partition and rendition of accounts of these businesses were held to be jurisdiction of civil courts with respect to properties governed by the time-barred. C Act, irrespective of whether the lands were mutated in favour of the HUF or any individual family member. Accordingly, the learned Single Judge 14. On the question of which properties were part of the HUF at held that none of the three properties could be partitioned in this suit, the time of the death of Bakshi Ram, i.e. on 10.02.1960, the learned D given the bar under Section 185. Single Judge, based on admissions of the first and second defendants in the form of the partnership deed dated 1st April, 1968, held that the 15. Impugning this order and judgment of the learned Single Judge D following properties were held jointly: a) the house at Joshi Road, Karol as erroneous, counsel for the third plaintiff, urged that the finding that Bagh, b) Plot No. 43 comprising khasra number 36/28/2 and 36/29/2 at the properties in question were coparcenary properties, and not self- Village Badarpur, Delhi, c) plot of land bearing khasra number 32/28/1 E acquired properties and regulated by Section 8, HSA was incorrect. and 32/28/2 at village Badarpur, Delhi, d) plot of land bearing number Learned counsel argued that there is no basis for holding that the properties 231, village Tejpaul, Tehsil Mehrauli, Delhi and finally, e) a plot of land E are coparcenary, since no proof of their ancestral nature was on record. in Tughlakabad. Of these properties, Bakshi Ram’s 1/5th share (the entire Further, learned counsel questioned the validity of the relinquishment share being divided between the five members of the family who would deed in favour of Sudarshan Lal, urging that there is no citation that the F share in the coparcenary, i.e. him, his wife, and three sons) would executant signed in the presence of the attesting witnesses and the attesting devolve upon the eight children and late Bakshi Ram’s widow. Thus, the F witnesses signed in the presence of the executant, which is a requirement learned Single Judge held that each of the plaintiffs would be entitled to under law. Next, learned counsel argued that the learned Single Judge did a 1/8th share of the 1/5th share of late Bakshi Ram. However, with not partition the 1/5th share of the mother, Chanan Devi, without providing respect to the house at Joshi Road, Karol Bagh, the Single Judge held that G any reasoning in the judgment, despite admitting that share. Finally, learned the plaintiffs had, by way of a registered relinquishment deed (which was counsel argued that the learned Single Judge fell into error in holding that admitted by the plaintiffs), surrendered any claim over that property to G Section 6, HSA as amended in 2005 was inapplicable, as no partition took Sudarshan Lal. Further, with respect to Plot No. 43 comprising khasra place before the institution of the suit, or till the date of the amendment. number 36/28/2 and 36/29/2 at Village Badarpur, Delhi, the Single Judge Counsel relied on proviso to Section 6(1) as well as Section 6(5) and held that it was admitted and established that the property stand mutated H argued that once the statute spelt out the conditions when the legislature in the name of the mother, Smt. Chanan Devi, as the bhumidar and thus, had specifically provided as to what class of cases were excluded from H the provisions of Section 51 of the Delhi Land Reforms Act, 1954 would the amendment, there was no question of the Single Judge holding that apply, despite the fact that the land may have been urbanized. Accordingly, the appellant and other daughter’s share in the property was confined to the learned Single Judge held that under Section 51, only male members the father’s 1/5th share, either on the basis of notional partition, or on I I Swaran Lata and Ors. v. Shri Kulbhushan Lal (S. Ravindra Bhat, J.) 1379 1380 Indian Law Reports (Delhi) ILR (2014) II Delhi the understanding that a division took place upon the filing of the suit. A Joshi Road, Karol Bagh, New Delhi. Indeed, after migration, the plaint In other words, as to what categories of partition are deemed to have alleges that Bakshi Ram was allotted various properties in lieu of those concluded and become final having been expressly provided, the Court left behind in Pakistan, thus also constituting joint family property. Indeed, could not have denied the share of the daughters, which fell to them it is undisputed that after the purchase of these various properties (i.e. A upon the enactment and coming into force of the 2005 amendment. after migration from Pakistan, and compensation paid by the government), Accordingly, learned counsel argued that since the HUF was intact as on B the family business (i.e. the Hindu Joint Family as it existed then) gradually the date of coming in force of the amendment-since no partition, much prospered, and various other properties were acquired by the family from less a partition arising out of a final decree had been made, the finding the funds generated. These were: (a) a plot bearing Khasra No. 2609/ of the learned Single Judge that a notional partition took place on the B 727-728, situated in Tughlakabad, Tehsil Mehrauli, Delhi, measuring 5 demise of Bakshi Ram and that it crystallized the rights of the first two bighas, 1 biswa, was obtained by the family, and is being used to run defendants was contrary to the HSA. C a petrol pump. This plot, “as far as the plaintiffs know has been obtained by M/s. Bakshi Ram & Sons, a Joint Hindu Family firm and the Petrol 16. Learned counsel also argued that the impugned judgment is Pump that is being run on the said plot also belongs to M/s. Bakshi Ram unsustainable because several properties had been urbanized on account C & Sons.” (b) a plot, No. B-43, Friends Colony, New Delhi, which was of notifications issued under Section 507(a) of the Delhi Municipal allotted by the DDA in lieu of the DDA having acquired a part of the Corporation Act, 1957. It was submitted that on account of this D family land. Thus, the plaintiffs allege that “this plot was allotted by the development, the provisions of Delhi Reforms Act would not apply. DDA in lieu of acquisition of the Joint Hindu Family land ...” (c) a plot Counsel relied on the decision of a Division Bench of this Court, in Smt. D bearing Khasra No. 32/28/1 and 32/28/2 measuring 2 bighas, 5 biswas Indu Khorana v. Gram Sabha and Ors., MANU/DE/0969/2010. as also a plot No. 32/28/3 were “acquired by the Joint Hindu Family in Analysis and Findings E the name of M/s Bakshi Ram & Sons” in village Badarpur, Tehsil Mehrauli, Distt. Delhi. This plot too, the plaintiffs allege, “belongs to M/s. Bakshi 17. Four questions arise for the consideration of the Court in this Ram & Sons, the Joint Hindu Family firm.” (d) a plot bearing Khasra case: first, whether the various properties in question were coparcenary E No. 231, measuring 2 bighas, 13 biswas, in village Tajpul, Tehsil Mehrauli, properties to begin with, or self-acquired properties of Bakshi Ram; Distt. Delhi, “in the name of M/s. Bakshi Ram & Sons and thus this was secondly, whether the properties in question are to be deemed to be F also a Joint Hindu Family Property”, in the plaintiff’s averments. (e) a partitioned as on the date of the death of Bakshi Ram, or whether they plot bearing Khasra No. 36/28/2 and 36/29/2 measuring 15 biswas, which are to be partitioned as on a later date; thirdly, whether the 2005 F the plaintiffs allege, “was also acquired by the family out of the Joint amendment to Section 6 is operative in this case; consequently, what are Hindu family funds in Village Badarpur, Tehrul Mehrauli, Delhi.” (f) the shares of the parties; fourthly, whether any of the properties are Residential house II-K/44, Lajpat Nagar, New Delhi, was again, the governed by the succession rules under the Delhi Land Reforms Act, and G plaintiff’s claim, “acquired out of the Joint Hindu Family Funds.” Given thus, beyond the subject-matter jurisdiction of this Court. G these averments in the plaint, the Court does not find any reason to 18. On the first question, the learned Single Judge proceeded on the interfere with the finding of the learned Single Judge that the properties finding that the properties were coparcenary properties. The plaintiff’s were not self-acquired properties of Bakshi Ram, but rather, joint family case itself is that Bakshi Ram alongwith his family shifted from Pakistan properties at the time. to India, and submitted his claims with the Ministry of Rehabilitation in H 19. On the second question, the learned Single Judge held that India with regard to various assets and properties concerning his H “there is deemed to be a partition of the said HUF at the moment of the businesses, houses and other property left behind by him in Pakistan. In demise of Bakshi Ram...” and thus, the shares are divided at that time this application, the name of the applicant was “Bakshi Ram & Sons”, itself. Under the HSA, on the death of a member of coparcenary, neither through Bakshi Ram as the karta, and the address mentioned was 16/229 I I Swaran Lata and Ors. v. Shri Kulbhushan Lal (S. Ravindra Bhat, J.) 1381 1382 Indian Law Reports (Delhi) ILR (2014) II Delhi the coparcenary nor the HUF is broken. Prior to the 2005 amendment, A 21. Therefore, in the case of the death of a male relative, without the coparcenary property continued to remain vested in the remaining a female Class I heir, no question of a deemed partition arises, and the coparceners by survivorship, i.e. the remaining surviving coparceners rule of survivorship was to operate unhindered. However, as in this case, (i.e. male members of the family) hold the property jointly. As Mayne’s since Bakshi Ram died leaving behind his wife and five daughters, all A Hindu Law and Usage records: Class I heirs, the proviso would be applicable, and the Court must B conduct a deemed partition to ascertain the interest of the deceased, “The right of male members, which arise by birth are only Bakshi Ram, in the coparcenary property. This exercise does not, however, ascertained on partition; for, no individual member of a family, translate into an actual partition between the family, nor does it affect the whist it remains undivided, can predicate of the joint undivided B continuity of the coparcenary amongst the remaining male members of property that he has any definite share. The interest of the member the family. Rather, in terms of the proviso, the share of the deceased, in the undivided property is not individual property but is a C had a partition taken place, is to be divided as per Section 8 of the HSA, fluctuating interest liable to be diminished by births or increased i.e. by succession. The effect of the deemed partition, thus, is limited to by deaths in the family.” (p. 667, 16thedn., Bharat Law House, ascertaining the share of the deceased, which is then claimed by his 2003) (emphasis supplied) C Class I heirs, rather than to claim that a partition with respect to the entire coparcenary occurs, which is the import of the order and judgment 20. Accordingly, the mere death of a family member does not lead D to a division of the coparcenary interest, but rather, a revision of it of the learned Single Judge. While traditional Hindu law did not require amongst the remaining coparcenors. This revision of the coparcenary such a deemed partition, and the coparcenary property would remain, as interest was, in 1960, when Bakshi Ram died, regulated by the unamended D Mayne explains above, fluctuating within the remaining coparceners, there Section 6 of the HSA, which read as follows: is by way of the proviso to the unamended Section 6, a clear statutory departure from this method of division of the property. However, the “When a male Hindu dies after the commencement of this Act, E proviso is limited, in that although the share of the deceased is removed having at the time of his death an interest in a Mitakshara from the coparcenary and vested as an absolute share in the female coparcenary property, his interest in the property shall devolve E relatives by way of Section 14 of the HSA, the remaining share of the by survivorship upon the surviving members of the coparcenary coparcenary property remains intact, in the same state of jointness as it and not in accordance with this Act: F existed before and subject to the same rules of fluctuating interest. PROVIDED that, if the deceased had left him surviving a female Accordingly, the finding of the learned Single Judge that there was a relative specified in class I of the Schedule or a male relative F deemed partition at the time of the death of Bakshi Ram is undoubtedly specified in that class who claims through such female relative, correct, this does not mean that the shares in the coparcenary property the interest of the deceased in the Mitakshara coparcenary property for this suit would be decided according to that event or that the shares shall devolve by testamentary or intestate succession, as the case G would have crystallized and become unalterable. Rather, the coparcenary may be, under this Act and not by survivorship. G continued, and the extent of shares would be decided at the time of the actual partition, either through a registered deed of partition or a decree Explanation I: For the purposes of this section, the interest of of this Court, as explained below. a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition H 22. The third question that arises before this Court is whether the 2005 amendment to Section 6 of the HSA is operative in this case. Before of the property had taken place immediately before his death, H irrespective of whether he was entitled to claim partition or entering this discussion, it is useful to quote the amendment Section 6 not.” in its relevant part:

I I Swaran Lata and Ors. v. Shri Kulbhushan Lal (S. Ravindra Bhat, J.) 1383 1384 Indian Law Reports (Delhi) ILR (2014) II Delhi “6. Devolution of interest in coparcenary property A Explanation.-For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share (1) On and from the commencement of the Hindu Succession in the property that would have been allotted to him if a partition (Amendment) Act, 2005, in a Joint Hindu family governed by of the property had taken place immediately before his death, the Mitakshara law, the daughter of a coparcener shall,-(a) by A irrespective of whether he was entitled to claim partition or not. birth become a coparcener in her own right in the same manner B as the son; (b) have the same rights in the coparcenary property (5) Nothing contained in this section shall apply to a partition, as she would have had if she had been a son; (c) be subject to which has been effected before the 20th day of December, 2004. the same liabilities in respect of the said coparcenary property B Explanation.-For the purposes of this section “partition” means as that of a son, and any reference to a Hindu Mitakshara any partition made by execution of a deed of partition duly coparcener shall be deemed to include a reference to a daughter C registered under the Registration Act, 1908 (16 of 1908) or of a coparcener: partition effected by a decree of a court.”

Provided that nothing contained in this sub-section shall affect C 23. The present suit was instituted before the 2005 amendment to or invalidate any disposition or alienation including any partition Section 6, and the death of Bakshi Ram was even before. The learned or testamentary disposition of property which had taken place D Single Judge concluded that the 2005 amendment was not retrospective, before the 20th day of December, 2004. relying of the decision of this Court in Bharat Singh (supra). In Bharat Singh, a Single Judge of this Court held that: (2) Any property to which a female Hindu becomes entitled by D virtue of sub-section (1) shall be held by her with the incidents “the Amending Act of 2005 cannot be read retrospectively as the of coparcenary ownership and shall be regarded, notwithstanding Amending Act has not been given a retrospective operation. anything contained in this Act, or any other law for the time E Meaning thereby, successions which had taken place prior to the being in force, as property capable of being disposed of by her promulgation of the Amendment Act of 2005 cannot be disturbed.” by testamentary disposition. E 24. This position, however, it has to be considered as qualified in (3) Where a Hindu dies after the commencement of the Hindu view of the proviso to Section 6(1) and Section 6(5). The proviso to Succession (Amendment) Act, 2005, his interest in the property F Section 6(1) records: of a Joint Hindu family governed by the Mitakshara law, shall “that nothing contained in this sub-section shall affect or devolve by testamentary or intestate succession, as the case may F invalidate any disposition or alienation including any partition be, under this Act and not by survivorship, and the coparcenary or testamentary disposition of property which had taken place property shall be deemed to have been divided as if a partition before the 20th day of December, 2004.” had taken place and,-(a) the daughter is allotted the same share G as is allotted to a son; (b) the share of the predeceased son or G 25. Equally, Section 6(5) notes that a pre-deceased daughter, as they would have got had they been “Nothing contained in this section shall apply to a partition, alive at the time of partition, shall be allotted to the surviving which has been effected before the 20th day of December, 2004.” child of such pre-deceased son or of such pre-deceased daughter; The 2005 amending act, thus, is unambiguous, that no past and (c) the share of the pre-deceased child of a pre-deceased H partition or testamentary disposition of property is to be affected son or of a pre-deceased daughter, as such child would have got H or reopened, in order to include the newly created shares of had he or she been alive at the time of the partition, shall be female members of the HUF in the coparcenary. The intention of allotted to the child of such pre-deceased child of the predeceased Parliament was not to create chaos by reopening previous family son or a pre-deceased daughter, as the case may be. I I Swaran Lata and Ors. v. Shri Kulbhushan Lal (S. Ravindra Bhat, J.) 1385 1386 Indian Law Reports (Delhi) ILR (2014) II Delhi settlement, but rather, to indicate that for all future actions, the A will affect the shares in partition. Similarly, any change in law during the rules of succession, and not survivorship, would operate in default, pendency of the suit, as for example is the case with Section 6 of the and further, that female members would be entitled to share just HSA, would affect the ultimate shares of the parties. A contrary conclusion as their male counterparts. Equally, however, the amending act would not only fly in the face of the definition of ‘partition’ in Section A clarifies what is meant by ‘partition’ in terms of Section 6, i.e. 6(5), but would also mean, for example, that no partition suit can be “any partition made by execution of a deed of partition duly B withdrawn after it is filed, a proposition which has been rejected on registered under the Registration Act, 1908 (16 of 1908) or various occasions. partition effected by a decree of a court.” Accordingly, only 27. Indeed, this question has been considered by the Supreme those partitions made by the execution of a duly registered partition B Court in Ganduri Koteshwaramma and Anr. v. Chakiri Yanadi and deed or a partition effected by a decree of a Court, i.e. partitions Anr., 2011 (12) SCR 968. There, a suit for family partition was filed recognized by Section 6 as valid, which have occurred before C prior to the 2005 amendment, and moreover, two preliminary decrees the cut-off date identified, are saved from the operation of the were passed by the Trial Court on 19.03.1999 and 27.09.2003, indicating amended Section 6, which would, if operative, require a C the shares of the parties. Accordingly, the question before the Supreme redistribution of shares within the HUF. Having defined the Court was: expression ‘partition’ in Section 6, Parliament clarified which D partitions are left unaffected by the amendment, and those that “In light of a clear provision contained in the Explanation are susceptible to this change in the statute, giving the Courts appended to Sub-section (5) of Section 6, for determining the clear and unambiguous direction in this regard. Thus, if a partition, D non-applicability of the Section, what is relevant is to find out as envisaged under the explanation to Section 6(5) occurred whether the partition has been effected before December 20, before 20.12.2004, then only may the Courts ignore the amended E 2004 by deed of partition duly registered under the Registration Section 6. Act, 1908 or by a decree of a court. In the backdrop of the above legal position with reference to Section 6 brought in the 26. Crucially, since the rights and shares of the parties are decided E 1956 Act by the 2005 Amendment Act, the question that we have as on the date of partition, it is important to determine the date of to answer is as to whether the preliminary decree passed by the partition. First, as discussed above, the notion that a partition occurs as F trial court on March 19, 1999 and amended on September 27, on the date of the death of a male member, and shares crystallize into 2003 deprives the Appellants of the benefits of 2005 Amendment vested rights at that point in time, as held by the learned Single Judge, F Act although final decree for partition has not yet been passed.” is not the correct approach. That event (i.e. the death) only determines how that person’s share will be divided amongst the family members 28. In answering that question, Court held that neither the filing of (either by survivorship or by succession), rather than effecting any broad- G the suit nor a preliminary decree constitutes a partition within the meaning based changes in the family holdings or effecting a partition inter se that of the amended Section 6. Thus, the newly created rights would be would hold against subsequent changes in the family composition or G available to the parties. Specifically, the Court noted: changes in the law. Secondly, neither is the proposition that the shares “16. The legal position is settled that partition of a Joint Hindu are defined at the time of filing of the suit for partition correct. Rather, family can be effected by various modes, inter-alia, two of these the HUF, and specifically, the coparcenary, continues even after the filing H modes are (one) by a registered instrument of a partition and of the suit. The filing of a suit by itself does not mean that a partition H (two) by a decree of the court. In the present case, admittedly, has taken place, until a decree of Court effects partition, or a registered the partition has not been effected before December 20, 2004 deed of partition is signed inter se the parties. Accordingly, the death or either by a registered instrument of partition or by a decree of birth of family members during the pendency of a suit quite obviously I the court. The only stage that has reached in the suit for partition I Swaran Lata and Ors. v. Shri Kulbhushan Lal (S. Ravindra Bhat, J.) 1387 1388 Indian Law Reports (Delhi) ILR (2014) II Delhi filed by the Respondent No. 1 is the determination of shares vide A concept of partition that the legislature has in mind in the present preliminary decree dated March 19, 1999 which came to be case with a mere severance of the status of the joint family amended on September 27, 2003 and the receipt of the report of which can be effected by an expression of a mere desire by a the Commissioner. family member to do so. The partition that the legislature has in A mind in the present case is undoubtedly a partition completed in 17. A preliminary decree determines the rights and interests of B all respects and which has brought about an irreversible situation. the parties. The suit for partition is not disposed of by passing A preliminary decree which merely declares shares which are of the preliminary decree. It is by a final decree that the themselves liable to change does not bring about any irreversible immovable property of joint Hindu family is partitioned by metes B situation. Hence, we are of the view that unless a partition of and bounds. After the passing of the preliminary decree, the suit the property is effected by metes and bounds, the daughters continues until the final decree is passed. If in the interregnum C cannot be deprived of the benefits conferred by the Act.” i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur 30. The Supreme Court therefore, held that rights created in favour necessitating change in shares, there is no impediment for the C of daughters by the 1956 Act would be operative, even though the Trial court to amend the preliminary decree or pass another preliminary Court had made a preliminary decree before the passage of the Act, as decree redetermining the rights and interests of the parties having D the final rights are determined, and the partition effected, only through regard to the changed situation.” a final decree. The rationale behind the specific definition of ‘partition’ – as is clear from the above quote – is that only such partition that results 29. Earlier, in S. Sai Reddy v. S. Narayana Reddy and Ors., D in an irreversible situation should be considered as such. In all other (1991) 3 SCC 647, the question before the Supreme Court was whether cases, given the beneficial purpose of Section 29A – and in this, of the the insertion of Section 29A (by a State amendment to the HSA) meant E amended Section 6 – rights created in favour of Hindu women ought to that the unmarried daughters in the HUF would be entitled to equal shares be given effect to. Neither the filing of a partition suit, nor an oral vis-a-vis their brothers, after the preliminary decree of the Trial Court E statement by a member of the HUF, and certainly not a deemed partition had been made, and the appeal against it had been dismissed by the High (created only for a limited effect to determine the rights of the deceased Court. The Trial Court rejected the claim by observing that with the only) create any such irreversible situation. dismissal of the appeal by the High Court, the preliminary decree had F become final and the sisters was not entitled to indirectly challenge the 31. This question also came before the Supreme Court recently in same. The High Court reversed this decision, and in concurring, the F Prema v. Nanje Gowda and Ors., 2011 (6) SCALE 28. In that case, Supreme Court held as follows: a male member of the family had instituted a suit for partition in 1989, which was decreed in 1992. The female heir’s appeal against the “... The crucial question, however, is as to when a partition can G preliminary decree to the High Court was dismissed in 1999. Meanwhile, be said to have been effectedfor the purposes of the amended the plaintiff had instituted final decree proceedings in 1999, in which the provision. A partition of the joint Hindu family can be effected G defendant (female heir) filed an application seeking for an increased share by various modes, viz., by a family settlement, by a registered in the property given the amendment to Section 6A, HSA in Karnataka instrument of partition, by oral arrangement by the parties, or by in 1994, i.e. after the institution of the suit and preliminary decree. The a decree of the court H Trial Court rejected the application on the ground that the effect of Since the legislation is beneficial and placed on the statute book H Section 6A was not retrospective. The High Court agreed with the Trial with the avowed object of benefitting women which is a vulnerable Court, but the decision was overturned by the Supreme Court. Placing section of the society in all its strata’s, it is necessary to give a reliance on the decision in Sai Reddy (supra), the Court overturned the concurrent findings in the following terms: liberal effect to it. For this reason also, we cannot equate the I I Swaran Lata and Ors. v. Shri Kulbhushan Lal (S. Ravindra Bhat, J.) 1389 1390 Indian Law Reports (Delhi) ILR (2014) II Delhi “Therefore, the proceedings of the suit instituted by Respondent A by the legislature to determine how the interests of the deceased would No. 1 cannot be treated to have become final so far as the actual devolve upon his heirs if a Class I female relative is alive. The purpose partition of the joint family properties is concerned and in view of this fiction of deemed partition (as opposed to following the simple of the law laid down in Phoolchand v. GopalLal (supra) and S. rule of survivorship otherwise) is that Class I female heirs also receive A Sai Reddy v. S. Narayana Reddy (supra), it was open to the a share in the coparcenary property of the deceased male, as they would Appellant to claim enhancement of her share in the joint family B otherwise be excluded (not being coparcenors themselves, pre the 2005 properties because she had not married till the enforcement of Amendment). To argue that such deemed partition crystallizes the interest the Karnataka Act No. 23 of 1994. Section 6A of the Karnataka of the daughters finally, and that any rights accruing to them at a later Act No. 23 of 1994 is identical to Section 29A of the Andhra B stage which grant an interest in the coparcenary property are Pradesh Act. Therefore, there is no reason why ratio of the unenforceable, is contrary to the terms and the spirit of the proviso to judgment in S. Sai Reddy v. S. Narayana Reddy (supra) should C Section 6 as it existed before the 2005 Amendment and the letter of the not be applied for deciding the Appellant’s claim for grant of amendment itself. Sai Reddy (supra), Prema (supra) and Ganduri share at par with male members of the joint family ... C Koteshwaramma (supra) have all consistently held that the mere severance in status, sought to be brought about by the institution of a partition suit, 14. We may add that by virtue of the preliminary decree passed does not result in immutable shares. These decisions also took note of by the trial Court, which was confirmed by the lower appellate D Phoolchand & Anr v. Gopal Lal AIR 1967 SC 1470 and even an older Court and the High Court, the issues decided therein will be decision (of the Privy Council) in Jadunath Roy and Ors. v. Parameswar deemed to have become final but as the partition suit is required D Mullick and Ors., AIR 1940 PC 11, where it was held that even after to be decided in stages, the same can be regarded as fully and a preliminary decree in a partition suit is made, the Court is not only completely decided only when the final decree is passed. If in powerless, but has the duty to reflect later developments, which could the interregnum any party to the partition suit dies, then his/her E necessitate re-adjustment of shares (of the parties) on account of fluctuation share is required to be allotted to the surviving parties and this in the coparcenary or the joint family. can be done in the final decree proceedings. Likewise, if law E governing the parties is amended before conclusion of the final 33. From another and more fundamental perspective, if the decree proceedings, the party benefited by such amendment can fluctuation of interests continued between the male coparcenors (the F make a request to the Court to take cognizance of the amendment brothers) – after the death of Bakshi Ram in 1960, and a division of his and give effect to the same. If the rights of the parties to the suit F interest to his sons and daughters – there appears no reason why the change due to other reasons, the Court ceased with the final daughter’s interest should be foreclosed. They continued to remain decree proceedings is not only entitled but is duty bound to take members of the HUF (though not coparcenars), and thus entitled to avail notice of such change and pass appropriate order.” (emphasis G of any rights that accrued in their favour as female members of the supplied) family, specifically the 2005 amendment in this case. In this case, till date G no final decree has been passed, and neither has any registered partition 32. It is clear from the decisions in Sai Reddy (supra), Ganduri deed been placed on record or relied upon by any of the parties. Koteshwaramma (supra) and Prema (supra) that a partition of the Accordingly, the amended Section 6 of the HSA is applicable. The Hindu Joint Family – that crystallizes each member’s interest, and thus reasoning and findings of the learned Single Judge on this aspect, therefore, makes the interests immune to further changes in the law – can only take H cannot be sustained. Similarly, the reasoning and judgment in Bharat place in the manner prescribed by the HSA. A deemed partition under the H Singh (of a learned Single Judge) is held to be no longer good law, in proviso to Section 6, HSA is not an actual partition that crystallizes the view of Prema (supra) and Ganduri Koteshwaramma (supra). The interest of all members of the HUF, but only a legal construction introduced said judgment is accordingly overruled. I I Swaran Lata and Ors. v. Shri Kulbhushan Lal (S. Ravindra Bhat, J.) 1391 1392 Indian Law Reports (Delhi) ILR (2014) II Delhi 34. In view of the above discussion, the Court must now determine A appellant has claimed properties to be part of the HUF, as shown in the the shares of the parties to the various properties in question. Before the table above. The documents concerning compensation paid by the Ministry addressing the sequence of events beginning from the death of Bakshi of Rehabilitation after partition indicate that a HUF was in existence at Ram, it is essential to recollect that Sudarshan Lal died issueless, without that time. Further, the partnership deed dated 1st April, 1968 and the A any female Class I heirs, and thus, on his demise, the rule of survivorship averments in WP(C) 1921/1986 both contradict the defendants’ claim under the unamended Section 6 applied, and the coparcenary property B that there was no HUF. Indeed, no evidence was produced to demonstrate was redistributed between the remaining coparcenors, his father Bakshi a division of the HUF or a partition of the properties at any time Ram and two brothers. Subsequently, on the death of Bakshi Ram in subsequently either. However, as the Supreme Court noted in D.S. 1960, as he was survived by his widow, and five daughters (Class I heirs B Lakshmaiah and Anr.v. L. Balasubramanyam and Anr., 2003 (7) under the Schedule to the HSA), the proviso to the unamended Section SCALE 1: 6, as it was in force at the time, applied. Accordingly, if a deemed C “9...... Proof of the existence of a joint family partition were to take place, Bakshi Ram, his two living sons, Kulbhushan does not load to the presumption that property held by any Lal, and Madan Mohan Sharma would each get a 1/3rd share in the C member of the family is joint, and the burden rests upon anyone coparcenary property. Given the death of Bakshi Ram, and the operation asserting that any item of property is joint to establish the of Section 3 of the Hindu Women’s Right to Property Act, 1937 (read D fact...... ” along with Section 14, HSA, which makes the life estate granted by the 1937 Act an absolute interest), Bakshi Ram, the two sons and Chanan The plaintiffs in the suit, and the appellant herein, have not discharged Devi would have each acquired a 1/4th share. Bakshi Ram’s 1/4th share, D this burden with regard to any of the properties, other than give properties then, in terms of the proviso, read with Section 8, devolve upon to his which were, by admission of the defendants, considered to be part of the class I heirs equally in 8 parts, i.e. his wife, and 7 living children. Thus, E HUF: (a) a plot bearing Khasra No. 2609/727-728, situated in Tughlakabad, the 7 living children received a 1/32 share, and Chaman Devi received a Tehsil Mehrauli, Delhi, measuring 5 bighas, 1 biswa, b) a plot bearing 9/32 share (i.e. 1/4 plus 1/32). Of the remaining 1/2 of the coparcenary E Khasra No. 32/28/1 and 32/28/2 measuring 2 bighas, 5 biswas, c) a plot share left undivided after Bakshi Ram’s death, the 2 living male members bearing Khasra No. 231, measuring 2 bighas, 13 biswas, in village Tajpul, shared it equally, i.e. 1/4. Subsequently, as per Section 15(1), HSA, on Tehsil Mehrauli, Distt. Delhi, d) a plot bearing Khasra No. 36/28/2 and Chanan Devi’s death, her 9/32 share devolved upon her 7 living children F 36/29/2 measuring 15 biswas; e) a house at Joshi Road, Karol Bagh. in equal proportions, i.e. each held a 9/224 share. Then, with the passage Accordingly, this Court finds no reason to interfere with this finding of of the 2005 amendment, the 5 daughters each acquired a share in the F the learned Single Judge. However, of these 5 properties, rights to the coparcenary, along with the 2 male members. As noted above, the house at Joshi Road were held to have relinquished in favour of Sudarshan remaining share in the coparcenary was 1/2, and thus, each of the 7 Lal, and plots bearing Khasra No. 32/28/1 and 32/28/2 were held to be members hold 1/14 as coparcenors, which by virtue of this suit, is now G governed by rules of succession under Section 51 of the Delhi Land sought to be divided. In sum, the shares of the parties are as follows: G Reforms Act, which provides only for succession to the male members 1/32 share each as succession from the death of Bakshi Ram, 9/224 of the family, thus excluding the appellant herein. Finally, as regards the share each as succession from Chanan Devi, and 1/14 each as remaining properties, the learned Single Judge held that since Section 185 coparcenors. Thus, the share of each of the 7 children is 1/32 plus 9/ of the Land Reforms Act bars the jurisdiction of civil courts in respect 224 plus 1/14, which equals 1/7. In other words, each of the 7 persons H of properties regulated by that act, no decree could be granted. has an equal share in the coparcenary properties. H 36. As regards the relinquishment of the Karol Bagh house, the 35. At this juncture, the Court must also consider which the properties appellant, during the course of trial, admitted the certified copy of the alleged to be part of the HUF by the appellant herein are indeed so. The relinquishment deed executed by her and by the fourth defendant with I I Swaran Lata and Ors. v. Shri Kulbhushan Lal (S. Ravindra Bhat, J.) 1393 1394 Indian Law Reports (Delhi) ILR (2014) II Delhi respect to share in the house at Joshi Road in favour of Sudarshan Lal. A Section 507 of the Delhi Municipal Corporation Act, 1957, the provisions Although it was stated that this document was supposed to be a power of the Delhi Land Reforms Act would cease to apply. This decision was of attorney, and not a relinquishment deed, no plea of fraud or coercion followed by another Single Judge in Madho Prasad v. Shri Ram Kishan so as to vitiate the registered document has been put forth, and thus, the and Ors., 2001 (7) AD (Delhi) 72. However, given a contrary opinion A Court finds no reason to interfere with this finding of the learned Single in WP(C) No. 4143/2003, dated 25.08.2004, the matter was referred to Judge. B a Division Bench of this Court, in a decision reported as Smt. Indu Khorana v. Gram Sabha and Ors.,MANU/DE/0969/2010, where the 37. Finally, this Court must consider whether the properties noted reference was categorically answered in the following terms: above can be partitioned in light of the provisions of Section 185 of the B Delhi Land Reforms Act, which bars the jurisdiction of civil courts in “11. We thus hold that once rural area is urbanized by issuance respect of matters pertaining to properties regulated by the Act: C of notification under Section 507(a) of the Delhi Municipal Corporation Act, 1957, provisions of Delhi Reforms Act will “185. Cognizance of suits, etc, under this Act.-(1) Except as cease to apply. The reference stands answered accordingly.” provided by or under this Act no court other than a court C mentioned in column 7 of Schedule I shall, notwithstanding 40. That decision was subsequently sought to be impugned and anything contained in the Code of Civil Procedure,1908, take D referred to a larger bench in Narain Singh and Anr. v. Financial cognizance of any suit, application, or proceedings mentioned in Commissionerand Ors., in LPA No. 591/2008, decision dated column 3 thereof”, Further, Section 51is relevant insofar as it 22.11.2012, where the Division Bench of this Court confirmed the view provides a distinct line of succession for properties governed by D in Indu Khorana (supra), holding that “the very purport of a Notification the Act, as opposed to the rules specified in the HSA. under Section 507(a) of the DMC Act is to convert the land from agricultural to urban.” In view of these consistent findings, it is clear that 38. With respect to the finding of issue of whether the plots bearing E the effect of the notification under Section 507 in this case were to Khasra No. 32/28/1 and 32/28/2 are to be considered under Section 51 remove the four properties from the purview of the Delhi Land Reforms of the Land Reforms Act or under the HSA, and whether the remaining E Act as the subject-matter of the Act is rural agricultural properties, rather three properties are similarly to be dealt with under the Delhi Land than urban lands. Accordingly, this finding of the learned Single Judge Reforms Act, this Court notices that all four properties are located in F that the four properties in question were not to devolve upon the appellant Mehrauli, Tughlakabad and Badarpur. All these areas have been notified here in the share ratio above specified is liable to be set aside. as “urbanized villages” that cease to be considered rural areas, by the F Municipal Corporation of Delhi (“MCD”)under notification under Section 41. In view of the above discussion, the findings and judgment of 507 of the Delhi Municipal Corporation Act, 1957, by way of notifications the learned Single Judge are hereby set aside. The suit is remitted for F.9(2)/66/Law/Corpn dated 28.05.1966 (Badarpur and Tughlakabad) and G further proceedings to carry out partition of the properties, through 13.06.1962 (Mehrauli). The learned Single Judge held that even if this metes and bounds, in accordance with law. The suit shall be listed before were the case, properties in these areas would continue to be regulated G the concerned Judge in accordance with roster allocation, who shall, by the Delhi Land Reforms Act. The question that arises, thus, is whether after issuing notice to the parties, proceed further in the matter. The a land, irrespective of the fact that is it in an urban or a rural area as appeal is allowed in the above terms. There shall be no order as to costs. determined by the MCD continues to be agricultural land and thus, subject H to the provisions of the Delhi Land Reforms Act. H 39. This matter has been previously considered by this Court. A learned Single Judge in Trikha Ram v. Sahib Ram, 69 (1997) DLT 749, held that where an area is urbanized under a notification under I I Renu Agrawal v. Delhi Development Authority (Hima Kohli, J.) 1395 1396 Indian Law Reports (Delhi) ILR (2014) II Delhi ILR (2014) II DELHI 1395 A illegal development be not undertaken on 02.04.2012 W.P. (C) petitioner submitted reply—Reiterated request for sanction—Aggrieved by inaction on the part of A respondent no. 1 and 2—Preferred writ petition— RENU AGRAWAL AND ANR. ....PETITIONERS During the hearing submitted by petitioner that B VERSUS respondent no. 3 and 4 not co-operative with petitioner—On account of their non-corporation— DELHI DEVELOPMENT AUTHORITY ....RESPONDENTS Resistance in raising any construction—Respondent AND ORS. B no. 2 declined to grant sanction to the proposed building plan—However—Respondent 3 and 4 denied— (HIMA KOHLI, J.) C Submitted building plan may be sanctioned subject to W.P. (C) NO. : 2404/2012 DATE OF DECISION: 03.02.2014 ensuring that the structural strength of the existing C built-up structure not adversely affected—Petitioner submitted a tabulated chart in respect of deviation Constitution of India, 1950—Article 226—Writ Petition— D mentioned in the show cause notice—Pointed out Delhi Development Act, 1957—S. 30(1)—S. 31(A)— deviation in the portion of premises under the Unauthorized construction—Section of building plans— occupation of petitioner and mezzanine floor—Either Structural safety—National Capital Territory of Delhi D compoundable nature or did not concern them—Chart Laws (Special Provisions) Bill, 2009—One Smt. furnished to respondent no. 1 and 2—Director Shakuntala Devi mother of petitioner no. 2 and E (Building), DDA directed to take into consideration the Respondent No. 3—Owner of—The Property at Shivalik chart for an efficacious resolution of the dispute— Malviya Nagar, New Delhi—Shakuntala Devi executed E directed to pass reasoned order dealing with a Gift Deed in respect of basement-ground-mezzanine contention raised by petitioner and keeping in mind floor-in-favour of her daughter-in-law Respondent No. the decision rendered in WP 4/ Ms. Manju Agrawala—Registered on 02.06.2005— F Also executed gift deed in respect of first floor and C) No.3535/2001 entitled as Ashok kapoor and Ors. v. MCD— terrace in favour of her other daughter-in-law F An order dated 02.09.2013 Passed by Director Building) petitioner no. 1—Registered on 26.10.2005—Mutation for sealing—Cum-Demolition—order challenged by the with respect to first floor and terrace done in favour petitioner—Contending-Contrary to the guidelines laid of petitioner no.1 in the record of MCD—Mutation in G down in above mentioned case—Court observed— respect of basement-ground floor-mezzanine floor G The facts in the case of Ashok Kapoor similar to the carried out in favour of respondent no.4 on 27.10.2011 present case where the subject property segregated petitioner submitted plans to respondent no. 1 and 2 in different portion and mutated in individual names for carrying out—Addition—Alteration on the first specifying the portion of the property—Held—(A) when floor—Construction of proposed second—Third floor H segregation of interest of different co—Owner alongwith requisite fees—Respondent did not sanction H recognized by the MCD by mutation of different portion the plan—Instead issued a show cause notice on in individual named of different persons there cannot 05.03.2012—Petitioner no. 1 and respondent no. 4 to be any requirement of signature of all the co—Owners explain as to why demolition of unauthorized and I I Renu Agrawal v. Delhi Development Authority (Hima Kohli, J.) 1397 1398 Indian Law Reports (Delhi) ILR (2014) II Delhi in considering the sanction of building plan of one of A of the different co-owners is recognized by the Co—Owner of the subject property in his/her portion respondent Corporation by mutation of the (b) even if there is embargo on DDA and on civic different portions in individual names of different authority from taking an action in respect of non A persons. The fate of an individual owner cannot compoundable deviation/misusers till December, 2014 be dependent on the pen of a person, who in terms of National Capital Territory of Delhi Laws B happens to be the owner of a different portion (Special Provisions) Bill, 2009—It can hardly be ground of the building. Thus, there cannot be any of refusing the sanction of building plane submitted requirement of signatures of all the co-owners. by petitioner for their portion of subject property or B from preventing them from raising construction in Insofar as non-compoundable deviations and misuse C their portion of subject premises in accordance with are concerned, it was always open to the respondent law—(c) structural safety certificate placed on record Corporation to take action against the same. In fact, shall be duly considered by DDA and if it needs C it is stated that some action has been taken. The stipulated requirement the same shall be accepted— petitioners are not preventing the said action being taken in respect of the ground and first floors. The If there is any requirement of meeting alternation in D the building plan on account of structural concern the inaction on the part of the respondent same shall be intimated to the DDA by petitioner in Corporation to take appropriate action against writing—Petition disposed off. D the ground and first floors cannot deprive the petitioners to the rights of having their plans In the aforesaid case, the respondent/MCD had taken a E approved. There is no doubt that the structural stand in its counter affidavit that non-compoundable aspects of the building have to be considered deviations were existing on the ground and first floors and and the building has to be seen as a whole E there was also some misuser of the ground floor. It was dependent on the load factor it can take. further stated that the building plans were required to be However, this is not the reasoning for rejection signed by all the co-owners insofar as coverage of the F of the building plans. In case, any alterations are building is concerned. Thirdly, it was stated that the FAR is required in the building plans on account of structural governed by the overall size of the plot and structural safety F requirements, the same can always be intimated to has to be taken into account. After considering the the petitioners. submissions made by the parties in the aforesaid case, the learned Single Judge had made the following observations, G A Writ of Mandamus is, thus, issued directing the which are relevant for consideration : G respondent Corporation to consider the building plans of the petitioner de hors the objection of the building “...... Once the property is segregated into different plans being signed by all the co-owners and the issue portions and mutated accordingly, there cannot be of misuse and deviations in the ground and first any requirement of all the co-owners to sign the H floors. A decision be taken within a period of six building plans. If the plot and the building are both co- H weeks from today and the petitioners can appear owned, then only the requirement for such co-owners personally before the Executive Engineer (Building), to sign may at all arise. The segregation of interest South Zone on 02.04.2003 for any clarification.” I I Renu Agrawal v. Delhi Development Authority (Hima Kohli, J.) 1399 1400 Indian Law Reports (Delhi) ILR (2014) II Delhi (emphasis added) (Para 15) A RESULT: Writ Petition Disposed off.

The contention of the counsel for the respondents No.1 & 2/ HIMA KOHLI, J. (ORAL) DDA that the provisions of the National Capital Territory of 1. The present petition has been filed by the petitioner praying inter A Delhi Laws (Special Provisions) Bill, 2009 has placed an alia for issuance of directions to the respondents No.1 & 2/DDA to embargo on the DDA and on the civic authorities from taking B sanction addition/alteration plans in respect of the first floor of the premises any action in respect of the non-compoundable deviations/ bearing No.A-225, Shivalik, Malviya Nagar, New Delhi, as submitted on misuser till December, 2014, can hardly be a ground for 27.10.2011. refusing to sanction the building plans submitted by the B petitioners for their portion of the subject property or for 2. The undisputed facts of the case are that late Smt. Shakuntala preventing them from raising construction in their portion of C Devi (mother of the petitioner No.2 and respondent No.3) was the owner the subject premises in accordance with law. This Court is of the subject property by virtue of a Sale Deed dated 20.11.1990. During her lifetime, Smt. Shakuntala Devi had executed a gift deed in of the opinion that the petitioners are well within their rights C to approach the respondents No.1 & 2/DDA for getting their respect of the basement, ground and mezzanine floors of the subject plans sanctioned as per the Building Byelaws, without awaiting premises in favour of her daughter-in-law, respondent No.4/Ms. Manju D any action on the part of the DDA in respect of the non- Agrawala, that was registered on 2.6.2005. Similarly, Smt. Shankuntala compoundable deviations and/or misuser in the basement, Devi had executed a gift deed in respect of the first floor and the terrace above the first floor in favour of her other daughter-in-law, the petitioner ground and mezzanine floors of the subject premises which D are admittedly in the ownership and possession of the No.1, registered on 26.10.2005. Thereafter, on 24.11.2006, the first floor and the terrace of the subject premises were got mutated in favour respondent No.4. (Para 22) E of the petitioner No.1 in the records of the MCD. Similarly, mutation in respect of the basement, ground and mezzanine floors was carried out Important Issue Involved: (a) the embargo put by National E in favour of the respondent No.4. Capital Territory Delhi Law (Special Provision) Bill, 2009 does not prohibit the authority to sanction building plan for 3. In the year 2006, Smt. Shakuntala Devi and her husband, Mr. raising construction. F H.S. Agrawala filed a suit for cancellation of the gift deed and for declaration against the respondents No.3 & 4, registered as CS(OS)No.600/ F [Gu Si] 2006. During the pendency of the aforesaid suit, the parties arrived at a compromise, as recorded in the Compromise Deed dated 27.8.2007, and APPEARANCES: based on the said compromise, the suit was disposed of on 20.9.2007. FOR THE PETITIONERS : Mr. Sudhanshu Batra, Sr. Advocate G 4. On 27.10.2011, the petitioners submitted a plan to the respondents with Mr. Arvind Kr. Gupta, G No.1 & 2/DDA for carrying out additions/alterations on the first floor Advocate. and construction of the proposed second and third floors on the subject FOR THE RESPONDENTS : Mr. M.K. Singh, Advocate for DDA premises, along with the requisite fee, etc. However, the respondents with Mr. Amit Das, Director H No.1 & 2/DDA did not sanction the building plans and instead, on 5.3.2012, (Building). Mr. Ankur Arora, H DDA issued a notice to show cause to the petitioner No.1 and respondent Advocate for R-3 & 4 with No.4 under Sections 30(1) and 31(A) of the DDA Act calling upon them respondent No.3 in person. to explain as to why demolition of the unauthorized and illegal development as mentioned in the said notice should not be undertaken. On 2.4.2012, I I Renu Agrawal v. Delhi Development Authority (Hima Kohli, J.) 1401 1402 Indian Law Reports (Delhi) ILR (2014) II Delhi the petitioners submitted a reply to the aforesaid notice to show cause A 10. In the order dated 3.4.2013, the statement of the counsel for and reiterated their request for sanction of the building plans in terms of the petitioners was recorded to the effect that the petitioners had prepared the application submitted by them on 27.10.2011. a tabulated chart in respect of the deviations mentioned in the show cause notice issued by the DDA and a bare perusal thereof would A 5. Aggrieved by the inaction on the part of the respondents No.1 demonstrate that the deviations pointed out in the portion of the premises & 2/DDA, the petitioners have filed the present writ petition. B under the occupation of the petitioners and the mezzanine floor are either 6. It is submitted by Mr.Sudhanshu Batra, Sr.Advocate appearing of a compoundable nature, or do not concern them. The said tabulated on behalf of the petitioners that the respondents No.3 & 4 have not been chart was duly furnished to the counsel for the respondents No.1 & 2/ cooperating with the petitioners and it is on account of their non- B DDA and the Director (Building), DDA was directed to take into consideration the aforesaid tabulated chart at the time of passing of the cooperation and resistance to the petitioners raising any construction on C the subject property that the respondent No.2/DDA has been declining to order on the show cause notice dated 8.3.2013, for an efficacious grant sanction to the proposed building plan. resolution of the dispute between the parties. C 7. The aforesaid submission is however, denied by learned counsel 11. It is stated by the counsels for the parties that after considering for the respondents No.3 & 4, who states that his clients have no the tabulated chart furnished by the petitioners, the Director (Building), objection to the respondents No.1 & 2/DDA sanctioning the building plan D DDA had passed an order dated 6.6.2013. However, when the aforesaid submitted by the petitioners in accordance with law and subject to ensuring order was placed before the Court, it was noticed that it did not deal with any of the contentions raised by the petitioners in the tabulated chart. As that the structural strength of the presently existing built up structure is D not adversely affected. a result, vide order dated 25.7.2013, the order dated 6.6.2013 passed by the Director (Building), DDA was set aside and he was directed to pass 8. When the present petition was listed for admission on 8.7.2012, E a reasoned order dealing with all the contentions raised by the petitioners learned counsel for the respondents No.1 & 2/DDA had stated, on and keeping in mind the decision rendered in WP(C)No.3535/2001 entitled instructions, that the basement of the subject premises was being used E ‘Ashok Kapoor & Ors. vs. MCD’. by the respondents No.3 & 4 for office-cum-residential purposes and there were deviations on the ground floor, besides extra coverage. It was 12. Pursuant to the aforesaid directions, the respondent/DDA has stated that action had already been initiated against the occupants/owners F placed on record a copy of the order dated 2.9.2013 passed by the of the ground floor and the basement and thereafter, a sealing order was Director (Building), DDA, wherein it has been observed as under : F passed by the respondents No.1 & 2/DDA on 7.8.2012 in respect of the “In view of above given reasons as elaborated under different subject premises. paras, the submission of one single Building Plan of the entire 9. Aggrieved by the aforesaid sealing order, the respondents No.3 G building under reference is essentially require for sanctioning of addition and alteration from Regulatory Authority point of view. & 4 had filed an appeal before the Appellate Tribunal, which was ultimately G allowed and the sealing order was quashed on 7.1.2013. On 8.3.2013, On account of non-compliance of the directions of Speaking the submission of the counsel for the respondents No.1 & 2/DDA was Order dt. 03.05.2013, the Regulatory Authority, Director (Bldg.) recorded to the effect that inspection of the subject premises was carried had no option left except to pass the Sealing-cum-Demolition out on 23.1.2013 and 12.2.2013 and fresh show cause notices were H Order under D.D.Act-1957 on dt. 06.06.2013. being issued to the petitioners and respondents No.3 & 4/occupants/ H This Order is given under my hand and seal on this 2nd day of owners of the subject premises and the matter was listed for hearing September, 2013 in compliance to the Hon’ble High Court Order before the Director (Building), DDA on 21.3.2013. dt. 25.07.2013.” I I Renu Agrawal v. Delhi Development Authority (Hima Kohli, J.) 1403 1404 Indian Law Reports (Delhi) ILR (2014) II Delhi 13. Mr.Sudhanshu Batra, learned Senior Advocate appearing for the A Insofar as non-compoundable deviations and misuse are petitioners contends that the aforesaid order dated 2nd September, 2013, concerned, it was always open to the respondent Corporation to which the respondent/DDA describes as a fresh reasoned order, is contrary take action against the same. In fact, it is stated that some action to the guidelines that were laid down in the case of Ashok Kapoor has been taken. The petitioners are not preventing the said action A (supra). being taken in respect of the ground and first floors. The inaction B on the part of the respondent Corporation to take appropriate 14. In the case of Ashok Kapoor (supra), the petitioners therein action against the ground and first floors cannot deprive the had purchased rights over the first floor of a property situated in Green petitioners to the rights of having their plans approved. Park, New Delhi and they had submitted their plans to the civic authority B There is no doubt that the structural aspects of the building for sanction in respect of the proposed second and third floors over the have to be considered and the building has to be seen as a terrace of the first floor. The respondent/Municipal Corporation had pointed C whole dependent on the load factor it can take. However, out certain deficiencies in the said plans, which the petitioners claimed this is not the reasoning for rejection of the building plans. they had rectified, but yet again the civic authority had rejected the said In case, any alterations are required in the building plans on plans. As a result, the petitioners had filed the aforesaid writ petition for C account of structural requirements, the same can always be issuance of a writ of mandamus to the MCD for sanctioning the building intimated to the petitioners. plans of the subject property. D A Writ of Mandamus is, thus, issued directing the respondent 15. In the aforesaid case, the respondent/MCD had taken a stand Corporation to consider the building plans of the petitioner de in its counter affidavit that non-compoundable deviations were existing D hors the objection of the building plans being signed by all the on the ground and first floors and there was also some misuser of the co-owners and the issue of misuse and deviations in the ground ground floor. It was further stated that the building plans were required E and first floors. A decision be taken within a period of six weeks to be signed by all the co-owners insofar as coverage of the building is from today and the petitioners can appear personally before the concerned. Thirdly, it was stated that the FAR is governed by the overall E Executive Engineer (Building), South Zone on 02.04.2003 for size of the plot and structural safety has to be taken into account. After any clarification.” (emphasis added) considering the submissions made by the parties in the aforesaid case, the learned Single Judge had made the following observations, which are F 16. A perusal of the aforesaid decision reveals that in similar facts relevant for consideration : as are engaging the Court in the present writ petition, where the subject F property is segregated in different portions, the first floor and the terrace “...... Once the property is segregated into different portions thereof stand mutated in the name of the petitioner No.1 whereas the and mutated accordingly, there cannot be any requirement of all basement, ground floor and the mezzanine floor stand mutated in favour the co-owners to sign the building plans. If the plot and the G of the respondent No.4, the Court had held that there would not be any building are both co-owned, then only the requirement for such requirement for all co-owners to sign the building plans. This Court finds co-owners to sign may at all arise. The segregation of interest G no reason to take a different view. The separate interests of the petitioner of the different co-owners is recognized by the respondent No.1 and respondent No.4 in the subject property has already been Corporation by mutation of the different portions in recognized by the Municipal Corporation. 17. Counsel for the respondent individual names of different persons. The fate of an H Nos.1 & 2 /DDA states, on instructions, that the Department has no individual owner cannot be dependent on the pen of a person, H objection to sanctioning the building plans in favour of the petitioners as who happens to be the owner of a different portion of the long as the structural safety of the presently existing building is not building. Thus, there cannot be any requirement of compromised. signatures of all the co-owners. I I Renu Agrawal v. Delhi Development Authority (Hima Kohli, J.) 1405 1406 Indian Law Reports (Delhi) ILR (2014) II Delhi 18. In the present case, admittedly, the subject plot, on which the A in accordance with law. This Court is of the opinion that the petitioners built-up structure exists, is co-owned by the petitioner No.1 and the are well within their rights to approach the respondents No.1 & 2/DDA respondent No.4 in equal shares and counsel for the respondent No.4 has for getting their plans sanctioned as per the Building Byelaws, without stated that his client has no objection to sanctioning of the building plans awaiting any action on the part of the DDA in respect of the non- A subject to the structural safety of the building being kept in mind. The compoundable deviations and/or misuser in the basement, ground and civic authority, namely, South Delhi Municipal Corporation, has admittedly B mezzanine floors of the subject premises which are admittedly in the segregated the interest of the petitioners and the respondent No.4 and ownership and possession of the respondent No.4. recognized them by mutating different portions of the subject property 23. While considering the building plans, undoubtedly, the structural in their respective names. In such circumstances, the observations made B safety of the built up structure should not be compromised in any manner. by the respondent/DDA in the fresh order dated 2nd September, 2013 Mr.Batra, Senior Advocate states that the petitioners had furnished a that the consent of the co-owner is required, loses significance. In the C structural safety certificate issued by a Government Approved Valuer, opinion of this court, there does not appear any requirement for the Chartered Engineer, Structural Designer and Surveyor to the DDA, wherein respondent No.4 to sign the building plans or give any no objection to C it has been certified that the existing structure that was built in the year the respondents No.1 and 2/DDA. 1991, is in excellent condition and there is no deterioration and it can take 19. Coming to the alleged deviations referred to by the respondents D the load of additional second and third floors to achieve the permissible No.1 & 2/DDA in the fresh order dated 2nd September, 2013, a perusal FAR. thereof reveals that only two deviations mentioned at Sr.No.6 & 7(a) of D 24. On an enquiry from the learned counsel for the respondents the tabulated chart relate to the first floor portion owned by the petitioner No.1 & 2/DDA as to whether the DDA has undertaken an independent and all the remaining deviations pertain to the basement, ground and exercise to establish the structural safety of the building before passing mezzanine floors that are owned by the respondent No.4. E the order dated 2nd September, 2013, the reply is in the negative. There 20. Learned Senior Advocate appearing for the petitioners states E is no reason whatsoever given in the rejection order with regard to the that the deviations mentioned by the DDA on the first floor are structural safety certificate filed by the petitioners and furnished to the compoundable in nature and the petitioners are ready and willing to get respondent/DDA. them compounded. F 25. As the aforesaid aspect has not even been examined by the 21. Insofar as the non-compoundable deviations and misuser on the F respondents No.1 & 2/DDA before passing the order dated 2nd September, basement, ground and the mezzanine floors are concerned, it is open to 2013, it is directed that the structural safety certificate placed on record the respondent/DDA and/or the civic authority to take appropriate action by the petitioners at pages 181-182 of the paper book shall be duly against the same in accordance with law. But that itself cannot be a G considered by the respondents No.1 & 2/DDA and if it meets the stipulated ground to turn down the building plans submitted by the petitioners. requirements, then the same shall be accepted. If there is any requirement G for making alterations in the building plans on account of structural 22. The contention of the counsel for the respondents No.1 & 2/ concerns, the same shall be intimated by the respondents No.1 & 2/DDA DDA that the provisions of the National Capital Territory of Delhi Laws to the petitioners in writing. (Special Provisions) Bill, 2009 has placed an embargo on the DDA and on the civic authorities from taking any action in respect of the non- H 26. Coming to the issue of permissible FAR, as it is a single entity compoundable deviations/misuser till December, 2014, can hardly be a H plot, counsel for the petitioners assures the Court that 50% of the ground for refusing to sanction the building plans submitted by the permissible FAR shall be consumed as per the Building Byelaws in the petitioners for their portion of the subject property or for preventing structure above the first floor, while the remaining 50% shall enure to the them from raising construction in their portion of the subject premises I benefit of the respondent No.4. I SBL Pvt. Ltd. v. V.B. Shukla & Ors. (G.S. Sistani, J.) 1407 1408 Indian Law Reports (Delhi) ILR (2014) II Delhi 27. The present petition is accordingly disposed of, while setting A joined defendant no. 2 company of which defendant aside the order dated 2nd September, 2013 passed by the respondents no. 3 and 4 were Directors—Plaintiff apprehended that No.1 & 2/DDA. Directions are issued to the respondents No.1 and 2/ defendant no. 1 would share confidential and internal DDA to consider the building plans of the petitioners afresh without information of plaintiff company with defendant no. 2 A raising any objection with regard to NOC required to be issued by the company for which he was seeking restrain order— co-owners and keeping aside the aspect of non-compoundable deviations B However, parties consented before Court and resolved and misuser existing in the basement, ground and mezzanine floors of the disputes amicably— Plaintiff, thus, prayed for refund subject premises, owned and occupied by the respondent No.4, which of court fees. Held:- when matter stands resolved DDA shall be entitled to deal with in accordance with law. B before framing of issues, plaintiff entitled to refund of court fees in terms of Act. 28. A fresh decision shall be taken by the respondent/DDA within C eight weeks from today. To obviate any requirement of any clarification Important Issue Involved: When matter stands resolved that may be required by the respondents No.1 & 2 /DDA from the before framing of issues, plaintiff entitled to refund of court petitioners, they are directed to appear before the Deputy Director C fees in terms of Act. (Building), DDA on 3.3.2014 at 3.00 PM. D 29. The petition is disposed of. Copy of the order be given DASTI [Sh Ka] to the counsel for the respondents No.1 and 2/DDA under the signatures of the Court Master. D APPEARANCES: FOR THE PLAINTIFF : Mr. Manish Srivastava, Advocate and E Mr. S.R. Verma, Sr. Manager of plaintiff. ILR (2014) II DELHI 1407 E FOR THE DEFENDANTS : Mr. J.C. Mahindroo, Advocate for CS(OS) D=1 Ms. Meenakshi Singh, Mr. Vikram Grover and Ms. Shreye F Verma, Advs, for Ds= 2-4. SBL PVT. LTD. ....PLAINTIFF F RESULT: Suit disposed of. VERSUS G.S. SISTANI, J. (Oral) V.B. SHUKLA & ORS. ....DEFENDANTS G IA.No.2181/2014 (G.S. SISTANI, J.) G This is an application filed by defendant nos.2 to 4 seeking correction CS(OS) NO. : 1782/2012 DATE OF DECISION: 03.02.2014 in the order dated 15.1.2014. Counsel for the parties submit that this Court had adjourned the matter for 3.2.2014, but inadvertently the date H is mentioned as 3.4.2014. Court Fees Act, 1870—Section 16A—Plaintiff filed suit for permanent and mandatory injunction along with H For the reasons stated in the application, the application is allowed. damages against defendants—Defendant no. 1 was The date of 3.4.2014 is cancelled. employed with plaintiff company who resigned and CS(OS) 1782/2012 I I SBL Pvt. Ltd. v. V.B. Shukla & Ors. (G.S. Sistani, J.) 1409 1410 Indian Law Reports (Delhi) ILR (2014) II Delhi With the consent of counsel for the parties the matter is taken up A Accordingly, the decree-sheet be drawn up, in above terms. The for hearing today. The plaintiff has filed the present suit for permanent court appreciates the efforts put in by their counsel and the fair stand and mandatory injunction alongwith damages. The defendant no.1 was taken by the parties in resolving the matter. As the matter stands resolved employed with the plaintiff company. The defendant no.1 resigned on before framing of issues, as prayed, the plaintiff is entitled to refund of A 6.4.2012 and joined the defendant no.2 company of which defendants the Court fees in terms of Section 16-A of the Court Fees Act. no.3 and 4 are the directors. B The suit stands disposed of. The complaint of the plaintiff is that confidential and internal information was carried away by the defendant no.1 to share the same B with defendant no.2, company. An ad interim ex parte injunction was granted on 1.6.2012, when summons were issued in the suit. C ILR (2014) II DELHI 1410 Counsel appearing for the defendant no.1 on instructions, submits W.P. (C) that defendant no.1 has not used or passed any confidential information C to defendants no.2 to 4 nor shall he do so in future. Counsel for defendants K.L. BHASIN ....PETITIONER no.2 to 4 also submits that neither have they received any confidential D information of the plaintiff company, nor do they have any intention VERSUS either to instigate any of the employee of the plaintiff company to leave the employment of the plaintiff or to seek confidential information from D PUNJAB NATIONAL BANK AND ANR. ....RESPONDENTS them. (RAJIV SHAKDHER, J.) In view of the stand taken by the parties and with the consent of E the parties, the present suit is decreed on the following agreed terms: W.P.(C) NO. : 7487/2000 DATE OF DECISION: 03.02.2014 E (i) A decree of permanent injunction restraining the defendant no.1 from, in any manner, directly or indirectly, disclosing Constitution of India, 1950—Article 226-227—Writ any confidential information to the defendant Nos.2, 3 or F Petition—Service law—Departmental Enquiry (DE)— 4 as mentioned in Paragraph 29 or to any third person, in Dismissal-findings on all charges—Petitioner joined any manner whatsoever or using the said confidential F New Bank of India on 01.04.1969—Which merged with information for his own personal or business purposes; Respondent No. 1 was serving as Manager at Defence and Colony, New Delhi Branch—Certain loan advances (ii) The defendant no.1 has not disclosed directly or indirectly G sanctioned under his vigil-approved by superior w.r.t. any confidential information of plaintiff to defendants no.2 G sanctioning of advances an investigation was to 4, nor shall he do so, except in the ordinary course of conducted and secret report generated by vigilance business. department qua petitioner—One Sh. P.K. Salia, Chartered Accountant and the Assistant General (iii) Defendant nos.2 to 4 have neither received, nor instigate H Manager—Petitioner himself filed two FIRs against nor shall they instigate any employees of the plaintiff H some of the borrowers in around 21/22.03.1990— company to leave their employment. Though petitioner complainant but at some stage (iv) The plaintiff gives up the relief of damages. arrayed as an accused in the criminal proceedings in the interregnum on 17.07.1990 petitioner placed under I I K.L. Bhasin v. Punjab National Bank and Anr. (Rajiv Shakdher, J.) 1411 1412 Indian Law Reports (Delhi) ILR (2014) II Delhi suspension-served with charge sheet alongwith six A failed to return the finding qua all charges—Held— article of charges—First charge—Acted in a manner Enquiry officer has recorded the findings only on the prejudicial to the interest of bank other five charges first charge—Impugned order of disciplinary authority related to this each charge independent to each A is liable to be set aside—Even if—Accepted that other—Enquiry officer appointed—Submitted report on remaining five charges were off shoot of the first 26.02.1993—On the basis of the report—Disciplinary B charge—The quantum of punishment need authority dismissed the petitioner from the services— modification—Although the standard of proof different The appellate authority sustained the punishment—In in criminal proceedings and departmental the interregnum—The petitioner acquitted in the B proceedings—However acquittal in criminal Criminal case—Preferred writ petition—Contended— C proceedings relevant for reviewing the quantum of Findings of disciplinary authority perverse—Enquiry punishment—Observed—Normally such cases officer returned the findings qua the first charge only remanded back for fresh enquiry—But in view of the and not on other charges—Disciplinary authority C facts of the case of prolong litigation of 20 years- overlooked this aspect—Proceeded on the basis that advance age of petitioner with the consent of both all charges had been dealt with by enquiry officer— D the parties modified the quantum of punishment of Further contended—Punishment disproportionate to dismissal of the service to compulsory retirement with the gravity of alleged misconduct—Further contended all consequential benefit—Writ petition disposed of. at time sanctioning the loan advanced to the five D entities—No practice of conducting a pre-sanction A bare perusal of the aforementioned Regulation, would inspection—Practice brought into force much later— E show that the Enquiry Officer has to prepare a report, which Petitioner recommended the loan at the end of the is required to contain: a gist of articles of charges and day approved by superior authority AGM— E statement of imputations of misconduct or mis-behaviour; a Recommendation of sanction made inter-alia on the gist of the defence of the officer employee, in respect of, basis of opinion rendered by lawyer w.r.t. security each article of charge; assessment of the evidence in furnished by borrowers—Lawyers discharged in F respect of each article of charge; and lastly, finding(s) on each article of charge and, give his reasons thereof. criminal proceedings—Respondent contended—Court F could not re-appreciate the evidence while exercising (Para 9.1) jurisdiction under Article 226—The enquiry officer has Admittedly, the needful has not been done by the Enquiry given findings on the main charge the remaining G Officer and, therefore, the conclusion reached by the charges off-short of first charge—The acquittal of the disciplinary authority and the appellate authority, are clearly petitioner in the criminal proceedings could not be G flawed. (Para 9.2) ground to set aside the departmental proceedings as standard of proof in criminal proceedings is different— As indicated above, therefore, the impugned order of the Court observed—Court cannot re-appreciate the H disciplinary authority will have to be set aside. If that order evidence in a proceedings under Articles 226 unless is set aside, quite naturally, the order of the appellate H a case of no evidence or case of perversity—Certainly authority, will also fall. (Para 9.3) interdict the proceedings if the authorities below not followed the principles of natural justice or have Ordinarily, I would have remanded the matter for a fresh I I K.L. Bhasin v. Punjab National Bank and Anr. (Rajiv Shakdher, J.) 1413 1414 Indian Law Reports (Delhi) ILR (2014) II Delhi enquiry in the matter with a direction that a report be A Advocates. generated in respect of the remaining charges, framed CASE REFERRED TO: against the petitioner. However, the fact of the matter is that, 1. R.B. Singh vs. Punjab National Bank WP(C) 2895/1997. charges against the petitioner were framed in 1994. The A petitioner, was put under suspension on 17.07.1990. The RESULT: Writ Petition disposed off. petitioner, was served with a charge-sheet, on 18.12.1990 B and, the impugned order of the disciplinary authority, was RAJIV SHAKDHER, J. passed on 15.01.1994. The petitioner was, thus, dismissed 1. This writ petition is directed against the order dated 15.01.1994, B from service in 1994. The petitioner has been involved in passed by the disciplinary authority whereby a major penalty had been litigation; first before the appellate authority and, now, before C imposed qua the petitioner. The petitioner has been dismissed from service this court, since 2000. (Para 9.4) with an attendant disqualification, which is that, the order of dismissal would impede his future employment. 1.1 The petitioner, being aggrieved, Undisputedly, more than two decades have passed since, C had carried the order of the disciplinary authority in appeal, before the punishment was imposed, on the petitioner. Moreover, in the appellate authority, constituted for this purpose. interregnum, that is, on 30.10.1999, the petitioner has been D acquitted in the criminal proceedings instituted against him. 1.2 The appellate authority vide order dated 07.12.1994, sustained (Para 9.5) the order of the disciplinary authority. It is though, the stand of the D petitioner, that he was not served with order dated 07.12.1994. The While, Mr. Arora, may be correct in his submissions that the respondents, on the other hand, have taken the stand in their counter criminal proceedings may not have a bearing on the E affidavit that the order was communicated. Nothing though, has been departmental proceedings unless they relate to the same filed with their counter affidavit, suggestive of despatch of the order-in- transaction and are based on the same evidence, it is appeal, either by post or otherwise. certainly a fact, which may have to be taken into account in E taking a decision as to the quantum of punishment to be 1.3 The petitioner, thus, challenged the basic order, which is, the order of the disciplinary authority dated 15.01.1994. imposed on the petitioner, even if, fresh proceedings are F commenced and, the petitioner, is found guilty of the remaining 1.4 Having regard to the above, the onus with regard to receipt of charges, as well. (Para 9.6) F the order of the appellate authority, in that sense, would shift on to the respondents, who are required at least, to show prima facie, a despatch Important Issue Involved: (a) Standard of proof is different of the order of the appellate authority. in criminal proceedings and departmental proceedings (b) G 1.5 This could have been done in myriad ways including by bringing the enquiry officer is required to give findings on all charges G separately (c). on record the contemporaneous record; which would show despatch. This is, specially so, as the order itself seems to indicate that it was despatched by post. [Gu Si] H 1.6 No evidence with regard to the same by way of even photocopies APPEARANCES: H of entries in the despatch register has been placed on record alongwith FOR THE PETITIONER : Mr. Ashok Bhalla, Advocate. the counter affidavit. FOR THE RESPONDENTS : Mr. Jagat Arora and Mr. Rajat Arora, 1.7 Therefore, the court would have to accept prima facie that, the I I K.L. Bhasin v. Punjab National Bank and Anr. (Rajiv Shakdher, J.) 1415 1416 Indian Law Reports (Delhi) ILR (2014) II Delhi stand taken by the petitioner, in this behalf, is correct. A 3.3 Based on the role of the petitioner in sanctioning the advances in favour of the aforementioned creditors, an investigation was conducted 1.8 In any event, the foundational order, which has been sustained and a secret report was generated by the Vigilance Department qua : the by the appellate authority, is, the order dated 15.01.1994 and therefore, petitioner; one, Sh. P.K. Saluja, a chartered accountant; and the then A if that order was to be set aside, the entire edifice would fall. Assistant General Manager. B 1.9 The delay, in that sense, which is, one of the preliminary 3.4 Ironically, the petitioner himself, in and around 21/22.03.1990, grounds taken by the respondents to oppose the writ petition is, thus, had filed two police complaints against two of the five borrowers i.e., explained by the fact that the petitioner after having filed the appeal was B M/s. Super Plastics and Aakriti Steels Pvt. Ltd. with the Defence Colony, not served with the copy of the order passed by the appellate authority. New Delhi Police Station. C 2. The learned counsel for the petitioner in this behalf has drawn 3.5 These complaints were converted into FIR No.68/90 and FIR my attention to the letter dated 23.10.2000, written by the petitioner to No.69/90. the appellate authority, seeking to know the fate of his appeal. C 3.6 It may be also relevant to note that though the petitioner was 2.1 It is not disputed by the learned counsel for the respondents the complainant, he was at some stage arrayed as an accused in the that no response was issued by them to the letter dated 23.10.2000. This D criminal proceedings. letter was sent by speed post and a photocopy of the receipt has been appended to the said letter. 3.7 In the interregnum, on 17.07.1990, the petitioner was placed D under suspension. 2.2 In these circumstances, in my view, the preliminary objection both with regard to: the absence of challenge to the order of the appellate 3.8 It is, in this background, on 18.12.1990, the petitioner was E authority and the purported delay in approaching the court will consequently served with the charge-sheet alongwith the articles of charge. have to be rejected. It is ordered accordingly. E 3.9 Since, some, bit, turns on the Articles of charge, I intend to 3. This brings me to the merits of the case. Before I do that, let extract the same. These articles of charge were accompanied by a me briefly, sketch out the background facts, in that behalf. statement of allegations, on which, the said charges were based :- F 3.1 The petitioner, on 01.11.1969, had joined respondent no.1 bank, “.. ARTICLES OF CHARGE which at that point in time, was the New Bank of India. The said bank F Shri K.L.Bhasin, Manager, BO, Defence Colony, New Delhi (under i.e., the New Bank of India stood merged with respondent no.1 bank i.e., suspension) during his tenure as Manager at BO, Defence Colony, Punjab National Bank. New Delhi, committed various lapses/irregularities, overt acts, G 3.2 During the course of his service with New Bank of India, the omissions/commissions of acts of negligence in discharge of his petitioner was promoted to the post of the Manager. It is, while the G duties. Shri Bhasin is, therefore, charge sheeted as under: petitioner was serving as a Manager of the Defence Colony, New Delhi 1. He acted in a manner prejudicial to the interest of the bank; branch of the New Bank of India, that certain advances were sanctioned 2. He failed to discharge his duties with utmost integrity, honesty under his vigil; duly approved by his superiors. The accounts, qua which H umbrage has been taken by the respondents, are the following :-M/s. and diligence; Super Plastics, Aakriti Steels Pvt. Ltd., M/s. Bahadur International, Missakki H 3. He failed to ensure and protect the interest of the bank; 4. He Electronics Pvt. Ltd. and M/s. Swadeshi Exports. acted otherwise than in his best judgement while discharging his duties; I I K.L. Bhasin v. Punjab National Bank and Anr. (Rajiv Shakdher, J.) 1417 1418 Indian Law Reports (Delhi) ILR (2014) II Delhi 5. He acted in a manner unbecoming of an officer of the bank; A 4.7 Importantly, in the interregnum, the judgments, in the criminal proceedings were delivered, and consequent thereto, the petitioner, was 6. He misused and abused his official status/powers. Each charge acquitted both in the case, which was registered as, No.68/1990 and, the is independent of each other. other criminal case, which was registered as, FIR No.69/1990. Both A The aforesaid acts committed by Shri K.L.Bhasin constitute judgments were delivered, on 30.10.1999. misconduct under New Bank of India Officers’ (Conduct) B 4.8 It is in this background, that the petitioner, approached this Regulations, 1982, which are punishable under New Bank of court by way of the present writ petition, which was moved on India Officer Employees’(Discipline & Appeal) Regulations, 12.12.2000, when notice was issued in the petition. 1982...” B 4.9 Upon issuance of notice, respondents filed their reply, which 4. Qua criminal proceedings I must note here that the petitioner C was followed by a rejoinder of the petitioner. Consequently pleadings claims that he had himself made a representation, on 31.01.1991, to the stood completed. Assistant Commissioner of Police, Crime Branch, for expeditious and proper investigation of the aforementioned FIRs. C Submissions of counsels

4.1 As indicated above, post the conclusion of the investigation, D 5. Based on the pleadings, arguments on behalf of the petitioner vis-a-vis the aforementioned FIRs a charge-sheet was filed against other have been advanced by Mr. Ashok Bhalla, while on behalf of the accused including the petitioner, before the competent criminal court. respondents, submissions have been made by Mr. Jagat Arora; ably D assisted by Mr. Rajat Arora. 4.2 Similarly, in pursuance of the service of the charge-sheet, in the departmental proceedings on the petitioner, the predecessor-ininterest of 5.1 Mr. Bhalla, apart from trying to demonstrate that finding of the respondent no.1 bank appointed an Enquiry Officer, who submitted his E disciplinary authority, was perverse, lay particular emphasis on the fact report, on 26.02.1993. that while six charges had been framed against the petitioner, the Enquiry E Officer returned a finding only qua the first charge. 4.3 On 04.09.1993, as indicated above, the New Bank of India stood merged with Punjab National Bank; propelling the respondents 5.2 Mr. Bhalla submitted that the disciplinary authority, while passing herein to carry forward the proceedings vis-a-vis the petitioner. F the impugned order, overlooked this aspect of the matter and proceeded on the basis that, all charges, had been dealt with by the Enquiry Officer. 4.4 Consequently, based on the recommendations of the Enquiry F Officer, the disciplinary authority vide its order dated 15.01.1994, imposed 5.3 According to Mr. Bhalla, this was a fatal error in proceedings the following punishment on the petitioner : “dismissal from service, and therefore, on this short ground, the order of the disciplinary authority, which shall be a disqualification for future employment”. G as also, the order of the appellate authority, should be set aside, as even the appellate authority, overlooked this flaw. 4.5 The petitioner, being aggrieved, preferred an appeal with the G appellate authority, on 15.03.1994. 5.4 Mr. Bhalla, apart from the aforesaid, also submitted that the punishment accorded to the petitioner was disproportionate to the gravity 4.6 The petitioner claims; an assertion which I dealt with above, of the alleged misconduct said to have been committed by him, and that, that he did not receive a copy of the order of the appellate authority; a H dismissal with an impediment placed for future employment was uncalled situation which finally, propelled him to write to the respondents vide H for, in the context of the charges levelled against the petitioner. letter dated 23.10.2000, seeking to know from the respondents, the fate of his appeal. 5.5 Mr. Bhalla, vehemently argued that at the relevant time when, moneys were advanced to the five entities, named above, there was no I I K.L. Bhasin v. Punjab National Bank and Anr. (Rajiv Shakdher, J.) 1419 1420 Indian Law Reports (Delhi) ILR (2014) II Delhi practice of conducting a pre-sanction inspection. He says that this practice A ground, to set aside the findings in the departmental proceedings, as the was brought into force much later, and that, the petitioner had standard of proof in the two proceedings is different. recommended the loan; which was sanctioned, at the end of the day, by 6.5 In sum, it was Mr. Arora’s contention that, the impugned a superior authority, which in this case, was the AGM. A orders, deserved to be sustained. 5.6 Mr. Bhalla, also submitted that the recommendation to sanction B 7. The aspect of maintainability of the petition, on the ground of the loan was made, inter alia, on the basis of opinion rendered by the delay, which was also one of the objections raised by Mr. Arora, need lawyers, with respect to security furnished by the borrowers; which not detain me any further, as I have, already dealt with it, in the foregoing opinion was, the subject matter of their search reports and valuation B part of my discussion. reports. He pointed that, as a matter of fact, criminal proceedings against the lawyers, were discharged. C Reasons 5.7 In respect of the quantum of punishment imposed, Mr. Bhalla 8. I have heard the learned counsel for the parties and perused the sought to place reliance on the judgment of the learned Single Judge of C record. this Court passed in WP(C) 2895/1997, titled R.B. Singh Vs. Punjab 8.1 While I concur with Mr. Arora, the learned counsel for the National Bank. D respondents that under Article 226 of the Constitution, it is not within the 5.8 Mr. Bhalla submitted that in the said case, the learned Single domain of the court to re-appreciate the evidence and, to interfere with Judge had modified the order of removal from service to that of D the findings of the disciplinary authority, which have been sustained by compulsory retirement, with all consequential benefits, arising from the the appellate authority, unless it is a case of no evidence or a case of said order; in somewhat similar circumstances. perversity; this court can certainly interdict the proceedings, if the E authorities below have not followed the principles of natural justice or 6. On the other hand, Mr. Arora, who appears for the respondents have failed to return findings, qua all charges framed against the delinquent submitted that this court would not re-appreciate the evidence, while E officer. exercising jurisdiction under Article 226 of the Constitution. 8.2 In the facts of this case, it cannot be disputed that there were 6.1 He further submitted that, the argument of Mr. Bhalla, that F six charges framed against the petitioner. It is also not in dispute that the findings had not been returned by the Enquiry Officer qua all charges Enquiry Officer, returned a finding, only qua, Article I. This is evident was misconceived, as the remaining five charges were, an off-shoot of F from the following extracts of the Enquiry Report : the first charge and, therefore, in sum and substance, after complying with the principles of natural justice, a recommendation had been made “.. F I N D I N G by the Enquiry Officer, based on appreciation of the evidence, brought G Article: I : Held proved. on record, which had been accepted by the disciplinary authority. G New Delhi (S.K. ROY) 6.2 Mr. Arora, thus, submitted that the disciplinary authority looked Dated: 26.2.93 INQUIRY OFFICER & at the enquiry report in this context and, accordingly, concluded that, COMMISSIONER FOR viable findings had been returned by the Enquiry Officer, qua all charges. H DEPARTMENTAL INQUIRIES” 6.3 The appellate authority, according to Mr. Arora, did likewise. H 8.3 The fact that, this went unnoticed in the proceedings held 6.4 It was also Mr. Arora’s contention that, the fact that, the before the disciplinary authority, is clearly, made out by the following petitioner had been acquitted in criminal proceedings, could not be a observations in the impugned order : I I K.L. Bhasin v. Punjab National Bank and Anr. (Rajiv Shakdher, J.) 1421 1422 Indian Law Reports (Delhi) ILR (2014) II Delhi “ I find that the Enquiry Officer has held all the imputations A Bank. contained in Annexure II and all the following Articles of Charge - He failed to discharge his duties with utmost integrity contained in Annexure I as proved: honesty and diligence. - He acted in a manner prejudicial to the interest of the A - He failed to ensure and protect the interest of the Bank. bank. B - He acted otherwise than in his best judgment while - He failed to discharge his duties with utmost integrity, discharging his duties. He acted in a manner unbecoming honesty and diligence. of an officer of the bank. - He failed to ensure and protect the interest of the bank. B - He misused and abused his official status/powers.” - He acted otherwise than in his best judgment while C 8.5 Therefore, in my view, the impugned order of the disciplinary discharging his duties. authority will have to be set aside on this short ground alone. - He acted in a manner unbecoming of an officer of the 8.6 The argument advanced by Mr. Arora that all other charges bank. C (charges 2 to 6) were an off shoot of charge no.1, in my view, cannot - He misused and abused his official status/powers. D be accepted for more than one reason. When the delinquent officer / The points raised by Shri Bhasin in his representation employee is furnished with Articles of charge, it is incumbent upon the dated 16.12.93 do not merit consideration because the Enquiry Officer to return a finding qua each and every charge. charge sheet was served in terms of provisions of D 8.7 This is important for the reason that when, a disciplinary authority Discipline & Appeal Regulations. The charges framed finally takes up the report of the Enquiry Officer, it needs to consider the against Shri Bhasin are specific. Further, the enquiry E matter from various angles, including, as to the quantum of punishment, proceedings have been conducted in terms of Discipline which is required to imposed, in a given case. & Appeal Regulations and report of the Enquiry Officer E is in terms of provisions of aforesaid Regulations. A close 8.8 Even if, I were to accept Mr. Arora’s contention that charges scrutiny of submissions of Shri Bhasin further reveals 2 to 6 are an off shoot of charge no.1; in deciding the quantum of that in fact he has admitted the charges indirectly by F punishment, the aggravation, if any, of the first charge, would be a stating that the responsibility of other officials for alleged relevant criteria to be kept in mind by the disciplinary authority. lapses was much more than the charged officer’s. F 8.9 The disciplinary authority, could not have assumed that all I concur with the findings of the Enquiry Officer and charges had been proved, when clearly, the Enquiry Officer had returned hold Shri Bhasin guilty of the proven charges...” G a finding only qua Article-1. (emphasis is mine) G 9. Apart from the general principle, this is also the requirement of 8.4 Furthermore, the fact that even the appellate authority did not Regulation 6 (21)(i) of the Punjab National Bank Officer Employees’ notice this flaw, in the order of the disciplinary authority is, borne out (Discipline and Appeal) Regulation 1977 (in short Regulations). For the sake of convenience, the same is extracted hereinafter. from the following extract of its order dated 07.12.1994: H “...... The Disciplinary Authority has held Shri Bhasin guilty of H “ ...6. PROCEDURE FOR IMPOSING MAJOR PENALITIES: the following proven charges: x x x x x - He acted in a manner prejudicial to the interest of the x x x x x I I K.L. Bhasin v. Punjab National Bank and Anr. (Rajiv Shakdher, J.) 1423 1424 Indian Law Reports (Delhi) ILR (2014) II Delhi (21) (i) On the conclusion of the inquiry, the Inquiring Authority A 9.5 Undisputedly, more than two decades have passed since, shall prepare a report which shall contain the following: punishment was imposed, on the petitioner. Moreover, in the interregnum, that is, on 30.10.1999, the petitioner has been acquitted in the criminal (a) a gist of the articles of charge and the statement of the proceedings instituted against him. imputations of misconduct or misbehaviour; A 9.6 While, Mr. Arora, may be correct in his submissions that the (b) a gist of the defence of the officer employee in respect of B criminal proceedings may not have a bearing on the departmental each article of charge; proceedings unless they relate to the same transaction and are based on (c) an assessment of the evidence in respect of each article of B the same evidence, it is certainly a fact, which may have to be taken into charge; account in taking a decision as to the quantum of punishment to be C imposed on the petitioner, even if, fresh proceedings are commenced (d) the findings on each article of charge and the reasons and, the petitioner, is found guilty of the remaining charges, as well. therefor...” 9.7 In these circumstances, I have put to Mr. Bhalla, the learned (emphasis is mine) C counsel for the petitioner, as to whether, he would be interested in having 9.1 A bare perusal of the aforementioned Regulation, would show D the petitioner relegated to a fresh enquiry or, would he, be willing to that the Enquiry Officer has to prepare a report, which is required to suffer a lesser punishment. contain: a gist of articles of charges and statement of imputations of 9.8 The petitioner, is present in court. Mr. Bhalla has obtained misconduct or mis-behaviour; a gist of the defence of the officer employee, D instructions from him. Mr. Bhalla says that, in view of the fact that the in respect of, each article of charge; assessment of the evidence in petitioner is now 70 years of age, if the petitioner is relegated to a fresh respect of each article of charge; and lastly, finding(s) on each article of E enquiry, the proceedings will not perhaps not get concluded, during his charge and, give his reasons thereof. lifetime. Mr. Bhalla, has also submitted that the petitioner is suffering 9.2 Admittedly, the needful has not been done by the Enquiry E from various ailments and requires some financial support, which can Officer and, therefore, the conclusion reached by the disciplinary authority only happen if, the punishment is reduced. In these circumstances, Mr.Bhalla says reduction in quantum of punishment will be a preferable and the appellate authority, are clearly flawed. F option than, the petitioner being asked to participate in a fresh enquiry. 9.3 As indicated above, therefore, the impugned order of the disciplinary authority will have to be set aside. If that order is set aside, F 9.9 Mr. Arora, the learned counsel for the respondents cannot but quite naturally, the order of the appellate authority, will also fall. contend that there has been a delay of nearly two decades, in the conclusion of the case. 9.4 Ordinarily, I would have remanded the matter for a fresh enquiry G in the matter with a direction that a report be generated in respect of the 10. Mr. Arora, quite candidly says that if, fresh proceedings are G remaining charges, framed against the petitioner. However, the fact of triggered against the petitioner, it may not get concluded perhaps in the the matter is that, charges against the petitioner were framed in 1994. petitioner’s lifetime. The petitioner, was put under suspension on 17.07.1990. The petitioner, 11. In the facts and circumstances of this case, Mr. Arora says was served with a charge-sheet, on 18.12.1990 and, the impugned order H that he would much rather leave the decision with regard to reduction of of the disciplinary authority, was passed on 15.01.1994. The petitioner H the petitioner’s punishment, to the discretion of the court. was, thus, dismissed from service in 1994. The petitioner has been involved in litigation; first before the appellate authority and, now, before 12. Having regard to the aforesaid circumstances, I am of the view this court, since 2000. that the interest of justice, would be served if, the punishment of the I I PP Jewellers Pvt. Ltd. v. Modern New Kapoor Jewellers Pvt. Ltd. (G.S. Sistani, J.)1425 1426 Indian Law Reports (Delhi) ILR (2014) II Delhi petitioner is, converted to compulsory retirement. It is ordered accordingly. A Plaintiff will be entitled to interest @8% pendente lite and It is made clear though that the petitioner will be entitled to all consequential future interest at the same rate till realization. (Para 5) benefits, which would have otherwise followed an order of compulsory retirement, had it been passed on the date, on which, the disciplinary A Important Issue Involved: In the absence of any authority passed the impugned order dated 15.01.1994. B application for leave to defend, as per Rule 3 (5) of Order 13. Mr. Bhalla, at this stage re-emphasizes that his client i.e., the 37, the suit is to be decreed. petitioner, will rest with aforesaid direction, which this court has issued, having regard to peculiar facts and circumstances of the case. B [Sh Ka] 14. With the aforesaid directions in place, the captioned petition is C APPEARANCES: disposed of. FOR THE PLAINTIFF : Mr. Karan Jain, Advocate. C FOR THE DEFENDANT : Mr. Manish Srivastava, Advocate. RESULT: Suit decreed. ILR (2014) II DELHI 1425 D CS (OS) G.S. SISTANI, J. (ORAL) D 1. Plaintiff has filed the present suit under the provisions of Order 37 CPC for recovery of Rs.81.72 lacs with pendente lite and future PP JEWELLERS PVT. LTD. ....PLAINTIFF interest. As per the plaint, the business transaction between the plaintiff E VERSUS and the defendant took place against plaintiff’s two invoices being No.02585 dated 1.7.2010 and the invoice no.02879 dated 14.7.2010. The MODERN NEW KAPOOR ....DEFENDANT E invoices were signed by the director of the defendant company i.e. Sita JEWELLERS PVT. LTD. Ram Kapoor in acknowledgment of purchasing new ornaments, which were duly described in the invoices which reads as under: (G.S. SISTANI, J.) F Invoice Description Amount CS(OS) NO. : 1009/2012 DATE OF DECISION: 04.02.2014 F 02585 Dated New Ornaments – purity 1,08,59,954/- + 01.07.2010 22Cts. Vat @ 1% 1,08,600 Code of Civil Procedure, 1908—Order 37—Plaintiff filed G Gross Weight (Gms) - suit U/o 37 of Code praying for recovery of amount 5736.460 Total with pendente lite and future interest on basis of G Net Weight (Gms)- 1,09,68,554/- invoices issued by defendant company—Defendant 5736.460 33,91,960/- failed to file application seeking leave to defend— 02879 Dated New Ornaments – purity Plaintiff prayed for decree of suit. Held:- In the absence H 14.07.2010 18Cts. Gross Weight of any application for leave to defend, as per Rule 3(5) (Gms) -1169.040 H of Order 37, the suit is to be decreed. Net Weight (Gms)- 36,93,258/- 1169.040 Diamonds + Vat @ 1% 70,853/- In the absence of any application for leave to defend, as per (Cts.) – 154.76 New Rule 3 (5) of Order 37 CPC, the present suit is decreed. I I PP Jewellers Pvt. Ltd. v. Modern New Kapoor Jewellers Pvt. Ltd. (G.S. Sistani, J.)1427 1428 Indian Law Reports (Delhi) ILR (2014) II Delhi Ornaments – Purity 14 Cts. A ILR (2014) II DELHI 1428 Gross Weight (Gms) - Total 71,56,071/- W.P. (C) 1025.560 Net Weight (Gms) -1025.560 Diamonds A (Cts.) -215.690 YOGENDRA NATH ....PETITIONER B 2. Further as per the plaint the defendant made payments against VERSUS the part invoices by sending remittance through its bank and also by issuing account payee cheques in favour of the plaintiff. The cheques COMMISSIONER KENDRIYA ....RESPONDENT B were handed over which were duly encashed, however, further unpaid VIDYALAYA SANGATHAN amount was given through cheque bearing No.981943 dated 29.6.2011 C (GITA MITTAL AND DEEPA SHARMA, JJ.) drawn on Barclays Bank, Nehru Place, New Delhi, for the sum of Rs.72.0 lacs. which was handed over to the plaintiff. Upon presentation the W.P.(C) NO. : 510/2014 & DATE OF DECISION: 04.02.2014 aforesaid cheque was returned with the remarks ‘Exceeds arrangement’. C CM NO. 1024/2014 3. It is pointed out that the original cheque has been filed under the proceedings of Negotiable Instruments Act, however, a certified copy of D Constitution of India, 1950—Article 226-227—Writ the cheque has been placed on record. The defendant was served with Petition—Central Administrative Tribunal (CAT)— the summons in the prescribed form; address for service was filed, D Service law—Termination—Education Code of Kendriya however, there is no application for leave to defend on record. Vidyalaya Sangathan (Code)—Article 81 (b)—Termination without right to cross—Examine witnesses—Case of 4. It may however, be noticed that on making a statement by E immoral sexual behaviour towards student—Petitioner counsel for the defendant on 21.10.2013 that an application for leave to a Post Graduate Teacher (PGT) posted with Kendriya defend has been filed by diary no.89066 dated 31.5.2013, the defendant E Vidyalaya Yol Cantonment—Complaints received from was directed to check up with the Registry and place the application on record after removing the defects. As per the report of the Registry no students—Lady teachers—Parents in the office of such application has been filed. F Assistant Commissioner, Regional Office, Jammu— Alleging petitioner indulged in moral turpitude 5. In the absence of any application for leave to defend, as per Rule F involving in immoral sexual behaviour towards the 3 (5) of Order 37 CPC, the present suit is decreed. Plaintiff will be girls students-Fact finding enquiry ordered—Enquiry entitled to interest @8% pendente lite and future interest at the same rate Committee conducted the proceedings-Committee till realization. G interacted with 07 victim girls students—One victim I.A. 6809/2012 & I.A. 1037/2013 G lady parent—Three staff members recorded their statement—Submitted report dated 18.08.2002 to 6. In view of order passed in the suit, the applications stand disposed Commissioner, KVS—Prima—Facie finding petitioner of. guilty of moral turpitude involving immoral sexual H behaviour—Commissioner considered entire matter H including the enquiry report—Formed an opinion-Finding of enquiry committee substantiated by material on record—Exercising jurisdiction under I I Yogendra Nath v. Comm. Kendriya Vidyalaya Sangathan (Gita Mittal, J.) 1429 1430 Indian Law Reports (Delhi) ILR (2014) II Delhi Article 81 (b) of the code—Opined—not expedient to A Navodaya Vidyalaya Samiti & Ors., wherein a similar hold regular enquiry under CCS (CCA) Rules, 1965— objection raised by the petitioner was rejected by the Supreme Would cause serious embarrassment to the students— Court. It was held that the fair procedure to be adopted in Cause trauma to them because of their tender age— A such cases would be that a show cause notice containing Memorandum dated 08.04.2003 setting out charges the charge and the facts in support of the charge together communicated—Called upon the show case—Why his B with the statements recorded in the preliminary inquiry along services be not terminated under Article 81 (b)—with with a copy of the report of the preliminary inquiry would be the memorandum—copies of preliminary enquiry and given to the charged person and such charged person report of the committee served upon the petitioner— B would be given an opportunity to submit his explanation, given full opportunity to submit his representation— without having the right to cross-examine witnesses. C Petitioner submitted his reply dtd. 15.05.2013—On consideration of entire record—commissioner passed “12. It is axiomatic that percentage of education among order dated 07.01.2004 terminating the services of the C girls, even after independence, is fatham deep due to petitioner—Petitioner preferred appeal—Rejected indifference on the part of all in rural India except some educated people. Education to the girl children being time barred-Filled O.A before CAT-Assailed the D order of appellate authority-CAT disposed off holding is nation’s asset and foundation for fertile human the appellate authority rejected again recording resources and disciplined family management, apart reasons—Petitioner filed O.A before CAT—O.A D from their equal participation in socio-economic and dismissed—Preferred writ petition-Contended political democracy. Only of late, some middle class -Complaints against petitioner false—had unblemished E people are sending the girl children to co-educational record for 9 years with Govt. of Himachal Pradesh—25 institutions under the care of proper management and to look after the welfare and safety of the girls. years service with KVA—entitle to an opportunity to E cross—Examine the witnesses-Held the spirit— Therefore, greater responsibility is thrust on the Purpose—Intent—Of incorporating article 81 (b) of the management of the schools and colleges to protect Code to prevent traumatization of victim of such F the young children, in particular, the growing up girls, to bring them up in disciplined and dedicated pursuit immoral sexual behaviour—The Commissioner F specifically opined that the cross-Examination of of excellence. The teacher who has been kept in witnesses would cause serious embarrassment to the charge, bears more added higher responsibility and student and would cause trauma to them because of should be more exemplary. His/her character and G their tender age-Further there was no procedural conduct should be more like Rishi and as loco parent lacuna in the case—Further held—Tribunal rightly G is and such is the duty, responsibility and charge rejected the grievances of the petitioner that expected of a teacher. The question arises: whether punishment of termination of services disproportionate the conduct of the appellant is befitting with such higher responsibilities and as he by his conduct to the charges—Writ petition dismissed. H betrayed the trust and forfeited the faith whether he The construction of the above provisions of Article 81(b) of H would be entitled to the full-fleged enquiry as the Education Code have arisen for consideration in several demanded by him? The fallen standard of the appellant cases. Our attention has been drawn to the judgment is an ice berg in the discipline of teaching, a noble reported as (1997) 2 SCC 534, Avinash Nagra Vs. I and learned professing; it is for each teacher and I Yogendra Nath v. Comm. Kendriya Vidyalaya Sangathan (Gita Mittal, J.) 1431 1432 Indian Law Reports (Delhi) ILR (2014) II Delhi collectively their body to stem the rot to sustain the A girl and her room-mates should be exposed to faith of the society reposed in them. Enquiry is not a the cross-examination and harassment and pannacea but a nail on the coffin. It is self-inspection further publicity? In our considered view, the and correction that is supreme. It is seen that the rules A Director has correctly taken the decision not to wisely devised have given the power to the Director, a conduct any enquiry exposing the students and highest authority in the management of the institution B modesty of the girl and to terminate the services to take decision, based on the fact situation, whether a of the appellant by giving one month’s salary summary enquiry was necessary or he can dispense and allowances in lieu of notice as he is a with the services of the appellant by giving pay in lieu B temporary employee under probation. In the of notice. Two safeguards have been provided, namely, circumstances, it is very hazardous to expose C he should record reasons for his decision not to the young girls for tortuous process of cross- conduct an enquiry under the rules and also post with examination. Their statements were supplied to facts the information with Minister, Human Resources C the appellant and he was given an opportunity Department, Government of India in that behalf. It is to controvert the correctness thereof...... ” seen from the record that the appellant was given a D (Para 22) warning of his sexual advances towards a girl student but he did not correct himself and mend his conduct. A reading of Article 81(b) of the Education Code also He went to the girl hostel at 10 p.m. in the night and D manifests the objective of the framers of the Code to the asked the Hostel helper, Bharat Singh to misguide the effect that it is the rights and sensibilities of the victims of girl by telling her that Bio-Chemistry Madam was calling E the allegations which would guide the Commissioner in her; believing the statement, she came out of the arriving at its opinion for dispensing with the regular inquiry and also dictate the procedure which is required to be hostel. It is the admitted position that she was an active E participant in cultural activities. Taking advantage followed. There is a clear mandate of the Code as well as thereof, he misused his position and adopted sexual binding judicial precedents that a person against whom the advances towards her. When she ran away from his F charges are framed under Article 81 (b) of the Education presence, he persued her to the room where she Code would not be entitled to claim right to cross examine F locked herself inside; he banged the door. When he the victims in such proceedings. (Para 31) was informed by her room mates that she was asleep, The Tribunal has given detailed reasons in arriving at a he rebuked them and took the torch from the room and G conclusion that due process has been following in proceeding went away. He admitted his going there and admitted against the petitioner. The Tribunal has also rejected the his meeting with the girl but he had given a false G grievance of the petitioner that the punishment of termination explanation which was not found acceptable to an of his services is disproportionate to the charges. Nothing Inquiry Officer, namely. Asstt. Director. After has been placed before us, which would enable us to take conducting the enquiry, he submitted the report H a different view. We therefore, find no merit in the present to the Director and the Director examined the petition, hence the same is dismissed along with pending report and found him to be not worthy to be a H application. (Para 32) teacher in the institution. Under those circumstances, the question arises: whether the I I Yogendra Nath v. Comm. Kendriya Vidyalaya Sangathan (Gita Mittal, J.) 1433 1434 Indian Law Reports (Delhi) ILR (2014) II Delhi

Important Issue Involved: (a) In the cases of immoral A 4. A fact finding enquiry was consequently ordered into the matter. sexual behaviour against student, the procedure not permitting 5. The Inquiry Committee constituted by the Assistant the cross—Examination of the witnesses by the delinquent Commissioner, Jammu vide order dated 31.07.2002, comprised of (i) is proper and legal. A Shri S.K. Verma, Education Officer, KVS Jammu (ii) Mrs. Manju Sehgal, B Principal Kendriya Vidyalaya, Dharmshala (iii) Mr. Anurag Yadav, PGT [Gu Si] (Bio), Kendriya Vidyalaya Yol Cantt., (iv) Ms. Vandana, PGT (History) Kendriya Vidyalaya, Yol Cantt. APPEARANCES: FOR THE PETITIONER : Mr. Prabodh Kumar, Adv. B 6. This committee conducted its proceedings on the 17th and 18th August, 2002 wherein they interacted with 07 girl victims of class –VIII- C FOR THE RESPONDENT : Mr. S. Rajappa, Adv. B, IX-B and XII-B, one victim lady parent, two victim girl students of CASES REFERRED TO: class XII-B, three other staff members and two other parents. Statements C were recorded to unravel the truth. The petitioner participated in the 1. Commissioner, K.V. Sangathan & Ors. vs. Rathin Pal, summary enquiry and was provided with full opportunity to present his SLP (C) No. 4627/2008. D case. His statement was also recorded during the enquiry. 2. Director, Navodaya Vidyalaya Samiti & Ors., vs. Babban 7. The Enquiry Committee submitted a report dated 18.08.2002 to Prasad Yadav & Anr., (2004) 13 SCC 568. the Commissioner, KVS prima facie finding the petitioner guilty of moral D 3. Avinash Nagra vs. Navodaya Vidyalaya Samiti & Ors., turpitude involving immoral sexual behaviour. The Assistant Commissioner reported as (1997) 2 SCC 534. submitted a report thereon to the Commissioner, KVS. E RESULT: Writ Petition dismissed. 8. The Commissioner considered the entire matter including the GITA MITTAL, J. (Oral) E enquiry report and formed an opinion that the findings of the enquiry committee were fully substantiated by material which had come on record 1. The petitioner before us assails the order dated 28.05.2013 passed during the enquiry. Therefore, exercising jurisdiction under Article 81(b) in O.A. No. 4605/2011, passed by the Central Administrative Tribunal, F of the Education Code for Kendriya Vidyalaya Sangathan, the Principal Bench, New Delhi whereby the order dated 07.01.2004 passed Commissioner was of the opinion that it was not expedient to hold a by the Commissioner, Kendriya Vidyalaya Sangathan under Article 81(b) F regular enquiry under the CCS (CCA) Rules 1965, as it would serious of the Education Code, terminating the services of the petitioner and the embarrassment to the students and would also cause a trauma to them order of the Appellate Authority dated 21.07.2010 were sustained. because of their tender ages. The Commissioner passed an order dated 2. The facts giving rise to the instant petition are in narrow compass. G 7th January, 2004 consequently, holding an enquiry for imposing major The petitioner was employed by the Kendriya Vidyalaya Sangathan (KVS) G penalty in accordance with CCS(CCA) Rules, 1965 was dispensed with. as a post graduate teacher (English) and at the relevant time, posted with 9. Reliance was placed on the judgment of the Supreme Court dated the Kendriya Vidyalaya, Yol Cantonment. 30-09-1996 in Civil Appeal No. 14525/1996, Avinash Nagra vs. Navodaya 3. Complaints were received from the students, lady teachers and H Vidyalaya Samiti & Ors.,[reported at (1997) 2 SCC 534], wherein the parents in the office of the Assistant Commissioner, Kendriya Vidyalaya H procedure required to be followed in such matters involving schools has Sangathan Regional Office, Jammu alleging that the present petitioner had been laid down. The Supreme Court has mandated that upon the indulged in moral turpitude involving in immoral sexual behaviour towards Commissioner arriving at such a conclusion with regard to dispensation the girl students of Class-VIII-B, IX-B and XII-B. of the regular enquiry. The Supreme Court has mandated that a show I I Yogendra Nath v. Comm. Kendriya Vidyalaya Sangathan (Gita Mittal, J.) 1435 1436 Indian Law Reports (Delhi) ILR (2014) II Delhi cause notice containing the charge and the facts in support of the charge A 12. The petitioner was called upon to show cause as to why his together with the statements recorded in the preliminary enquiry, along services be not terminated under Article 81(b) of the Education Code. with a copy of the report of the preliminary inquiry is required to be 13. With the Memorandum dated 08.04.2003 issued to the petitioner, given to the charged person. Such charged person would be given an A copies of preliminary inquiry as well as in the report of the preliminary opportunity to submit his explanation, without having the right to cross- inquiry were served upon the petitioner. examine the witnesses. The explanation tendered by the employee would B be considered with all other records, before the final order under Article 14. It is not disputed before us that the petitioner was given full 81(b) of the Education Code was passed. opportunity to submit his representation to the show cause notice as to B why his services should not be terminated under Article 81(b) of the 10. The High Court of Karnataka by judgement dated 01.07.2002 Education Code of the Kendriya Vidyalaya. Pursuant to such opportunity, in W.P.(C) No. 23535 also approved the action of the employer who C the petitioner submitted a reply dated 15th May, 2003. followed such procedure. 15. On a consideration of the entire record of the enquiry as well 11. It appears that the Commission, KVS in compliance of the C as the statements and reply of the petitioner, the Commissioner in exercise above procedure mandated by the Supreme Court. A Memorandum dated of his jurisdiction conferred under Article 81(b) passed an order dated 8th April, 2003 setting out the following charges against the present D 07.01.2004, terminating the services of the petitioner with immediate petitioner was accordingly communicated to the petitioner. The effect. Commissioner also communicated the following facts in support of the charges: D 16. Aggrieved thereby the petitioner preferred an appeal dated 15.02.2009 before the Additional Secretary, MHRD and Vice-Chairman, “That the said Shri Yogendra Nath while functioning as Post Kendriya Vidyalaya Sangathan as an Appellate Authority. His appeal was Graduate Teacher (English) in the Kendriya Vidyalaya, Yol Cantt. E rejected by an order dated 30.06.2009 on the sole ground of it being during the period from 2002-2003, indulged in acts of moral barred by limitation. turpitude involving exhibition of immoral sexual behaviour. E 17. The petitioner assailed the order of the Appellate Authority by FACTS IN SUPPORT OF THE CHARGE way of O.A. No. 2783/2009 before the Central Administrative Tribunal, F That the girls students viz. Surabhi Rana, IX-B, Sheetal Sharma, Principal Bench, New Delhi which application was disposed of vide order XII-A, Rashi Thapa, XII-B, Ashima Dogra, XII-B, Laxmi Thapa F dated 09.12.2009, holding that the Appellate Authority ought to have XII-B, Jyoti Katoch, IX-B and Priya VIII-B have complained that recorded the reasons in support of the dismissal of the appeal. The Sri Yogendra Nath, PGT (English), Kendriya Vidyalaya, Yol Cantt. matter was remanded to the Appellate Authority to reconsider the during 2002-03 indulged in acts of moral turpitude involving G petitioner’s appeal on merits and to pass a speaking and reasoned order. exhibition of immoral sexual behaviour such as making vulgar 18. It appears that the entire matter was considered afresh by the statements/gestures like “Go drink water and make water”, asking G Appellate Authority which passed afresh order dated 21.07.2010, rejecting Priya VIII-B “to open her top botton since it was hot”. the appeal with detailed reasons. The contention of the petitioner that the Commenting on the figure and body structure of Shital Sharma, impugned order was passed in violation of principle of natural justice and XII-A, demonstrating how a mother feeds her child while teaching H the petitioner had been denied fair opportunity to defend the charges the lesson “Maternity” and immoral acts like entering girls/ladies H against him, which were false was rejected. toilets, following girls into their toilet, hiding inside girls toilet etc. and they have substantiated the same with their statements 19. The petitioner assailed the order dated 21.07.2010 before the during the summary inquiry on 17/18-08-2002.” Central Administrative Tribunal by way of O.A. No. 4605/11, which I I Yogendra Nath v. Comm. Kendriya Vidyalaya Sangathan (Gita Mittal, J.) 1437 1438 Indian Law Reports (Delhi) ILR (2014) II Delhi application has culminated in the order dated 28.05.2013 dismissing the A in support of the charge together with the statements recorded in the petitioner’s application. preliminary inquiry along with a copy of the report of the preliminary inquiry would be given to the charged person and such charged person 20. The order dated 28.05.2013, as well as orders dated 07.01.2004 would be given an opportunity to submit his explanation, without having and 21.07.2010 of the respondents have been assailed before us on the A the right to cross-examine witnesses. ground that the complaint against the petitioner was false; that he has a B blemishless record of 9 years service with the Govt. of Himachal Pradesh “12. It is axiomatic that percentage of education among girls, and 25 years service with Kendriya Vidyalaya Sangathan and that he was even after independence, is fatham deep due to indifference on entitled to an opportunity to cross-examine the witnesses. B the part of all in rural India except some educated people. Education to the girl children is nation’s asset and foundation for 21. Before dealing with the submissions of the petitioner, we may C fertile human resources and disciplined family management, apart extract Article 81(b) of the Education Code of the Kendriya Vidyalaya from their equal participation in socio-economic and political Sangathan which reads as under: democracy. Only of late, some middle class people are sendign “Where the Commissioner is satisfied after such a summary C the girl children to co-educational institutions under the care of enquiry as he deems proper and practicable in the circumstances proper management and to look after the welfare and safety of of the case that any member of the Kendriya Vidyalaya is prima D the girls. Therefore, greater responsibility is thrust on the facie guilty of moral turpitude involving sexual offence or management of the schools and colleges to protect the young exhibition of immoral sexual behaviour towards any student, he children, in particular, the growing up girls, to bring them up in D can terminate the services of that employee by giving him one disciplined and dedicated pursuit of excellence. The teacher who month’s or 3 month’s pay and allowances according as the has been kept in charge, bears more added higher responsibility guilty employee is temporary or permanent in the service of the E and should be more exemplary. His/her character and conduct Sangathan. In such cases procedure prescribed for holding enquiry should be more like Rishi and as loco parent is and such is the for imposing major penalty in accordance with CCS (CCA) Rules, E duty, responsibility and charge expected of a teacher. The question 1965 as applicable to the employees of the Kendriya Vidyalaya arises: whether the conduct of the appellant is befitting with Sangathan, shall be dispensed with, provided that the such higher responsibilities and as he by his conduct betrayed F Commissioner is of the opinion that it is not expedient to hold the trust and forfeited the faith whether he would be entitled to regular enquiry on account of serious embarrassment to the F the full-fleged enquiry as demanded by him? The fallen standard student or his guardians or such other practical difficulties. The of the appellant is an ice berg in the discipline of teaching, a Commissioner shall record in writing the reasons under which it noble and learned professing; it is for each teacher and collectively is not reasonably practicable to hold such enquiry and he shall G their body to stem the rot to sustain the faith of the society keep the Chairman of the Sangathan informed of the circumstances reposed in them. Enquiry is not a pannacea but a nail on the leading to such termination of service.” G coffin. It is self-inspection and correction that is supreme. It is seen that the rules wisely devised have given the power to the 22. The construction of the above provisions of Article 81(b) of the Director, a highest authority in the management of the institution Education Code have arisen for consideration in several cases. Our to take decision, based on the fact situation, whether a summary attention has been drawn to the judgment reported as (1997) 2 SCC 534, H enquiry was necessary or he can dispense with the services of Avinash Nagra Vs. Navodaya Vidyalaya Samiti & Ors., wherein a H the appellant by giving pay in lieu of notice. Two safeguards similar objection raised by the petitioner was rejected by the Supreme have been provided, namely, he should record reasons for his Court. It was held that the fair procedure to be adopted in such cases decision not to conduct an enquiry under the rules and also post would be that a show cause notice containing the charge and the facts I I Yogendra Nath v. Comm. Kendriya Vidyalaya Sangathan (Gita Mittal, J.) 1439 1440 Indian Law Reports (Delhi) ILR (2014) II Delhi

with facts the information with Minister, Human Resources A challenge. All that is required for the court is to be satisfied that Department, Government of India in that behalf. It is seen from the preconditions to the exercise of power under the said rule are the record that the appellant was given a warning of his sexual fulfilled. These preconditions are: advances towards a girl student but he did not correct himself A 1. Holding of summary inquiry. and mend his conduct. He went to the girl hostel at 10 p.m. in the night and asked the Hostel helper, Bharat Singh to misguide B 2. A finding in such summary inquiry that the charged the girl by telling her that Bio-Chemistry Madam was calling her; employee was guilty of moral turpitude. believing the statement, she came out of the hostel. It is the 3. The satisfaction of the Commissioner on the basis of admitted position that she was an active participant in cultural B such summary inquiry that the charged officer was prime activities. Taking advantage thereof, he misused his position and – facie guilty. adopted sexual advances towards her. When she ran away from C 4. Satisfaction of the Commissioner that it was not expedient his presence, he persued her to the room where she locked to hold an enquiry on account of serious embarrassment herself inside; he banged the door. When he was informed by C to be caused to the student or his guardians or such other her room mates that she was asleep, he rebuked them and took practical difficulties and finally. 5. The recording of the the torch from the room and went away. He admitted his going D reasons in writing in support of the aforesaid.” there and admitted his meeting with the girl but he had given a false explanation which was not found acceptable to an Inquiry 24. The Court had noted the procedures which were required to be Officer, namely. Asstt. Director. After conducting the enquiry, D followed in cases involving the charges of immoral sexual behaviour he submitted the report to the Director and the Director against the employees. examined the report and found him to be not worthy to be E 25. A question identical to that principle arose before the Supreme a teacher in the institution. Under those circumstances, the Court in SLP (C) No. 4627/2008, Commissioner, K.V. Sangathan & question arises: whether the girl and her room-mates should E Ors. Vs. Rathin Pal, which was decided by order dated 16.08.2010, be exposed to the cross-examination and harassment and holding as under: further publicity? In our considered view, the Director has correctly taken the decision not to conduct any enquiry F “The High Court’s observation that appellant No. 1 had not exposing the students and modesty of the girl and to recorded his satisfaction on the desirability of dispensing with terminate the services of the appellant by giving one month’s F the regular inquiry is clearly erroneous. A reading of the order salary and allowances in lieu of notice as he is a temporary extracted in the earlier part of his judgment shows that appellant employee under probation. In the circumstances, it is very No.2 had independently analyzed the statements of the girl students hazardous to expose the young girls for tortuous process of G and their parents and came to the conclusion that it was not cross-examination. Their statements were supplied to the G expedient to conduct regular inquiry because that would embarrass appellant and he was given an opportunity to controvert the the girl students and their parents and would also vitiate atmosphere correctness thereof...... ” of the school. The reasons assigned by appellant No.1 cannot, by any stretch of imagination, be treated as extraneous or irrelevant 23. This view of the Supreme Court finds reiterated in the judgment H to the exercise of power under Article 81(b) of the Education of Director, Navodaya Vidyalaya Samiti & Ors., Vs. Babban Prasad H Code.” Yadav & Anr., (2004) 13 SCC 568 wherein the court held as follows:- 26. The spirit, purpose and intent of incorporating Article 81(b) on “7. xxx The rule quoted earlier, explicitly deals with such a the Education Code of the Kendriya Vidyalaya Sangathan is to prevent situation as obtains in the present case. The rule is not under I I Yogendra Nath v. Comm. Kendriya Vidyalaya Sangathan (Gita Mittal, J.) 1441 1442 Indian Law Reports (Delhi) ILR (2014) II Delhi traumatisation of the victims of such immoral sexual behaviour. A examine the victims in such proceedings. 27. In the present case, as detailed above, a four member committee 32. The Tribunal has given detailed reasons in arriving at a conclusion consisting of a senior officer of the rank of Education Officer of Kendriya that due process has been following in proceeding against the petitioner. Vidyalaya Sangathan; one Pricipal of Kendriya Vidyalaya; and two PGT A The Tribunal has also rejected the grievance of the petitioner that the teachers were appointed as Members of the enquiry committee. The B punishment of termination of his services is disproportionate to the charges. enquiry committee interacted with the complainants as well as the Nothing has been placed before us, which would enable us to take a petitioners; recorded the statements of seven victims and other staff different view. We therefore, find no merit in the present petition, hence persons. The petitioner was given full opportunity to give explanation and B the same is dismissed along with pending application. his statement was also recorded. It is after consideration of the entire material, which was brought on record that the committee made its C recommendations. These recommendations were placed before the Assistant Commissioner who forwarded them to the Commissioner. C ILR (2014) II DELHI 1442 28. So far as the opinion of the Commissioner is concerned, the W.P. (C) same is found stated in the Memorandum dated 08.04.2003. The D Commissioner noted that the opinion that the findings of the enquiry committee in its report stood substantiated by the material facts which SUBHASH CHANDRA ....PETITIONER had come on record because of which it was necessary to proceed D VERSUS against the petitioner under Article 81(b) of the Education Code and . So far as not holding the regular enquiry under the CCS(CCA) Rules 1965, E UNION OF INDIA & ANR. ....RESPONDENTS is concerned, the Commissioner has specifically opined that it would (GITA MITTAL AND DEEPA SHARMA, JJ.) cause serious embarrassment to the students and would also cause trauma E to them because of their tender age. W.P.(C) NO. : 763/2014 DATE OF DECISION 06.02.2014 29. Before us, there is no challenge to the opinion formed by the F Commissioner dispensing with the regular enquiry. The petitioner has Administrative Tribunal Act, 1985—Section 21—Denial only made a grievance that he was deprived of the opportunity to cross- F of the benefits under the Assured Career Progression examine the persons examined by the inquiry committee. Scheme (ACPS)—Petitioner aggrieved by the violation 30. So far as this issue is concerned, it was considered and rejected of Rules by the respondents pension fixation correctly by the Supreme Court of India as noted above. G keeping in view his entitlement based on denial of G financial benefits under the first ACPS with effect 31. A reading of Article 81(b) of the Education Code also manifests from 9th August, 1999 as well as financial benefits the objective of the framers of the Code to the effect that it is the rights under second ACPS with effect from 1st January 2002- and sensibilities of the victims of the allegations which would guide the - petitioner did not make any grievance either by way Commissioner in arriving at its opinion for dispensing with the regular H of representations or by way of an application filed inquiry and also dictate the procedure which is required to be followed. H within the period specified under Section 21 of the There is a clear mandate of the Code as well as binding judicial precedents Administrative Tribunal Act, 1985-Relief in respect of that a person against whom the charges are framed under Article 81 (b) the same was hopelessly barred by limitation on 1st of the Education Code would not be entitled to claim right to cross May, 2012 When the petitioner had filed the petition I I Subhash Chandra v. Union of India & Anr. (Gita Mittal, J.) 1443 1444 Indian Law Reports (Delhi) ILR (2014) II Delhi before the Tribunal and sought the reliefs of Quashing/ A fixed, upon superannuation the petitioner's pension Setting aside the impugned order dated 17.7.2006 may have also been appropriately fixed, perhaps at a passed by the Respondent no.1, whereby the appeal figure which is more that the amount to which he has was disposed against the appellants, Quashing/Setting A been found entitled by the respondents. The petitioner aside the order dated 25.8.2003 passed by the retired on 31st January, 2005, On application of the Respondent no.3, whereby the penalty of censure was B principles laid down by the Supreme Court therefore, imposed against the appellants, directing the it would appears that thought the prayers made by the Respondents to grant first ACP under the financial petitioner at sl. nos. (i) to (iv) are concerned, the upgradation scheme w.e.f. 9.8.1999 with arrears and B same are admittedly barred by limitation—However, further grant second ACP w.e.f. 1.1.2002 from the date the factual challenge on which these prayers were C of entitlement, directing the Respondents to grant made, does survive and would require to be w.e.f. 16.7.2001 instead of 29.1.2004 and count his 3 considered as the same is necessary to consider the years seniority towards the financial benefits accruing C prayer made at sl. no.(v). This consideration is also to the applicant as per the existing rules and directing essential in order to appropriately mould the relief the Respondents to fix the pension and retirement D which the petitioner may be found entitled—In view of benefits of the applicant in terms of the reliefs sought the above, the order dated 30th April, 2013 passed by for in the aforementioned paras and pay the arrears the Central Administrative Tribunal dismissing the O.A thereof immediately—However the petitioner restricts D No.1659/2012 on the ground of limitations is hereby the challenge to the denial of the benefits under the set aside and quashed —Tribunal directed to consider ACPs only so far as they effect fixation of his pension. E on merits the challenge to the denial of the first and Held: it is trite that so far as claims involving issues of second ACPS—Even if the Tribunal sustains the seniority or promotion which effects others are E challenge, the petitioner shall not be entitled to the concerned, would be rendered stale and the doctrine grant of financial benefits. of limitation would apply in case of such belated challenges—So far as the contention that the same F It is therefore trite that so far as claims involving issues of seniority or promotion which effects others are concerned, have been wrongfully denied is concerned, the F Supreme Court in (2008) 8 Supreme Court Cases 648 would be rendered stale and the doctrine of limitation would entitled Union of India and Others vs. Tarsem Singh apply in case of such belated challenges. So far as the has held that the court would consider the same— contention that the same have been wrongfully denied is G However, the relief of arrears would be restricted to concerned, the Supreme Court has held that the court a period of three years prior to the date of invoking G would consider the same. However, the relief of arrears remedy before the court of tribunal—The challenge of would be restricted to a period of three years prior to the the petitioner and his prayers in the instant matter date of invoking remedy before the court of tribunal. (paras 7) has to be considered in the light of these principles— H It cannot be disputed that denial of the ACP benefits H The challenge of the petitioner and his prayers in the instant to the petitioner and wrongful fixation would result in matter has to be considered in the light of these principles. erroneous fixation of all his emoluments and It cannot be disputed that denial of the ACP benefits to the entitlements—In case, such emoluments were correctly petitioner and wrongful fixation would result in erroneous I I Subhash Chandra v. Union of India & Anr. (Gita Mittal, J.) 1445 1446 Indian Law Reports (Delhi) ILR (2014) II Delhi fixation of all his emoluments and entitlements. In case, such A Respondent no.3, whereby the penalty of censure was imposed emoluments were correctly fixed, upon superannuation the against the appellants. petitioner’s pension may have also been appropriately fixed, (iii) Direct the Respondents to grant first ACP under the financial perhaps at a figure which is more than the amount to which A upgradation scheme w.e.f. 9.8.1999 with arrears and further he has been found entitled by the respondents. The petitioner grant second ACP w.e.f. 1.1.2002 from the date of entitlement. before us retired on 31st January, 2005. B (paras 8) (iv) Further direct the Respondents to grant promotion w.e.f. 16.7.2001 instead of 29.1.2004 and count his 3 years seniority Important Issue Involved: Where a service related claim B towards the financial benefits accruing to the applicant as per the existing rules. is based on a continuing wrong relief can be granted even C if there is a long delay in seeking remedy, with reference to (v) Direct the Respondents to fix the pension and retirement the date on which the continuing wrong commenced, if benefits of the applicant in terms of the reliefs sought for in the such continuing wrong creates a continuing source of injury. C aforementioned paras and pay the arrears thereof immediately.

[Sa Gh] D (vi) Cost of the application be allowed in favour of the applicant. APPEARANCES: (vii) Any other relief (s), which this Hon’ble Tribunal deems fit and proper in the facts and circumstances of this case.” FOR THE PETITIONER : Mr. Anil Shankar Prasad and Mr. D Sanjay Kumar Bharti, Advocates. 2. Along with the impugned application, the petitioner had filed an E application seeking condonation of delay in raising the challenge pleading FOR THE RESPONDENTS : Mr. Hashmat Nabi, Advocate. sickness to justify the delay in making the claim. CASE REFERRED TO: E 3. Before us it is contended on behalf of the petitioner that he is 1. Union of India and Others vs. Tarsem Singh (2008) 8 aggrieved by the violation of Rules by the respondents to fix his pension Supreme Court Cases 648. F correctly keeping in view his entitlement based on denial of financial benefits under the first Assured Career Progression Scheme with effect RESULT: WP Allowed. F from 9th August, 1999 as well as financial benefits under second ACP GITA MITTAL, J. (Oral) Scheme with effect from 1st January, 2002. 1. The writ petition has assailed the order dated 30th April, 2013 4. It is not disputed before us that the petitioner did not make any passed by the Central Administrative Tribunal, Principle Bench, New G grievance either by way of representations or by way of an application Delhi dismissing the O.A.No.1659/2012 filed by the petitioner on the G filed within the period specified under Section 21 of the Administrative ground that the same was barred by limitation. The petitioner had sought Tribunal Act, 1985. The relief in respect of the same was hopelessly the following prayers by way of the O.A.No.1659/2012 before the Tribunal: barred by limitation on 1st May, 2012 when the petitioner had filed the petition before the Tribunal and sought the above reliefs. Learned counsel “(i) Quash/Set aside the impugned order dated 17.7.2006 passed H for the petitioner before us has today submitted that the petitioner today by the Respondent no.1, whereby the appeal was disposed against H does not seek those financial benefits to which he was entitled. He the appellants. restricts the challenge to the denial of the benefits under the ACPs only (ii) Quash/Set aside the order dated 25.8.2003 passed by the so far as they effect fixation of his pension. It is further submitted that I I Subhash Chandra v. Union of India & Anr. (Gita Mittal, J.) 1447 1448 Indian Law Reports (Delhi) ILR (2014) II Delhi the above prayer No.(v) which has been set out above before the Tribunal A 7. It is therefore trite that so far as claims involving issues of was directly relating to this claim. seniority or promotion which effects others are concerned, would be rendered stale and the doctrine of limitation would apply in case of such 5. It is further contended that so far as fixation of pension and belated challenges. So far as the contention that the same have been denial of the correct amount of pension is concerned, there is no prohibition A wrongfully denied is concerned, the Supreme Court has held that the to consideration and grant of relief qua person by application of law of B court would consider the same. However, the relief of arrears would be limitation. In support of this submission reliance is placed on restricted to a period of three years prior to the date of invoking remedy pronouncement of the Supreme Court reported in (2008) 8 Supreme before the court of tribunal. Court Cases 648 entitled Union of India and Others vs. Tarsem Singh. B 8. The challenge of the petitioner and his prayers in the instant 6. The applicable Principle so far as a belated claim is concerned, C matter has to be considered in the light of these principles. It cannot be was laid down in para 7 of this pronouncement which reads as follows: disputed that denial of the ACP benefits to the petitioner and wrongful “To summarise, normally, a belated service related claim will fixation would result in erroneous fixation of all his emoluments and be rejected on the ground of delay and laches (where remedy is C entitlements. In case, such emoluments were correctly fixed, upon sought by filing a writ petition) or limitation (where remedy is superannuation the petitioner’s pension may have also been appropriately sought by an application to the Administrative Tribunal). One of D fixed, perhaps at a figure which is more than the amount to which he the exceptions to the said rule is cases relating to a continuing has been found entitled by the respondents. The petitioner before us wrong. Where a service related claim is based on a continuing retired on 31st January, 2005. D wrong, relief can be granted even if there is a long delay in 9. On application of the principles laid down by the Supreme Court seeking remedy, with reference to the date on which the therefore, it would appear that though the prayers made by the petitioner continuing wrong commenced, if such continuing wrong creates E at sl.nos. (i) to (iv) are concerned, the same are admittedly barred by a continuing source of injury. But there is an exception to the limitation. Learned counsel for the petitioner before us submits that the exception. If the grievance is in respect of any order or E petitioner would not press these reliefs. The petitioner shall remain bound administrative decision which related to or affected several others by this submission and will not be entitled to any relief so far as the also, and if the reopening of the issue would affect the settled F prayers at sl.nos.(i) to (iv) are concerned. However, the factual challenge rights of third parties, then the claim will not be entertained. For on which these prayers were made, does survive and would require to example, if the issue relates to payment or refixation of pay or F be considered as the same is necessary to consider the prayer made at pension, relief may be granted in spite of delay as it does not sl.no.(v). This consideration is also essential in order to appropriately affect the rights of third parties. But if the claim involved issues mould the relief which the petitioner may be found entitled. relating to seniority or promotion, etc., affecting others, delay G would render the claim stale and doctrine of laches/limitation will 10. In view of the above, the order dated 30th April, 2013 passed be applied. Insofar as the consequential relief of recovery of G by the Central Administrative Tribunal dismissing the O.A.No.1659/2012 arrears for a past period is concerned, the principles relating to on the ground of limitation is hereby set aside and quashed. The matter recurring/successive wrongs will apply. As a consequence, the shall be reconsidered by the Tribunal in the context of the above High Courts will restrict the consequential relief relating to arrears H observations and to the extent detailed by us. normally to a period of three years prior to the date of filing of H 11. The challenge made by the petitioner with regard to the denial the writ petition.” of the first and second ACP schemes shall be considered on merits even There are several other prior precedents to the same effect. if the tribunal sustains the challenge by the petitioner, the petitioner shall I not be entitled to grant of financial benefits. I Ashwani Kumar Goelv. Income Tax Settlement Comm. (S. Ravindra Bhat, J.) 1449 1450 Indian Law Reports (Delhi) ILR (2014) II Delhi 12. So far as financial benefits are concerned, the consideration A application made to it—While Settlement Commission's shall be confined to the issue of the correctness of the fixation of the proceedings were pending petitioner contended that petitioner’s pension for a period of three years before the petitioner entire proceedings had become time barred— approached the Tribunal by way of the said application. A Settlement Commission rejected petitioner's argument—Order challenged before High Court—Plea 13. The parties shall appear before the Registrar, Central B taken, since Assessing Officer did not complete Administrative Tribunal on 26th February, 2014 for directions. assessment within time period permitted by law, 14. This writ petition is allowed in the above terms. Settlement Commission which was invested with his B power could not likewise have proceeded further— 15. Dasti to parties. Per contra plea taken, power of Assessing Authority to C make order does not allow applicant approaching Settlement Commission to contend that jurisdiction C ceases automatically if assessment is not framed— ILR (2014) II DELHI 1449 Held—Pre—Condition for Commission to receive W.P. (C) D application is that a case should be pending as on date of its presentation-No objection as to jurisdiction of Settlement Commission was made when application ASHWANI KUMAR GOEL ....PETITIONER D was admitted—Observation in impugned order of VERSUS Commission that to re—Visit order would in effect E amount to impermissible review is, in opinion of this INCOME TAX SETTLEMENT ....RESPONDENTS Court, sound reasoning—Authority of a Settlement COMMISSION & ORS. E Commission to make such orders as are necessary in regard to matters before it also extends to other (S. RAVINDRA BHAT & R.V. EASWAR, JJ.) matters relating to case not covered by application W.P. (C) NO. : 2347/2008 & DATE OF DECISION: 10.02.2014 F but referred to in report of Commission—Settlement C.M. APPL. NO. : 4489/2008 F Commission is empowered to re—Open any proceeding connected with case in respect of which assessment too has been completed—Given these powers, fact as Income Tax Act, 1961—Section 25—F(1), 132, 142, 142- to whether Assessing Officer was in process of making (2)A, 158BE, 245(1), 245—A(b), 245—C, 245—D(4), 245(E), G assessment or not becomes irrelevant—A machinery 245—F(2)—On 07-08-1997, search and seizure G provision in Income Tax Act cannot be subjected to operations were conducted at residential and business literal or strict rule of construction that is adopted to premises in respect of petitioner, his wife and other interpret a charging Section—Consequence of relatives-Several articles and documents were accepting argument of assessee would be that even seized—Upon receipt of notice, petitioner filed a return H though there was a search of his premises under for period from 01.04.1986 to 07.04.1986—As accounts H Section 132 of Act which yielded incriminating material, indicated sufficient complexities, Special Auditor proceedings arising out of which he wanted to settle submitted his report-During pendency of these by approaching Settlement Commission, he would still proceedings Settlement Commission entertained I I Ashwani Kumar Goelv. Income Tax Settlement Comm. (S. Ravindra Bhat, J.) 1451 1452 Indian Law Reports (Delhi) ILR (2014) II Delhi

end up not paying any tax, as block assessment became A 7. S.P.A.M. Krishnan Chettiar and Son vs. Income-Tax barred by time and there would also be no settlement Settlement Commission and Another, (1993) 202 ITR 81 order under Section 245D(4)—Such a situation could (Mad.). not have been intended by statute-There is no merit A 8. Deen Dayal vs. Union of India, (1986) 160 ITR 12. in petition and it is accordingly dismissed. B 9. Commissioner of Income-Tax, (Central), Calcutta vs. B.N. Bhattachargee and Anr., (1979) 118 ITR 461 (SC). Important Issue Involved: (A) The authority of a Settlement Commission to make such order as are necessary in regard 10. Jodha Mal Kuthiala vs. CIT, (1971) 82 ITR 570 (SC). B to the matters before it also extends to other matters relating RESULT: Dismissed. to the case not covered by the application. C S. RAVINDRA BHAT, J.

(B) A machinery provision in the Income Tax Act cannot 1. The petitioner seeks a direction challenging an order of 04.03.2008 C issued by the Income Tax Settlement Commission, which rejected the be subjected to the literal or strict rule of construction that is adopted to interpret a charging section. petitioner’s application that the assessment for the period 01.04.1986 to D 07.04.1987 was time barred. On 07.08.1997, search and seizure operations were conducted at the residential and business premises in respect of the [Ar Bh] petitioner, his wife and other relatives. Several articles and documents D APPEARANCES: were seized. The last panchnama was drawn on 26.09.1997. Upon receipt of notice, the petitioner filed a return for the period 01.04.1986 to FOR THE PETITIONERS : Ms. Meenakashi Midha with Mr. E 07.04.1987. After considering this, the Income Tax Authorities were of L.G. Dass, Advocates. the opinion that the accounts indicated had sufficient complexities FOR THE RESPONDENTS : Sh. N. P. Sahni, Sr. Standing E warranting an audit under Section 142-(2)A. An order was accordingly Counsel with Mr. Nitin Gulati, Jr. made on15.09.1999. A special auditor submitted the audit report on Standing Counsel. 14.02.2000. It was contended during the pendency of these proceedings F that the Settlement Commission by its order dated 10.08.2000 entertained CASES REFERRED TO: F the application made to it. The order was a speaking one and made after 1. Brij Lal & Others vs. Commissioner of Income Tax, (2011) submissions of the parties and was drawn up by the departmental 1 SCC 1. authorities. Whilst the Settlement Commission’s proceedings were pending, 2. Capital Cables (India) Private Limited vs. ITSE, 2004 G an order under Section 245 D (4) was contemplated and heard. The 267 ITR 528. petitioner contended that the entire proceedings had to be closed since G the block assessment had become time barred on 29.02.2000. It was 3. CIT vs. Hindustan Bulk Carrier, (2003) 259 ITR 449 submitted that by virtue of the then existing Section 158BE, which (SC). mandated that assessment were to be completed within a time bound 4. CIT vs. Damini Brothers, (2003) 259 ITR 475 (SC). H manner which was to expire on 29.02.2000 (the period having been 5. CIT, Mumbai vs. Anjum M.H. Ghaswala & Ors., 2001 H extended by virtue of special audit conducted under Section 142). In the 252 ITR (1). absence of any order by the Settlement Commission admitting the matter 6. Calcutta Jute Manufacturing Co. vs. CTO, (AIR 1997 SC or proceeding further, the Assessing Officer had the lost authority to 2920). pass any orders. Consequently, the Commission itself did not possess I I Ashwani Kumar Goelv. Income Tax Settlement Comm. (S. Ravindra Bhat, J.) 1453 1454 Indian Law Reports (Delhi) ILR (2014) II Delhi jurisdiction. The petitioner relied upon the decisions reiterated in CIT v. A as was sought to be suggested. It was argued that in this case even at Hindustan Bulk Carrier, (2003) 259 ITR 449 (SC) and CIT v. Damini the stage of the order under Section 245-D(1), the petitioner never Brothers, (2003) 259 ITR 475 (SC). contended that the Commission had lost jurisdiction on account of the matter having become time barred under Section 158BE. Counsel also 2. After hearing counsel for the parties, the Settlement Commission A submitted that if the petitioner’s argument were to be accepted, the rejected the petitioner’s argument. Learned counsel relied upon the ruling B Commission would be conferred with a review power despite of the Supreme Court reported as Brij Lal & Others v. Commissioner conclusiveness provided to its order by Section 245-D(1). He also relied of Income Tax, (2011) 1 SCC 1, for the following observations : upon the judgment of this Court in Capital Cables (India) Private “41. Further, as stated above, the jurisdiction of AO is not B Limited v. ITSE, 2004 267 ITR 528 Delhi. fettered merely because the applicant has filed the settlement 5. The pre-condition for the Commission to receive an application application. The Act does not contemplate stay of the proceedings C is that a case as defined under Section 245-A(b) should be pending as during that period i.e. when the Settlement Commission is deciding on the date of its presentation. Section 245-C spells out the conditions whether to proceed or reject the settlement application. The C which the applicant has to satisfy and Section 245- D(1) outlines how jurisdiction of the Settlement Commission to proceed commences such applications are to be proceeded with. The Commission after only after an order is passed under Section 245-D(1). That, after D examining the matter and satisfying itself can either allow the case or making an application for settlement the applicant is not allowed reject it. It is a matter on record that when the application was admitted to withdraw it [see Section 245-C(3)]. Once the case stands on 10.08.2000, the petitioner was represented and heard. At this stage, admitted, the Settlement Commission shall have exclusive D no objection as to the jurisdiction of the Settlement Commission was jurisdiction to exercise the powers of the Income Tax Authority.” made, the observations in the impugned order of the Commission that to 3. It was submitted that the Assessing Officer was always free to E re-visit the order of 10.08.2000 would in effect amount to impermissible complete the assessment within the time period permitted by law, and review is, in the opinion of this Court, sound reasoning. The conclusiveness was not constrained from making any order. Since he did not do so, the E attached to the order made by the Commission has been emphasized time Settlement Commission which was invested with his powers could not and again. Section 245 (1) reiterated this in no uncertain terms. The likewise have proceeded further. It was submitted that the amendment Supreme Court has also underlined this in CIT, Mumbai v. Anjum M.H. F made to Section 158 BE by the Finance Act, 2002 could not be made Ghaswala & Ors., 2001 252 ITR (1). applicable in the present case as the block assessment had become time F 6. The decision in Deen Dayal v. Union of India, (1986) 160 ITR barred on 29.02.2000. Counsel reiterated that Settlement Commission did 12, in our opinion, concludes the issue sought to be urged against the not enjoy exclusive jurisdiction by virtue of Section 25-F(1) prior to the petitioner. In fact the Court visualized the very situation which we are passing of an order under Section 245-D(1) of the Income Tax Act. In G called upon to examine and held that even while upholding the authority support, counsel relied upon the Damini Brothers case (supra). G of the Assessing Officer to complete assessment, clarify that “there will 4. Counsel for the Revenue argued that the power of the Assessing be no impediment to the Settlement Commission in exercise its powers if Officer to make an order does not allow an applicant approaching the it decides to exercise them. On the other hand this Settlement Commission Settlement Commission to contend that jurisdiction ceases automatically decides not to proceed with application, there is no distinct possibility of if an assessment is not framed. Learned counsel submitted that a careful H department not being able to realize the taxes in the circumstances of this reading of Hindustan Bulk Carrier would show that mere filing of an H case.” application for settlement would not in any manner adversely affect the 7. The authority of a Settlement Commission to make such orders powers of the Assessing Officer. That formulation of law in no way as are necessary in regard to the matters before it also extends to other meant that Settlement Commission was placed under the kind of restrain I I Ashwani Kumar Goelv. Income Tax Settlement Comm. (S. Ravindra Bhat, J.) 1455 1456 Indian Law Reports (Delhi) ILR (2014) II Delhi matters relating to the case not covered by the application but referred A 9. In our view, this rule should govern our approach to the situation to in the report of the Commission. There is also an element of arising in the case in hand. exclusiveness to the jurisdiction of the Settlement Commission, reiterated 10. It is a settled rule of construction that tax laws, like all other by Section 245-F(2). Section 245-E empowers the Settlement Commissions A laws, shall be interpreted reasonably and in consonance with justice so to re-open any proceedings connected with the case in respect of which as to avoid an absurd consequence that may lead to mischief or abuse: assessment too has been completed. Given these powers, the fact as to B (Hegde, J., in Jodha Mal Kuthiala vs. CIT, (1971) 82 ITR 570 (SC). whether the Assessing Officer was in the process of making the assessment A machinery provision in the Income Tax Act cannot be subjected to the or not becomes irrelevant. If indeed the Assessing Officer had completed literal or strict rule of construction that is adopted to interpret a charging the assessment, the wide nature of the Commission’s jurisdiction, B section. In Calcutta Jute Manufacturing Co. vs. CTO, (AIR 1997 SC nevertheless, would have allowed to over-ride that assessment order 2920), the Supreme Court held that a machinery provision must be so while framing its order under Section 245-D(4). C interpreted as to effectuate its purpose, and the distinction between a 8. The consequence of accepting the argument of the assessee charging section and a machinery provision whose function is to effectuate would be that even though there was a search of his premises u/s 132 C the charge, was pointed out in the context of the rule of interpretation of the Act which yielded incriminating material, the proceedings arising to be adopted. In S.P.A.M. Krishnan Chettiar and Son vs. Income- out of which he wanted to settle by approaching the Settlement D Tax Settlement Commission and Another, (1993) 202 ITR 81 (Mad.), Commission, he would still end up not paying any tax, as the block a Division Bench of the Madras High Court ruled that Chapter XIX-A of assessment became barred by time and there would also be no settlement the Act providing for settlement of cases is a machinery provision; the D order u/s 245D(4). Such a situation could not have been intended by the following observations are relevant: - statute. Though now the situation has been taken care of by the insertion “Chapter XIX-A in the Act, introduced by the Taxation Laws of the first proviso to Section 245F(2) by the Finance Act, 2007 w. e. E (Amendment) Act, 1975, was the result of implementing the f. 01.06.2007, but that cannot prejudice the rights of the revenue prior recommendations of the Wanchoo Committee to arrest the evil of to that date as it seems to us that it was inserted only “ex abundant E black money and large scale tax evasion. One of the cautela”. In Commissioner of Income-Tax, (Central), Calcutta vs. recommendations made was a compromise measure by which a B.N. Bhattachargee and Anr., (1979) 118 ITR 461 (SC), Justice Krishna F disclosure could be made and the quantum of tax is determined Iyer, dealing with the first case to reach the Supreme Court under and the assessee not only secured quittance for himself, but also Chapter XIX-A, when faced with a situation not specifically provided for F freedom from levy of penalty and prosecution. The machinery, in the said chapter, observed as follows: - initially conceived of by the Wanchoo Committee to achieve this, “Be that as it may, fiscal philosophy and interpretative technology was a Tribunal, though, later, it was rechristened the Settlement must be on the same wavelength if legislative policy is to find G Commission with full powers to investigate, quantify the amount fulfilment in the enacted text. That is the challenge to judicial G of tax, penalty as well as interest, etc., and grant immunity from resourcefulness the present appeals offer, demanding, as it does, prosecution at its discretion. The details of the application, probe, a holistic perspective and harmonious construction of a whole consideration, hearing and disposal, found in the report, had chapter, especially a complex provision therein, so that a balance been incorporated in the statutory provisions in Chapter XIX-A. may be struck between purpose and result without doing violence H Thus, a careful study of the anatomy of Chapter XIX-A clearly to statutory language and social values. The chapter is fresh and H brings out that it was only in the nature of machinery provisions the issue is virgin; and that makes the judicial adventure hazardous, for the purpose of settlement of tax disputes between the assessee compounded by the involved and obscure drafting of the bunch and the Revenue. The provisions do not compel any assessee to of provisions in Chap. XIXA.” resort to section 245C, but that can be availed of, if the assessee I I Vikram @ Ganja v. State (S.P. Garg, J.) 1457 1458 Indian Law Reports (Delhi) ILR (2014) II Delhi so chooses. In other words, the remedy provided under section A persons—One accused faced proceedings before 245C, as a machinery provision for effecting settlement of tax juvenile justice Board—Accused person duly disputes, was only in the nature of a concession or option open charged—Prosecution examined 14 witnesses in to the assessee who desired to settle his tax matters.” A statement u/s. 313 cr. P.C the accused persons pleaded false implication accused persons convicted of We concur with the above view. B offences u/s 395/97 IPC two accused persons 12. In view of the above discussion, this Court is of the opinion confessed their guilt and their appeals disposed of that there is no merit in the petition and it is accordingly dismissed aggrieved appellant preferred appeal Held— without any orders as to cost. All pending applications also stand disposed B complainant's (PW-3) statement recorder at the earliest of. point of time—Gave detailed account of the C occurrence—Complainant supported his version given to the police without variation—Identified the C assailants—Attributed specific role to the appellant— ILR (2014) II DELHI 1457 Appellant did not cross examine the witness despite CRL. A. D opportunity—Testimony of complainant unchallenged and unrebutted—No motive assigned to complainant to falsely implicate the appellant—No prior VIKRAM @ GANJA ....APPELLANT D acquaintance or animosity with the appellant—No explanation furnished by the accused to the VERSUS E incriminating circumstance as appearing against him— STATE ....RESPONDENT prosecution established doubt of having committed E dacoity—No injuries inflicted on complainant by any (S.P. GARG, J.) weapon—Weapon used in the crime not recovered— No description, size or dimension of knife used give— CRL A. NO. : 623/2012 DATE OF DECISION: 17.02.2014 F Broad featured of the weapon used not described— F Evidence lacking on possession and use of deadly Indian Penal Code 1860—Section 395/397 IPC—Dacoity weapon—Conviction u/s. 397 IPC not permissible— while armed with deadly weapon—Causing hurt while Appellant at par with another convict—Conviction u/s. committing dacoity—Appellant and his associated 397 IPC set aside—Sentence u/s. 395 IPC modified and G committed dacoity of 28 bags of plastic raw material— reduced. One Salim @ khan found in possession of 28 bags G filled with plastic raw material—case FIR no.158/07 u/ Important Issue Involved: Section 397 IPC fixed a s,395/397 IPC registered at P.S Civil Lines—Appellant minimum term of imprisonment. and his associates arrested in case FIR No161/07 u/s. H 399/402/34 IPC P.S Civil Lines—made disclosures— It is imperative for the trial court to return specific findings H Involvement in present case emerged 28 bags that the assailants were armed with deadly weapons and it recovered—Statements of complainant and witnesses were used by them before convicting them with the aid of recorded—Charge-sheet filed against all the accused Section 97. I I Vikram @ Ganja v. State (S.P. Garg, J.) 1459 1460 Indian Law Reports (Delhi) ILR (2014) II Delhi

Where no injuries whatsoever inflicted to the complainant A arising out of FIR No.158/07 registered at Police Station Civil Lines by by any weapon, and weapon used in the crime not recovered which he and his associates were held perpetrators of the crime under nor the complainant had given description, size or dimension Section 395/397 IPC. By an order dated 03.04.2012, he was awarded RI for seven years with fine Rs. 5,000/- under Section 395 read with of Knife, it cannot be said that the assailants were armed A with deadly weapons and were used by them. Section 397 IPC and in default of payment of fine to further undergo SI B for five months. If no property is carried off, by the assailants or no property delivered to the assailants under fear of instant hurt, there 2. The prosecution case, in brief, as projected in the charge-sheet is no dacoity. B is that on 26.06.2007 at about 3.15 a.m., at outer ring road, near CNG Pump, Chandgiram Akhara, Delhi, the appellant and his associates Sameer The essentials of the offence of dacoity are that the theft C @ Sonu, Raj Kumar, Ashok Kumar and Amit @ Bouncer in furtherance should be perpetrated by means of either of actual violence of common intention committed decoity of 28 bags of plastic raw material or of threatened violence. loaded in a Tempo No.DL-1LH-4864 from the possession of its driver C Jahangir Ali. It was further alleged that Vikram @ Ganja used a knife [Vi Ku] while committing decoity. Saleem @ Khan was found in possession of D 28 bags filled with plastic raw material which he received or retained APPEARANCES: knowing or having reasons to believe to be robbed / stolen property. FOR THE APPELLANT : Mr. V.K. Shukla, Advocate. During the course of investigation, statements of witnesses conversant D FOR THE RESPONDENT : Mr. Lovkesh Sawhney, APP for the with the facts were recorded. After completion of investigation a charge- State. sheet was filed against all of them except Amit @ Bouncer who faced E proceedings before Juvenile Justice Board. The accused persons were CASES REFERRED TO: duly charged and brought to trial. The prosecution examined fourteen 1. Gulab @ Bablu vs. The State (NCT of Delhi) Crl.A.515/ E witnesses. In 313 statement, the accused persons pleaded false implication 2010. and denied their complicity in the crime. The trial resulted in their conviction under Section 395/397 IPC. It is pertinent to mention that Saleem and 2. Sunil @ Munna vs. The State (Govt. of NCT), 2010 (1) F Ashok in Crl.A.Nos.481/2012 and 480/2012 respectively confessed their JCC 388. F guilt and their appeals were disposed of by this Court vide order dated 3. Samiuddin @ Chotu vs. State of NCT of Delhi., 175 25.07.2013. (2010) Delhi Law Times 27. 3. Conviction of the appellant is based upon the sole testimony of 4. Rakesh Kumar vs. The State of NCT of Delhi 2005 (1) G PW-3 (Jahangir Ali) who lodged First Information Report, soon after the JCC 334. G incident. In his statement (Ex.PW-3/A) recorded at the earliest point of 5. Charan Singh vs. The State., 1988 Crl.L.J. NOC 28 time, the complainant gave detailed account of the occurrence and narrated (Delhi). as to how and under what circumstances, he was robbed of 28 bags of RESULT: Appeal disposed of plastic raw material by the assailants. He claimed to identify them. In his H deposition in the Court, he supported the version given to the police S.P. GARG, J. H without variation and deposed that he used to drive Tempo No.DL1LC- 1. This appeal has been preferred by Vikram @ Ganja to challenge 4864 and on 25.06.2007 he loaded 28 bags of plastic raw material from the legality of a judgment dated 30.03.2012 in Sessions Case No.122/11 1665 Industrial Area, Narela, to unload at Okhla. When he reached at bye-pass, near Majnu Tilla, Red Light at about 09.00 p.m., one of the I I Vikram @ Ganja v. State (S.P. Garg, J.) 1461 1462 Indian Law Reports (Delhi) ILR (2014) II Delhi tyres got punctured; he replaced the stepney and proceeded further. A 4. Section 397 fixes a minimum term of imprisonment. It is imperative When he reached near Chandgi Akhara, CNG petrol pump at outer road for the Trial Court to return specific findings that the ‘assailants’ were at 12 night, one of the tyres again punctured and he sided the tempo by armed with ‘deadly’ weapons and it were used by them before convicting the road. Having no means to go ahead, he went to sleep in the tempo. them with the aid of Section 397. In the instant case, the evidence is A At around 03.00 a.m., an individual came and asked for a screw driver. lacking on this aspect and benefit of doubt is to be given to the appellant. When he (the complainant) told its non-availability, he went away. After B 5. In ’Crl.A.515/2010 ‘Gulab @ Bablu vs. The State (NCT of about 15 minutes, he was caught hold of his legs and hairs by the Delhi)’, this court held: assailants and a knife was put on his neck. They robbed 28 bags containing raw plastic material in the tempo; put these in a RTV and fled towards B “8. A perusal of the aforesaid provision makes it clear that if ISBT. He made telephone call to police at 100. In Court statement, he an offender at the time of committing robbery or dacoity, uses identified the assailants facing trial before the Court and attributed specific C any deadly weapon or causes grievous hurt or attempts to cause role to Vikram who had put knife on his neck. The appellant did not death or grievous hurt to any person the imprisonment with cross-examine the witness despite availing an opportunity. The facts C which such offender shall be punished shall not be less than narrated by the complainant remained unchallenged and unrebutted in the seven years. This provision prescribes minimum sentence which cross-examination. No motive was assigned to the complainant to falsely D shall be handed down to such an offender. In this case neither implicate the appellant with whom he had no prior acquaintance or the victim has sustained grievous hurt nor there is an evidence animosity. PW-4 (Neeraj Jain) claimed ownership of the 28 bags and that attempt was made to cause death or grievous hurt to the took these on superdari, vide superdaginama (Ex.PW-4/A). PW-5 (Anil D victim nor is there any evidence to show that the knife used at Kumar) produced RTV bearing No.DL-1VA-1402 used to carry away the the time of committing robbery was a ‘deadly weapon’. Simple robbed bags. On 01.07.2007, all the accused persons were apprehended E injuries have been sustained by the victim on his thigh. in case FIR No.161/07 under Section 399/402/34 IPC registered at Police 9. In ‘Charan Singh vs. The State’, 1988 Crl.L.J. NOC 28 Station Civil Lines. Pursuant to disclosure statements recorded in the said E (Delhi), Single Judge has held as under : proceedings, their involvement in the present case emerged. Saleem pursuant to his disclosure statement (Ex.PW-12/D) recovered four bags “At the time of committing dacoity one of the offenders caused of plastic raw material which were seized by seizure memo (Ex.PW-12/ F injury by knife on the hand of the victim but the said knife was G). During police remand, he got 24 bags recovered from house No.E- not recovered. In order to bring home a charge under Section 3/27 seized vide seizure memo (Ex.PW-7/A). PW-7 (SI Manish Kumar) F 397, the prosecution must produce convincing evidence that the proved the recovery of 24 bags on his instance and his testimony remained knife used by the accused was a deadly weapon. What would unshattered despite cross-examination. PW-8 (Insp.Raj Kumar) also make knife deadly is its design or the method of its use such as deposed on similar lines and the accused did not opt to cross-examine G is calculated to or is likely to produce death. It is, therefore, a to challenge his version. PW-11 (Lal Chand) deposed that tempo in G question of fact to be proved by the prosecution that the knife question was in possession of Jahangir (the complainant) on the relevant use by the accused was a deadly weapon. In the absence of such date and time. The accused did not give plausible explanation to the an evidence and particularly, the non-recovery of the weapon incriminating circumstances appearing against him. They declined to join would certainly bring the case out of the ambit of Section 397. the Test Identification Proceedings without cogent reasons. The prosecution H The accused could be convicted under Section 392.” was able to establish beyond doubt that the appellant was one of the H assailants who committed decoity and deprived the complainant of 28 10. In ‘Samiuddin @ Chotu vs. State of NCT of Delhi’, 175 bags of plastic raw material on the day of occurrence. (2010) Delhi Law Times 27, a Bench of co-ordinate jurisdiction has held that when a knife used in the commission of crime is I I Vikram @ Ganja v. State (S.P. Garg, J.) 1463 1464 Indian Law Reports (Delhi) ILR (2014) II Delhi

not recovered the offence would not fall within the ambit of A ILR (2014) II DELHI 1464 Section 397 IPC. In ‘Rakesh Kumar vs. The State of NCT of CRL. A. Delhi 2005 (1) JCC 334 and Sunil @ Munna vs. The State (Govt. of NCT), 2010 (1) JCC 388, it was observed that in the A absence of recovery of the knife used by the appellant at the SANWAR @ RAZZAK ....APPELLANT time of commission of robbery charge under Section 397 IPC B cannot be established. VERSUS STATE ....RESPONDENT 11. In the present case, indubitably the knife used for commission B of crime was not recovered. Accordingly, in my view, appellant (S.P. GARG, J.) could not have been sentenced under Section 397 IPC and Trial C Court has erred on this point.” CRL.A. NO. : 1579/2011 DATE OF DECISION: 17.02.2014 6. In the instant case, admittedly no injuries, whatsoever, were C inflicted to the complainant by any weapon. The weapon used in the Indian Penal Code, 1860—Sections 395—Punishment crime was not recovered from the appellant or at his instance. The D for dacoity—Section 398 attempt to commit robbery or complainant did not give description, size or dimension of the knife used dacoity when armed with deadly weapon—Arms Act, in the crime. In his deposition he did not described the broad feature of 1950—Section 27 use of prohibited arm—Complainant the weapon used at the time of occurrence. Thus, the conviction of the D a security guard outside the godown of EIT at Alipur— appellant with the aid of Section 397 was not permissible and is set aside. Notices two tempos moving towards godown at about For sentence under Section 395 IPC, the appellant is to be treated at par E 2:15 am—Raised alarm saying daku daku—Two with the convict Ashok who was awarded rigorous imprisonment for assailants caught hold of him—Other assailants four years vide order dated 25.07.2013. Accordingly, the sentence qua E attacked him with a knife—Two police men arrived on the present appellant is modified and reduced to rigorous imprisonment motorcycle—Assailants fled from the spot tempos were for four years. Other terms and conditions of the sentence order are left stopped after chase—Four accused persons alighted undisturbed. F and started running overpowered and apprehended— Knife recovered tempos seized—Statement of the 7. The appeal stands disposed of in the above terms. Trial Court F record be sent back forthwith. complainant recorded FIR No. 72/08 u/s. 395/397/398 IPC r/w. Section 25/27 Arms Act registered charge- sheet filed—All the accused persons charged and G brought to trial—Prosecution examined seven G witnesses—Statements u/s. 313 Cr. P.C. of the accused persons recorded—Pleaded false implication—Three accused persons including appellant convicted two H accused persons acquitted aggrieved appellant preferred appeal—Held testimony of complainant and H police witnesses is similar—No prior animosity with the appellant—No ulterior motive to falsely implicate the appellant—Complainant had no reason to let the I I Sanwar @ Razzak v. State (S.P. Garg, J.) 1465 1466 Indian Law Reports (Delhi) ILR (2014) II Delhi real culprit go scot free—Injury on the person of A FOR THE RESPONDENT : Mr. Lovkesh Sawhney, APP. SI complainant opined to be simple caused by sharp Jaibir, PS Alipur. weapon tempos recovered from the possession of RESULT: Appeal disposed of. assailants—Appellant did not give explanation for his A presence at the spot were armed with various S.P. GARG, J. weapons—No theft taken place—No cutting material B 1. This appeal has been preferred by Sanwar @ Razzak to challenge etc. found or recovered no marks of hammer on the the legality of a judgment dated 15.11.2011 in Sessions Case No. 60/08 shutter—Mere preparation or attempt to commit house arising out of FIR No. 72/08 registered at Police Station Alipur by which breaking with intention to commit theft—Violence/hurt B he and his associates were held perpetrators of the crime under Section was unconnected with theft—No property delivered C 395/398 IPC. The appellant was also convicted under Section 27 Arms by the complainant under fear of instant hurt—No Act. By an order dated 19.11.2011, he was awarded RI for eight years dacoity conviction u/s. 395/398 IPC not permissible— with fine Rs. 2,000/- under Section 395/398 IPC and RI for three years Offence u/s. 379 r/w s. 511 IPC and section 324 IPC C under Section 27 Arms Act. Both the sentences were to run concurrently. proved—Conviction u/s. 395/398 IPC set aside— Sentence modified. D 2. The prosecution case in brief as projected in the charge-sheet was that on the night intervening 03/04.04.2008, Sanjeev Kumar (PW- Important Issue Involved: The testimony of the injured 1) security guard was deputed outside the godown of East India Transport witnesses cannot be discarded without cogent reasons. D Company located at the Theke Wali gali, Alipur, Delhi and was on duty from 08.00 p.m. to 08.00 a.m. (next morning). At around 02.15 a.m., In the absence of any command for handing over any E when he was taking round of the godown, he saw two tempos parked valuable property at the point of knife or any other deadly near the shutter. When he put on the torch, he saw four individuals weapon, no offence u/s. 395/398 can be said to have been E trying to open it. On being challenged, three more individuals got down committed. from the tempos; they were armed with swords, iron rod and knives and Where no force or show of force is found to have been threatened him to run away. He raised alarm ‘daku-daku’ and ran away used in committing of the theft, the offence of robbery/ F towards the back side. However, two of the assailants caught hold of dacoity cannot be said to have been committed. him after chase and attacked him. Other miscreants also attacked him F with a knife, which struck him on his left thigh and blood started oozing If no property is carried off, by the assailants or no property out. In the meanwhile, two police/beat officers arrived there on a delivered to the assailants under fear of instant hurt, there motorcycle. On seeing them, the assailants fled the spot and ran towards is no dacoity. G G.T.Karnal Road. At Sindhu Border, those tempos were stopped after chase and four accused persons after alighting from the tempo started The essentials of the offence of dacoity are that the theft G running away; they were overpowered and apprehended. The appellant should be perpetrated by means of either of actual violence (Sanwar @ Razzak) was one of them and was caught with a knife along or of threatened violence. with Amzad Khan, Sheikh Sharaft and Imran @ Rikki. Two tempos H bearing registration No.HR55-D-0508 & UP14-AE-9143 were seized. The [Vi Ku] H investigating officer lodged First Information Report after recording APPEARANCES: statement of the complainant-Sanjeev Kumar. During investigation, statements of the witnesses conversant with the facts were recorded and FOR THE APPELLANT : Mr. Sanjay Kumar, Advocate. I a charge-sheet was submitted under Section 395/397/398 IPC read with I Sanwar @ Razzak v. State (S.P. Garg, J.) 1467 1468 Indian Law Reports (Delhi) ILR (2014) II Delhi

Section 25/27 Arms Act. Subsequently, Sikandar @ Raja and Jan Mohd.@ A When they were found endeavouring to break into the godown, Bhola were also arrested and supplementary charge-sheet was filed against Complainant-Sanjeev Kumar (PW-1) challenged and prevented them from them. All of them were duly charged and brought to trial for committing doing so. On that, the complainant was assaulted and injured. Even if the prosecution case is taken on its face value, ingredients of 395/397/398 offences under Sections 395/397/398 IPC. The prosecution examined A seventeen witnesses to substantiate their charges. In 313 statements, the for which the appellant and his associates were charged, are not attracted accused persons pleaded false implication. After considering the rival B or proved. In the cross-examination, the complainant admitted that no contentions of the parties, the Trial Court by the impugned judgment ‘theft’ had taken place and nothing was taken away by the culprits. He convicted Amzad Khan, Imran @ Rikki, Sheikh Sharafat and Sanwar @ also admitted that no cutting material like hammer or any other thing Razzak (the appellant) and acquitted Sikandar @ Raja and Jaan Mohd. of B which could cut the shutter was found or recovered. He volunteered to add that the assailants were found present near the shutter and were all the charges. It is pertinent to note that the State did not challenge their C acquittal. trying to open it. The locks were not broken and were intact. He further admitted that there were no marks of hammer on the shutter. Apparently, 3. Conviction of the appellant is based upon the sole testimony of C it was a mere preparation or at the most an attempt to commit house- the complainant-Sanjeev Kumar (PW-1) who identified him in the court breaking with an intention to commit theft in which they did not succeed. as one of the assailants having a knife at the spot. When he challenged They did not command the complainant to hand over any valuable property D the assailants, he was inflicted injury by the appellant by a knife on the at the point of knife or any other deadly weapon. They simply caused thigh. He further deposed that after chase on motorcycle, the accused injuries when he dared to challenge them to foil their plan. Needless to amongst others was apprehended at Singhu Border and his statement D say, violence or hurt was entirely unconnected with the offence of theft. (Ex.PW-1/A) was recorded. Knife recovered from the appellant was Where no force or show of force is found to have been used in the seized. Similar is the testimony of the police witnesses. The complainant E committing of the theft, the offence of robbery/decoity cannot be said who had no prior animosity with the appellant had no ulterior motive to to have been committed. In the present case, the prosecution was unable falsely identify and implicate him. The complainant had no reasons to let to establish commission of theft or robbery as no movable property was E the real culprit go scot free. The victim had sustained injuries and was taken out of the possession of the complainant. No property was delivered taken to Satyavadi Raja Harish Chander hospital, Narela. MLC (Ex.PW11/ to the assailants by the complainant under fear of instant hurt etc. If no A) was prepared and injuries were opined ‘simple caused by sharp weapon.’ F property is carried off, there is no decoity. The essentials of the offence PW-3 (Dr.Ved Pal) Indrawati Poly clinic, Khasra No.1734, Alipur, Delhi, of decoity are that the theft should be perpetrated by means of either of examined the patient at first instance at around 06.40 p.m. brought by F actual violence or of threatened violence which are lacking in the instant Const.Bhopal Singh with the alleged history of ‘a sharp injury by knife case. on the knee joint and left thigh’. After providing first aid, he referred the patient to a government hospital. The history of the said patient recorded G 5. The conviction of the appellant under Section 395/398 IPC is not in Ex.PW3/A was in his writing. PW-11 (Dr.Rajesh Kumar) medically permissible; cannot be sustained and is set aside. Nominal roll dated G examined the complainant-Sanjeev Kumar and prepared MLC (Ex.PW- 31.01.2014 reveals that the appellant has undergone five years, eight 11/A). The testimony of the injured witness cannot be discarded without months and twenty days incarceration besides earning remission for nine cogent reasons. Recovery of tempos from the possession of the assailants months and twenty two days. Since the appellant has already undergone further connects him with the crime. The accused did not give specific H substantial period of substantive sentence for the offences for which he was not legally required to be charged, no further sentence is required explanation for his presence at odd hours with tempos at the spot. H to be awarded to the appellant for the offences under Section 379 read 4. The prosecution was able to establish that the appellant and his with Section 511 IPC and Section 324 IPC proved against him. associates arrived at the spot in tempos while armed with various weapons. I I Salam Kaviraj @ Chuhav. State (Govt. of NCT of Delhi) (G.P. Mittal, J.) 1469 1470 Indian Law Reports (Delhi) ILR (2014) II Delhi

6. Appeal is disposed with the direction to set the appellant-Sanwar A Mansarovar Park, Delhi. At about 2:30 a.m., Rita Kural’s @ Razzak at liberty forthwith, if not required to be detained in any other (PW-9’s) sleep was disturbed when she noticed that five case. young persons aged between 18-20 years had sneaked in A the room where she was sleeping. Her father Surender Nath 7. Trial Court record along with a copy of this order be sent back Kural was sleeping on a separate cot while her mother was forthwith. A copy of the order be sent to Jail Superintendent, Tihar Jail B asleep on another cot. She noticed that Appellant Salam for intimation. Kaviraj @ Chuha (whose name came to be known to PW-9 later on) was standing near the cot of her father whereas B Appellants Miraj @ Jakir and Asif @ Naeem stood near the bed of her mother. Appellant Shahin @ Bushle stood at the C ILR (2014) II DELHI 1469 door of the room. All of them were armed with chhura. One CRL. A. Akram (juvenile and since released) awakened her (PW-9) C and simultaneously placed his hand on her mouth and threatened her not to raise voice. The juvenile broke the SALAM KAVIRAJ @ CHUHA ....APPELLANT D gold chain from her neck and then proceeded to remove her ring and bangles. Surender Nath Kural protested and wanted VERSUS to know from the Appellants and their co-accused as to what STATE (GOVT. OF NCT OF DELHI) ....RESPONDENT D they wanted. One of the Appellants told the other to tie the deceased Surender Nath Kural. The deceased, however, (SANJIV KHANNA & G.P. MITTAL, JJ.) E got up from the cot. Appellant Salam Kaviraj stabbed the CRL.A. NO. : 716/2010, 721, DATE OF DECISION: 19.02.2014 deceased with the dagger which he was holding in his hand, 981, 1056 CM NO. : 11127/2013 E three-four times. PW-9 clinged to her father to save him. The deceased, however, fell down on the cot. Akram again shut her mouth forcibly. However, she managed to scream Indian Penal Code, 1860—Sec. 396—Conviction on the F and raised an alarm and also knocked at the door of his basis of the disclosure statements made by a juvenile F brother’s bedroom. Her brother Virender Nath Kural (PW- Akram about his and others ‘Involvement in the 19) woke up and reached there. Her sister-in-law Usha Kural dacoity—Certain allegedly recovered articles not also reached there. She (Usha Kural) also opened the latch mentioned in the crime scene report—Recovery of the door of PW-9’s younger brother’s (Bhupinder Nath G disbelieved—Non holding of the TIP and delay in filing Kural’s) room which had been bolted from outside by the FIR—Non fatal to the prosecution case as witness had G Appellants. PWs 9 and 19 were able to restrain and hold two sufficient time to watch and observed the culprits and of the culprits Akram (A-1) and Salam Kaviraj (A-4). However, it was not the case of fleeing glimpse—Mere recovery Appellant Salam Kaviraj was successful in freeing himself of stolen property from an accused—Not sufficient to H and he as others made good their escape. PW-9’s younger prove conviction u/s 396 or 449 or 412 IPC. brother thereafter called their uncle Mahender Nath Kural H First the facts. On the night intervening 05-06/08.2004, (PW-4) who used to stay in the adjacent house. Some Surender Nath Kural (the deceased) was in deep slumber neighbours also reached the house of PW-9. The persons with the members of his family in his house at B-73, of the public thrashed Akram who was also tied down by I I Salam Kaviraj @ Chuhav. State (Govt. of NCT of Delhi) (G.P. Mittal, J.) 1471 1472 Indian Law Reports (Delhi) ILR (2014) II Delhi them. Bhupinder Nath Kural (PW-5) informed the police. A deceased had been declared brought dead. S.I. Pratap PW-4 along with PW-5 removed Surender Nath Kural to Singh and Inspector Rajender Singh (PW-24) thereupon SDN hospital where he was declared brought dead. The returned to the spot and proceeded to record the statement local police as well as PCR van reached the spot. Crime A Ex.PW-9/A of Rita Kural. PW-24 made his own endorsement team was also summoned. Statement of eye witness Rita Ex.PW24/A on the said statement Ex.PW-9/A for registration Kural marked Ex.PW-9/A was recorded by Inspector Rajender B of the case. It is also the case of the prosecution that the Singh (PW-24), SHO Police Station Mansarover Park. He I.O. (PW-24) summoned the crime team and S.I. Rohtash (PW-24) made his endorsement Ex.PW-24/A on the basis of Singh along with other officials of the crime team reached which the present case was registered. The I.O. prepared B the spot. It is apparent from the crime scene report (prepared site plan Ex.PW-24/B. He seized certain articles including by S.I. Rohtash Singh though he has not been examined as C one piece of gold chain from PW-9’s bed (the other been a witness) that the crime scene was inspected by the crime removed by the juvenile); two slippers from different pairs; team between 3:30 a.m. to 7:00 a.m. The statement Ex.PW- two polythenes containing bloody chance prints; one red C 9/A, the endorsement Ex.PW-24/A (made about 5:00 a.m.) and black piece of cloth like pocket of a shirt, a dagger from and the crime scene report (available on Trial Court record, outside the bathroom in the verandah at the back near hand D but not exhibited) conspicuously do not make any mention pump etc. (Para 2) about recovery of any dagger inside the house near the hand pump, two slippers (one Suji and one Relaxo) and the The prosecution heavily relies on the above circumstance to D piece of cloth purported to be pocket of the shirt which was connect the Appellants with the commission of the offence allegedly recovered at the instance of Appellant Asif. The punishable under Section 396 IPC. The prosecution also E statement Ex.PW-9/A made by PW-9 Ritu Kural, the relies on the recovery of the daggers at the instance of endorsement Ex.PW-24/A as also the crime scene report some of the Appellants for which the Appellants were E prepared by S.I. Rohtash Singh also do not make any convicted for the offence punishable under Section 27 of mention of removal of any other article except a piece of the Arms Act, 1959. Apart from the fact that no public or gold chain which was snatched by juvenile Akram (whereas independent witness were joined at the time of the alleged F the other piece of the gold chain was recovered from the recoveries, there are several other reasons why we are not F bed of PW-9). Crime scene report only makes mention in inclined to place reliance on the recoveries except recovery the column property stolen as ‘jewellery’. Theft of purse, of a piece of gold chain from Appellant Mohd. Illyas in wrist watch etc. belonging to PW-9 as also to PW-19 pursuance of the disclosure statement Ex.20/K made by containing some of their personal articles to establish their G Appellant Salam Kaviraj. Admittedly, the incident took place identities were important articles which should definitely at about 2:30 a.m. Deceased Surender Nath Kural was G have been mentioned in the statement Ex.PW-9/A, the removed to the hospital immediately thereafter at about 2:35 endorsement Ex.PW-24/A as also in the crime scene report a.m. S.I. Pratap Singh along with other police officials and if they had really been stolen. Similarly, recovery of the subsequently Inspector Rajender Singh, SHO, P.S. H dagger should also have been mentioned in all these Mansarover Park also reached the spot. It is the case of the documents if the dagger had really been found in the open H prosecution that S.I. Pratap Singh (PW-27) as also Inspector space in front of the room near the hand pump as the scene Rajender Singh (PW-24) along with Constable Satpal reached of the crime was examined for almost three and half hours SDN Hospital after leaving some police officials at the spot. by the crime team which remained at the spot till 7:00 p.m. On reaching the hospital, they were informed that the I I Salam Kaviraj @ Chuhav. State (Govt. of NCT of Delhi) (G.P. Mittal, J.) 1473 1474 Indian Law Reports (Delhi) ILR (2014) II Delhi as is mentioned in the crime scene report. We are supported A FOR THE RESPONDENT : Ms. Rajdipa Behura, APP for the in this view by a judgment of the Division Bench of this Court State. SI Kapil Kumar, PS GTB in Murari v. State, (Crl. App. No.10/2011) decided on Enclave. 24.08.2011 and a Single Bench decision of this Court in A CASES REFERRED TO: Sudhir Kumar v. State of NCT of Delhi (Crl. App. No.605/ 2013) decided on 02.09.2013. We are not inclined to B 1. Sudhir Kumar vs. State of NCT of Delhi (Crl. App. No.605/ believe the recovery of articles stated above from/at the 2013) decided on 02.09.2013. instance of the Appellants. (Para 16) 2. Sapan Haldar & Anr. vs. State, 191 (2012) DLT 225. B At the same time, we see no reason to disbelieve the 3. Murari vs. State, (Crl. App. No.10/2011) decided on recovery of the piece of the gold chain (Ex. PW-9/Article 27 C 24.08.2011. collectively) from Appellant Mohd. Illyas at the instance of 4. Munshi Singh Gautam & Ors. vs. State of M.P., (2005) 9 SCC 631. Appellant Salam Kaviraj in pursuance of his disclosure C statement Ex. PW-20/K. We do believe the recovery of the 5. Ramanbhai Naranbhai Patel vs. State of Gujarat, (2000) piece of gold chain as the same is duly identified by PW-9 D 1 SCC 358. and the same also stands corroborated from her statement Ex.PW-9/A made immediately after the occurrence on the RESULT: Appeals Partly Allowed. basis of which the present FIR was registered and further D G.P. MITTAL, J. from recovery of another piece of the same chain from the cot at the crime scene. (Para 17) 1. Appellants Miraj @ Jakir, Asif @ Naeem, Salam Kaviraj @ E Chuha, Mohd. Illyas and Shahin @ Bushle impugn the judgment dated 25.01.2010 and the order on sentence dated 29.01.2010 whereby they all Important Issue Involved: For the purpose of conviction E were convicted for the offence punishable u/s 396 of the Indian Penal u/s 411 IPC, the person who retains the stolen property Code, 1860 (IPC) and sentenced to imprisonment for life and payment must have knowledge or reason to believe the same to be of fine of Rs. 5,000/- each. In default of payment of fine, all were a stolen property. F directed to further undergo five months simple imprisonment. All the F Appellants were further convicted u/s 449 IPC r/w Section 34 IPC and Similarly to hold the person guilty u/s 412 IPC, it must be were sentenced to undergo rigorous imprisonment for seven years and proven that the person concerned knew or had reason to pay a fine of Rs. 2,000/- each. In default of payment of fine, they were believe that the property was transferred by commission of G required to further undergo two months simple imprisonment. Appellants Shahin @ Bushle, Asif @ Naeem and Mohd. Illyas were also convicted dacoity was received from a person whom he knew or had G reason to believe to belong to gang of persons. u/s 412 IPC and were sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 2,000/- each, in default of payment of which they were to undergo further two months simple [As Ma] H imprisonment. Appellants Miraj @ Jakir, Asif @ Naeem and Shahin @ APPEARANCES: H Bushle were further sentenced under Section 27 of the Arms Act, 1959 FOR THE APPELLANT : Mr. Ajay Verma, Adv. with Mr. Shiv to undergo rigorous imprisonment for a period of three years and pay a Kumar Dwivedi, Adv. fine of Rs.1,000/- each, in default of payment of which they shall further undergo one month simple imprisonment. All sentences were to run I I Salam Kaviraj @ Chuhav. State (Govt. of NCT of Delhi) (G.P. Mittal, J.) 1475 1476 Indian Law Reports (Delhi) ILR (2014) II Delhi concurrently. A summoned. Statement of eye witness Rita Kural marked Ex.PW-9/A was recorded by Inspector Rajender Singh (PW-24), SHO Police Station 2. First the facts. On the night intervening 05-06/08.2004, Surender Mansarover Park. He (PW-24) made his endorsement Ex.PW-24/A on Nath Kural (the deceased) was in deep slumber with the members of his the basis of which the present case was registered. The I.O. prepared family in his house at B-73, Mansarovar Park, Delhi. At about 2:30 a.m., A site plan Ex.PW-24/B. He seized certain articles including one piece of Rita Kural’s (PW-9’s) sleep was disturbed when she noticed that five B gold chain from PW-9’s bed (the other been removed by the juvenile); young persons aged between 18-20 years had sneaked in the room where two slippers from different pairs; two polythenes containing bloody chance she was sleeping. Her father Surender Nath Kural was sleeping on a prints; one red and black piece of cloth like pocket of a shirt, a dagger separate cot while her mother was asleep on another cot. She noticed B from outside the bathroom in the verandah at the back near hand pump that Appellant Salam Kaviraj @ Chuha (whose name came to be known etc. to PW-9 later on) was standing near the cot of her father whereas C Appellants Miraj @ Jakir and Asif @ Naeem stood near the bed of her 3. The juvenile Akram made a disclosure statement Ex.PW-24/C mother. Appellant Shahin @ Bushle stood at the door of the room. All and informed the police about the involvement of the other Appellants. of them were armed with chhura. One Akram (juvenile and since released) C On pointing out by the juvenile, Appellant Miraj @ Jakir (A-2) and Asif awakened her (PW-9) and simultaneously placed his hand on her mouth @ Naeem (A-3) were arrested on the same evening. They also made and threatened her not to raise voice. The juvenile broke the gold chain D disclosure statements Ex.PW-20/B and Ex.PW-20/A respectively. An from her neck and then proceeded to remove her ring and bangles. application was moved by the I.O. (PW-24) for holding a TIP in respect Surender Nath Kural protested and wanted to know from the Appellants of Appellants Miraj @ Jakir and Asif @ Naeem. They, however, declined D and their co-accused as to what they wanted. One of the Appellants told to join the TIP. Appellant Miraj @ Jakir led the police party to a place the other to tie the deceased Surender Nath Kural. The deceased, however, near Shahdara flyover on Loni, Ghaziabad road and produced a shirt got up from the cot. Appellant Salam Kaviraj stabbed the deceased with E having red and black colour strips with it’s front pocket and a few the dagger which he was holding in his hand, three-four times. PW-9 buttons missing (the pocket whereof was seized from the crime scene). clinged to her father to save him. The deceased, however, fell down on E Appellant Asif @ Naeem in pursuance of his disclosure statement also the cot. Akram again shut her mouth forcibly. However, she managed to produced one ‘Relaxo’ slipper from under the bushes on the right side scream and raised an alarm and also knocked at the door of his brother’s of the railway track. The same was seized by the I.O. Appellant Asif F bedroom. Her brother Virender Nath Kural (PW-19) woke up and reached further got recovered one dagger Ex.24/G, hidden buried in the ground there. Her sister-in-law Usha Kural also reached there. She (Usha Kural) F as well as a torn shirt. also opened the latch of the door of PW-9’s younger brother’s (Bhupinder 4. Appellant Salam Kaviraj @ Chuha (A-4) was arrested on Nath Kural’s) room which had been bolted from outside by the Appellants. 08.08.2004 on the pointing out of Appellant Akram (juvenile). He got PWs 9 and 19 were able to restrain and hold two of the culprits Akram G recovered a red colour bloodstained shirt with one arm missing marked (A-1) and Salam Kaviraj (A-4). However, Appellant Salam Kaviraj was Ex.PW-9/12 in pursuance of the disclosure statement made by him marked successful in freeing himself and he as others made good their escape. G Ex.PW-20/H. Although, as per CFSL report Ex. PW-13/D, human blood PW-9’s younger brother thereafter called their uncle Mahender Nath was found on this shirt but the blood group of the blood could not be Kural (PW-4) who used to stay in the adjacent house. Some neighbours ascertained. Appellant Salam Kaviraj was produced before the learned also reached the house of PW-9. The persons of the public thrashed H MM (PW-28) for the purpose of TIP. He too refused to join the TIP. Akram who was also tied down by them. Bhupinder Nath Kural (PW-5) H He (A-4) further led the police party to the house of Appellant Mohd. informed the police. PW-4 along with PW-5 removed Surender Nath Illyas (A-5) and on 09.08.2004, Mohd. Illyas produced the stolen articles Kural to SDN hospital where he was declared brought dead. The local including a piece of gold chain similar to the one which was seized from police as well as PCR van reached the spot. Crime team was also the spot as well as a brown coloured woodland ladies purse Ex. PW-9/ I I Salam Kaviraj @ Chuhav. State (Govt. of NCT of Delhi) (G.P. Mittal, J.) 1477 1478 Indian Law Reports (Delhi) ILR (2014) II Delhi Article 27 collectively. A 11. The learned counsel for the Appellants urge that the prosecution case against the Appellants was not established beyond shadow of all 5. On 30.08.2004 at about 6:00 p.m., Appellant Shahin @ Bhushle reasonable doubt. It is contended that they were convicted merely on (A-6) was arrested in pursuance of a secret information and on the suspicion. No recovery was effected from them or at their instance. pointing out by the juvenile. He also refused to join the TIP. In pursuance A Recoveries shown were planted as no public or independent witness of the disclosure statement Ex.PW-20/P made by him, Appellant Shahin B were joined at the time of alleged recoveries. PW-9 did not give the @ Bhushle got recovered one dagger buried near a well in Gopalpur. He detailed description of the culprits in her statement Ex.PW-9/A made to also got recovered one purse and some other articles from an iron box the police after the incident. In her deposition in the Court also, she failed in the shop of one Kabari in village Gopalpur. B to give the description of the clothes worn by the culprits. Further, since 6. On completion of the investigation, a report under Section 173 the Appellants were shown to the witnesses in the police station, they C of the Code of Criminal Procedure, 1973 (the Code) was presented were justified in refusing to take part in the TIP arranged by the I.O. and against the Appellants and the juvenile. therefore, the Appellants’ identification in the dock much after the incident cannot be attached any importance. 7. On Appellants’ pleading not guilty to the charge, the prosecution C examined 31 witnesses. Rita Kural (PW-9) and Virender Nath Kural 12. It is very strenuously canvassed that the articles claimed to (PW-19) are the most crucial witnesses who have deposed about the D have been recovered at the instance of the Appellants were planted by the incident and have also identified the Appellants Salam Kaviraj @ Chuha, police as they did not find any mention either in the statement Ex.PW- Asif @ Naeem, Miraj @ Jakir, Shahin @ Bushle and the juvenile (Akram) 9/A made by PW-9 or in the crime scene report prepared by SI Rohtash D as the perpetrators of the crime. Kumar, Incharge of the crime team or in the report Ex.PW-14/A prepared by ASI Sajid Hassan (PW-14) at the time of lifting the chance prints 8. PWs 11, 12 and 14 lifted chance prints from the crime scene E from two polythenes. It is argued that the specimen finger prints of from two polythene bags whereas PW-17 lifted chance prints (Ex.PW- Appellants were not taken by the I.O. in accordance with the provisions 17/A) from a dagger lying at the spot. The chance prints on the dagger, E of Section 4 and 5 of the Identification of Prisoners Act, 1920 and according to the prosecution have tallied with the specimen finger prints therefore report Ex.PW-17/B showing that the chance print Ex.PW-17/ of Appellant Miraj @ Jakir (Ex.PW-17/C) vide report Ex.PW-17/B. A lifted from the dagger seized from the crime scene tallied with the F 9. In order to afford opportunity to the Appellants to explain the specimen finger prints of Appellant Miraj @ Jakir Ex.PW-17/C is not incriminating evidence appearing against them, they were examined under F admissible in evidence. In support of their contention, the learned counsel Section 313 of the Code. They denied the prosecution allegations and for the Appellants places reliance on a Full Bench decision of this Court pleaded false implication. They declined to produce any evidence in in Sapan Haldar & Anr. v. State, 191 (2012) DLT 225. It is further defence. On appreciation of evidence, the Additional Sessions Judge G urged that the ASJ erred in convicting Appellant Mohd. Illyas for the (ASJ) found that the prosecution had been able to establish its case offence punishable under Section 396 IPC. Mohd. Illyas was not identified against the Appellants for the offence as stated earlier beyond shadow of G by PWs 9 and 19 as one of the persons who had participated in the all reasonable doubt. The Appellants were convicted and sentenced as dacoity. The recovery of the piece of chain, ladies purse and other stated earlier. articles at the instance of Appellant Mohd. Illyas is also doubtful. In any H case, it is urged that there was no material whatsoever to convict him 10. We have heard Mr. Ajay Verma, amicus curiae for Appellants for the offence punishable under Section 396 IPC. Salam Kaviraj and Mohd. Illyas, Ms. Rakhi Dubey, amicus curiae for H Appellant Asif @ Naeem, Ms. Saahila Lamba, amicus curiae for Appellant 13. Per contra, Ms. Rajdipa Behura, APP for the State contends Miraj @ Jakir, Mr. Deepak Vohra, amicus curiae for Appellant Shahin @ that PWs 9 and 19 were in a state of shock therefore they could not give the description of all the stolen articles and hence their testimonies in Bushle and Ms. Rajdipa Behura, APP for the State. I I Salam Kaviraj @ Chuhav. State (Govt. of NCT of Delhi) (G.P. Mittal, J.) 1479 1480 Indian Law Reports (Delhi) ILR (2014) II Delhi Court regarding theft of other articles which were recovered from the A the daggers at the instance of some of the Appellants for which the Appellants cannot be doubted. Additional Public Prosecutor urges that the Appellants were convicted for the offence punishable under Section 27 Appellants were shown to the witnesses only after they refused to join of the Arms Act, 1959. Apart from the fact that no public or independent the TIP just to confirm if the police investigation was proceeding in the witness were joined at the time of the alleged recoveries, there are several A right direction. The dock identification is a substantive evidence which other reasons why we are not inclined to place reliance on the recoveries is corroborated by the testimonies of PW-9 and PW-19 with regard to B except recovery of a piece of gold chain from Appellant Mohd. Illyas in the previous identification in the Police Station. APP for the State thus pursuance of the disclosure statement Ex.20/K made by Appellant Salam states that the charge against the Appellants is fully established and the Kaviraj. Admittedly, the incident took place at about 2:30 a.m. Deceased judgment passed by the ASJ does not warrant any interference. B Surender Nath Kural was removed to the hospital immediately thereafter at about 2:35 a.m. S.I. Pratap Singh along with other police officials and 14. We have bestowed our thoughtful consideration to the contentions C subsequently Inspector Rajender Singh, SHO, P.S. Mansarover Park also raised on behalf of the parties. Apart from the dock identification, the reached the spot. It is the case of the prosecution that S.I. Pratap Singh prosecution has relied on the following circumstances to connect the (PW-27) as also Inspector Rajender Singh (PW-24) along with Constable Appellants with commission of crime. C Satpal reached SDN Hospital after leaving some police officials at the spot. On reaching the hospital, they were informed that the deceased had 15. We shall be dealing with the circumstances and the material D produced by the prosecution one by one: been declared brought dead. S.I. Pratap Singh and Inspector Rajender Singh (PW-24) thereupon returned to the spot and proceeded to record (i) Recovery of three slippers, one Suji (Ex.PW-9/Article 3) the statement Ex.PW-9/A of Rita Kural. PW-24 made his own endorsement and one Relaxo (Ex.PW-9/Article 1) from the spot and D Ex.PW24/A on the said statement Ex.PW-9/A for registration of the recovery of another slipper Relaxo (Ex.PW-9/Article 2) at case. It is also the case of the prosecution that the I.O. (PW-24) summoned the instance of Appellant Asif @ Naeem; E the crime team and S.I. Rohtash Singh along with other officials of the (ii) Recovery of one piece of cloth with red and black strips crime team reached the spot. It is apparent from the crime scene report E (Ex.PW-9/Article 5) and recovery of one red and black (prepared by S.I. Rohtash Singh though he has not been examined as a colour shirt (Ex.PW-9/Article 4) at the instance of Appellant witness) that the crime scene was inspected by the crime team between Miraj @ Jakir; F 3:30 a.m. to 7:00 a.m. The statement Ex.PW-9/A, the endorsement (iii) Recovery of one bloodstained shirt with one arm missing Ex.PW-24/A (made about 5:00 a.m.) and the crime scene report (available at the instance of Appellant Salam Kaviraj. F on Trial Court record, but not exhibited) conspicuously do not make any (iv) Recovery of a Woodland brown colour ladies purse mention about recovery of any dagger inside the house near the hand containing Rs.1100/- and a piece of gold chain (Ex.PW- pump, two slippers (one Suji and one Relaxo) and the piece of cloth G 9/Article 27 collectively) from Appellant Mohd. Illyas at purported to be pocket of the shirt which was allegedly recovered at the the instance of Appellant Salam Kaviraj; G instance of Appellant Asif. The statement Ex.PW-9/A made by PW-9 Ritu Kural, the endorsement Ex.PW-24/A as also the crime scene report (v) Recovery of one purse (Ex.PW-9/Article 29) containing prepared by S.I. Rohtash Singh also do not make any mention of removal some visiting cards, one pocket book of Hanuman Chalisa of any other article except a piece of gold chain which was snatched by in an iron box from one Kabari shop at Gopalpur at the H juvenile Akram (whereas the other piece of the gold chain was recovered instance of Appellant Shahin @ Bushle. H from the bed of PW-9). Crime scene report only makes mention in the 16. The prosecution heavily relies on the above circumstance to column property stolen as ‘jewellery’. Theft of purse, wrist watch etc. connect the Appellants with the commission of the offence punishable belonging to PW-9 as also to PW-19 containing some of their personal under Section 396 IPC. The prosecution also relies on the recovery of articles to establish their identities were important articles which should I I Salam Kaviraj @ Chuha v. State (Govt. of NCT of Delhi) (G.P. Mittal, J.) 1481 1482 Indian Law Reports (Delhi) ILR (2014) II Delhi definitely have been mentioned in the statement Ex.PW-9/A, the A 20. Coming to the testimonies of the eye witnesses, PWs 9 and 19 endorsement Ex.PW-24/A as also in the crime scene report if they had have given a very vivid account of the incident. PW-9 testified as under:- really been stolen. Similarly, recovery of the dagger should also have “In (sic) on the intervening night of 5th and 06.08.2004 at been mentioned in all these documents if the dagger had really been A about 1.00 a.m. we were at our house. My mother was not found in the open space in front of the room near the hand pump as the feeling well. I and my father were attending my ailing mother in scene of the crime was examined for almost three and half hours by the B latter’s room. Rest of family members had gone to sleep in their crime team which remained at the spot till 7:00 p.m. as is mentioned in respective rooms. Doors of varandha were opened to allow fresh the crime scene report. We are supported in this view by a judgment of air to come due to my ailing mother. Between 2.00 – 2.30 a.m. the Division Bench of this Court in Murari v. State, (Crl. App. No.10/ B five unknown boys aged between 18-20 years entered in our 2011) decided on 24.08.2011 and a Single Bench decision of this Court house. One of them came near to me. Two near the bed of my in Sudhir Kumar v. State of NCT of Delhi (Crl. App. No.605/2013) C mother. Both of them were having ‘churas’ in their hands. One decided on 02.09.2013. We are not inclined to believe the recovery of stood near my father and one near the gates having armed with articles stated above from/at the instance of the Appellants. C similar ‘chura’. The boy who was standing near me shut my 17. At the same time, we see no reason to disbelieve the recovery mouth by hands and forbade me to raise any voice. The same of the piece of the gold chain (Ex. PW-9/Article 27 collectively) from D boy snatched a golden chain from my neck which I was wearing Appellant Mohd. Illyas at the instance of Appellant Salam Kaviraj in that time. He also started putting off my golden bangles and pursuance of his disclosure statement Ex. PW-20/K. We do believe the finger ring. Meanwhile my father opposed the same asking them D recovery of the piece of gold chain as the same is duly identified by PW- as what they wanted from us. One of those boys asked his other 9 and the same also stands corroborated from her statement Ex.PW-9/ associates to tie my father. The boy who was standing near my A made immediately after the occurrence on the basis of which the E father stabbed the latter on his back by that chura 3-4 times. I present FIR was registered and further from recovery of another piece enarmed my father to save him. He fell down on the cot. That of the same chain from the cot at the crime scene. E boy again shut my mouth by his hand forcibly. Despite the same I was able to raise an alarm. Apart from that I knocked at the 18. Further, as per the CFSL report Ex. PW-13/D, it can be inferred doors of my brother’s bed room. After hearing same, my brother that the deceased’s blood group was AB, since the blood of AB group F Mr. Virender woke up and came there. I along with latter was found on the gauze piece, through which the blood was lifted from overpowered two of those boys. One of them succeeded in escape. the spot. The blood group on the two bed sheets as well as the pillow F The boy which was overpowered by us came to know later on as and also on the lungi of the deceased was found to be of AB group only. Akram. (PW pointed towards accused Akram correctly). My sister- However, on the piece of shirt (Ex. 2C), blood of B group, and on two in-law opened the doors of my younger brother which were latched other shirt pieces (Exs.9 and 10), certain blood was detected. These G from outside by those offenders. On his return my brother called shirts have not been collated by the I.O. specifically with any of the G my uncle Mahender Nath Kural, who is residing in an adjoining Appellant and since the blood of AB group has not been detected thereon, house. He with the assistance of my brother namely Virender the alleged recovery of the shirts at the instance of the Appellants is Nath Kural to the SDN hospital. Police came to our house. I was hardly of any consequence. H interrogated and my statement was recorded by the police. Public 19. Since we are not inclined to believe the recovery of the dagger persons gathered at our house after hearing commotion. They H from the spot, matching of the chance print (Q3) thereon with the gave beatings to accused Akram. My statement/complaint is specimen finger print (S1) of Appellant Miraj @ Jakir vide CFSL report Ex.PW-9/A...... ” Ex.PW-17/B is also of no consequence. I I Salam Kaviraj @ Chuhav. State (Govt. of NCT of Delhi) (G.P. Mittal, J.) 1483 1484 Indian Law Reports (Delhi) ILR (2014) II Delhi 21. In the later part of her testimony, PW-9 identified the Appellants, A produced in the Court on 09.08.2004. Here also PW-24 testified that on namely, Salam Kaviraj @ Chuha, Asif @ Naeem, Miraj @ Jakir, Shahin an application for holding TIP, Appellant Salam Kaviraj refused to join the @ Bushle and the juvenile (Akram) and assigned specific roles to each same. It was thereafter that three days’ police custody remand of Appellant one of them. PW-19 Virender Nath Kural corroborated PW-9’s testimony Salam Kaviraj was granted and again purported recoveries were effected A in all material particulars. He also identified the said Appellants and deposed from him and while they were returning to the Police Station, PWs 9 and about the part played by each one of them. Both these witnesses in their B 19 met them near Shahdara flyover and they identified Appellant Salam examination-in-chief have also stated to have identified the Appellants in Kaviraj as one of the offenders. With regard to Appellant Shahin @ the Police Station. Bushle, he refused to join the TIP on an application moved on 31.08.2004. B It was two days thereafter that Appellant Shahin @ Bushle was identified 22. Referring to this part of their testimonies, the learned counsel by PWs 9 and 19. Thus, the Appellants’ contention that they refused to for the Appellants have urged that since the Appellants were shown to C join the TIP as they had been earlier shown to the witnesses cannot be the witnesses in the Police Station, they were justified in refusing to take believed. It may be noticed that the steps for holding the TIP were taken part in the TIP. It is thus contended that the Appellants’ identification for by the I.O. at the earliest opportunity. Moreover, PW-9 had sufficient the first time in the Court after a lapse of 3-4 years is valueless and C time to watch and observe the Appellants. It is not a case where the cannot be relied upon to base their conviction particularly when the witnesses just had a glimpse of fleeing culprits. witnesses have not given a detailed description in their statements under D Section 161 of the Code recorded by the police. 26. In Munshi Singh Gautam & Ors. v. State of M.P., (2005) 9 SCC 631, it was held that the identification of the accused in the Court 23. Obviously, PWs 9 and 19 were not called to take part in the D is a substantive evidence and relevant under Section 9 of the Evidence TIP. In fact, as soon as the application was moved by the IO (PW-24), Act, 1872. As a rule of prudence, the Courts normally ask for corroboration the Appellants refused to join the same. The testimonies of PWs 9 and E to the dock identification by prior test identification. It was observed that 19 have to be read with the testimony of PW-24, I.O. of the case. in appropriate cases, where the Court is impressed by a particular witness, 24. Admittedly, Akram (juvenile) was apprehended at the spot. PW- E it can safely rely on his/her testimony without such corroboration. 24 testified that police custody remand of Akram was obtained. He was Similarly, in Ramanbhai Naranbhai Patel v. State of Gujarat, (2000) interrogated and in the evening at the instance of Akram, Appellants Asif 1 SCC 358, the Supreme Court observed that where the witnesses had F @ Naeem and Miraj @ Jakir were arrested. He deposed that on the next sufficient time to see the face of the assailants, the absence of test date i.e. 07.08.2004 they were produced in muffled faces in the Court F identification parade was inconsequential. and an application for TIP was moved. He testified that both of them 27. It is important to note that PWs 9 and 19 did not prefer to rope (Asif and Miraj) refused to participate in the TIP. It is very important to in any false person. Although Appellant Mohd. Illyas was also arrested note that it was only thereafter that purported recoveries were effected G and recovery of certain stolen property was also effected from him and and the Appellants were brought back to the Police Station. PW-24 he was also sent up to the Court to face trial under Section 396 IPC, but deposed that thereafter PW-9 Rita Kural and PW-19 Virender Nath Kural G PWs 9 and 19 did not identify him as one of the persons who participated met them near railway crossing at Shahadra, Loni, Ghaziabad. They also in the dacoity. Thus, in the instant case, PWs 9 and 19’s testimonies came to the Police Station after knowing about the recovery and identified have been corroborated by their own depositions with regard to the the Appellants (Miraj @ Jakir and Asif @ Naeem) in the Police Station. H Appellants’ earlier identification before the police after they had refused Thus, Appellants Miraj @ Jakir and Asif @ Naeem were shown to the H to participate in the TIP arranged by the I.O. Relying on PWs 9 and 19’s witnesses only after they refused to join the TIP. testimonies, we have no manner of doubt that juvenile Akram and Appellants 25. Similarly, PW-24 deposed that after Appellant Salam Kaviraj @ Miraj @ Jakir, Asif @ Naeem, Salam Kaviraj @ Chuha and Shahin @ Bushle had committed dacoity and that Appellant Salam Kaviraj had Chuha was arrested, he was advised to keep his face muffled. He was I I Salam Kaviraj @ Chuhav. State (Govt. of NCT of Delhi) (G.P. Mittal, J.) 1485 1486 Indian Law Reports (Delhi) ILR (2014) II Delhi committed the murder of Surender Nath Kural while committing the A could be the result of padding by the police in view of our earlier dacoity. This evidence by itself is sufficient to convict the Appellants for observation. We are also not inclined to believe the recovery of the the offence punishable under Section 449 read with Section 34 IPC as dagger and recovery of the piece of red and black striped piece of cloth also under Section 396 IPC. Moreover, the testimonies of PWs 9 and 19 A which allegedly matched with the red and black coloured striped shirt got find corroboration from the recovery of piece of gold chain (Ex.PW-9/ recovered by Appellant Miraj @ Jakir. We are also not going to attach Article 27 collectively) from Appellant Mohd. Illyas in pursuance of the B much importance to the recovery of the dagger and one Relaxo slipper disclosure statement made by Salam Kaviraj. The piece of chain has been at the instance of Appellant Asif @ Naeem and recovery of one purse duly identified by PWs 9 and 19 and also finds corroboration from the containing Hanuman Chalisa and Timestar wrist watch and the dagger at rukka Ex.PW-9/A registered on the statement of PW-9 immediately after B the instance of Appellant Shahin @ Bushle as all these articles were not the incident. C mentioned either in the statement Ex.PW-9/A or in the crime scene report 28. A feeble attempt ha s been made by the learned counsel for the prepared between 3 a.m. to 7 a.m. and are otherwise debatable. We do Appellants to urge that there was some delay in lodging the FIR in as believe the recovery of the broken piece C much as although the incident took place between 2:30 a.m. to 2:45 a.m., of gold chain from Appellant Mohd. Illyas at the instance of the FIR was registered only at 5:10 a.m. It may be noted that immediately Appellant Salam Kaviraj in pursuance of the disclosure statement after the incident, the police was informed by DD No. 42-A in the Police D ade by him. However, Appellant Mohd. Illyas on the basis of recovery Station at 2:36 a.m. The DD was transmitted to S.I. Pratap Singh and of piece of gold chain cannot be convicted for the offence punishable information was also passed on to Inspector Rajender Singh, SHO of the D under Section 396 IPC or for that matter for the offence punishable Police Station. They immediately proceeded to the spot. When they noticed under Section 449 IPC read with Section 34 IPC. He has not been that the injured had already been removed to the hospital, while leaving identified as one of the five intruders. some members of the team, the I.O. (Inspector Rajender Singh) proceeded E to the SDN hospital where he obtained the MLC of the injured who had 30. It is very disturbing to note that although there was no evidence, been declared brought dead. He returned to the spot, inspected the same, E perhaps it was not even the case of prosecution that Appellant Mohd. recorded the statement of PW-9, made his own endorsement Ex.PW-24/ Illyas was one of the persons who committed dacoity in question, yet A thereon and then transmitted it to the Police Station at 5:00 a.m. Thus, merely on the recovery of a piece of gold chain and certain other articles, F there cannot be said to be any unexplained delay in recording of the FIR he has not only been convicted and sentenced for the offence punishable under Section 412 IPC but also under Section 396 IPC. PWs 9 and 19 at 5:10 a.m. Moreover, delay in recording FIR otherwise cannot be of F any importance in such a case as one of the culprits i.e. the juvenile was were specific that five persons, i.e., the juvenile and four Appellants apprehended at the spot and his name was mentioned in the FIR. Hence, (Salam Kaviraj, Asif, Miraj and Shahin) were responsible for committing there was no scope of any padding in the FIR. dacoity. It is not even the case of the prosecution that during investigation, G Appellant Mohd. Illyas was found to have committed dacoity in association 29. In view of the foregoing discussion, we are of the opinion that G with other accused persons or that he was present outside to guard the the recovery of the daggers Ex.PW-24/G and Ex.PW-24/H from the spot spot. Thus, conviction of Appellant Mohd. Illyas for the offence punishable as also at the instance of Appellants Asif @ Naeem and Miraj @ Jakir under Section 396 IPC or for that matter, under Section 449 IPC read respectively is doubtful. The recovery of the ladies purse and ‘1100/- with Section 34 IPC is not tenable. The same is accordingly liable to be H from Appellant Mohd. Illyas is a also little doubtful as in any case the set aside. currency notes have no mark of identification and recovery of sum of H ‘1100/- does not in any way connect Appellants Mohd. Illyas or Salam 31. We have already held above that we are inclined to believe the Kaviraj with the commission of the crime. We are not inclined to take recovery of gold chain (Ex.PW-9/Article 27 collectively) from Appellant the same into consideration for holding the Appellants guilty as the same Mohd. Illyas at the instance of Appellant Salam Kaviraj. The question for I I Salam Kaviraj @ Chuhav. State (Govt. of NCT of Delhi) (G.P. Mittal, J.) 1487 1488 Indian Law Reports (Delhi) ILR (2014) II Delhi A commission of dacoity or he knew that Appellant Salam Kaviraj belonged consideration is whether Appellant Mohd. Illyas can be convicted for the to a gang of dacoits. At the same time, no explanation has been given offence punishable under Section 412 IPC merely on the basis of recovery by Appellant Mohd. Illyas as to how he came in possession of the piece of this piece of gold chain. Admittedly, Appellant Mohd. Illyas has not of gold chain. Therefore, an inference can definitely be drawn that come forward with any explanation with regard to possession of the A Appellant Mohd. Illyas knew or had reason to believe that the piece of piece of gold chain. He has simply denied the recovery. Mere possession B chain was stolen property. Thus, instead of Section 412 IPC, Appellant of stolen property or a property belonging to a gang of dacoits is not Mohd. Illyas is liable to be convicted for the offence punishable under sufficient to hold a person guilty of an offence punishable under Sections Section 411 IPC. 411/412. At this stage, it would be appropriate to extract Sections 411 B and 412 IPC hereunder: 33. Therefore, while maintaining the conviction of Appellants Miraj @ Jakir, Asif @ Naeem, Salam Kaviraj @ Chuha and Shahin @ Bushle “411. Dishonestly receiving stolen property C for the offence punishable under Section 449 IPC read with Section 34 Whoever dishonestly receives or retains any stolen property, IPC and Section 396 IPC, they are acquitted for rest of the offences. knowing or having reason to believe the same to be stolen C Similarly, Appellant Mohd. Illyas is convicted for the offence punishable property, shall be punished with imprisonment of either description under Section 411 IPC and is acquitted of rest of the offences. for a term which may extend to three years, or with fine, or with D 34. The sentence awarded by the ASJ to Appellants Miraj @ Jakir, both. Asif @ Naeem, Salam Kaviraj @ Chuha and Shahin @ Bushle for the 412. Dishonestly receiving property stolen in the commission of D offence punishable under Section 449 read with Section 34 IPC and 396 a dacoity IPC is maintained. Whereas, Appellant Mohd. Illyas is sentenced to undergo RI for a period of three years and to pay fine of Rs.5,000/- or in default Whoever dishonestly receives or retains any stolen property, the E to undergo simple imprisonment for three months for the offence possession whereof he knows or has reason to believe to have punishable under Section 411 IPC, which he has already undergone. He been transferred by the commission of dacoity, or dishonestly E will be released, if not required in any other case. receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoity, property 35. The appeals are partly allowed in above terms. F which he knows or has reason to believe to have been stolen, 36. Pending applications also stand disposed of. shall be punished with imprisonment for life, or with rigorous F imprisonment for a term which may extend to ten years, and 37. A copy of the order be transmitted to the Trial Court for shall also be liable to fine.” information. 32. Thus, to bring a case within the four corners of Section 411 G IPC, the person who retains the stolen property must have knowledge or G reason to believe the same to be a stolen property. Similarly, to hold a person guilty under Section 412 IPC, the prosecution must prove that the person concerned knew or had the reason to believe that the property was transferred by commission of dacoity or was received from a person H whom he knew or had reason to believe to belong to a gang of dacoits. H No evidence whatsoever has been produced by the prosecution to show that Appellant Mohd. Illyas knew or had reason to believe that the piece of gold chain (Ex.PW-9/Article 27 collectively) had been obtained by I I Wasim (Passa in J.C) v. State of Delhi (Deepa Sharma, J.) 1489 1490 Indian Law Reports (Delhi) ILR (2014) II Delhi ILR (2014) II DELHI 1489 A injured PW1 Firoz. The doctor who had examined the CRL. A. injured had opined the injuries of simple nature. Subsequently, during the investigation another doctor had A given the opinion on the MLC of the injured PW1 and WASIM (PASSA IN J.C) ....APPELLANT opined that the injuries were of grievous nature and B VERSUS supplementary statement of PW1 was also recorded by Investigative Officer and accordingly the charge sheet was STATE OF DELHI ....RESPONDENT filed by the prosecution for the offence under Section 307 B IPC. All the three accused (including the appellant) were (DEEPA SHARMA, J.) charged for offence under Section 307/34 IPC. On the basis C CRL. A. NO. : 1278/2012 DATE OF DECISION: 20.02.2014 of the evidence recorded during the trial, while appellant was convicted for the offence under Section 307/34 IPC, the C other to co-accused were convicted only for the offence Indian Penal Code, 1860—Appellants convicted u/s under Section 323 IPC. (Para 2) 307/34—Conviction challenged—Appellant had stabbed D the injured with a ‘vegetable knife’ in an auto parking The conviction has been challenged by the appellant mainly of a metro station—Trial Court charged the accused u/ on the ground that there is no evidence on record to prove s 307/34 IPC—Conviction challenged on ground—No D that the appellant had any intention to kill PW1 Firoz. It is intention to kill and no premeditation. Held—No also argued that the knife, allegedly used by the appellant preparation or motive found to kill injured—Injuries E was the knife which is used for cutting vegetables and fruits received simple in nature—Alteration of conviction and it was not a dangerous weapon. He has relied upon the into 324 IPC—Appellate released for the period already sketch of the knife Ex.PW2/F. It is submitted that the length E undergone. of the blade 7.5 c.m., width of the blade is 2 c.m. and length of handle is 10 c.m. Total length of knife is 17.5 c.m. It is The appellant along with two other persons was tried for the F further argued that the injuries were on the face, finger and offence punishable under Section 307/34 IPC. The appellant left dorsal side of thigh and no injuries had been received was convicted for the offence punishable under Section F by the injured PW1 Firoz on any vital portion of his body and 307/34 IPC vide judgment dated 19th July, 2012 and was it clearly shows that there is no intention on the part of the sentenced to undergo R.I. for seven years and fine of appellant to kill PW1. It is also argued that the quarrel had Rs.5000/- and in default S.I. for six months vide order dated G taken place on the spur of moment and there was no pre 23rd July, 2012. The other co-accused were however G meditated act on the part of the appellant. It is argued that convicted for the offence under Section 323/34 IPC and the appellant cannot be convicted for the offence under sentenced for a period already undergone. (Para 1) Section 307/34 IPC when his co-accused have been convicted for the offence under Section 323/34 IPC. (Para 3) The incident had taken place on 29th November, 2009 at H 7.50 p.m. in Auto Parking Shahdara Metro Station. The H From the above discussion, it is apparent that at the time of injured PW1 Firoz was declared fit to make the statement by the incident there was no preparation or motive on the part the doctor in the hospital and the FIR for the offence under of the appellant to kill the injured PW1 and also injuries Section 324/34 IPC was registered on the statement of the received by the injured were simple in nature although I I Wasim (Passa in J.C) v. State of Delhi (Deepa Sharma, J.) 1491 1492 Indian Law Reports (Delhi) ILR (2014) II Delhi

caused with a sharp weapon. The appellant had not A 19th July, 2012 and was sentenced to undergo R.I. for seven years and approached the injured PW1 with intention to kill. The fine of Rs.5000/- and in default S.I. for six months vide order dated 23rd appellant in fact approached the injured PW1, when PW1 July, 2012. The other co-accused were however convicted for the offence under Section 323/34 IPC and sentenced for a period already undergone. demanded Rs.150. In view of the above, conviction of the A appellant under Section 307 IPC is not sustainable. The B 2. The incident had taken place on 29th November, 2009 at 7.50 conviction and sentence of appellant under Section 307/34 p.m. in Auto Parking Shahdara Metro Station. The injured PW1 Firoz IPC is therefore set aside. I convict the appellant for the was declared fit to make the statement by the doctor in the hospital and offence under Section 324 IPC as it stands proved on B the FIR for the offence under Section 324/34 IPC was registered on the record that the appellant had voluntarily caused hurt with statement of the injured PW1 Firoz. The doctor who had examined the the help of a knife on the person of PW1. (Para 11) C injured had opined the injuries of simple nature. Subsequently, during the investigation another doctor had given the opinion on the MLC of the The offence is punishable with imprisonment upto three injured PW1 and opined that the injuries were of grievous nature and years or with fine or both. In the facts and circumstance and C supplementary statement of PW1 was also recorded by Investigative in the view of the fact that the appellant has already Officer and accordingly the charge sheet was filed by the prosecution f undergone sentenced for about more than two years, I D r the offence under Section 307 IPC. All the three accused (including the hereby sentence him for the period already undergone by appellant) were charged for offence under Section 307/34 IPC. On the him. (Para 12) basis of the evidence recorded during the trial, while appellant was D convicted for the offence under Section 307/34 IPC, the other to co- Important Issue Involved: Intention to Kill—Section 307 accused were convicted only for the offence under Section 323 IPC. contemplates intention/knowledge of causing death and doing E an act towards it. It is a state of mind & inter alia can be 3. The conviction has been challenged by the appellant mainly on gathered from motive, severity of blows and preparation for E the ground that there is no evidence on record to prove that the appellant the crime. had any intention to kill PW1 Firoz. It is also argued that the knife, allegedly used by the appellant was the knife which is used for cutting [As Me] F vegetables and fruits and it was not a dangerous weapon. He has relied upon the sketch of the knife Ex.PW2/F. It is submitted that the length APPEARANCES: F of the blade 7.5 c.m., width of the blade is 2 c.m. and length of handle FOR THE APPELLANT : Mr. M.L. Yadav, Advocate is 10 c.m. Total length of knife is 17.5 c.m. It is further argued that the injuries were on the face, finger and left dorsal side of thigh and no FOR THE RESPONDENT : Mr. O.P. Saxena APP for the State G injuries had been received by the injured PW1 Firoz on any vital portion with Inspector Anand Lakra, P.S. G of his body and it clearly shows that there is no intention on the part of Shastri Park. the appellant to kill PW1. It is also argued that the quarrel had taken place RESULT: Application disposed off. on the spur of moment and there was no pre meditated act on the part of the appellant. It is argued that the appellant cannot be convicted for DEEPA SHARMA, J. H the offence under Section 307/34 IPC when his co-accused have been 1. The appellant along with two other persons was tried for the H convicted for the offence under Section 323/34 IPC. offence punishable under Section 307/34 IPC. The appellant was convicted 4. It is argued on behalf of learned APP for the State that weapon for the offence punishable under Section 307/34 IPC vide judgment dated used is a knife and is a dangerous weapon and that there were all I I Wasim (Passa in J.C) v. State of Delhi (Deepa Sharma, J.) 1493 1494 Indian Law Reports (Delhi) ILR (2014) II Delhi intensions to kill PW1 and the conviction under Section 307 IPC of the A incident, but the nature of injuries, suggest that knife was not used with appellant is justified. intention to kill PW1. Following injuries were received by PW1: 5. I have heard arguments and perused the record. 1. Deep incised wound - 7 X 1.5 c.m. (left side of face) A 6. Section 307 IPC contemplates an intention or knowledge of 2. Ample incised wound - 2 X 0.3 c.m. (left nostril) causing death and also doing an act towards it. Intention is a state of B 3. Incised wound - mind and can be gathered only from all the circumstances of the case. Left hand’s index finger - 1 X 0.5 c.m. The nature of weapon used, the place where the injuries were inflicted, Ring finger - 1.5 X 0.3 c.m. the motive for the crime, severity of blows and preparation for the crime B are few of the important factors that may be taken into consideration for 4. Wound in Dorsal side C determination of factum of intention to cause death. of thigh - 4 X 1 c.m. 7. In the present case, it is an established fact that the injured PW1 9. From the above, it is clear that none of the injury was on the was found fit for making the statement on the day of incident when the C vital part of the body of PW1. Injuries received were on left side of face, investigating officer had approached him in the hospital. On the basis of left nostril, left hand’s index finger, ring finger and left dorsal side of the statement of injured PW1, the FIR was registered for the offence D thigh. punishable under Section 324 IPC. Injured PW1 Firoz has deposed as These facts clearly negate any intention on the part of the appellant under: D to kill PW1. “I was sitting in the parking of aforesaid metro station after 10. The prosecution also does seem to be sure about the nature of closing my day work. I noticed, accused Wasim @ Passa present E injuries on the person of PW1. While Dr.Rajender Kumar had opined the in the court (correctly identified) was coming towards parking, nature of the injuries as simple, Dr.Animesh Basak opined the nature of who is known to me previously being the resident of same E injuries as grievous on 12.1.2010. Dr.Animesh Basak had been examined locality, I called him and demanded a sum of Rs.150/- against as PW11. He was not sure if before giving his opinion about the nature selling of fruits to him for Rs.100/- and had borrowed Rs.50/- of injuries as grievous on MLC he had examined the patient Mohd. Firoz. from me three months prior of this incident. Accused Wasim @ F He had certainly not examined the appellant Mohd Firoz PW1 on his Passa refused to pay Rs.150/- and abused me...... I admission in the hospital on the date of incident. As per his statement he was caught hold by accused – Harish Pathania and Sagar Sharma F had examined the patient only on 12.1.2010 and on the same date opined @ Vishwa Kirti Sharma and accused-Wasim @ Passa took out the nature of injuries as grievous. It is strange that the doctor who had one sharp-edge object and caused me injuries by using that object initially examined the injured PW1, when the injuries were fresh on his on my face, left hand and back side of left thigh with an intention G body, had given his opinion about injuries as simple in nature, while a to kill me.” G doctor who had examined PW1 after two and a half months has opined 8. This testimony of the injured clearly indicates that appellant had that the injuries were grievous in nature. There is no mention if the approached the injured PW1 only when PW1 had called him and demanded injuries had healed during this period or not. It is cardinal principle of his money. It is not a case where the appellant had approached the H criminal law that when there are testimonies of contrary nature, the injured PW1 with intention to cause death. There is, also, no previous H evidence which is in the favour of the accused has to be accepted and preparation on the part of the appellant. There is no evidence that appellant the benefit goes to the accused. In the present case, the second opinion had reached the spot with pre-meditated plan to kill PW1. The motive or of the doctor regarding grievous injuries on the person of injured being preparation is therefore absent. No doubt, a knife had been used in the found or observed after two and a half months of the incident is not I I Wasim (Passa in J.C) v. State of Delhi (Deepa Sharma, J.) 1495 1496 Indian Law Reports (Delhi) ILR (2014) II Delhi acceptable to this court because it is not based on actual examination of A ILR (2014) II DELHI 1496 injured on the date of incident. Opinion of the doctor who had examined W.P. (C) the injured initially and immediately after the incident is more trustworthy and believable. A NATIONAL COUNCIL OF EDUCATION ....PETITIONER 11. From the above discussion, it is apparent that at the time of the B RESEARCH AND TRAINING incident there was no preparation or motive on the part of the appellant to kill the injured PW1 and also injuries received by the injured were VERSUS simple in nature although caused with a sharp weapon. The appellant had B not approached the injured PW1 with intention to kill. The appellant in PARASH RAM & ORS. ....RESPONDENTS fact approached the injured PW1, when PW1 demanded Rs.150. In view C (GITA MITTAL & DEEPA SHARMA, JJ.) of the above, conviction of the appellant under Section 307 IPC is not sustainable. The conviction and sentence of appellant under Section 307/ W.P.(C) NO. : 1183/2014 DATE OF DECISION: 21.02.2014 34 IPC is therefore set aside. I convict the appellant for the offence C under Section 324 IPC as it stands proved on record that the appellant CCS (CCA) Rules, 1965—Sub-Rule (1) of Rule 10 & Rule had voluntarily caused hurt with the help of a knife on the person of D 10 (6) and (7)—Respondents were placed under PW1. suspension vide orders dated 17th and 19th July, 12. The offence is punishable with imprisonment upto three years D 2012 in terms of sub-rule (1) of Rule 10 of the CCS or with fine or both. In the facts and circumstance and in the view of (CCA) Rules, 1965—Suspension was reviewed by the the fact that the appellant has already undergone sentenced for about E Review Committee extending for another period of more than two years, I hereby sentence him for the period already three months—Respondents premised their application undergone by him. E before the Tribunal on the plea that the review of suspension was due in accordance with law on 17th 13. Copy of this order be sent to the trial court. Registry is directed October, 2012—As such, the suspension not having to supply a copy of the order to the appellant. F been reviewed within the time prescribed under Rule 14. The appellant be released forthwith, if not wanted in any other 10 (6) and (7) of the CCS (CCA) Rules, 1965, the case. F continued suspension beyond 90 days after the issuance of the order dated 17th July, 2012 and 19th 15. The appeal is disposed of in the above terms. July, 2012 was null and void—This contention of the G respondents was accepted by the Tribunal placing G reliance upon sub-rule (6) and (7) of Rule 10 of CCS (CCA) Rules, 1965—The Tribunal has also placed reliance on a pronouncement of Supreme Court H reported in (2010) 2 SSC 222 entitled Union of India and others vs. Dipak Mali wherein it has been held H that by operation of Rule 10 (6), the suspension order would not survive after a period of 90 days unless it stood extended after review—Tribunal directed that I I National Council of Edu. Research and Training v. Parash Ram (Gita Mittal, J.) 1497 1498 Indian Law Reports (Delhi) ILR (2014) II Delhi the orders of suspension in these cases would be A from 17th October, 2012 and has also granted all deemed to have been revoked from the expiry of the consequential benefits including arrears of pay and prescribed period i.e. 17th October, 2012 and 19th allowances. No reason is forthcoming for why the present October, 2012—The Tribunal directed that the A respondents are not entitled to the same relief. (Para 7) applicants shall be treated on duty on the aforesaid dates with all consequential benefits, including arrears B The petitioners have issued a fresh order of suspension of pay and allowances. The respondents were directed dated 1st August, 2013 against the present respondents to pass an order in terms thereof within a period of 15 which stands challenged before the Tribunal. Given the fact days from the date of receipt of coy of that order— B that the order dated 1st August, 2013 is subjudice before Hence the present petition. Held In compliance of the the Tribunal, so far as grant of consequential benefits to the C order of the Tribunal, the petitioner has passed an respondents is concerned, for the time being, the same has order dated 21st November, 2013 revoking the to be restricted up to 1st August, 2013. Parties shall abide suspension of three persons, namely. Smt. Kamal C by the adjudication by the Tribunal so far as the challenge Sharma, Smt. Premlata Gianey and Sh. Dinesh K. Tokas to the order dated 1st August, 2013 is concerned. However, the petitioners are bound to comply with the order dated 6th with effect from 17th October, 2012 and has also D granted all consequential benefits including arrears November, 2013. of pay and allowances—No reason is forthcoming for Appropriate orders in this regard shall be passed within 15 D why the present respondents are not entitled to the days from today. (Para 8) same relief—Petitioners have issued a fresh order of suspension dated 1st August, 2013 against the present E Important Issue Important: CCS (SSA) Rules, 1965: Sub- respondents which stands challenged before the rule (1) of the Rule 10 & 10 (6) and (7)—By operation of Tribunal—Given the fact that the order dated 1st E Rule 10 (6), the suspension order would not survive after August, 2013 is subjudice before the Tribunal, so far a period of 90 days unless it stood extended after review. as grant of consequential benefits to the respondents is concerned, for the time being, the same has to be F [Sa Gh] restricted up to 1st August, 2013—Parties shall abide F by the adjudication by the Tribunal so far as the APPEARANCES: petitioners are bound to comply with the order dated FOR THE PETITIONER : Mr. Anand Nandan, Advocate. 6th November, 2013—Appropriate orders to be passed G within 15 days—Writ petition and the stay application FOR THE RESPONDENT : Mr. Shankar Raju and Mr. Nilansh dismissed. G Gaur, Advocates.

Mr. Shankar Raju, learned counsel appearing on behalf of CASE REFERRED TO: the private respondents in this writ petition has informed us 1. Union of India and others vs. Dipak Mali (2010) 2 SSC H that in compliance of the order of the Tribunal, the petitioner 222. has passed an order dated 21st November, 2013 revoking H RESULT: Writ Petition dismissed. the suspension of three persons, namely, Smt.Kamal Sharma, Smt.Premlata Gianey and Sh.Dinesh K.Tokas with effect I I National Council of Edu. Research and Training v. Parash Ram (Gita Mittal, J.) 1499 1500 Indian Law Reports (Delhi) ILR (2014) II Delhi GITA MITTAL, J. (Oral) A 90 days unless it stood extended after review. Caveat 185/2014 * The Tribunal has concluded that the explanation of the present petitioner was not convincing. Reference has been given to three other Since the Caveator/respondents has been represented through counsel A orders passed by the Coordinate Benches in similar circumstances, and has been heard, the caveat stands discharged. B accepting challenges to extension of suspension on a similar ground. C.M.No.2472/2014 (for exemption) 5. In this background, by the order dated 6th November, 2013, the Exemption is allowed subject to just exceptions. Tribunal accepted the challenge by the applicants and held that the order B dated 17th July, 2012 and 19th July, 2012 had become invalid due to Application is disposed of. non-compliance of sub-rule (6) and (7) of Rule 10 of CCS (CCA) Rules, C W.P.(C) 1183/2014 & C.M.No.2471/2014 (for stay) 1965. The Tribunal directed that the orders of suspension in these cases would be deemed to have been revoked from the expiry of the prescribed 1. The writ petitioner assails the order dated 6th November, 2013 C period i.e. 17th October, 2012 and 19th October, 2012. The Tribunal passed by the Central Administrative Tribunal allowing the O.A.No.1007/ directed that the applicants shall be treated on duty on the aforesaid dates 2013 which was filed by the respondents. D with all consequential benefits, including arrears of pay and allowances. 2. It is noteworthy that O.A.No.1007/2013 was filed by seven The respondents were directed to pass an order in terms thereof within persons (including the respondents herein) namely, Mr.Parash Ram, a period of 15 days from the date of receipt of coy of that order. D Mr.Ravinder Singh, Mr.Ranbir S.Parashar, Mr.Dinesh K.Tokas, Smt.Kamal 6. We may note that the petitioners herein had sought review of the Sharma, Smt.Prem Lata Gianey and Mr.Ved Prakash contending that order dated 6th November, 2013 by way of R.A.No.193/2013 which they were placed under suspension vide orders dated 17th and 19th July, E was rejected by the Tribunal vide order dated 24th December, 2013. 2012 in terms of sub-rule (1) of Rule 10 of the CCS (CCA) Rules, 1965. The suspension was reviewed by the Review Committee vide order dated E 7. Mr.Shankar Raju, learned counsel appearing on behalf of the 25th October, 2012 whereby it was extended for another period of three private respondents in this writ petition has informed us that in compliance months. of the order of the Tribunal, the petitioner has passed an order dated 21st F November, 2013 revoking the suspension of three persons, namely, 3. The respondents premised their application before the Tribunal Smt.Kamal Sharma, Smt.Premlata Gianey and Sh.Dinesh K.Tokas with on the plea that the review of suspension was due in accordance with F effect from 17th October, 2012 and has also granted all consequential law on 17th October, 2012 but it took place only on 25th October, 2012. benefits including arrears of pay and allowances. No reason is forthcoming As such, the suspension not having been reviewed within the time for why the present respondents are not entitled to the same relief. prescribed under Rule 10 (6) and (7) of the CCS (CCA) Rules, 1965, the G continued suspension beyond 90 days after the issuance of the order 8. The petitioners have issued a fresh order of suspension dated 1st G dated 17th July, 2012 and 19th July, 2012 was null and void. August, 2013 against the present respondents which stands challenged before the Tribunal. Given the fact that the order dated 1st August, 2013 4. This contention of the respondents was accepted by the Tribunal is subjudice before the Tribunal, so far as grant of consequential benefits placing reliance upon sub-rule (6) and (7) of Rule 10 of CCS (CCA) H to the respondents is concerned, for the time being, the same has to be Rules, 1965. The Tribunal has also placed reliance on a pronouncement H restricted up to 1st August, 2013. Parties shall abide by the adjudication of Supreme Court reported in (2010) 2 SSC 222 entitled Union of India by the Tribunal so far as the challenge to the order dated 1st August, and others vs. Dipak Mali wherein it has been held that by operation 2013 is concerned. However, the petitioners are bound to comply with of Rule 10 (6), the suspension order would not survive after a period of the order dated 6th November, 2013. I I All India Institute of Medical Sciences v. Ram Kishore (Gita Mittal, J.) 1501 1502 Indian Law Reports (Delhi) ILR (2014) II Delhi

Appropriate orders in this regard shall be passed within 15 days A enquiry report, the Disciplinary Authority passed an from today. order dated 15th November, 2011 accepting the report and imposing the penalty of compulsory retirement 9. This writ petition and the stay application are dismissed in the upon the respondent—His appeal dated 14th above terms. A December, 2011 was rejected by the order dated 9th B May, 2012—The respondent has challenged these orders against him by way of O.A. No. 2047/2013 inter alia on the ground that there was no evidence at all ILR (2014) II DELHI 1501 B before the enquiry officer and that a communication W.P. (C) dated 23rd June, 2008 had been wrongly treated as C admission of guilt on his part—Petitioner assails the order dated 26th November, 2013 passed by the Central ALL INDIA INSTITUTE OF ....PETITIONERS C Administrative Tribunal accepting the O.A. No. 2047/ MEDICAL SCIENCES & ANR. 2012 which was filed by the respondent challenging VERSUS D the order of the disciplinary authority dated 15th November, 2011 as well the appellate authority’s order RAM KISHORE & ANR. ....RESPONDENTS dated 9th May, 2012 whereby the respondent’s appeal D was rejected. Held: Central Administrative Tribunal (GITA MITTAL & DEEPA SHARMA, JJ.) has considered the import of the statement made by W.P. (C) NO. : 1188/2014 DATE OF DECISION: 21.02.2014 E the respondent in the letter dated 23rd June, 2008 holding that the respondent had not admitted guilt of the charge of theft but had only stated that on 24th Service Law—Compulsory Retirement—Penalty of E April, 2008, he had been asked by another employee compulsory retirement on the basis of admission of Prem Singh to load cylinders in an auto rickshaw—It guilt—Respondent was subjected to disciplinary F was stated that these cylinders were unloaded on proceedings based on the charge that while working instructions of Prem Singh at his residence (Prem as Masalchi/Bearer in the Cafetaria Department, AIIMS, F Singh’ residence)—The Tribunal has also noted that stolen, two gas cylinder from the gas manifold room even before the enquiry officer on 24th April, 2008, and taken awayby three wheeler—Respondent the respondent had stated that he had simply acted as disputed the charges levelled against him vide his G per the instructions of Prem Singh without intention reply pointing out that prior to the charge sheet dated G of committing theft—It is an admitted position that 7th January, 2008, the petitioner had issued a charge other than the said letter dated 23rd June, 2008, the memo dated 11th December, 2006 containing identical enquiry officer recorded no evidence at all–In his allegations which were denied by him vide reply dated background, it was held that the recommendations of 22nd December, 2006 and no further action was taken H the enquiry officer were based on no evidence and thereon—However, the enquiry officer submitted a H that there was no admission of the charge by the report dated holding that the charged officer had respondent as well—The Tribunal had therefore set admitted the article of charge and therefore it stood aside the inquiry report dated 5th August, 2008, the proved—Three years after the submission of the I I All India Institute of Medical Sciences v. Ram Kishore (Gita Mittal, J.) 1503 1504 Indian Law Reports (Delhi) ILR (2014) II Delhi

Disciplinary Authority’s order dated 15th November, A [Sa Gh] 2011 and the Appellate Authority’s order dated 9th APPEARANCES: May, 2012—The petitioner has been given liberty to FOR THE PETITIONER : Mr. Sumit Babbar and Mr. Sahil S. proceed afresh if deem appropriate and pass A appropriate orders in accordance with law—Petitioner Chauhan, Advocates for Mr. has not pointed out any material which enables us to B Mehmood Pracha, SLC. take a view different than that taken by the Tribunal— FOR THE RESPONDENT : Mr. A.P. Singh, Advocate for R-2. There was no evidence in support of the charge against the petitioner before the enquiry officer—No B RESULT: Writ petition dismissed. merit in the writ petition—The writ petition and the C GITA MITTAL, J. (Oral) application are hereby dismissed. C.M.No.2481/2014 (for exemption) It is an admitted position that other than the said letter dated C Exemption is allowed subject to just exceptions. 23rd June, 2008, the enquiry officer recorded no evidence at all. In this background, it was held that the Application is disposed of. D recommendations of the enquiry officer were based on no W.P.(C) 1188/2014 & C.M.No.2480/2014 (for stay) evidence and that there was no admission of the charge by the respondent as well. The Tribunal has therefore set aside D 1. The writ petitioner assails the order dated 26th November, 2013 the inquiry report dated 5th August, 2008, the Disciplinary passed by the Central Administrative Tribunal accepting the O.A.No.2047/ Authority’s order dated 15th November, 2011 and the E 2012 which was filed by the respondent challenging the order of the Appellate Authority’s order dated 9th May, 2012. The disciplinary authority dated 15th November, 2011 as well the appellate petitioner has been given liberty to proceed afresh if deem E authority’s order dated 9th May, 2012 whereby the respondent’s appeal appropriate and pass appropriate orders in accordance with was rejected. law. (Para 7) 2. It appears that the respondent was subjected to disciplinary F The petitioner has not pointed out any material which proceedings based on the following charge: enables us to take a view different than that taken by the F “That the said Shri Ram Kishore while working as Masalchi/ Tribunal. There was no evidence in support of the charge Bearer in the Cafetaria Department AIIMS stolen, two gas cylinder against the petitioner before the enquiry officer. We therefore from the gas manifold room and taken away by three wheeler find no merit in the writ petition. The writ petition and the G (Auto rickshaw) on 23.07.2006 in between 8.30 P.M. to 9.00 application are hereby dismissed. G P.M. Needless to say that liberty granted by the Tribunal shall Shri Ram Kishore is thus responsible for gross misconduct, remain with the petitioner. (Para 8) misbehaviour and has failed to maintain absolute integrity, devotion H to duty and has acted in a manner unbecoming of an Institute Important Issue Involved: When the recommendations of H employee; thereby contravening Rule 3 (1) (ii) & (iii) of the CCS the enquiry were based on no evidence and there was no (Conduct) Rules, 1964 as applicable to the employees of the admission of the charge by the respondent as well, Tribunal Institute.” has committed no wrong in setting aside the inquiry report. I I All India Institute of Medical Sciences v. Ram Kishore (Gita Mittal, J.) 1505 1506 Indian Law Reports (Delhi) ILR (2014) II Delhi 3. The respondent disputed the charges levelled against him vide his A Delhi of Sh.Prem Lal. reply dated 23rd June, 2008. It was pointed out that prior to the charge Further, it is staed that I committed my mistake and I request sheet dated 7th January, 2008, the petitioner had issued a charge memo in your honour that I may be excused this time and also I am dated 11th December, 2006 containing identical allegations which were A stated that in future, I will not repeat such activities therefore, denied by him vide reply dated 22nd December, 2006 and no further the case may kindly be considered on sympathetic ground. action was taken thereon. B Thanking you, 4. However, the enquiry officer submitted a report dated 5th August, 2008 holding that the charged officer had admitted the article of charge B Yours faithfully, and therefore it stood proved. Three years after the submission of the Sd/- enquiry report, the Disciplinary Authority passed an order dated 15th C (RAM KISHORE) November, 2011 accepting the report and imposing the penalty of Masalchi/Bearer compulsory retirement upon the respondent. His appeal dated 14th Cafetaria, AIIMS December, 2011 was rejected by the order dated 9th May, 2012. C Dated 23.6.2008” 5. The respondent has challenged these orders against him by way D 6. The Central Administrative Tribunal has considered the import of of O.A.No.2047/2013 inter alia on the ground that there was no evidence the statement made by the respondent in the letter dated 23rd June, 2008 at all before the enquiry officer and that a communication dated 23rd holding that the respondent had not admitted guilt of the charge of theft June, 2008 had been wrongly treated as admission of guilt on his part. D but had only stated that on 24th April, 2008, he had been asked by Given the stand of the petitioner, we may set out the letter dated 23rd another employee Prem Singh to load cylinders in an auto rickshaw. It June, 2008 wherein the respondent has stated as follows: E was stated that these cylinders were unloaded on instructions of Prem “To Singh at his residence (Prem Singh’s residence). E The Inquiry Officer The Tribunal has also noted that even before the enquiry officer on 24th April, 2008, the respondent had stated that he had simply acted as AIIMS F per the instructions of Prem Singh without intention of committing theft. Sub:- Departmental Inquiry against Sh.Ram Kishore, Masalchi/ 7. It is an admitted position that other than the said letter dated 23rd Bearer under Rule 14 of the CCS (CCA) Rules, 1965. F June, 2008, the enquiry officer recorded no evidence at all. In this Sir, background, it was held that the recommendations of the enquiry officer were based on no evidence and that there was no admission of the With reference to letter No.F.Security/June, 2008 dated 12th G charge by the respondent as well. The Tribunal has therefore set aside June, 2008 received from Sh.R.S.Rawat, Security Officer/ G the inquiry report dated 5th August, 2008, the Disciplinary Authority’s Presenting Officer on the subject cited above, I am to state that order dated 15th November, 2011 and the Appellate Authority’s order I was present on 23.7.2006 upto 9.00 PM. Sh.Prem Singh asked dated 9th May, 2012. The petitioner has been given liberty to proceed me to bring auto rickshaw at Kitchen Gate (Exit Gate). I was H afresh if deem appropriate and pass appropriate orders in accordance influenced of heavy liquor and asked by Sh.Prem Singh to help with law. him for loading of two LPG Cylinder in auto rickshaw. Since I H was under influence of liquor, two LPG Cylinder from gas 8. The petitioner has not pointed out any material which enables us manifold room were loaded in auto rickshaw and I unloaded two to take a view different than that taken by the Tribunal. There was no cylinders at the residence i.e. A-77, East Kidwai Nagar, New I I Mahipal Singh v. Commissioner, Municipal Corp. of Delhi (Gita Mittal, J.) 1507 1508 Indian Law Reports (Delhi) ILR (2014) II Delhi evidence in support of the charge against the petitioner before the enquiry A ground that the respondents had proceeded in officer. We therefore find no merit in the writ petition. The writ petition accordance with law in exercise of Statutory power— and the application are hereby dismissed. Hence the present petition primarily on the ground that no opportunity order and that his special Needless to say that liberty granted by the Tribunal shall remain A circumstances including the responsibility of three with the petitioner. B children and wife etc. deserved to be compassionately considered. Held: Under the proviso to sub-Section (2) of Section 95 of the Delhi Municipal Corporation B Act, it is specifically provided that where an officer or ILR (2014) II DELHI 1507 employee is dismissed on the ground of conduct C W.P. (C) which has led to his conviction on a criminal charge, no opportunity of showing cause against the proposed C action to be taken is required to be given—Provisions MAHIPAL SINGH ....PETITIONER contained in Regulation 9 (i) of the DMC Services VERSUS D (Control & Appeal) Regulations, 1959 which also provide that no departmental enquiry is essential for THE COMMISSIONER, MUNICIPAL ....RESPONDENTS imposition of penalty upon the municipal employee on CORPORATION OF DELHI & ORS. D the ground of conduct leading to his conviction in a criminal case—The challenge by the petitioner on the (GITA MITTAL & DEEPA SHARMA, JJ.) E ground of denial of opportunity to show cause is W.P. (C) NO. : 1190/2014 DATE OF DECISION: 21.02.2014 therefore contrary to the specific statutory prescription E and is untenable—Tribunal has not given liberty to the petitioner that in the event of his success in the Delhi Municipal Corporation Act, 1957—Section 95 (2) criminal appeal preferred by him against his conviction, (a): Dismissal of an employee—Brief Facts—Petitioner F he would be entitled to work out his claim of stands convicted by judgment dated 24th January, reinstatement in accordance with law and dismissal of 2012 passed by Special Judge, Anti corruption Branch, F his case would not come in the way of consideration Delhi for commission of offence under Sections 7 and of his request—In view of the above, the impugned 13 (i) (d) of Prevention of Corruption Act, 1988—In order of respondents and the Tribunal cannot be view of the conviction of the petitioner, the G faulted on any legally tenable ground—The writ petition respondents proceeded to take action the petitioner G and the application are hereby dismissed. under Section 95 (2) (a) of the Delhi Municipal Corporation Act, 1957 which empowers the Municipal We may note that the Tribunal has not given liberty to the Corporation of Delhi to dismiss an employee on the petitioner that in the event of his success in the criminal H ground of conduct which led to his conviction on a appeal preferred by him against his conviction, he would be criminal charge—Vide an order dated 9th July, 2012, H entitled to work out his claim of reinstatement in accordance the petitioner was thus dismissed from service— with law and dismissal of his case would not come in the way Petitioner challenged his dismissal by way of O.A. No. of consideration of his request. 2811/2013—Tribunal rejected the challenge on the I I Mahipal Singh v. Commissioner, Municipal Corp. of Delhi (Gita Mittal, J.) 1509 1510 Indian Law Reports (Delhi) ILR (2014) II Delhi

In view of the above, the impugned order of respondents A respondents proceeded to take action against the petitioner under Section and the Tribunal cannot be faulted on any legally tenable 95 (2) (a) of the Delhi Municipal Corporation Act, 1957 which empowers ground. the Municipal Corporation of Delhi to dismiss an employee on the ground of conduct which led to his conviction on a criminal charge. Vide an A The writ petition and the application are hereby dismissed. order dated 9th July, 2012, the petitioner was thus dismissed from service. (Para 7) B His representation dated 28th September, 2012 against the dismissal did not meet any favourable consideration. Important Issue Involved: Delhi Municipal Corporation Act, 1957—Section 95 (2) (a): Dismissal of an employee— B 4. The petitioner thereafter challenged his dismissal by way of When it is specifically provided that no opportunity of O.A.No.2811/2013. The Tribunal rejected the challenge by the petitioner showing cause against an action to be taken is required to C on the ground that the respondents had proceeded in accordance with be given where an officer or employee is dismissed on the law in exercise of statutory power. ground of conduct which had led to his conviction of a C 5. The order dated 9th July, 2012 of the respondent and the order criminal charge, challenge by the petitioner on this ground dated 10th September, 2013 passed by the Tribunal have been assailed is untenable. D before us primarily on the ground that no opportunity to show cause was given to the petitioner before passing the impugned order and that his [Sa Gh] special circumstances including the responsibility of three children and D wife etc. deserved to be compassionately considered. APPEARANCES: 6. We may note that the Tribunal has extracted Section 95 of the FOR THE PETITIONER : Mr. Subhash Chand Tomar and Mr. E Yatendra Nagar, Advocates. Delhi Municipal Corporation Act, 1957. Under the proviso to sub-Section (2) of Section 95 of the Delhi Municipal Corporation Act, it is specifically FOR THE RESPONDENT : Mr. Suryadeep Singh, Adv. for Ms. E provided that where an officer or employee is dismissed on the ground Prabhsahay Kaur, Adv. of conduct which has led to his conviction on a criminal charge, no opportunity of showing cause against the proposed action to be taken is RESULT: Writ Petition dismissed. F required to be given. The Tribunal also adverted to the provisions contained GITA MITTAL, J. (Oral) F in Regulation 9 (i) of the DMC Services (Control & Appeal) Regulations, 1959 which also provide that no departmental enquiry is essential for 1. The writ petitioner assails the order dated 10th September, 2013 imposition of penalty upon the municipal employee on the ground of whereby his O.A.No.2811/2013 was dismissed in limine by the Central conduct leading to his conviction in a criminal case. Administrative Tribunal. G The challenge by the petitioner on the ground of denial of opportunity 2. It appears that the petitioner stands convicted by judgment dated G to show cause is therefore contrary to the specific statutory prescription 24th January, 2012 passed by the Special Judge, Anti Corruption Branch, and is untenable. Delhi for commission of offence under Sections 7 and 13 (i) (d) of Prevention of Corruption Act, 1988. H 7. We may note that the Tribunal has not given liberty to the petitioner that in the event of his success in the criminal appeal preferred The petitioner has assailed the said conviction by way of the Criminal H by him against his conviction, he would be entitled to work out his claim Appeal No.146/2012 before this court which is stated to be pending. of reinstatement in accordance with law and dismissal of his case would 3. It appears that in view of the conviction of the petitioner, the not come in the way of consideration of his request. I I Ranjeet v. State (NCT of Delhi) (Deepa Sharma, J.) 1511 1512 Indian Law Reports (Delhi) ILR (2014) II Delhi

In view of the above, the impugned order of respondents and the A Convicting the appellant u/s 307 IPC suffers no infirmity Tribunal cannot be faulted on any legally tenable ground. & Based on cogent evidence. The writ petition and the application are hereby dismissed. A Falsely implicated—Disclosure statement of the appellant is hit by section 24 of the Indian Evidence B Act—No evidence to connect the appellant with the commission of offence of theft—Conviction of appellant ILR (2014) II DELHI 1511 not sustainable u/s 379 IPC—The appellant is a drug CRL. A. B addict and a habitual criminal previously involved in C 11 cases—The amount of punishment and conviction u/s 307 is maintained—Acquitted of the charges u/s RANJEET ....PETITIONER 379 IPC. VERSUS C In this case the investigative agency of police was set into motion on 20th December, 2010. On that day, Constable STATE (NCT OF DELHI) ....RESPONDENT D Babu Lal of PS Bara Hindu Rao along with Constable Vinod, (DEEPA SHARMA, J.) Members of Quick Reaction Team (QRT) were on duty at CRL. A. NO. : 684/2012 DATE OF DECISION: 03.03.2014 D Azad Market red light. At about 7 p.m. HC Ved Prakash came to them in injured condition and told that he had been E stabbed at Railway track. This information was supplied to Indian Penal Code, 1860—Sec. 307 & Sec. 379—Head Duty Officer, PS Bara Hindu Rao on mobile phone and a DD constable stabbed at railway track—No eye witness— E No.20A was recorded. Both of them thereafter shifted the Appellant arrested and made a disclosure statement injured to Hindu Rao hospital in QRT vehicle and the injured which confirmed his involvement in the case— was admitted in the hospital. SI Ganga Dhar and SI Rohit Appellant refused Test Identification Parade (TIP) on F reached at the hospital. Injured was declared unfit for the ground that he had been shown to the injured in statement. SI Ganga Dhar collected MLC of the injured. the hospital—Trial Court held him guilty u/s 307/309 F SHO/Inspector Satish Bhardwaj also reached at the hospital. IPC—Appeal by the accused on the ground that he is They thereafter reached at the railway track. No eye witness falsely implicated and that conviction is solely based was found there. It was dark. An endorsement was made on on identification of the PW7—No adverse inference G DD no.22A and the rukka was prepared and the FIR was can be drawn against him on account of his refusal to G registered in this case. The injured HC Ved Prakash was in participate in TIP—No recovery of stolen article and a bad condition and needed operation immediately. Consent knife from him. Held—The plea taken by the appellant to the operation was given by PW1 Constable Babu Lal. is contrary to the proven facts and also the other plea Certain parcels/pulandas were seized from the hospital. On H taken by the appellant stand falsified at the face of the 23.12.2011, statement of injured was recorded. He had not proven facts and therefore adverse inference can be H named the appellant in his statement. Thereafter on 25th drawn on his refusal to participate in TIP—Nature of December, 2010 the appellant was arrested by ASI injuries and the wounds on the vital body parts of the S.K.Srivastava along with Constable Sajjan and HC Narender accused prove that the injured had intention to kill— I I Ranjeet v. State (NCT of Delhi) (Deepa Sharma, J.) 1513 1514 Indian Law Reports (Delhi) ILR (2014) II Delhi who were posted at AATS Central District under Section A required to be seen whether the refusal on the part of the 41.1 (A) Cr.PC. Appellant made a disclosure statement. In appellant to participate in TIP on the ground that he had his disclosure statement he disclosed about this incident. He been shown to the witness on 28.12.2010 is justified. Whether had also disclosed that one of his friend was also involved A he had actually been shown to the witness PW7 (injured) on who took up the article which the injured had kept on the 26.12.2010. This plea of the appellant is contrary to the railway line and ran away and he also followed his friend. On B facts proved on record. It stands proved from the first the disclosure statement of the appellant he was found judicial remand paper of the appellant that he was arrested involved in this case. He was arrested on 26th December, on 26.12.2010 in this case and on the same day he was 2010 in this case and was remanded to the judicial custody. B remanded to judicial custody. He remained in judicial custody He was in judicial custody when an application for holding till 3.1.2011 when his police custody remand was sought C Test Identification Parade (TIP) was moved on 3.1.2011. after his refusal to participate in TIP. These facts show that Appellant refused to participate in the TIP on the plea that on 28.12.2010 appellant was in judicial custody and thus he had been shown to the injured in the hospital. He had C there was no occasion for the police to take the appellant to been given the statutory warning that his statement of the hospital to show him to the injured. The uncontradictory refusal to TIP shall be used as a piece of evidence against D evidence of PW7 that he was shifted from ICU to ward only him. Even despite the statutory warning, the appellant refused at 5.30 p.m. on 3.1.2011 and so also there was no occasion to participate in the TIP. Thereafter police custody remand for injured to see appellant before that day. (Para 13) of the appellant was sought on that day and he was taken D to Hindu Rao hospital where the injured was admitted. At Another ground given by the appellant for refusal to about 5.30 p.m. the injured was shifted from Intensive Care E participate in TIP is that his photographs were taken by the Unit to the Ward. The appellant was shown to the injured. police before his arrest and were shown to the injured. This plea was not taken by the appellant at the time of his refusal The injured identified the appellant as his assailant and an E identification memo was prepared. (Para 1) to participate in TIP. The appellant has nowhere stated to the learned MM that his photographs had been taken and The main contention of the appellant before the court is that F had been shown to the appellant. His statement to learned he has been falsely implicated, and that conviction is solely MM was “I do not want to participate in TIP because I have based on identification of the appellant by PW7 in court. F been seen by the witnesses at hospital”. This plea of the That no adverse inference can be drawn against him on appellant therefore is an after-thought. His plea also stands account of his refusal to participate in TIP as he had been falsified by the fact that no suggestion to this effect had shown to injured in hospital on 28.12.2010. It is further G been put to the injured. The appellant has failed to justify argued that there is no recovery of knife and that of stolen G his refusal to participate in TIP. (Para 14) article from him. Hence, his conviction is bad in law. (Para 4) The next argument of the appellant is that he has been falsely implicated for the offence under Section 379 IPC. I It is settled law that refusal on the part of the appellant H have carefully perused the statement of the injured and without any just reason, leads to an adverse inference H from his statement it is clear that it was not the appellant against the appellant unless it is shown by the appellant that who had taken away the inverter. He himself had stated that holding of a TIP was a futile exercise because he had been some other boy had taken away inverter. The inverter had shown to the witness. Applying the said principle, it is not been recovered at the instance of the appellant. There I I Ranjeet v. State (NCT of Delhi) (Deepa Sharma, J.) 1515 1516 Indian Law Reports (Delhi) ILR (2014) II Delhi

is nothing on record except the disclosure statement of the A with SI Khalid Akhtar, PS Bara appellant to the effect that the boy who had removed the Hindu Rao. stolen article was his accomplice. The disclosure statement CASES REFERRED TO: is hit by Section 24 of the Indian Evidence Act. From the A testimony of PW7 it is also apparent that the boy who had 1. State of Maharashtra vs. Suresh 7 (2000) 1 SCC 471. B stolen the inverter, had not assisted the appellant in stabbing. 2. Hari Nath vs. State of U.P., AIR 1988 SC 345. There is thus no evidence that the appellant and that boy 3. Sk Hasib vs. State of Bihar AIR 1972 SC 283. were acting as accomplices, or in furtherance of common B 4. Rameshwar Singh vs. State of J & K (1971) 2 SCC 715. intention. There is thus no evidence on record to connect the appellant with the commission of offence of theft. The C RESULT: Application Partly Allowed. conviction of the appellant is not sustainable for the offence DEEPA SHARMA, J. punishable under section 379 IPC and set aside.(Para 18) C 1. In this case the investigative agency of police was set into As regards amount of punishment awarded to the appellant motion on 20th December, 2010. On that day, Constable Babu Lal of PS by the trial court is concerned, it is clear from the order on D Bara Hindu Rao along with Constable Vinod, Members of Quick Reaction sentence that the learned trial court had taken into Team (QRT) were on duty at Azad Market red light. At about 7 p.m. HC consideration the age, social background, responsibilities of Ved Prakash came to them in injured condition and told that he had been the appellant while awarding sentence. From the status D stabbed at Railway track. This information was supplied to Duty Officer, report, PS Bara Hindu Rao, it is apparent that the appellant PS Bara Hindu Rao on mobile phone and a DD No.20A was recorded. is a drug addict and habitual criminal and previously involved E Both of them thereafter shifted the injured to Hindu Rao hospital in QRT in 11 cases. He has been declared Bad Character in P.S. vehicle and the injured was admitted in the hospital. SI Ganga Dhar and Deshbandhu Gupta Road, New Delhi. (Para 19) E SI Rohit reached at the hospital. Injured was declared unfit for statement. SI Ganga Dhar collected MLC of the injured. SHO/Inspector Satish In view these, I find no reason to interfere with the amount Bhardwaj also reached at the hospital. They thereafter reached at the of sentence awarded to the appellant for the offence F railway track. No eye witness was found there. It was dark. An punishable under Section 307 IPC. (Para 20) endorsement was made on DD no.22A and the rukka was prepared and F the FIR was registered in this case. The injured HC Ved Prakash was in Important Issue Involved: Refusal to the test identification a bad condition and needed operation immediately. Consent to the operation parade can lead to an adverse inference against the accused was given by PW1 Constable Babu Lal. Certain parcels/pulandas were if the refusal is without any just reason or shown by the G seized from the hospital. On 23.12.2011, statement of injured was recorded. accused that it is a futile exercise as he had been shown to G He had not named the appellant in his statement. Thereafter on 25th the accused. December, 2010 the appellant was arrested by ASI S.K.Srivastava along with Constable Sajjan and HC Narender who were posted at AATS [As ma] H Central District under Section 41.1 (A) Cr.PC. Appellant made a disclosure statement. In his disclosure statement he disclosed about this incident. He APPEARANCES: H had also disclosed that one of his friend was also involved who took up FOR THE PETITIONER : Mr. S.D. Dixit, Advocate. the article which the injured had kept on the railway line and ran away FOR THE RESPONDENT : Mr. O.P. Saxena, APP for the State and he also followed his friend. On the disclosure statement of the I appellant he was found involved in this case. He was arrested on 26th I Ranjeet v. State (NCT of Delhi) (Deepa Sharma, J.) 1517 1518 Indian Law Reports (Delhi) ILR (2014) II Delhi

December, 2010 in this case and was remanded to the judicial custody. A 4. The main contention of the appellant before the court is that he He was in judicial custody when an application for holding Test has been falsely implicated, and that conviction is solely based on Identification Parade (TIP) was moved on 3.1.2011. Appellant refused to identification of the appellant by PW7 in court. That no adverse inference participate in the TIP on the plea that he had been shown to the injured can be drawn against him on account of his refusal to participate in TIP A in the hospital. He had been given the statutory warning that his statement as he had been shown to injured in hospital on 28.12.2010. It is further of refusal to TIP shall be used as a piece of evidence against him. Even B argued that there is no recovery of knife and that of stolen article from despite the statutory warning, the appellant refused to participate in the him. Hence, his conviction is bad in law. TIP. Thereafter police custody remand of the appellant was sought on 5. It is argued on behalf of learned APP for the State that the that day and he was taken to Hindu Rao hospital where the injured was B appellant was never shown to the injured before 3.1.2011. His refusal to admitted. At about 5.30 p.m. the injured was shifted from Intensive Care participate in TIP an adverse inference can be drawn against him and he Unit to the Ward. The appellant was shown to the injured. The injured C has been identified by the injured PW7 in court and there is nothing to identified the appellant as his assailant and an identification memo was suggest false implication of accused in this case. prepared. C 6. I have heard the arguments and perused the relevant record. 2. The accomplice of the appellant who had stolen the inverter of the injured, could not be arrested. After completion of the investigation, D 7. The facts which stand proved on record are that HC Ved Prakash the challan was filed under Section 307/379/34 IPC against the appellant. was stabbed on 20.12.2010 at 6.30 p.m. at railway track between Kishan Ganj and Old Delhi Railway Station. The injured PW7 has clearly stated 3. Charges for these offences were framed against the appellant. He D this fact and there is nothing on record to doubt the veracity of his pleaded not guilty to the charges. Prosecution had examined 15 witnesses. statement. His MLC Ex.PW4/A corroborates his testimony regarding the All the prosecution witnesses had supported the prosecution case. E injuries received by him. PW7 has also deposed that at the time when he Statement of the appellant under Section 313 Cr.PC was also recorded. was attacked, he was coming on the railway track, carrying the inverter He had denied all the evidence against him as incorrect and had taken the E which he had bought from the market. He was in uniform as he was plea that he had been falsely implicated and that he was innocent. He had returning after completing his duty. He saw a person standing with a taken the plea that he had not gone to the railway track and that he did knife in his hand. In order to prevent that person from committing any not make any disclosure statement and that his signatures were obtained F offence, he went towards that person and tried to snatch the knife from on blank papers under coercion; that he was shown to the injured before his hand. That person started stabbing him. Even the defence witness being produced in the court and that HC Ved Prakash injured had falsely F DW1 has deposed about an incident of stabbing on 20.12.2010 at railway implicated him as he failed to satisfy his illegal demand. The appellant has track. The sole question is who is assailant of PW7. examined Shri Pushpender Kumar Sharma as defence witness. This witness has stated that at Kishan Ganj railway station, where he had gone to see G 8. The sole contention of the appellant is that he has been falsely off his friend Sunny, he witnessed a quarrel between an old man aged G implicated and no adverse inference can be drawn on his refusal to about 40-42 years and a boy aged about 27-28 years who was holding participate in TIP as he had been shown to injured. a knife in his hand. He reached near them and he saw the boy stabbing 9. In the case AIR 1988 SC 345 entitled Hari Nath vs. State of the old man. After considering all the evidence on record and taking into U.P., the apex court has observed that evidence of test identification is consideration the defence produced by the appellant, the learned trial H admissible under Section 9 of the Indian Evidence Act. The apex court court had reached to the conclusion that the charges under Section 307/ H has further observed in the case AIR 1972 SC 283 entitled Sk Hasib vs. 379 IPC stands proved against the appellant and returned the guilt of the State of Bihar that the evidence of identification merely corroborates appellant under these two sections. and strengthen the oral testimony in court which alone is the primary and I I Ranjeet v. State (NCT of Delhi) (Deepa Sharma, J.) 1519 1520 Indian Law Reports (Delhi) ILR (2014) II Delhi substantive evidence as to identity. Te court has observed as under: A Satish Bhardwaj who had recorded the statement of the injured on 23.12.2010, has made it clear that he recorded the said statement in the ‘... the purpose of test identification is to test that evidence, Intensive Care Unit ward of the hospital. He has also clearly stated that the safe rule being that the sworn testimony of the witness in only on that day, after recording the statement of the injured police had court as to the identity of the accused who is a stranger to him, A come to know the sequence of the incident. In his statement under as a general rule, requires corroboration in the form of an B Section 161 Cr.P.C. the injured has not disclosed the name of his assailant earlier identification proceeding.’ and has referred him only as a boy. It is thus clear that the investigative 10. The Apex court has further discussed in its pronouncements agency was unaware of the identity of the assailant of PW7 till 25.12.2010 the purpose of holding the test identification. In the case (1971) 2 SCC B when ASI S.K.Srivastava (PW11) of AATS had arrested the appellant 715 entitled Rameshwar Singh vs. State of J & K has observed as under Section 41.1. (A) Cr.PC and recorded his statement. It was the C under: appellant who had disclosed in his disclosure statement Ex.PW11/A about the incident of 20.12.2010 in detail. This information was passed on to ‘... it may be remembered that the substantive evidence of a PS Bara Hindu Rao. It was only then, that the investigative officer of this witness is his evidence in court, but when the accused person is C case had come to know that the assailant of PW7 is appellant. Thereafter not previously known to the witness concerned then identification the appellant was formally arrested in this case on 26.12.2010 and his of the accused by the witness soon after the former’s arrest is of D remand paper shows that on the same day he was remanded to judicial vital importance because it furnishes to the investigating agency custody and he remained in judicial custody till 3.1.2011. On the application an assurance that the investigation is proceeding on right lines D for holding TIP the appellant refused to participate in the TIP before in addition to furnishing corroboration of the evidence to be learned Metropolitan Magistrate (MM). The record of TIP (Ex.PW13/A) given by the witness later in court at the trial.’ E clearly shows that the appellant had been produced in judicial custody on 11. The apex court has further laid down the purpose of identification that day. After the refusal of the TIP by the appellant, his police custody remand was sought and he was taken to Hindu Rao hospital to be parade and in the case 7 (2000) 1 SCC 471 entitled State of Maharashtra E vs. Suresh has observed as under: identified by the injured. Injured duly identified the appellant as his assailant and a memo Ex.PW3/C to this effect was recorded. “We remind ourselves that identification parades are not F primarily meant for the court. They are meant for investigation The injured PW7 has also duly identified the appellant as his assailant. purposes. The object of conducting a test identification parade F There was no delay in holding the TIP. The appellant was arrested on is twofold. First is to enable the witnesses to satisfy themselves 26.12.2010. An application for holding TIP was made on 3.1.2011. The that the prisoner whom they suspect is really the one who was appellant had however refused to participate in the TIP. He has argued seen by them in connection with the commission of the crime. G that he had refused to participate in the TIP because he had been shown Second is to satisfy the investigating authorities that the suspect to PW7 on 28.12.2010. A suggestion to this effect was given by him to is the real person whom the witnesses had seen in connection G the injured, in his cross-examination, although in his refusal to participate with the said occurrence.” in TIP Ex.PW13/A he has not disclosed the date on which PW7 had seen him in hospital. Plea of the appellant is that since he was shown to the 12. It is an admitted fact that the injured did not know the appellant H injured on 28.12.2010 so he refused to participate in TIP and thus his before the date of incident. It is also a proven fact that on 20.12.2010 refusal does not lead to an adverse inference against him. and subsequent dates the injured was found unfit for the statement. H Investigating officer of this case has clearly stated that he could record 13. It is settled law that refusal on the part of the appellant without the statement of the injured Ved Prakash only on 23.12.2010 under any just reason, leads to an adverse inference against the appellant unless it is shown by the appellant that holding of a TIP was a futile exercise Section 161 CR.PC in the hospital. In the cross-examination, Inspector I I Ranjeet v. State (NCT of Delhi) (Deepa Sharma, J.) 1521 1522 Indian Law Reports (Delhi) ILR (2014) II Delhi because he had been shown to the witness. Applying the said principle, A 2. Incised wound 8 inch long on left thigh. it is required to be seen whether the refusal on the part of the appellant 3. Incised wound 2 inch long on left palm below thumb to participate in TIP on the ground that he had been shown to the witness on 28.12.2010 is justified. Whether he had actually been shown A 4. Incised wound 3 inch long below mandible (lower jaw) right to the witness PW7 (injured) on 26.12.2010. This plea of the appellant side. is contrary to the facts proved on record. It stands proved from the first B 5. Incised wound 1 inch long on neck. judicial remand paper of the appellant that he was arrested on 26.12.2010 in this case and on the same day he was remanded to judicial custody. 6. Two wounds on abdomen with exposed intestine. He remained in judicial custody till 3.1.2011 when his police custody B remand was sought after his refusal to participate in TIP. These facts 17. It is in evidence that there was urgency to operate PW7 and show that on 28.12.2010 appellant was in judicial custody and thus there C without any delay on the consent of PW1 Babu Lal the operation was was no occasion for the police to take the appellant to the hospital to performed. Doctor, it seems did not want to wait for arrival of family members of PW7 and waste precious time. The nature of injuries has show him to the injured. The uncontradictory evidence of PW7 that he C was shifted from ICU to ward only at 5.30 p.m. on 3.1.2011 and so also been opined as dangerous and stated to have been caused with sharp there was no occasion for injured to see appellant before that day. object. The use of knife, the severity of injuries, the stab on vital parts D of body, all point out to one conclusion that the appellant had the intention 14. Another ground given by the appellant for refusal to participate to kill. The findings of learned MM, convicting the appellant under Section in TIP is that his photographs were taken by the police before his arrest D 307 IPC therefore suffers with no infirmity and based on cogent evidence. and were shown to the injured. This plea was not taken by the appellant at the time of his refusal to participate in TIP. The appellant has nowhere 18. The next argument of the appellant is that he has been falsely stated to the learned MM that his photographs had been taken and had E implicated for the offence under Section 379 IPC. I have carefully perused been shown to the appellant. His statement to learned MM was “I do not the statement of the injured and from his statement it is clear that it was want to participate in TIP because I have been seen by the witnesses at E not the appellant who had taken away the inverter. He himself had stated hospital”. This plea of the appellant therefore is an after-thought. His plea that some other boy had taken away inverter. The inverter had not been also stands falsified by the fact that no suggestion to this effect had been recovered at the instance of the appellant. There is nothing on record F put to the injured. The appellant has failed to justify his refusal to participate except the disclosure statement of the appellant to the effect that the boy in TIP. who had removed the stolen article was his accomplice. The disclosure F statement is hit by Section 24 of the Indian Evidence Act. From the 15. In such circumstances, adverse inference can be drawn on his testimony of PW7 it is also apparent that the boy who had stolen the refusal. It can be presumed that the injured PW7 would have identified inverter, had not assisted the appellant in stabbing. There is thus no the appellant in case he had agreed to join the identification parade. The G evidence that the appellant and that boy were acting as accomplices, or refusal can be used as corroborative evidence to the identification of the G in furtherance of common intention. There is thus no evidence on record appellant by the injured in the dock. Further no motive has been assigned to connect the appellant with the commission of offence of theft. The to the injured to wrongly identify his assailant. The appellant has failed conviction of the appellant is not sustainable for the offence punishable to bring to my notice any piece of evidence which can suggest even under section 379 IPC and set aside. remotely his false implication in this case. H H 19. As regards amount of punishment awarded to the appellant by 16. Following injuries had been received by PW7 as per his MLC: the trial court is concerned, it is clear from the order on sentence that the learned trial court had taken into consideration the age, social 1. Incised wound 2 inch long on left knee. background, responsibilities of the appellant while awarding sentence. I I S.K. Mathur v. President Secretariat Represented by the Sec. (R.V. Easwar, J.) 1523 1524 Indian Law Reports (Delhi) ILR (2014) II Delhi From the status report, PS Bara Hindu Rao, it is apparent that the A sent on deputation to DDA in same capacity sent to appellant is a drug addict and habitual criminal and previously involved President’s Secretariat at the President’s Garden, in 11 cases. He has been declared Bad Character in P.S. Deshbandhu Rashtrapati Bhawan on 19.12.1970 as Garden Gupta Road, New Delhi. A Superintendent on 08.04.1974 permanently to Deputy Director (Horticulture) in CPWD—Post upgraded to 20. In view these, I find no reason to interfere with the amount of B Director in the pay scale of 3700-5000 on 30.04.1996 sentence awarded to the appellant for the offence punishable under Section as per 4th Central Pay Commission—Order passed by 307 IPC. President’s Secretariat on 30.04.1996 to this effect 21. While the appellant stands convicted for offence under Section B mentioned upgraded scale purely personal to petitioner 307 IPC and order of sentence is maintained, he is acquitted for offence as and when he would leave the post—Pay scale of C under Section 379 IPC. the post would be brought down to its earlier level— On 5th Pay Commission Report President’s Secretariat 22. The copy of the order be sent to learned trial court. C revised the pay scale for the post of Superintendent 23. Registry is directed to send copy of the order to the at 12000-16500—Petitioner granted the scale—Retired Superintendent, Central Jail, Tihar to supply the same to the appellant. D on 01.04.1998 dues calculated on the said scale in the meantime revised recommendation made by 5th Central Pay Commission for the post of Director (Horticulture) D and Additional Director (Horticulture) on their ILR (2014) II DELHI 1523 representation pay scale upgraded to 14300-18300 W.P. (C) E w.e.f. 01.01.1996—Office order passed on 06.10.1999 and 28.08.2001—Petitioner made several representation E based on revised recommendation to calculate the S.K. MATHUR ....PETITIONER retirement benefit on this basis-representation rejected by President’s Secretariat by several order- VERSUS F last order dated 13.06.2008 preferred O.A. before CAT THE PRESIDENT SECRETARIAT ....RESPONDENTS F for issuance of appropriate order to refix the revised REPRESENTED BY THE pay scale and pay the consequential benefit including SECRETARY AND ANR. retirement benefit alongwith interest @ 10% per annum on the basis of pay scale 14300-18300—Tribunal G (S. RAVINDRA BHAT & R.V. EASWAR, JJ.) rejected the application—Tribunal observed nature of G work carried by the petitioner as Garden W.P. (C) NO. : 8417/2011 DATE OF DECISION: 03.03.2014 Superintendent in President’s Secretariate not similar to nature or function of Director/Additional Director Constitution of India, 1950—Article 226-227—Writ H (Horticulture) or Superintendent Engineer working in Petition—Central Administrative Tribunal (CAT)— CPWD pay parity pre-supposes the work equal and H Service law-equal pay for equal work pay scale- inexplicable pay difference alone can be looked upon equivalent to his counterpart in the cadre of origin— as discriminatory against an employee-absent in the Petitioner an Assistant Director (Horticulture), CPWD present case-prerogative of the executive which has I I S.K. Mathur v. President Secretariat Represented by the Sec. (R.V. Easwar, J.) 1525 1526 Indian Law Reports (Delhi) ILR (2014) II Delhi considered the representation and rejected the same A is on personal basis and not on functional basis, ought to would upset the constitutional principle of separation have been taken to its logical conclusion. The petitioner was of power among the three organs of the State— also given the corresponding revised pay scale of Rs.12,000- Petitioner preferred writ petition—Contended-post of A 16,500 on the basis of the 5th Pay Commission Report. But Garden Superintendent in the President’s Secretariate when this pay scale was upwardly revised to Rs.14,300- is equivalent to that of Deputy Director (Horticulture), B 18,300, the respondents have refused to calculate the CPWD upgradation recommended by 3rd and 4th retiral benefits of the petitioner on that basis which is un- Central Pay Commission awarded to the petitioner no understandable. The respondents rely on annexure R-2 reason to withhold the revised recommendation of B which is a communication dated 17.1.2003 in which the 5th Central Pay Commission upgrading the pay scale Ministry of Finance was requested to consider the C from 12000-16500 to 14300-18300—Respondent representation of the petitioner. From this communication, it contended—Requirement of pay parity both groups is seen that earlier the Ministry of Finance had rejected the should not only work in the indentical condition but C petitioner’s representation on the ground that the issue has should also discharge the same duty—Held—Granting to be examined on the basis of comparison of the post held earlier pay scale in 4th and 5th Pay Commission— D by the petitioner with the post existing in CPWD, having due Implicitly recognition of the fact that nature of duties regard to the provisions of the recruitment rules of both the and responsibilities of both petitioner and Additional posts and the duties and responsibilities attached to them. Director (Horticulture) in CPWD same—Revision of D In response to the aforesaid view of the Ministry of Finance, that pay scale on 02.07.2001 to 14300-18300 should the President’s Secretariat in the communication dated logically followed and could not be denied— E 17.1.2003 enclosed copies of the recruitment rules relating Respondent directed to calculate to retirement benefit to the post of Superintendent, President’s Garden and of the petitioner accordingly pay 10 % interest as due E made a request to the Ministry of Finance to examine on the date of payment—Writ Petition allowed. whether the request of the petitioner can be considered. By a communication issued on 7.7.2003 the Ministry of Finance The respondents rely on the letter dated 16.4.2002 issued F intimated the President’s Secretariat that the proposal has by the President’s Secretariat to the petitioner which says F been considered and “it has, however, not been found that the pre-revised scale of pay of Rs.3,700 which was feasible to agree to the proposed”. Subsequent granted to him with effect from 30.4.1996 was “on personal representations had also met the same fate. When once the basis and not on functional basis”. It therefore says that his petitioner was given the pay scale equivalent to that of the G pay in the corresponding revised scale of pay of Rs.12,000- pay scale of the Additional Director of Horticulture (i.e., 16,500- has been correctly fixed and that the upgraded pay G 12,000-16,500), we are inclined to think that there was scale of Rs.14,300-18,300 payable to the Superintending implicit recognition of the fact that the nature of the duties Engineers are not applicable to him as Superintendent of and responsibilities of both the petitioner and the Additional the President’s Garden. According to the memorandum, the H Director of Horticulture in CPWD was the same. If that is so, post held by the petitioner cannot be equated with the the revision of that pay scale on 2.7.2001 to Rs.14,300- H Superintending Engineer or Director of Horticulture in CPWD. 18,300 should logically follow and cannot be denied. We are unable to see the logic of the memorandum. The (Para 13) fixation of the petitioner’s pay scale at Rs.3,700-5,000, if it I I S.K. Mathur v. President Secretariat Represented by the Sec. (R.V. Easwar, J.) 1527 1528 Indian Law Reports (Delhi) ILR (2014) II Delhi

Important Issue Involved: (a) Grant of pay scale by earlier A scale for the post of Superintendent at Rs.12000-16500 w. e. f. 01.01.1996. pay commission similar to similar to counterpart in another As per this order, the petitioner was granted the pay scale of Rs.12000- department implicitly recognized that the nature of duties 16500 and this is also not in dispute. and responsibilities of the two posts are similar and entitle A 4. The petitioner retired from service on 01.04.1998 and his to same pay scale. B retirement dues were calculated on the basis of pay scale of Rs.12000- 16500. In the meantime pursuant to certain representations, a revised [Gu Si] recommendation was made by the 5th Central Pay Commission according to which the pay scale for the post of Director of Horticulture and APPEARANCES: B Additional Director of Horticulture in CPWD was upgraded to Rs.14300- FOR THE PETITIONER : Ms. Jyoti Singh, Sr. Advocate with C 18300 w. e. f. 01.01.1996 as per the decision taken by the Ministry of Mr. Vaibhav Kalra, Advocate. Finance. Office orders were accordingly passed on 06.10.1999 and FOR THE RESPONDENTS : Mr. M.K. Bhardwaj, Advocate. 28.08.2001. C RESULT: Writ petition Allowed. 5. The petitioner, based on the revised recommendation of the 5th D Central Pay Commission and the aforesaid office orders made several R.V. EASWAR, J. representations to the President’s Secretariat seeking upgradation of his 1. The petitioner in these proceedings taken under Article 226 of pay scale to Rs.14300-18300 w. e. f. 01.01.1996 and for calculation of the Constitution of India challenges the order passed by the Central D his retirement dues on that basis. These representations were rejected by Administrative Tribunal, Principal Bench, New Delhi on 02.02.2010 in the President’s Secretariat by several orders, the last of which was dated O.A. No.2788/2008. E 13.06.2008. 2. The petition has been filed this way. The petitioner was appointed 6. Aggrieved by the same, the petitioner filed O.A. No.2788/2008 as Assistant Director (Horticulture), CPWD. He was thereafter sent on E before the CAT under Section 19 of the Administrative Tribunal’s Act, deputation to DDA in the same capacity, i.e. Assistant Director 1985 praying for a declaration that the order passed by the first respondent was null and void and for issuance of appropriate orders to the respondents (Horticulture). He was then sent to the President’s Secretariat at the F President’s Garden, Rashtrapati Bhawan on 19.12.1970, in the capacity to refix the revised pay scale of the petitioner at Rs.14300-18300 w. e. of Garden Superintendent. On 08.04.1974, he was permanently absorbed F f. 01.01.1996 and to pay all consequential benefits, including retirement in the President’s Secretariat as Superintendent in the President’s Garden benefits on the basis of the revised pay scale and pay the same along which is equivalent to that of the Deputy Director of Horticulture in with interest @ 10% per annum from 01.01.1996 till payment. CPWD. The post was upgraded to the rank and pay scale of Director, G 7. The Central Administrative Tribunal vide the impugned order CPWD in the pay scale of Rs.3700-5000 w. e. f. 30.04.1996 as G rejected the application filed by the petitioner and dismissed the same. recommended by the 4th Central Pay Commission. An order was passed The reasoning of the Tribunal runs like this. It is the prerogative of the on 30.04.1996 by the President’s Secretariat to this effect and it is executive to fix the pay scale on the basis of the recommendation of the common ground that the order mentioned that upgraded scale was purely Pay Commission and the power to interfere with the same is limited to personal to the petitioner and as and when he would leave the post, the H ensuring that there is no hostile discrimination. The nature of the work pay scale of the said post would be brought down to its earlier level. H carried out by the petitioner as Garden Superintendent in the President’s 3. When the 5th Central Pay Commission’s report came, the Secretariat is not similar to the nature of the functions of the Director/ President’s Secretariat vide office order dated 22.10.1997 revised the pay Additional Director of Horticulture or the Superintending Engineer working I in the CPWD. Pay-parity presupposes that the work is equal and an I S.K. Mathur v. President Secretariat Represented by the Sec. (R.V. Easwar, J.) 1529 1530 Indian Law Reports (Delhi) ILR (2014) II Delhi inexplicable pay differentiation alone can be looked upon as discrimination A earlier pay scale is no criterion for pay parity and that a mere difference against an employee which is absent in the present case because of the in the pay scale does not amount to discrimination. It is stated that the difference in the nature of the duties. The argument of the petitioner that requirement for pay parity is that both the groups should not only work on upgradation of the scale of the Director/ Additional Director, A in identical conditions, but should also discharge equal and same duties Horticulture, CPWD to the higher scale of Rs.14300-18300 w.e.f. as held by the Supreme Court in State of Haryana vs. Tilak Raj, 01.01.1996 automatically upgrades the pay scale of the petitioner also, to B (2003) 6 SCC 123. It is accordingly contended that the Tribunal rightly that scale, is not correct because mere classification of an earlier pay dismissed the application. scale would not entitle the petitioner automatically to a higher scale and cannot be the basis for claiming pay-parity. There is no complete and B 11. We have carefully considered the facts and material on record wholesale identity between the two posts and merely because the petitioner in the light of the rival contentions. C and the Director/ Additional Director of Horticulture were carrying on 12. The facts are not in dispute, except for the aspect that whether identical work, they cannot be paid equally if there is no complete or the nature of duties of the petitioner is the same as those of the wholesale identity. Moreover, the executive has considered the C superintending engineer who is working in the CPWD. That however, representation of the petitioner twice and turned it down and the should not be allowed to come in the way of granting relief to the prerogative of the executive cannot be interfered with lightly as it would D petitioner as prayed for because there are other overriding aspects upset the constitutional principle of separation of powers between the compelling the grant of relief to the petitioner. The petitioner’s services three organs of the State. On this reasoning the OA was dismissed by were requisitioned by the President’s Secretariat in 1970. Had he continued the Tribunal. D in the CPWD itself, which is his parent department, he would have 8. In support of its conclusion the Tribunal relied upon several become Director (Horticulture) there. A letter dated 21st October, 1991 judgments of the Supreme Court. E was written by the Director of Horticulture, CPWD, New Delhi to the Under-Secretary (Admn.), President’s Secretariat, Rashtrapati Bhawan. 9. Counsel for the petitioner submitted before us that the post of E This letter refers to the steps for the advancement of the career of the Garden Superintendent in the President Secretariat is equivalent to that of petitioner herein. The letter brings out the following facts in favour of the a Deputy Director in the CPWD and both were similarly situated and petitioner: - involved identical work. It is pointed out that the upgradation benefit F (a) the petitioner being a Class-I officer, his services rendered which inured to the Additional Director of Horticulture at CPWD as per as such are normally to be given weightage as the post of the revised recommendations of the Central Pay Commission, were F the Garden Superintendent in the President’s Secretariat is withheld in the case of the petitioner despite the identity between the not a cadre service; nature of the functions of the two posts. It is further pointed out that the upgradation recommended by the 3rd and 4th Central Pay Commissions G (b) the comparison between the engineering services and were awarded to the petitioner too and there was, therefore, no reason G agricultural scientists may not be justified since these to withhold the revised recommendation of the 5th Central Pay Commission services have their cadre; moreover, persons who had upgrading the pay scale from Rs.12000-16500 to Rs.14300-18300. joined DDA as Section Officers (Horticulture) after 1959 have become Directors of Horticulture at least two years 10. Counsel for the respondents submitted that judicial restraint H prior to the date of the letter – names of such persons must be employed in matters of upgradation of pay scales, paying due H have been given in the letter which is Annexure P-2 (colly); regard to the theory of separation of powers as held by the Supreme Court in S. C. Chandra & Ors. Vs. State of Jaharkhand & Ors., (c) Assistant Directors who were selected after the petitioner (2007) 8 SCC 279. It is submitted that mere classification and grant of in the DDA have also become Directors (Horticulture) I I S.K. Mathur v. President Secretariat Represented by the Sec. (R.V. Easwar, J.) 1531 1532 Indian Law Reports (Delhi) ILR (2014) II Delhi and normally the petitioner would have also become A w.e.f. 1.1.1996 and they were further given the revised pay scale of Director (Horticulture) in DDA but for the President of Rs.14300-18300 pursuant to the revision orders dated 23.9.1999 and India requisitioning his services by name; had the petitioner 2.7.2001, again with retrospective effect from 1.1.1996. It is the joined DDA at that time he would have become Director petitioner’s claim that these Additional Directors and Directors were A of Horticulture at least 5 to 6 years prior to the date of junior to him in service and had he continued in the CPWD, there would the letter; B have been no objection to the grant of the pensionary benefits on the (d) The petitioner was promoted as Deputy Director in 1974 basis of the upgraded and revised pay scale of Rs.14300-18300 w.e.f. and normally 5 years of service are required to become 1.1.1996. The petitioner, in our opinion, cannot be placed in a worse B Director of Horticulture – the petitioner has served as position despite his services being specifically requisitioned by the President’s Secretariat. It is not irrelevant to note that the work of the Deputy Director for more than 15 years (three times more C than the minimum period required for becoming Director petitioner has been commended by the President of India. The petitioner of Horticulture). had put in 27 years of service in the President’s Garden. Even his lien C with the Horticulture Department, CPWD was terminated on 8.4.1974. Highlighting these aspects the letter makes out a case for the promotion of the petitioner as Director of Horticulture. The request 13. The respondents rely on the letter dated 16.4.2002 issued by however could not be acceded to for the only reason that the President’s D the President’s Secretariat to the petitioner which says that the pre- Secretariat is governed by its own rules-President’s Secretariat revised scale of pay of Rs.3,700 which was granted to him with effect from 30.4.1996 was “on personal basis and not on functional basis”. It (Recruitment and Conditions of Service) Rules, 1976 and there is no post D of Director (Horticulture). The correspondence also indicates that the therefore says that his pay in the corresponding revised scale of pay of scale of the petitioner was upgraded to that of Rs.3700-5000 which is Rs.12,000-16,500- has been correctly fixed and that the upgraded pay E the scale of pay of the post of Superintendent’s Gardens. Consequent scale of Rs.14,300-18,300 payable to the Superintending Engineers are upon the recommendation of the 5th Central Pay Commission, the pay not applicable to him as Superintendent of the President’s Garden. scale of the Superintendent, President’s Gardens was revised to Rs.12000- E According to the memorandum, the post held by the petitioner cannot be 16500. This pay scale was further revised to Rs.14300-18300 w.e.f. equated with the Superintending Engineer or Director of Horticulture in CPWD. We are unable to see the logic of the memorandum. The fixation 1.1.1996 on 28.8.2001 by the CPWD where the petitioner was earlier F working. The petitioner retired on 1.4.1998 after 27 years of meritorious of the petitioner’s pay scale at Rs.3,700-5,000, if it is on personal basis service in the Rashtrapati Bhawan and his pension benefits were calculated F and not on functional basis, ought to have been taken to its logical on the basis of the scale of Rs.12000-16500. No plausible reason has conclusion. The petitioner was also given the corresponding revised pay been given by the respondents as to why the pensionary benefits available scale of Rs.12,000-16,500 on the basis of the 5th Pay Commission to the petitioner should not be computed on the basis of the pay-scale G Report. But when this pay scale was upwardly revised to Rs.14,300- of Rs.14300-18300 which is nothing but a revision of the earlier pay 18,300, the respondents have refused to calculate the retiral benefits of G scale of Rs.12000-16500 to which the petitioner was undoubtedly entitled the petitioner on that basis which is un-understandable. The respondents and on the basis of which his retirement benefits were calculated and rely on annexure R-2 which is a communication dated 17.1.2003 in given. In the representation given by the petitioner to the President’s which the Ministry of Finance was requested to consider the representation Secretariat, Rashtrapati Bhawan, a copy of which is available on record H of the petitioner. From this communication, it is seen that earlier the Ministry of Finance had rejected the petitioner’s representation on the (Annexure P9-colly), the petitioner has set out a chart at para 20 from H which it is seen that Addl. Directors of Horticulture who were given the ground that the issue has to be examined on the basis of comparison of scale of Rs.3700-5000 (pre-revised) were given the revised pay scale of the post held by the petitioner with the post existing in CPWD, having Rs.12000-16500 as recommended by the 5th Central Pay Commission due regard to the provisions of the recruitment rules of both the posts I I S.K. Mathur v. President Secretariat Represented by the Sec. (R.V. Easwar, J.)1533 1534 Indian Law Reports (Delhi) ILR (2014) II Delhi and the duties and responsibilities attached to them. In response to the A ILR (2014) II DELHI 1534 aforesaid view of the Ministry of Finance, the President’s Secretariat in CS (OS) the communication dated 17.1.2003 enclosed copies of the recruitment rules relating to the post of Superintendent, President’s Garden and made A a request to the Ministry of Finance to examine whether the request of GE CAPITAL SERVICES INDIA ....PLAINTIFF the petitioner can be considered. By a communication issued on 7.7.2003 B VERSUS the Ministry of Finance intimated the President’s Secretariat that the proposal has been considered and “it has, however, not been found PRASANTA GHOSE & ANR. B+ ....DEFENDANTS feasible to agree to the proposed”. Subsequent representations had also B met the same fate. When once the petitioner was given the pay scale (G.S. SISTANI, J.) C equivalent to that of the pay scale of the Additional Director of Horticulture CS(OS) NO. : 2840/2011 DATE OF DECISION: 10.03.2014 (i.e., 12,000-16,500), we are inclined to think that there was implicit recognition of the fact that the nature of the duties and responsibilities C of both the petitioner and the Additional Director of Horticulture in CPWD Civil Procedure Code, 1908—Order 37 Rule 3 (5)— was the same. If that is so, the revision of that pay scale on 2.7.2001 Leave defend—Defendant assailing Petitioners claim D to Rs.14,300-18,300 should logically follow and cannot be denied. on grounds of lack of jurisdiction and absence of written contract or acknowledged liability—Question 14. In the aforesaid circumstances, we are of the view that the D as to jurisdiction—In purview of the Loan Agreement petitioner’s writ petition has to succeed. We hold accordingly and direct stipulating for execution by defendant at Delhi—Loan the respondents to calculate the retirement benefits of the petitioner on disbursed from Delhi, promissory note were signed the basis of the pay scale of Rs.14,300-18,300 and also grant him arrears E and payable at Delhi—Held—Part cause of action has of pay on that basis from 1.1.1996 to 31.03.1998 (i.e. date of retirement). arisen in Delhi, thereby no merit in defendants The petitioner would also be entitled to interest on such arrears from E contention qua lack of jurisdiction. Leave to Defend— 1.1.1996 till the date of realisation of the amount of the arrears, @ 10% Defendant urged that the statement of accounts sought p.a.. The writ petition is allowed in the aforesaid terms. F to be relied upon by the Plaintiff is not signed by the Defendant and that the Promissory not does not contain F the liquidated debt due—Without expressing any opinion on the merits of the matter Held—It is triable issue and granted conditional leave to defend. G Brief facts of the case, as stated in the plaint, are that G defendant no.1 had approached the plaintiff in and around May, 2004, for obtaining finance for purchasing certain medical equipment for use in commercial purposes. Relying H on the representations and assurances given by defendants, H the following Equipment Master Security and Loan Agreement No(s) were entered into by the plaintiff with the defendants:

I I GE Capital Services India v. Prasanta Ghose & Anr. B+ (G.S. Sistani, J.) 1535 1536 Indian Law Reports (Delhi) ILR (2014) II Delhi

i) Old No.W11293 (New No.AI 20643), dated 23-May- A Important Issue Involved: Territorial Jurisdiction is 2004. ascertained form the accrual of cause of action in a particular State. ii) Old No.W11283 (New No.AI20634) dated 23-May- 2004. A B [As Ma] iii) Old No.W11283(A) (New No.AI20635) dated 23- APPEARANCES: May-2004. (Hereinafter “Agreement”) (Para 6) FOR THE PLAINTIFF : Mr. Gaurav Gaur, Adv. In terms of the loan agreement it was also agreed that in B case of default committed by defendant no.1 in paying any FOR THE DEFENDANTS : Mr. Aniruddha Deshmukh and Mr. C Aniruddha Rajput, Advs. for instalment of the loan amount as per the schedule, the defendants. entire amount of the term loan or balance then due including the outstanding penal interest would become due forthwith C CASES REFERRED TO: and payable by defendant no.1. In consideration of and as 1. Satyendra Jain vs. M/s Omway Buildestate Pvt. Ltd. 199 security for the loan and due repayment thereof and as D (2013) DLT 710. security, defendant no.1 had created on 23.5.2004 first charge secured by way of pledging the medical equipments 2. M/s GE Capital Services India vs. Dr.Mohan Chatubhuj as collateral security in favour of the plaintiff. Additionally, D Jamvar and Ors, CS(OS)2031/2011, decided on 1.7.2013. defendant no.1, as proprietor, also executed demand 3. GE Capital Services India vs. May Flower Healthcare Promissory Note dated 23.5.2004 in favour of the plaintiff, E Private Limited, CS(OS)2859/2011, decided on 31.8.2012. acknowledging thereby its liability to pay on demand to the 4. Rashtriya Mahila Kosh vs. The Dale View and Anr., plaintiff an amount of Rs.20.00 lakhs along with interest at E reported at 2007 (95) DRJ 418. the rate of 11%, per annum. In the Promissory Note, 5. GE Capital Services India vs. G. Neuromed Diagnostic defendant also acknowledged and unconditionally promised Centre Pvt. Ltd., reported at 2007 (98) DRJ 74. to pay a late payment charge at the rate of 36%, per F 6. National Horticulture Board vs. M/s Flora Continental annum, over and above the applicable rate of interest on F the defaulted amount until realisation of the same. Limited & Ors., reported at 2004 I AD (DELHI) 81. (Para 11) RESULT: Application stands disposed off. The second argument raised by learned counsel for the G G.S. SISTANI, J. (ORAL) defendant is that there is no liquidated debt as the Statement G I.A. 13599/2013 of Accounts are not signed by the defendants nor the Promissory Notes contain a liquidated debt. Without 1. This is an application filed by defendants seeking condonation of expressing any opinion on the merits of the matter, in my 430 days’ delay in re-filing I.A. 13598/2013. H view, this is a triable issue, which requires consideration. 2. For the reasons stated in the application and in view of the stand Accordingly, it is a fit case where the defendants should be H taken by counsel for the plaintiff/non-applicant before the Joint Registrar granted conditional leave to defend. (Para 23) of this Court on 23.1.2014 that he does not wish to oppose the present application, this application is allowed. Delay in re-filing I.A. 13598/2013 I I GE Capital Services India v. Prasanta Ghose & Anr. B+ (G.S. Sistani, J.) 1537 1538 Indian Law Reports (Delhi) ILR (2014) II Delhi stands condoned. Let I.A. 13598/2013 be taken on record. 3. Application A 9. Further, as per the terms and conditions of the Agreement, the stands disposed of. loan amount so disbursed by the plaintiff company was repayable in the following manner: I.A. 13598/2013 A Particulars Old No.W11293 Old Old 4. Present application has been filed by the defendants under Order XXXVII Rule 3(5) of CPC seeking leave to defend in the present suit, B (New No.AI 20643) No.W11283 No.W11283 which has been filed under the provisions of Order XXXVII of CPC. (New No.AI (New No.AI 20634) 20635) 5. As per the plaint, defendant no.1 had approached the plaintiff for B financial assistance. Defendant no.2 executed a personal guarantee dated Principal Rs.5,20,000/- Rs.11,36,000/- Rs.3,44,000/- 23.5.2004 in favour of the plaintiff for due repayment of all and every C Amount sum payable by defendant no.1. Tenor/EMI 60 EMI 60 EMI 60 EMI 6. Brief facts of the case, as stated in the plaint, are that defendant C Rate of 11.00 % 11.00 % 11.00 % no.1 had approached the plaintiff in and around May, 2004, for obtaining Interest finance for purchasing certain medical equipment for use in commercial D First 07.07.2004 27.06.2004 27.06.2004 purposes. Relying on the representations and assurances given by ment defendants, the following Equipment Master Security and Loan Agreement Instal No(s) were entered into by the plaintiff with the defendants: D Due Date i) Old No.W11293 (New No.AI 20643), dated 23-May-2004. 10. In case of default/delay defendants were liable to pay interest E at the rate of 36%, per annum. Defendant no.1 issued post-dated cheques, ii) Old No.W11283 (New No.AI20634) dated 23-May-2004. comprising of the interest payment plus the part-payment of principle iii) Old No.W11283(A) (New No.AI20635) dated 23-May-2004. E amount in accordance with the agreement. (Hereinafter “Agreement”) 11. In terms of the loan agreement it was also agreed that in case 7. Terms and conditions of the said Agreement were fully accepted F of default committed by defendant no.1 in paying any instalment of the by the defendant(s) in respect of the said loan for all matters, inter alia, loan amount as per the schedule, the entire amount of the term loan or relating to documents, disbursement, recovery, etc. F balance then due including the outstanding penal interest would become due forthwith and payable by defendant no.1. In consideration of and as 8. Further, according to the plaint, the agreement was negotiated, security for the loan and due repayment thereof and as security, defendant deliberated upon, concluded, and executed in New Delhi. The plaintiff G no.1 had created on 23.5.2004 first charge secured by way of pledging sanctioned and disbursed the said loan amount from Delhi. As per the G the medical equipments as collateral security in favour of the plaintiff. Loan Agreement, Rs.20.00 lakhs were financed to defendant no.1, which Additionally, defendant no.1, as proprietor, also executed demand were, inter alia, used for the purchase of medical equipments i.e. one Promissory Note dated 23.5.2004 in favour of the plaintiff, acknowledging number of Logiq 3 Pro Ultrasound Scanner along with its accessories, thereby its liability to pay on demand to the plaintiff an amount of one number of GE DX200 medical diagnostic imaging equipment and one H Rs.20.00 lakhs along with interest at the rate of 11%, per annum. In the number of 24 Channel Digital EEG Machine model NP 2400p/Digital H Promissory Note, defendant also acknowledged and unconditionally EMG Machine model NP 2300 and Spirowin Spirometry Machine. The promised to pay a late payment charge at the rate of 36%, per annum, said term loan was sanctioned upon the terms and conditions as contained over and above the applicable rate of interest on the defaulted amount and agreed upon in the Agreement dated 23.5.2004. until realisation of the same. I I GE Capital Services India v. Prasanta Ghose & Anr. B+ (G.S. Sistani, J.) 1539 1540 Indian Law Reports (Delhi) ILR (2014) II Delhi

12. In order to further secure the term loan so advanced by the A 16. In support of his submission counsel for the plaintiff has relied plaintiff to defendant no.1, an irrevocable and unconditional personal upon GE Capital Services India v. G. Neuromed Diagnostic Centre guarantee dated 23.5.2004 was executed by defendant no.1. Defendant Pvt. Ltd., reported at 2007 (98) DRJ 74, more particularly paras 14, 16 to 18, which read as under: no.1 also executed a demand Promissory Note dated 23.5.2004 in favour A of the plaintiff acknowledging thereby its liability to pay on demand to B 14. In L.N. Gupta and Ors. v. Smt. Tara Mani (supra), this the plaintiff an amount of Rs.20.00 lakhs along with interest at the rate Court held: of 11%, per annum. In the Promissory Note, defendant no.1 also acknowledged and unconditionally promised to pay a late payment charge Under Section 20, Clause (c), CPC, a suit can be filed in a Court at the rate of 36%, per annum, over and above the applicable rate of B in whose jurisdiction the cause of action, wholly or in part arises. Place of performance in full or in part of the contract and interest on the defaulted amount until realisation of the same. C therefore, the place of payment or of part payment will give rise 13. An irrevocable and unconditional personal guarantee dated to a cause of action in that place. Such place can be specified 23.5.2004 was also executed by defendant no.2 in favour of the plaintiff C at the time of making the contract, may be appointed later on, for the due repayment of the loan, interest and all other charges accrued or may be implied. Indian Contract Act, 1872, Sections 47, 48 in terms of the loan agreement. Defendant no.2 also executed demand D and 49 deal with the place of performance. So far as the stipulated Promissory Note dated 23.5.2004 in favour of the plaintiff acknowledging place is concerned, there should ordinarily be no problem. thereby their liability to pay on demand to the plaintiff an amount of 16. Even if it were to be assumed that the loan agreement was Rs.20.00 lakhs along with interest at the rate of 11%, per annum. In the D Promissory Note defendants have acknowledged and unconditionally executed in Kanpur (though this fact is disputed by the plaintiff), promised to pay a late payment charge at the rate of 36%, per annum, the fact of the matter is that the loan agreement itself states that E over and above the applicable rate of interest on the defaulted amount the Courts in Delhi would have exclusive jurisdiction. until realisation of the same. It is also the case of the plaintiff that after E 17. I find force in the submission of the plaintiff that the present the loan was disbursed only few installments were paid by the defendants. is not a case of conferring jurisdiction on a Court which otherwise 14. Learned counsel for the defendants submits that the defendants has none. This Court has jurisdiction to entertain the present seek unconditional leave to defend primarily on the ground that, firstly, F suit, since the loan was repayable at Delhi. This is clear from a this Court has no territorial jurisdiction to try and entertain the present mere reading of the Loan Agreement coupled with the promissory F suit. Reliance is placed by counsel for the defendants on the documents notes executed by the defendant Nos. 1 to 4. The promissory placed on record by the plaintiff, which would show that stamp papers notes have been executed by the defendants in pursuance of the were purchased in Karnataka. Counsel further submits that it is further terms of the loan agreement itself, and are not independent of it. the case of the defendants that the defendants signed the loan document G It is not the case of the defendants that the liability of the at West Bengal and no part of cause of action has arisen within the G defendants under the Promissory Notes are in addition to their territorial jurisdiction of this Court. Hence Clause 10(g) of the Agreement, liability under the loan agreement. The loan agreement has to be cannot confer jurisdiction on this Court. read in conjunction with the promissory notes. Even though loan agreement itself does not state that the same is to be repaid at 15. Learned counsel for the plaintiff submits that since the documents H Delhi, or at any other designated place, a reading of the same were signed at New Delhi, the loan was disbursed from New Delhi, H along with promissory notes leaves no manner of doubt that the Promissory Notes were signed and payable at New Delhi, and even the repayment of loan had to take place at Delhi. Even otherwise it installments were payable at New Delhi, thus, this Court would have is settled that it is for the debtor to find the creditor. see L.N. territorial jurisdiction to try and entertain this matter. I Gupta (supra) The loan agreement by itself does not, expressly I GE Capital Services India v. Prasanta Ghose & Anr. B+ (G.S. Sistani, J.) 1541 1542 Indian Law Reports (Delhi) ILR (2014) II Delhi or impliedly, provide that the repayment of loan would be in A Agreement dated 31.01.2007 as to the exclusive jurisdiction of Lucknow or at any other place other than Delhi. In such a the Courts at Delhi to be of no avail. Not only so, the address situation, the aforesaid legal principle would become applicable of the plaintiff in the Agreement is of Delhi only and the plaintiff that the loan was repayable at the place where the plaintiff has is correct in relying on the principle of debtor must seek the A its principle place of business, i.e., in Delhi. creditor for vesting the Courts at Delhi with territorial jurisdiction B over the matter. Similarly, the defendant no.2 also has addressed 18. The parties have expressly confined jurisdiction in this Court, the personal guarantee to the plaintiff at Delhi and thus undertaken which it is even otherwise possessed of.” to make the payments thereunder to the plaintiff at Delhi. Thus 17. Counsel for the plaintiff has further relied upon M/s GE Capital B the grounds urged by both the defendants of this Court lacking Services India v. Dr.Mohan Chatubhuj Jamvar and Ors, CS(OS)2031/ territorial jurisdiction have no merit. C 2011, decided on 1.7.2013, more particularly paras 5, 6 and 8, which 8. The ground urged by the defendants no.1 and 2 of the claim read as under: being barred by limitation also has no substance. The date of 5. The Agreement dated 31.01.2007 between the plaintiff and the C signing of the Agreement is of no relevance. The defendants in defendant no.1, execution whereof is not denied, nowhere in the the application for leave to defend have expressly admitted the recitals thereof records the defendant no.1 having agreed to buy D loan of Rs.1.20 crores being repayable in 60 installments the machine on finance from the plaintiff on account of any commencing from February, 2007 and to run till January, 2012; representation by the plaintiff as to the quality or performance of it is further not disputed that installments were paid till December, D the machine; rather the said Agreement nowhere refers to M/s 2008. The suit has been instituted within three years therefrom, Bausch & Lomb and only describes the machine which is financed on 12.08.2011.” thereunder; similarly the same does not require the plaintiff to, E 18. Learned counsel for the defendants in support of his submission upon default, first attempt to recover the monies due by that this court does not have territorial jurisdiction has relied upon National repossession or sale of the machine and rather empowers the E Horticulture Board v. M/s Flora Continental Limited & Ors., reported plaintiff to immediately recover the monies due without being at 2004 I AD (DELHI) 81, more particularly para 11, which reads as required to repossess or sell the machine. In the face of such F under: Agreement in writing between educated commercial persons (as discussed in Satyendra Jain Vs. M/s Omway Buildestate Pvt. F 11. But in the instant application for leave to defend the applicants Ltd. 199 (2013) DLT 710 and in judgment dated 1st February, have also contended that this court has no territorial jurisdiction 2013 in CS(OS) No.1480/2009 titled Chemical Systems since the defendant No. 1 had already shifted its registered office Technologies (India) Pvt. Ltd. Vs. Simbhaoli Sugar Mills G from Pushpanjali, Delhi to the State of Haryana and at the time Ltd.) leave cannot be granted on grounds urged in contravention of the filing of the suit the defendant was neither carrying on thereof. G business nor was working for gain within the jurisdiction of this court. Admittedly the loan agreement, promissory note, the 6. As far as the objection to the territorial jurisdiction is concerned, undertaking and other documents were executed by the defendants Clause 10(g) of the Agreement admittedly executed by the No. 1 to 5 in the State of Haryana. No part of the project was defendants records the execution thereof by the authorized H to be executed in Delhi. The argument advanced on behalf of the representative of the plaintiff at Delhi; there is no contravention H plaintiff is that no intimation of the shifting of the registered of the said fact in the application for leave to defend; it thus office from Delhi to Haryana was given to the plaintiff, therefore, cannot be said that no part of cause of action has accrued at the defendants No. 1 to 5 have raised a bonafide defense which Delhi for the agreement of the parties also contained in the I I GE Capital Services India v. Prasanta Ghose & Anr. B+ (G.S. Sistani, J.) 1543 1544 Indian Law Reports (Delhi) ILR (2014) II Delhi may be established by them at the trial. A annum from the date of filing of the suit.” 19. Counsel for the defendants has further relied upon GE Capital 20. I find no force in the submission made by counsel for the Services India v. May Flower Healthcare Private Limited, defendants for the reason that even assuming that the loan agreements CS(OS)2859/2011, decided on 31.8.2012. Counsel has also relied upon A were not signed in Delhi, it is not in dispute that the loan amount was Rashtriya Mahila Kosh v. The Dale View and Anr., reported at 2007 B repayable at Delhi, which is evident from the reading of the document (95) DRJ 418, more particularly paras 15 and 16, which read as under: in question. Moreover, since the payments were to be made at Delhi, place of performance in full or part of the contract is in Delhi, therefore “15. Having heard learned Counsels for the parties, I find that place of payment or any part will give rise to a cause of action in that the present suit is based on agreements, guarantee deeds and B place. Moreover, parties have agreed to confer jurisdiction on the Courts pronotes which were executed by the defendants. The documents C at Delhi. This Court cannot lose track of the fact that Promissory Notes have been executed on the stamp papers and have been procured were executed by the defendants in pursuance of the terms of the loan at Kerala. These documents also prima facie reflect that they agreement and reading of the loan agreement shows that the amount was have been executed at Kerala. The pronotes and guarantee deeds C to be repaid at Delhi. relied upon by the plaintiff also show that they have been signed by the defendants at Kerala. The payments which have been D 21. On reading of the loan agreement it can safely be said that made by the plaintiff have admittedly been made through bank parties have expressly conferred jurisdiction on this Court, which it has drafts. The copies of the bank drafts which have been placed on even otherwise. Three Single Judges of this Court while dealing with record show that the bank drafts are payable at Kerala. Therefore, D identical matters have held that Courts at Delhi would have jurisdiction so far as the contention of the plaintiff that these documents in the matter. I have no reason to differ. 22. The second ground urged were executed at Delhi is concerned, the same is the matter E in this application by the defendants is that the Promissory Note does not which cannot be decided by a mere examination of the documents contain the liquidated debt due and the statement of accounts, sought to but would require evidence in support of the respective E be relied upon by the plaintiff, is not signed by the defendants and, thus, contentions. There is also no dispute that the loans have been in the absence of a liquidated debt, a suit under the provisions of Order issued to poor women needing micro-finance at Kerala as per the XXXVII of CPC would not be maintainable. scheme of the plaintiff. F 23. The second argument raised by learned counsel for the defendant 16. It is further noteworthy that the agreement dated 12th October, F is that there is no liquidated debt as the Statement of Accounts are not 1994 executed by defendant no. 1 stated that interest on the dues signed by the defendants nor the Promissory Notes contain a liquidated would be as was specified in the letter of sanction of the facility. debt. Without expressing any opinion on the merits of the matter, in my The amount of the loan was sanctioned vide letter dated 30th G view, this is a triable issue, which requires consideration. Accordingly, September, 1994 wherein the rate of interest which the plaintiff it is a fit case where the defendants should be granted conditional leave could charge was 8% per annum. The plaintiff has based the suit G to defend. claim on a demand made on the defendants by its legal notice 24. Accordingly, present application is allowed, subject to defendants’ dated 19th September, 2003 wherein it has been stated that depositing 50% of the suit amount i.e. Rs.35,96,810/- with the Registrar repayment of the loan amount was to be effected by the H General of this Court, within six weeks from today, which amount shall defendants to the plaintiff with interest at the rate of 8% per H be kept in a fixed deposit, to be renewed periodically till further orders annum with quarterly rates. The suit claim is based on such from this Court. In case, the order passed today is not complied with, computation of the interest. I find that the suit also contains a the suit shall stand decreed in favour of the plaintiff and against the prayer for a demand of future interest at the rate of 16% per I defendants in the sum of Rs.35,96,810 together with pendente lite and I Harakaran Dass Deep Chand v.Viren Agrotech Pvt. Ltd. (G.S. Sistani, J.) 1545 1546 Indian Law Reports (Delhi) ILR (2014) II Delhi future interest at the rate of 8%, per annum. A financial crunch the defendant’s company has been facing, the cheques not presented on the request of 25. Application stands disposed of. Defendant—Assurance of defendant that cheques CS(OS) 2840/2011 A could be presented for payment—Cheques dishonoured despite assurances. Held—Invoice/bill not 26. Let written statement be filed within thirty days from today. B covered within definition of written contract— Replication, if any, be filed within thirty days thereafter. Parties, shall file Defendant failed to enter appearance in the matter documents, which are in their possession and power, within the same despite substituted service also failed to make period. B payments—Suit decreed in favor or plaintiff. 27. List the matter before Joint Registrar for admission/denial of C documents on 12.5.2014. Plaintiff has filed the present suit under the provisions of Order XXXVII of the Code of Civil Procedure for recovery of 28. List the matter before Court for framing of issues on 21.7.2014, C Rs.60,36,522/- along with pendente lite and future interest when parties shall bring suggested issues to Court. at the rate of 18%, per annum. (Para 1)

D Summons in the suit were issued to the defendant Under Order XXXVII CPC in Form 4 of Appendix B CPC. Since, the defendant could not be served in the ordinary way, the D plaintiff filed an application under Order V Rule 20 CPC for ILR (2014) II DELHI 1545 substituted service. Defendant has since been served by CS (OS) E publication. Despite substituted service defendant has failed to enter appearance in the matter. (Para 2) E HARAKARAN DASS DEEP CHAND ....PLAINTIFF Learned counsel for the plaintiff submits that before the VERSUS cheques could be presented for realisation, the defendant F requested the plaintiff not to present the aforesaid cheques VIREN AGROTECH PVT. LTD. ....DEFENDANT F as the defendant company was facing a financial crunch, (G.S. SISTANI, J.) however, all the cheques were presented by the plaintiff after 20.5.2012 on the assurance given by the defendant CS (OS) NO. : 2377/2010 DATE OF DECISION: 21.03.2014 that the said cheques would be encashed on presentation. G It is contended by counsel for the plaintiff that despite G assurance given by the defendant the said five cheques Code of Civil Procedure, 1908—Order 37—Suit under were dishonoured due to insufficient funds. (Para 6) Order 37 of CPC for recovery of Rs. 60,36,522/- pendente lite & future interest @ 18% p.a.—Defendant It is no longer res intigra that invoices/bills are covered H served by publication under order 5 rule 20 of CPC— within the definition of written contract. In the case of KLG Plaintiff a partnership firm—Defendant approached at H Systel Ltd. V. Fujitsu ICIM Ltd., reported at 92 (2001) DLT its Delhi office for the supply of Palm Stearine Oil— 88 it was held as under: Contract between the parties for final price & other terms-oil supplied—Cheques received—Owing to the I I Harakaran Dass Deep Chand v.Viren Agrotech Pvt. Ltd. (G.S. Sistani, J.) 1547 1548 Indian Law Reports (Delhi) ILR (2014) II Delhi

“1. The defendant/applicant has also challenged the A RESULT: Suit decreed in favor of plaintiff. maintainability of the suit under Order XXXVII of the G.S. SISTANI, J. (ORAL) C.P.C., stating that “there is no debt or liquidated demand in money payable to defendant-Company A 1. Plaintiff has filed the present suit under the provisions of Order (sic. Read plaintiff) and/or based on a written contract”. XXXVII of the Code of Civil Procedure for recovery of Rs. It is no longer res integra that invoices/bills are B 60,36,522/- along with pendente lite and future interest at the rate of ‘written contracts’ within the contemplation of this 18%, per annum. Order. Reference is directed to Messrs. Punjab Pen 2. Summons in the suit were issued to the defendant Under Order House v. Samrat Bicycle Ltd., AIR 1992 Delhi 1; B XXXVII CPC in Form 4 of Appendix B CPC. Since, the defendant could Corporate Voice (Pvt.) Ltd. V. Uniroll Leather C not be served in the ordinary way, the plaintiff filed an application under India Ltd., 60 (1995) DLT 321; and Beacon Order V Rule 20 CPC for substituted service. Defendant has since been Electronics v. Sylvania and Laxman Ltd., 1998 (3) served by publication. Despite substituted service defendant has failed to Apex Decisions (Delhi) 141. There is, thus, no C enter appearance in the matter. hesitancy in holding that the present suit is a suit which should be tried under the summary procedure D 3. Learned counsel for the plaintiff prays for passing of a decree of Order XXXVII of the CPC.” (Para 8) while relying on Order XXXVII Rule 2 (3) of CPC. 4. D As per the plaint, plaintiff is a partnership firm and defendant is Important Issue Involved: It is no longer res integra that a company. The defendant, through its Directors and other officials, had invoice/bills are covered within the definition of written approached the plaintiff at its Delhi office for supply of Palm Stearine contract. E Oil. A detailed discussion and deliberation with respect to the said purchase, including the final price and other terms, was held at plaintiff’s Delhi [As Ma] E office and thereafter contract between the parties was finalised at Delhi. As per the contract, the plaintiff supplied Palm Stearine Oil to the defendant APPEARANCES: vide Invoice at Sl.No.1444, Book No.29 dated 11.3.2010, for a sum of F FOR THE PLAINTIFF : Mr. Amit Punj, Adv. RS.10,57,920/-; Invoice at Sl.No.1452, Book No.30, dated 25.3.2010 for FOR THE DEFENDANT : None. F a sum of Rs.10,49,534/-; Invoice at Sl.No.1454, Book No.30, dated 30.03.2010 for a sum of Rs.11,20,558/-; Invoice at Sl.No.1456, Book CASES REFERRED TO: No.30, dated 31.03.2010 for a sum of Rs.12,08,952/-; Invoice at 1. KLG Systel Ltd. vs. Fujitsu ICIM Ltd., reported at 92 G Sl.No.1457, Book No.30, dated 02.04.2010 for a sum of Rs.11,01,128/ (2001) DLT 88 -; total amounting to Rs.55,38,092/-. Reliance is placed on copy of C G Forms, which would evidence quantum of goods supplied by the plaintiff 2. Beacon Electronics vs. Sylvania and Laxman Ltd., 1998 to the defendant. (3) Apex Decisions (Delhi) 141. 5. As per the terms and conditions settled between the parties for 3. Corporate Voice (Pvt.) Ltd. vs. Uniroll Leather India H Ltd., 60 (1995) DLT 321. the abovesaid supply, the defendant made payments to the plaintiff by H way of five cheques, details of which read as under: 4. Messrs. Punjab Pen House vs. Samrat Bicycle Ltd., AIR 1992 Delhi 1.

I I Harakaran Dass Deep Chand v.Viren Agrotech Pvt. Ltd. (G.S. Sistani, J.) 1549 1550 Indian Law Reports (Delhi) ILR (2014) II Delhi SL.NO. CHEQUE NO. DATE AMOUNT A 141. There is, thus, no hesitancy in holding that the present suit is a suit which should be tried under the summary procedure of i. 965348 12.4.2010 Rs.10,56,400/- Order XXXVII of the CPC.” ii. 965358 15.4.2010 Rs.10,49,534 /- A 9. Order XXXVII Rule 2 (3) reads as under: B iii. 965371 25.4.2010 Rs.11,20,558/- “(3) The defendant shall not defend the suit referred to in sub- rule (1) unless he enters an appearance and in default of his iv. 965372 26.04.2010 Rs.11,00,148/- entering an appearance the allegations in the plaint shall be deemed B to be admitted and the plaintiff shall be entitled to a decree for v. 965373 27.04.2010 Rs.11,01,776/- any sum, not exceeding the sum mentioned in the summons, C together with interest at the rate specified, if any, up to the date vi. TOTAL Rs.54,28,416/- of the decree and such sum for costs as may be determined by 6. Learned counsel for the plaintiff submits that before the cheques C the High Court from time to time by rules made in that behalf could be presented for realisation, the defendant requested the plaintiff and such decree may be executed forthwith.” not to present the aforesaid cheques as the defendant company was D 10. Having regard to the submissions made and taking into facing a financial crunch, however, all the cheques were presented by consideration that the defendant has failed to make the payment and the the plaintiff after 20.5.2012 on the assurance given by the defendant that fact that despite substituted service defendant has failed to enter appearance the said cheques would be encashed on presentation. It is contended by D in the matter, present suit is decreed in favour of the plaintiff and against counsel for the plaintiff that despite assurance given by the defendant the defendant in the sum of Rs.60,36,522/- together with pendente lite and said five cheques were dishonoured due to insufficient funds. E future interest at the rate of 8%, per annum. Let a decree sheet be drawn 7. I have heard learned counsel for the plaintiff, perused the plaint up accordingly. and the certified copies of all the documents, which have been placed on E I.A. 5890/2013 (u/S 151 CPC). record in support of the pleas raised by the plaintiff in the suit. Present suit is based on dishonour of five cheques and invoices. 11. Application stands dismissed in view of the order passed in the F suit. 8. It is no longer res intigra that invoices/bills are covered within the definition of written contract. In the case of KLG Systel Ltd. V. F Fujitsu ICIM Ltd., reported at 92 (2001) DLT 88 it was held as under:

“1. The defendant/applicant has also challenged the maintainability G of the suit under Order XXXVII of the C.P.C., stating that G “there is no debt or liquidated demand in money payable to defendant-Company (sic. Read plaintiff) and/or based on a written contract”. It is no longer res integra that invoices/bills are ‘written contracts’ within the contemplation of this Order. Reference is H directed to Messrs. Punjab Pen House v. Samrat Bicycle Ltd., H AIR 1992 Delhi 1; Corporate Voice (Pvt.) Ltd. V. Uniroll Leather India Ltd., 60 (1995) DLT 321; and Beacon Electronics v. Sylvania and Laxman Ltd., 1998 (3) Apex Decisions (Delhi) I I Chandan @ Babar v. The State (NCT of Delhi) (S.P. Garg, J.) 1551 1552 Indian Law Reports (Delhi) ILR (2014) II Delhi

ILR (2014) II DELHI 1551 A 2008 arising out of FIR No.64/2008 registered at Police Station Bara CRL. A. Hindu Rao by which he was held guilty for committing offences punishable under Section 120-B/392/397 IPC and sentenced to undergo RI for seven A years. CHANDAN @ BABAR ....APPELLANT B 2. Briefly stated, the prosecution case as projected in the charge- VERSUS sheet was that on 13.06.2008 at about 05.00 A.M. opposite shop No.T- 736, Tyre Market, Azad Market, DCM Road in pursuance of criminal THE STATE (NCT OF DELHI) ....RESPONDENT B conspiracy, Chandan @ Babar and his associates -Mukesh @ Mukka, (S.P. GARG, J.) Karan Singh @ Deva and Mohd.Wasim robbed Rs. 2,500/-, visiting C cards and mobile phone no.9212421161 from the complainant -Manoj CRL.A. NO. : 974/2011 DATE OF DECISION: 24.04.2014 Kumar. They also robbed Rs. 3,500/-, railway tickets from Deepak Sharma (PW-1). They were armed with knives at the time of committing robbery C Indian Penal Code, 1860—Section 120B/392/397— and used deadly weapons to deprive the complainant -Manoj Kumar and Conviction—Appeal against. Held, evidence of Deepak of their valuable articles. During the course of investigation, D prosecution on the aspect of use of deadly weapon at statements of witnesses conversant with facts were recorded. The accused the time of committing robbery deficient. PW1 & 4 not persons were arrested. The Investigating Officer moved applications for certain if knife was used by the appellant at the time D conducting Test Identification Parade. The accused declined to participate of robbery. No knife recovered in presence of the in the TIP. Robbed articles were recovered at the instance of the accused. After completion of investigation a charge-sheet was submitted against witnesses. The knife allegedly recovered in another E case not shown to the witnesses to ascertain if it was them in the Court. They were duly charged and brought to trial. The prosecution examined 26 witnesses. In their statement under Section 313 the same knife used by the appellant. Witnesses did E not give particulars i.e. size, dimension etc of the Cr.P.C. the accused pleaded false implication. On appreciating the evidence knife to establish that it was a deadly weapon. No and considering the rival submissions of the parties, the Trial cour , by the impugned judgment convicted the appellant – Chandan @ Babar injuries inflicted with any weapon to the victims. F and his associates Mukesh @ Mukka and Karan Singh @ Deva. Mohd. Conviction with the aid of Sec. 397 unsustainable and Wasim was acquitted of all the charges. Being aggrieved, the appellant appellant deserves benefit of doubt on that score. F has preferred the appeal. Conviction under section 120 B/392 IPC however maintained. 3. Learned counsel for the appellant urged that the Trial Court did G not appreciate the evidence in its true and proper perspective. The accused [Di Vi] G were shown to the prosecution witnesses. In the police station, their APPEARANCES: sketches were prepared and photographs were shown to witnesses. The FOR THE APPELLANT : Mr. Adit S. Pujari, Advocate for Mr. accused were justified to decline participation in Test Identification Parade. The witnesses gave inconsistent version as to which of the accused used Siddharth Aggarwal, Advocate. H knife to rob them. The TSR was found abandoned. PW-12 (Mukesh FOR THE RESPONDENT : Mr. Lovkesh Sawhney, APP. H Chand Sharma) turned hostile and did not support the prosecution. The S.P. GARG, J. robbed articles were not recovered in the presence of the complainant and Deepak. There was no specific mark of identification on the recovered 1. Chandan @ Babar impugns conviction in Sessions Case No.39/ I I Chandan @ Babar v. The State (NCT of Delhi) (S.P. Garg, J.) 1553 1554 Indian Law Reports (Delhi) ILR (2014) II Delhi currency notes. Allegations against the appellant were that he sat with the A TIP. PW-26 (Ashish Aggarwal, Metropolitan Magistrate) conducted Test driver of the TSR in which the victims were travelling. He did not Identification Proceedings on 17.07.2008 in which the accused declined attempt to rob the victims. He was arrested in some other case and was to participate. An adverse inference is to be drawn against the accused falsely implicated in the instant case. Learned APP for the State urged for not participating in the TIP proceedings. PW-4 (Manoj Kumar) in his A that the accused was identified by the complainant and PW-1 (Deepak deposition before the court recognized and identified Chandan @ Babar Sharma) in the court. They had no animosity to implicate the accused B without hesitation to be amongst the assailants. He was categorical in his falsely in the case. identification and stated that the appellant was the assailant who sat with a knife on their TSR driver’s seat. In the cross-examination, he further 4. I have considered the submissions of the parties and have B stated that after the accused refused to participate in TIP proceedings, examined the record. It is pertinent to note that co-convict Karan Singh he identified him in the police station Bara Hindu Rao. PW-1 (Deepak @ Deva had preferred Crl.A.No. 411/2011 which was disposed of vide C Sharma) was also certain that the accused – Chandan @ Babar present order dated 07.03.2013 by this Court. Conviction of the appellant – in the court was one of the assailants. These independent public witnesses Karan Singh @ Deva under Sections 392/120-B IPC was sustained. had no prior ill-will against the accused to falsely implicate him and to Sentence order was modified and substantive sentence was reduced to C let the real culprits go scot free. The police witnesses also testified that five years. Other sentences were left undisturbed. The appellant’s case some robbed articles were recovered at the instance of the accused and stands on similar footings. The reasons for conviction in the said appeal D were identified by PW-1 and PW-4 in their deposition in the court. are equally and fully applicable in the present appeal. At the outset, it may Acquittal of co-accused Wasim is of no benefit to the appellant. Co- be mentioned that the learned counsel for the appellant did not challe D accused Wasim was TSR driver and did not come down from the TSR. ge the incident of robbery. His only plea is that appellant was not one of Consequently, PW-1 and PW-4 had no direct confrontation with him. the perpetrators of the crime. PW-1 (Deepak Sharma) and PW-4 (Manoj Wasim was given benefit of doubt as PW-1 and PW-4 were unable to Kumar) had no animosity to implicate the accused in the incident of E recognize and identify him as one of the assailants. The photographs of robbery in which they were deprived of valuable articles including cash the culprits were shown to the prosecution witnesses in the Police Station when they were travelling in TSR No.DL 1 RE 9747 from Old Delhi E to ascertain and find out real the assailants. The accused was not in Railway Station to Anand Parbat. Police machinery came to motion when picture at that time. It is not on record that any photograph of the DD No.8/B (Ex.PW15/A) was recorded at Police Station Bara Hindu Rao F accused was shown to PW-1 and PW-4 before moving application for at 05.27 hours on getting information that three boys travelling in TSR TIP. The complainant had given the description of the assailants and had No.DL 1RF 1454 committed robbery of cash and valuable articles. In his F claimed to identify them. Identification of the accused in the court by statement (Ex.PW-4/A) the complainant -Manoj Kumar gave vivid PW-1 and PW-4 is crucial and cannot be discarded. Merely because PW- description of the occurrence. He also disclosed broad features of the 12 (Mukesh Chand Sharma) did not identify the assailants in the court, assailants. The complainant had no acquaintance with the assailants to G otherwise cogent and reliable deposition of independent witnesses PW- falsely rope them in the incident. First Information Report was lodged at 1 and PW-4 cannot be discredited. The accused did not give plausible 06.30 A.M. vide rukka (Ex.PW23/A). There was no delay in lodging the G explanation to the incriminating circumstances proved against them. The First Information Report and it ruled out the possibility of any false findings of the Trial Court that the accused was one of the assailants in fabrication. committing the robbery are based upon fair appraisal of the evidence and 5. During investigation, Chandan @ Babar was arrested in case FIR H need no interference. No.239/2008 registered at Police Station Mandavali and was lodged in H 6. The accused was convicted with the aid of Section 397 IPC Tihar Jail No.8. The Investigating Officer moved an application for issuance whereby he allegedly used ’deadly’ weapon at the time of committing of production warrants. He was interrogated and his disclosure statement robbery. The evidence of the prosecution on this aspect is deficient. (Ex.PW9/B) was recorded. The application was moved for conducting I I Mahesh Chand Aggarwal v. Mukesh Kalia & Ors. (G.S. Sistani, J.) 1555 1556 Indian Law Reports (Delhi) ILR (2014) II Delhi PW1 and PW-4 were not certain if knife was used by the appellant at A affidavit—Despite several opportunities defendant the time of committing robbery. No knife was recovered from the accused failed to file evidence—Right to lead evidence closed or at his instance in the presence of the witnesses. In their deposition on 06.12.2013. Plaintiff co-owner of the suit property before the court, the knife allegedly recovered in other case was not entered into a sale agreement with Defendant—Down A shown to them to ascertain that if was the same knife used by the payment of Rs. 2.50 lacs—Repeated reminder by the accused for committing robbery. The prosecution witnesses did not give B plaintiff to transfer the title of suit property in the any detail particulars i.e. size, dimension etc. of the knife to establish that plaintiff—Defendant delayed the matter & did not obtain it was a ‘deadly’ weapon. No injuries were inflicted with any weapon to No Objection Certificate from the Notification Branch the victims. Conviction of the appellant with the aid of Section 397 B of Revenue Department. Defendants also misled the cannot be sustained and he deserves benefit of doubt on that score. plaintiffs as regards to the real ownership of the C property—Suit property originally belonged to the Gaon 7. In the light of the above discussion, conviction of the appellant Sabha of Village Libaspur as against the portrayal of under Section 392/120-B IPC is maintained. Order on sentence is modified the defendants that the same was purchased by one and the substantive sentence awarded to the appellant to undergo RI for C seven years under Section 392 read with Section 397 IPC is reduced to Sh. Manohar. Held—Plaintiff ready and willing to pay Rigorous Imprisonment for five years. Other sentences are left undisturbed. D necessary amount—Proof of willingness available— Legal notice was sent to the defendant with regard to 8. The appeal stands disposed of in the above terms. A copy of the the balance payment—Defendant did not obtain the order be sent to the appellant through Superintendent, Tihar Jail. D Non-Objection Certificate decreed in the favor of the 9. Trial Court record be sent back forthwith. plaintiff and against the defendant. E The plaintiff has filed his evidence by way of affidavit, which has been exhibited as Ex.PW-1/A. On 21.7.2011, PW-1, who E was to be cross-examined by counsel for the defendants, ILR (2014) II DELHI 1555 was discharged on account of the absence of the defendants. CS(OS) F On 16.5.2012 evidence of the plaintiff was closed. Despite opportunities having been granted, defendants have failed F to file affidavit by way of evidence, resultantly their right to MAHESH CHAND AGGARWAL ....PLAINTIFF lead evidence was closed on 6.12.2012. Defendants thereafter filed an application, being I.A. No.6597/2013 under VERSUS G Order XVIII R 17 CPC, however, the said application was MUKESH KALIA & ORS. ....DEFENDANTS G dismissed as withdrawn on 29.8.2013. (Para 3) (G.S. SISTANI, J.) In the affidavit filed by the only witness i.e. PW-1, Sh.Mahesh Chand Aggarwal, plaintiff herein, has deposed that the CS(OS) NO. : 464/2008 DATE OF DECISION: 25.03.2014 H defendants claimed themselves to be a lawful co-owners of H a built up property, measuring 600 sq. yards, situated at Specific Performance—Suit for specific performance Gali No.22, Libaspur, Delhi, comprising in Khasra No.26/24 of an agreement (28.06.2005) & for permanent and 17, Village Libaspur, Delhi (hereinafter referred to as injunction—Plaintiff filed his evidence by way of the suit property). He has further deposed that since the I I Mahesh Chand Aggarwal v. Mukesh Kalia & Ors. (G.S. Sistani, J.) 1557 1558 Indian Law Reports (Delhi) ILR (2014) II Delhi defendants wanted to sell the abovesaid suit property, the A deed could not have been executed without seeking prior parties entered into an Agreement to sell on 28.6.2005. The No Objection Certificate from the Notification Branch of the Agreement to Sell dated 28.6.2005 has been exhibited as Revenue Department and the No Objection Certificate can Exhibit PW-1/1. The sale consideration was fixed at A only be granted to the recorded owner and not to the Rs.24,21,000/-. As per the terms of the agreement, Rs.2.50 purchaser. Thus, PW-1 was not in a position to obtain the B lakhs were paid by plaintiff to the defendants on 29.6.2005 necessary NOC without the cooperation of the defendants, and the balance sale consideration, in the sum of however, no steps were taken by the defendants towards Rs.21,71,000/-, was agreed to be paid to the defendants on obtaining the said No Objection Certificate in order to B or before 25.9.2005. Another sum of Rs.2.50 lakhs was paid transfer the title. (Para 6) by the plaintiff to the defendants on 6.8.2005, out of which C PW-1 has further deposed that on the assurance given by Rs.1.50 lakhs were paid in cash and Rs.1.00 lakh was paid the defendants in the month of September, 2005, that they vide two cheques bearing no.018499 and 018500 both would obtain No Objection Certificate, PW-1 purchased dated 6.8.2005, drawn on Canara Bank, Model Town, Delhi, C stamp papers of Rs.38,400/- on 21.9.2005. Thereafter PW- for Rs.50,000/-, each. Receipt thereof was duly executed by 1 informed the defendants with regard to purchase of the the defendants, which has been exhibited as Exhibit PW-1/ D stamp papers, but the defendants did not hand over the No 2. This witness has further deposed that a sum of Rs.2.20 Objection Certificate to execute the sale deed. A copy of lakhs was paid in in cash again to the defendants on stamp papers purchased have been marked A (Collectively). 7.11.2005. This amount was duly acknowledged by the D (Para 7) defendants on the top of page no.2 of the Agreement to Sell dated 28.6.2005 at point A. Another sum of Rs.2.40 lakhs E I have heard learned counsel for the plaintiff and also (Rs.1.20 lakhs, each) was paid by the plaintiff to the perused the evidence by way of affidavit filed by PW-1. defendants by two separate pay orders bearing nos.103837 E Onus to prove issues no.1, 3 and 4 are on the defendants. and 103838, both drawn on South Indian Bank Limited, Since the defendants have failed to lead evidence issues Sector 8, Rohini, Delhi, favouring defendants no.1 and 2, F no.1, 3 and 4 are decided against the defendants. Issues respectively. As per PW-1, a total sum of Rs.9.60 lakhs was no.2, 5 and 6 can be decided together. The plaintiff has paid to the defendants upto 7.11.2005. (Para 4) F proved the agreement to sell entered into between the parties on 28.6.2005 (Ex.PW-1/1). As per the agreement to As per PW-1, relying on the terms and conditions of the sell the sale consideration for the built up property, measuring Agreement dated 28.6.2005, the terms were to be fulfilled G 600 sq. yards, situated at Gali No.22, Libaspur, Delhi, by 25.9.2005, however, the said date was extended with the comprising in Khasra No.26/24 and 17, Village Libaspur, consent of both the parties upto 15.10.2005 and thereafter G Delhi was fixed at Rs.24,21,000/-, out of which a sum of upto 7.11.2005. PW-1 has further deposed that he has Rs.2,50,000/- was paid by the plaintiff to the defendants on always been ready and willing to pay the balance 29.6.2005 and the balance sale consideration in the sum of consideration of Rs.14.61 lakhs to the defendant. He had H Rs.21,71,000/- was agreed to be paid by the plaintiff to the been repeatedly reminding the defendants to execute the defendants on or before 25.9.2005. The plaintiff has also sale deed and transfer the title of the suit property in his H proved that another sum of Rs.2,50,000/- was paid by the favour but the defendants kept delaying the matter and plaintiff to the defendants on 6.8.2005 (Rs.1.50 lacs was seeking further time. It has also been deposed that the sale paid in cash and Rs.1.0 lac was paid vide two cheques I I Mahesh Chand Aggarwal v. Mukesh Kalia & Ors. (G.S. Sistani, J.) 1559 1560 Indian Law Reports (Delhi) ILR (2014) II Delhi bearing no.018499 and 018500 both dated 6.8.2005, drawn A [As Ma] on Canara Bank, Model Town, Delhi, for Rs.50,000/-, each). APPEARANCES: The receipt has also been exhibited as PW-1/2. Another FOR THE PLAINTIFF : Mr. V.P. Rana, Adv. sum of Rs.2,20,000/- was paid in cash, which was duly A acknowledged by the defendant at page 2 of the agreement B FOR THE DEFENDANT : Nemo. to sell itself. Plaintiff has also been able to prove payment of another sum of Rs.2.40 lakhs, which was paid by the RESULT: Suit Decreed in favor of the Plaintiff. plaintiff to the defendants by two separate pay orders of B G.S. SISTANI, J (ORAL) Rs.1.20 lakhs, each, bearing nos.103837 and 103838, both 1. Plaintiff has filed the present suit for specific performance of an drawn on South Indian Bank Limited, Sector 8, Rohini, Delhi, C favouring defendants no.1 and 2, respectively. Thus, the Agreement dated 28.6.2005 and for permanent injunction. plaintiff has been able to establish payment of Rs.9.60 lakhs 2. Summons in the suit were issued on 14.3.2008. Defendants to the defendant upto 7.11.2005. PW-1 has deposed that C entered appearance on 14.5.2008. Written statement has been filed by he has always been ready and willing to pay the balance defendants on 30.5.2008. Following issues were framed by the Court on consideration of Rs.14,61,000/- to the defendants, but the D 22.1.2009: defendants did not produce the no objection certificate from the revenue department. Plaintiff has also proved purchase “(1). Whether the suit is bad for non-joinder of necessary parties of stamp papers, photocopies of which have been placed on D ? OPD record. Plaintiff has also proved his readiness and willingness (2). Whether the plaintiff was ready and willing to perform his E by showing that a legal notice was issued to the defendants part of Contract dated June 28, 2005 ? OPP on 04.12.2005 (Ex.PW-1/3). Accordingly, I am of the view that based on the evidence of PW-1, issues No.2, 5 and 6 E (3). Whether the suit of the plaintiff is without cause of action? stand proved in favour of the plaintiff and against the OPD defendants. As the issues No.2, 5 and 6 are decided in F (4). Whether the defendants were owners and competent to favour of the plaintiff, it is not necessary to decide issue execute sale deed in respect of suit property on the date of no.7. Accordingly, suit is decreed in favour of the plaintiff F execution of agreement to sell dated June 28, 2005 or thereafter and against the defendants. In case, the defendants do not ? OPD obtain a No Objection Certificate and do not execute the (5). Whether the defendants can be directed to execute the sale Sale Deed in favour of the plaintiff within one month, the G plaintiff will be entitled to execute the decree in accordance deed or GPA etc. and to put the plaintiff into possession of the G with law. (Para 11) suit property after payment of balance consideration amount as agreed in the agreement to sell ? OPP Important Issue Involved: For the suit of Specific (6). Whether the plaintiff is entitled for a decree of permanent Performance it is essential that one party to the contract H injunction against the defendants as prayed for ? OPP shall be ready & willing to perform its part in entirety. If H (7). Whether the plaintiff is entitled as an alternative relief for a even then the other party resists performance as per the sum of Rs. 9,60,000/- along with interest @ 18% p.a. and agreed terms, it shall be compelled to do the same. damages of Rs.5,00,000/- with interest @ 18% per annum from I I Mahesh Chand Aggarwal v. Mukesh Kalia & Ors. (G.S. Sistani, J.)1561 1562 Indian Law Reports (Delhi) ILR (2014) II Delhi the defendants from the date of execution of the agreement till A defendants no.1 and 2, respectively. As per PW-1, a total sum of Rs.9.60 its realization ? OPP lakhs was paid to the defendants upto 7.11.2005. (8). Relief.” 5. It is also deposed that another sum of Rs.40,000/- was again A paid to defendants vide two different pay orders bearing no.248405, 3. The plaintiff has filed his evidence by way of affidavit, which favouring Mr.Mukesh Kalia, and no.248406, favouring Mr.Sunil Kalia, has been exhibited as Ex.PW-1/A. On 21.7.2011, PW-1, who was to be B however, the said pay orders were not encashed by the defendants. cross-examined by counsel for the defendants, was discharged on account of the absence of the defendants. On 16.5.2012 evidence of the plaintiff 6. As per PW-1, relying on the terms and conditions of the Agreement was closed. Despite opportunities having been granted, defendants have B dated 28.6.2005, the terms were to be fulfilled by 25.9.2005, however, failed to file affidavit by way of evidence, resultantly their right to lead the said date was extended with the consent of both the parties upto C evidence was closed on 6.12.2012. Defendants thereafter filed an 15.10.2005 and thereafter upto 7.11.2005. PW-1 has further deposed application, being I.A. No.6597/2013 under Order XVIII R 17 CPC, that he has always been ready and willing to pay the balance consideration however, the said application was dismissed as withdrawn on 29.8.2013. C of Rs.14.61 lakhs to the defendant. He had been repeatedly reminding the defendants to execute the sale deed and transfer the title of the suit 4. In the affidavit filed by the only witness i.e. PW-1, Sh.Mahesh property in his favour but the defendants kept delaying the matter and Chand Aggarwal, plaintiff herein, has deposed that the defendants claimed D seeking further time. It has also been deposed that the sale deed could themselves to be a lawful co-owners of a built up property, measuring not have been executed without seeking prior No Objection Certificate 600 sq. yards, situated at Gali No.22, Libaspur, Delhi, comprising in D from the Notification Branch of the Revenue Department and the No Khasra No.26/24 and 17, Village Libaspur, Delhi (hereinafter referred to Objection Certificate can only be granted to the recorded owner and not as the suit property). He has further deposed that since the defendants to the purchaser. Thus, PW-1 was not in a position to obtain the necessary wanted to sell the abovesaid suit property, the parties entered into an E NOC without the cooperation of the defendants, however, no steps were Agreement to sell on 28.6.2005. The Agreement to Sell dated 28.6.2005 taken by the defendants towards obtaining the said No Objection Certificate has been exhibited as Exhibit PW-1/1. The sale consideration was fixed E in order to transfer the title. at Rs.24,21,000/-. As per the terms of the agreement, Rs.2.50 lakhs were paid by plaintiff to the defendants on 29.6.2005 and the balance sale 7. PW-1 has further deposed that on the assurance given by the F consideration, in the sum of Rs.21,71,000/-, was agreed to be paid to the defendants in the month of September, 2005, that they would obtain No defendants on or before 25.9.2005. Another sum of Rs.2.50 lakhs was F Objection Certificate, PW-1 purchased stamp papers of Rs.38,400/- on paid by the plaintiff to the defendants on 6.8.2005, out of which Rs.1.50 21.9.2005. Thereafter PW-1 informed the defendants with regard to lakhs were paid in cash and Rs.1.00 lakh was paid vide two cheques purchase of the stamp papers, but the defendants did not hand over the bearing no.018499 and 018500 both dated 6.8.2005, drawn on Canara G No Objection Certificate to execute the sale deed. A copy of stamp Bank, Model Town, Delhi, for Rs.50,000/-, each. Receipt thereof was papers purchased have been marked A (Collectively). duly executed by the defendants, which has been exhibited as Exhibit G 8. It has further been deposed by PW-1 that at the time of entering PW-1/2. This witness has further deposed that a sum of Rs.2.20 lakhs into the agreement to purchase the suit property, the defendants had was paid in in cash again to the defendants on 7.11.2005. This amount disclosed that they purchased the suit property from Sh.Manohar, s/o was duly acknowledged by the defendants on the top of page no.2 of the H Sh.Shiv Chand and Sh.Azad Singh, s/o Sh.Dulichand vide sale deed dated Agreement to Sell dated 28.6.2005 at point A. Another sum of Rs.2.40 H 28.02.1984, registered vide document No.1707, in Addl. Book No.1, lakhs (Rs.1.20 lakhs, each) was paid by the plaintiff to the defendants Volume No.4315 at pages 128 to 130. The defendants had also handed by two separate pay orders bearing nos.103837 and 103838, both drawn over a copy of Khatoni dated 11.1.1985, showing their bhoomidari rights on South Indian Bank Limited, Sector 8, Rohini, Delhi, favouring I in the record of rights. Copy of the said Khatoni has been marked as I Mahesh Chand Aggarwal v. Mukesh Kalia & Ors. (G.S. Sistani, J.)1563 1564 Indian Law Reports (Delhi) ILR (2014) II Delhi Mark-B. It has also been deposed by PW-1 that he issued a legal notice A , each). The receipt has also been exhibited as PW-1/2. Another sum of to the defendants on 4.12.2005, which was replied to by the defendants Rs.2,20,000/- was paid in cash, which was duly acknowledged by the through their counsel. Copy of the notice and reply have been exhibited defendant at page 2 of the agreement to sell itself. Plaintiff has also been as Exhibits PW-1/3 and PW-1/4 respectively. Postal receipts have been able to prove payment of another sum of Rs.2.40 lakhs, which was paid A exhibited as Exhibit PW-1/5 and the site plan of the suit property has by the plaintiff to the defendants by two separate pay orders of Rs.1.20 been exhibited as Exhibit PW-1/6. B lakhs, each, bearing nos.103837 and 103838, both drawn on South Indian Bank Limited, Sector 8, Rohini, Delhi, favouring defendants no.1 and 2, 9. Mr.Aggarwal has also deposed that on account of the conduct respectively. Thus, the plaintiff has been able to establish payment of of the defendants, he became suspicious and further inquired into the title B Rs.9.60 lakhs to the defendant upto 7.11.2005. PW-1 has deposed that of the defendants, when he learnt that in fact the suit property vests with he has always been ready and willing to pay the balance consideration of Gaon Sabha of Village Libaspur. A copy of Khatoni from Halka Patwari C Rs.14,61,000/- to the defendants, but the defendants did not produce the of Village Libaspur was obtained which revealed that it was the gaon no objection certificate from the revenue department. Plaintiff has also sabha, who was the khatedar/bhoomidar of the entire property comprising proved purchase of stamp papers, photocopies of which have been placed of Khasra No.26/17 and 24 and the same with a built up property is in C on record. Plaintiff has also proved his readiness and willingness by the possession of the defendants on the spot. Copy of Khatoni dated showing that a legal notice was issued to the defendants on 04.12.2005 14.12.2005 has been exhibited as Exhibit PW-1/7. PW-1 further deposed D (Ex.PW-1/3). Accordingly, I am of the view that based on the evidence that he had filed a criminal complaint against the defendants on 15.12.2005, of PW-1, issues No.2, 5 and 6 stand proved in favour of the plaintiff and a copy of which has been exhibited as Exhibit PW-1/8. D against the defendants. As the issues No.2, 5 and 6 are decided in favour 10. Learned counsel for the plaintiff submits that the plaintiff has of the plaintiff, it is not necessary to decide issue no.7. Accordingly, suit learnt that the land has been divested on account of the fact that all the E is decreed in favour of the plaintiff and against the defendants. In case, areas are built up. the defendants do not obtain a No Objection Certificate and do not execute the Sale Deed in favour of the plaintiff within one month, the 11. I have heard learned counsel for the plaintiff and also perused E plaintiff will be entitled to execute the decree in accordance with law. the evidence by way of affidavit filed by PW-1. Onus to prove issues no.1, 3 and 4 are on the defendants. Since the defendants have failed to F lead evidence issues no.1, 3 and 4 are decided against the defendants. Issues no.2, 5 and 6 can be decided together. The plaintiff has proved F the agreement to sell entered into between the parties on 28.6.2005 (Ex.PW-1/1). As per the agreement to sell the sale consideration for the built up property, measuring 600 sq. yards, situated at Gali No.22, Libaspur, G Delhi, comprising in Khasra No.26/24 and 17, Village Libaspur, Delhi was fixed at Rs.24,21,000/-, out of which a sum of Rs.2,50,000/- was G paid by the plaintiff to the defendants on 29.6.2005 and the balance sale consideration in the sum of Rs.21,71,000/- was agreed to be paid by the plaintiff to the defendants on or before 25.9.2005. The plaintiff has also H proved that another sum of Rs.2,50,000/- was paid by the plaintiff to the H defendants on 6.8.2005 (Rs.1.50 lacs was paid in cash and Rs.1.0 lac was paid vide two cheques bearing no.018499 and 018500 both dated 6.8.2005, drawn on Canara Bank, Model Town, Delhi, for Rs.50,000/- I I Aman Nath v. Atul Nath and Ors. (G.S. Sistani, J.) 1565 1566 Indian Law Reports (Delhi) ILR (2014) II Delhi ILR (2014) II DELHI 1565 A been discussed by the Supreme Court in the case of CS (OS) Hindustan Petroleum Corpn. Ltd. v. Sriman Narayan & Anr. reported at (2002) 5 SCC 760. Relevant paragraphs of the judgment read as under:- AMAN NATH ....PETITIONER A B “7. It is elementary that grant of an interlocutory VERSUS injunction during the pendency of the legal proceeding ATUL NATH AND ORS. ....DEFENDANTS is a matter requiring the exercise of discretion of the B court. While exercising the discretion the court normally (G.S. SISTANI, J.) applies the following tests: C CS (OS) NO.: 2250/2013 DATE OF DECISION: 28/03/2014 (i) whether the plaintiff has a prima facie case;

C (ii) whether the balance of convenience is in favour of Code of Civil Procedure, 1908—Order 39 Rule 1 & 2 the plaintiff; and and Order 39 Rule 4—Plaintiff suit for injunction against D three defendants i.e. his two brothers and one sister (iii) whether the plaintiff would suffer an irreparable and his maternal uncle was impleaded as defendant injury if his prayer for interlocutory injunction is no. 4—According to Plaintiff, he along with his minor D disallowed. daughter and deceased mother was in possession of 8. The decision whether or not to grant an interlocutory ground floor in suit property which was owned by his E mother-Mother executed will which was registered injunction has to be taken at a time when the exercise and defendant no. 4 was named as Executor of will— of the legal right asserted by the plaintiff and its E As per Will, ground floor of suit property was alleged violation are both contested and remain bequeathed to him first floor to defendant no. 1, uncertain till they are established on evidence at the second floor to defendant no. 2, third floor, if and F trial. The relief by way of interlocutory injunction is when constructed, to defendant no. 3 (sister) etc.— granted to mitigate the risk of injustice to the plaintiff Plaintiff also moved application seeking interim F during the period before which that uncertainty could injunction which was contested by defendant no. 1 be resolved. The object of the interlocutory injunction though supported by defendant nos. 2 to 4. Held:- The is to protect the plaintiff against injury by violation of relief of interlocutory mandatory injunctions are thus G his right for which he could not be adequately granted generally to preserve or restore the status G compensated in damages recoverable in the action if quo of the last non-contested status which preceded the uncertainty were resolved in his favour at the trial. the pending controversy until the final hearing when The need for such protection has, however, to be full relief may be granted or to compel the undoing of weighed against the corresponding need of the those acts that have been illegally done or the H defendant to be protected against injury resulting restoration of that which was wrongfully taken from H from his having been prevented from exercising his the party complaining. own legal rights for which he could not be adequately compensated. The court must weigh one need against Principles laid down for grant of interlocutory injunction have another and determine where “the balance of I I Aman Nath v. Atul Nath and Ors. (G.S. Sistani, J.) 1567 1568 Indian Law Reports (Delhi) ILR (2014) II Delhi

convenience” lies. A guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional 9. In Dorab Cawasji Warden v. Coomi Sorab circumstances needing action, applying them as a Warden (1990) 2 SCC 117 this Court, discussing the A prerequisite for the grant or refusal of such injunctions principles to be kept in mind in considering the prayer would be a sound exercise of a judicial discretion.” for interlocutory mandatory injunction, observed: B (Para 44)

“16. The relief of interlocutory mandatory injunctions It would also be useful to refer to the decision reported at are thus granted generally to preserve or restore the B (1983) 4 SCC 31 Gangubai Bablya Chaudhary & Ors. v. status quo of the last non-contested status which Sitaram Bhalchandra Sukhtankar & Ors. Relevant preceded the pending controversy until the final C paragraph of the judgment reads as under:- hearing when full relief may be granted or to compel the undoing of those acts that have been illegally “6. When an interim injunction is sought, the Court C done or the restoration of that which was wrongfully may have to examine whether the party seeking the taken from the party complaining. But since the assistance of the court was at any time in lawful granting of such an injunction to a party who fails or D possession of the property and if it is so established would fail to establish his right at the trial may cause one would prima facie ask the other side contesting the suit to show how the plaintiffs were dispossessed? great injustice or irreparable harm to the party against D whom it was granted or alternatively not granting of it We pin-pointed this question and heard the submission. We refrain from discussing the evidence to a party who succeeds or would succeed may E equally cause great injustice or irreparable harm, and recording our conclusions because evidence is courts have evolved certain guidelines. Generally still to be led and the contentions and disputes have stated these guidelines are: E to be examined in depth and any expression of opinion by this Court may prejudice one or the other (1) The plaintiff has a strong case for trial. That is, it F party in having a fair trial and uninhibited decision. shall be of a higher standard than a prima facie case Having given the matter our anxious consideration, we that is normally required for a prohibitory injunction. F are satisfied that this is not a case in which interim injunction could be refused. Similarly we are of the (2) It is necessary to prevent irreparable or serious opinion that if respondents are allowed to put up injury which normally cannot be compensated in terms G construction by the use of FSI for the whole of the of money. G land including the land involved in dispute, the situation (3) The balance of convenience is in favour of the may become irreversible by the time the dispute is one seeking such relief. decided and would preclude fair and just decision of the matter. If on the contrary injunction is granted as 17. Being essentially an equitable relief the grant or H prayed for the respondents are not likely to be refusal of an interlocutory mandatory injunction shall H inconvenienced because they are in possession of ultimately rest in the sound judicial discretion of the about 9000 sq. metres of land on which they can put court to be exercised in the light of the facts and up construction.” (Para 45) circumstances in each case. Though the above I I Aman Nath v. Atul Nath and Ors. (G.S. Sistani, J.) 1569 1570 Indian Law Reports (Delhi) ILR (2014) II Delhi

Important Issue Involved: The relief of interlocutory A Smt.Sheela Ashok Nath gave birth to four children (three sons and one mandatory injunctions are thus granted generally to preserve daughter). This mother even on her death has given a share of her or restore the status quo of the last non-contested status property to each of her four children, in a residential house worth crores of rupees. In a wildest of her dreams she would not have expected that which preceded the pending controversy until the final fearing A when full relief may be granted or to compel the undoing her dead body would lie in the Veranda of her own house and would not of those acts that have been illegally done or the restoration B be placed in her living room which was locked on account of inter se of that which was wrongfully taken from the party disputes between her children. complaining. B 2. This order shall dispose of IA No.18453/2013 & IA No.18860/ 2013. [Sh Ka] C 3. Plaintiff has filed the present suit for injunction. Plaintiff is the APPEARANCES: brother of defendants no.1 to 3. Defendant no.4 is the maternal uncle of FOR THE PLAINTIFF : Ms. Shobhana Takiar, Adv. C the plaintiff i.e. plaintiff’s mother’s brother. Plaintiff and defendants no.1 to 3 are the children of late Sh.Ashok Nath and Smt.Sheela Ashok Nath FOR THE DEFENDANTS : Mr. Sandeep Sethi, Sr. Adv. with D (hereinafter referred to as the ‘mother’). Smt.Sheela Ashok Nath died on Mr. Salman Hashmi and Mr. Zeeshan 17.11.2013. The mother executed a Will dated 24.4.2009, which was Hashmi, Advs. along with Mr.Ashish presented before the Sub-Registrar–V, Delhi for registration on 27.4.2009. Nath, son of defendant no.1. D The Will was registered vide registration No.2630 in additional book no.3, volume no.1716 on pages 5 to 10 on 28.4.2009. The defendant CASES REFERRED TO: E no.4 has been named as the executor of the Will. Further as per the 1. Hindustan Petroleum Corpn. Ltd. vs. Sriman Narayan & plaint, the immovable property bearing No.A-51, Nizamuddin East, New Anr. reported at (2002) 5 SCC 760. E Delhi (hereinafter referred to as ‘the suit property’), which consists of 2. Mulji Umershi Shah & etc. vs. Paradisia Builders Pvt. ground floor, first floor and the second floor has been bequeathed in the Ltd., Mumbai & Ors. AIR 1998 Bombay 87. following manner: F 3. Dorab Cawasji Warden vs. Coomi Sorab Warden (1990) Ground Floor Mr.Aman Nath (Plaintiff) 2 SCC 117. F First Floor Mr.Atul Nath (Defendant no.1) 4. Gangubai Bablya Chaudhary & Ors. vs. Sitaram Second Floor Mr.Achal Nath (Defendant No.2) Bhalchandra Sukhtankar & Ors. reported at (1983) 4 SCC 31. G Terrace of Second floor Mr.Achal Nath and Smt.Anshu Chopra (Defendant No.2 and RESULT: Interim application allowed. G Defendant no.3) G.S. SISTANI, J. If and when Constructed Smt.Anshu Chopra (Defendant No.3) third floor IA.No.18453/2013 (u/O.39 Rs=1 & 2 CPC filed by plaintiff) H Third floor terrace (after Mr.Achal Nath and Smt.Anshu Chopra IA.No.18860/2013 (u/O.39 R=4 CPC filed by defendant no.1) H construction of third floor) (Defendant No.2 and Defendant no.3) 1. A mother forgets the pain she suffers at child’s birth, the moment Front & Back garden Common area between Aman Nath and she hears the cries and sees the face of her child. A mother’s sleepless Mr.Atul Nath (Plaintiff and Defendant nights and countless sacrifices are not uncommon for her children. I No.1) I Aman Nath v. Atul Nath and Ors. (G.S. Sistani, J.) 1571 1572 Indian Law Reports (Delhi) ILR (2014) II Delhi

Access to their respective From the front and rear stair A exclusively enjoying. portion case. 7. It is also averred in the plaint that on 17.11.2013 morning, the plaintiff along with the defendant no.2, as usual took some clothes in the 4. The Will is yet to be accepted by all the parties. A morning for their mother who was in the I.C.U. in the Moolchand Hospital. 5. It is further stated in the plaint that at present the property B After reaching the hospital, the plaintiff and the Defendant no.2 called up comprises of ground floor (including a store-room in the basement), first defendant no.1 and others and informed them about the sad demise of floor and the second floor. The suit property was initially owned by the their mother and that they would be shortly bringing the body to her father of the plaintiff and defendants no.1 to 3, who expired on 6.1.1994, B house, after completing the hospital formalities. It is also averred in the leaving behind a Will dated 15.9.1988 by which he bequeathed the suit plaint that when the plaintiff along with defendant no.2 brought the body property to his wife. A probate was granted with respect to the aforesaid C of their mother back home, to their utter shock, they found the living Will on 8.7.1995. The matter remained uncontested. Consequent to the room on the ground floor locked. No answer was given by defendant grant of probate, the name of Smt.Sheela Ashok Nath was substituted in no.1, who admittedly had locked the same. The dead body was put in the records of the Land and Development Officer on 5.12.1996; the C the Verandah outside the living room, as the defendant no.1 along with property was also got mutated in her name in the records of Municipal his two major sons and wife did not open the living room, however, after Corporation of Delhi on 29.1.1997 and pursuant to the mutation house D one hour and with the intervention of the Police the defendant no.1 was tax was being paid by her. Further as per the plaint during the life-time made to open the living room on the ground floor where the body was placed. of the mother, the plaintiff along with his daughter (Aadya Nath) was and D is in occupation and possession of the entire ground floor of the suit 8. Apprehending that the defendant no.1 would again try to create property. The plaintiff along with defendant no.2 was taking care of their E disturbance and unauthorizedly make an attempt to occupy the living ailing mother and serving her. The defendant no.1 was and is in possession room, the present suit has been filed. of the first floor, and he was allowed to use one kitchen on the ground floor by the deceased mother. The defendant no.2 was and is in possession E 9. Ms.Shobhna Takiar, counsel for the plaintiff submits that the of the second floor. plaintiff being the beneficiary under the Will and as per the arrangement made during the life time of the mother, has every right to claim the 6. It is the case of the plaintiff that since the contents of the Will F continued free use and occupation of the entire ground floor to the were known to all the parties, they were occupying their respective exclusion of the others. It is also contended by Ms.Takiar that the portions in the suit property and plaintiff, defendants no.1 and 2 had F mother was admitted in Mool Chand Khairati Ram Hospital on 14.11.2003 given effect to the Will, even during the life-time of their mother. An in a critical condition and only the plaintiff, defendant nos.2 and 3 attended averment has also been made in the plaint that when the health of the G to her in hospital. It is also submitted that the defendant no.1 took mother started deteriorating and since the plaintiff was running between advantage of the situation. He did not visit the ailing mother in the the hospital and the house, the defendant no.1 with ulterior motives and G hospital, and instead made a plan to usurp the ground floor while the mala fide intentions unauthorizedly started using the living room on the plaintiff, defendants No.2 and 3 were busy in attending to the mother ground floor. In order to maintain peace and to avoid mental agony or round the clock. It is submitted that in furtherance of his evil design, tension to the mother, the plaintiff tolerated the mala fide activities of the H defendant no.1 stole the keys of the living room on the ground floor and defendant no.1. However, an apprehension had started to build up in the when the dead body was brought from the hospital, he locked the same. mind of the plaintiff that after the demise of the mother, the defendant H It is further contended that the mother expired on 17.11.2013. The no.1 would deprive the plaintiff by unauthorizedly usurping the living plaintiff along with defendant Nos.2 and 3 made all necessary arrangements room on the ground floor, in addition to the first floor which he is for her last rites. On the same day after the funeral, copy of the registered I I Aman Nath v. Atul Nath and Ors. (G.S. Sistani, J.) 1573 1574 Indian Law Reports (Delhi) ILR (2014) II Delhi Will of the mother was duly supplied to the defendant no.1 along with A Vasant Valley School, ID card issued by the School, birth certificate all the other legal heirs of late Smt.Sheela Ashok Nath by defendant no.4, issued by the school, passport and Aadhar card and various receipts who is the executor of the Will. issued by the professional institutes, all of which bear the address of the suit property. 10. It is also the case of the plaintiff that he has always been and A has remained a permanent resident of the ground floor of the suit property. B 14. In support of her plea that the dead body of the mother was During the period when his mother was extremely unwell, out of two lying in the Verandah, photographs dated 17.11.2013 have been placed bed-rooms on the ground floor one bed-room was being used by the on record. mother and another bed-room was being occupied by the nurses. B 15. It is also submitted by counsel for the plaintiff that even otherwise 11. It is also the submission of counsel for the plaintiff that plaintiff each floor of the house has a separate dwelling unit and the plaintiff along C along with the entire family has been living in the suit property since the with his mother and daughter were residing on the ground floor, defendant year 1959. The plaintiff being a bachelor continued to live with his no.1 was residing on the first floor and the defendant no.2 was residing mother on the ground floor of the suit property, while the second floor C on the second floor. It has also been submitted that the first floor of the was constructed by the defendant no.2 out of his own funds in the year suit property is a complete dwelling unit and thus the defendant no.1 1995-96 and defendant no.1 was living on the first floor. In the year D cannot be permitted to interfere in the possession of the plaintiff on the 2002 the plaintiff adopted an infant and continued to live on the ground ground floor including the living room. floor with his mother. 16. In the light of the above facts, Ms.Takiar submits that it is D 12. It has also been submitted by Ms.Takiar that the plaintiff along clearly established that the plaintiff is in settled possession of the ground with defendant nos.2 and 3 continuously looked after their ailing mother floor of the suit property. Besides actual physical possession, he is also including catering to all her medical requirements and bearing all her E in constructive possession, as per the Will dated 24.04.2009. Moreover, medical expenses and hospital bills. On the contrary defendant no.1 never the defendant no.1 cannot be permitted to deprive the plaintiff of his cared about his mother, nor did he meet any of her expenses. It is E possession of the entire ground floor, including the living room and thus clarified that the suit property is one of the many properties owned by during the pendency of the suit the possession of the plaintiff should be the plaintiff and he has been staying in his own properties from time to protected. It is also submitted that all belongings of the plaintiff are lying F time as per his necessity, convenience and suitability. The defendant no.1 on the ground floor of the suit property. also owns various residential properties including two properties in New F 17. Another argument raised by counsel for the plaintiff is that after Friends Colony and one property in Gurgaon. In support of her submission the demise of the mother, the status of the parties is that of co-sharers, that the plaintiff is a permanent resident of the suit property and in settled hence, a single party cannot be granted exclusive possession. possession thereof, reliance is placed on the passport issued since 1972, G election card, driving licence since 1988, joint account along with the 18. Reliance is placed on Hindustan Petroleum Corpn. Ltd. Vs. mother in Central Bank of India and the plaintiff’s bank account, all of G Sriman Narayan & Anr. (2002) 5 SCC 760 by counsel for the plaintiff which reflect the address of the suit property. that while dealing with an application for interim relief, the Court must take into consideration the existence of a prima facie case and must not 13. Attention of the Court is also drawn to some of the documents deal with the matter, as if the suit is to be decided finally. of other properties purchased by the plaintiff to show the address of the H plaintiff as A-51, Nizamuddin East, New Delhi. Besides other documents, H 19. Written statement has been filed by the defendant No.1 who is Ms.Takiar has drawn attention of the Court to official documents issued the contesting defendant. As per the written statement, the plaintiff has in the name of the adopted daughter of the plaintiff, who was raised by made a false averment with regard to his residing at the suit property. the plaintiff and his mother which include the Bus Card issued by the I As per the defendant No.1, the plaintiff resides at property bearing No.12, I Aman Nath v. Atul Nath and Ors. (G.S. Sistani, J.) 1575 1576 Indian Law Reports (Delhi) ILR (2014) II Delhi First Floor, Jaipur Esate, New Delhi which fact, according to defendant A He is trying to get his addresses changed in order to gain entry into the No.1, is established from a bare scrutiny of the directory of the Nizamuddin ground floor of the suit property. It is submitted that the plaintiff wants East Residents. Welfare Society of the years 2009 and 2011. As per the to forcibly gain entry into the ground floor of the suit property with a defendant No.1, the plaintiff has been living at the said property for more view to harass the defendant No.1. It is also the case of the defendant A than 10 years which is also evident from their address mentioned in the No.1 that he along with his deceased mother, wife, children and directory of the Delhi Golf Club, electricity, telephone and water bills and B granddaughter are residing and have been in exclusive possession of the other documents pertaining to the property No.12, First Floor, Jaipur ground floor along with gardens and first floor of the property for more Esate, New Delhi. It is further stated that the defendant No.2 is residing than 30 years. It is also the case of the defendant No.1 that after the on the second floor of the suit property. It is also the case of the B demise of his father the defendant No.1 has been taking care of his defendant No.1 that the fact that the plaintiff has not been residing at the mother i.e. she has been living under his care and protection on the suit property is further established by the fact that hours before the death C ground floor. Earlier the defendant No.1 had allowed the plaintiff and of their mother the plaintiff tried to break the locks of the door leading other defendants to visit their mother without any restriction. However, to the ground floor after locking the living room in the mother’s portion. C on account of forgeries committed by the plaintiff in connivance with It has also been stated that even before the dead body of the mother defendant No.2 and the consequential discord and dispute, the defendant could reach the property, the plaintiff was able to break open one door No.1 allowed the plaintiff and other defendants to visit their mother D and in case he had been in possession of the living room the plaintiff through the side entrance without entering the other areas of the ground would not have attempted to break the lock of the aforesaid door. It is floor such as drawing room, dining room which are in his exclusive also the stand of defendant No.1 that on 17.11.2013, the plaintiff along D possession. It is also the case of the defendant No.1 that the ground floor with other defendants i.e. defendants No.2 and 3 forcibly tried to enter and the first floor of the property are of a duplex form and as the first the ground floor of the property by breaking the locks and tried to E floor does not have a kitchen and the only kitchen is situated on the dispossess the defendant No.1 and his family. It has also been stated that ground floor, it would stand proved beyond doubt that the defendant the plaintiff along with defendants No.2 and 3 locked the living room in No.1 herein is in possession of both the floors as a single unit and his E the mother’s portion and refused to open the door for receiving the body mother was living under the care and protection of the defendant No.1. of the mother and plaintiff and defendants No.2 and 3 threatened the Besides, defendant No.1 has been paying the electricity bills, telephone defendant No.1 and his family with dire consequences in case he refused F bills and water bills with respect to the suit property. Defendant No.1 has to part with possession of the suit property. Reliance is placed on also disputed the execution of the will by their mother. photographs taken by the defendant No.1. It is also the stand of the F 20. Mr.Sethi, learned senior counsel appearing for defendant No.1 defendant No.1 that he was constrained to approach the police authorities has contended that there are sufficient documents on record filed by who arrived at the spot and on their assurance the defendant No.1 defendant No.1 to show that the plaintiff was not residing in the suit opened the ground floor of the suit property and further the DD Entry G property. Even as per the plaint it is an uncontested position that the dated 17th November 2013 shows that the plaintiff did not have the key G defendant was using the living room on the ground floor and the defendant to open the door of the drawing room from any entrance and the same No.1 cannot be removed either from the kitchen of the ground floor or was produced by the defendant No.1. It is also submitted that after the the living room. It is also submitted that it is not the case of the plaintiff demise of their mother the plaintiff tried to take possession of the ground that he has other properties or that he is not residing anywhere else. It floor. The defendant No.1 found that the plaintiff No.1 was trying to H is also contended that it is the case of the plaintiff that defendant No.1 forcibly gain entry into the living room with the help of a carpenter. The H is using the living room and the kitchen on the ground floor and based police was called. The plaintiff did not open the living room No.5 where on these admissions itself no injunction can be granted in favour of the the body could have been placed. It is submitted that the plaintiff in plaintiff. It is also submitted that the cause of action for filing the present collusion with the defendants No.2 and 3 is trying to create false evidence. I I Aman Nath v. Atul Nath and Ors. (G.S. Sistani, J.) 1577 1578 Indian Law Reports (Delhi) ILR (2014) II Delhi suit as per the plaint is only the locking of the living room and not using A The requisite number of locks will be procured for that purpose the living room which is admitted even by the plaintiff in the plaint. The by the CC. The keys will be deposited forthwith by the CC with order of injunction cannot change the last contested position with regard Registrar (O) of this Court and will be kept in a sealed cover. to possession of the parties. A report will be submitted by the CC to the Court within a week A thereafter enclosing photographs. The fee of the CC is fixed at 21. I have heard the learned counsel for the parties and perused the B Rs.20,000 which will be paid by the plaintiff to the CC tomorrow plaint, applications, documents filed along with plaint. Before the rival itself. This is apart from incidental expenses and transport submission of the parties can be considered it may be noticed that on charges, including costs of the locks which will be borne by the 18th November 2013 while issuing summons in the suit the defendant B plaintiff. 7. This order is passed without prejudice to the rights No.1 was restrained from interfering with the plaintiff’s access and and contentions of either party. It is made clear that defendant possession to the living room on the ground floor of the suit property. C No.1 will have access to the kitchen which is opted to be used On 22nd November 2013 an application under Order XXXIX Rule 4 by him from the rear side and there will be no hindrance to his CPC filed by defendant No.1 was listed where the following order was ingress and egress from thereon.” passed:- C 23. By the order of 29th November 2013, except for one kitchen “After hearing learned counsel for the parties, it is directed that D on the ground floor the entire ground floor stands locked. after the conclusion of the ceremonies associated with the demise of the mother on 29th November 2013, neither the plaintiff nor 24. During the course of hearing arguments on 26.02.2014 it was any other party will use the ground floor of the premises at A- D submitted by counsel for the defendant no.1 that the ground floor and 51, Nizamuddin East, New Delhi -110 013, except to the limited the 1st floor is a single unit and there is no living room on the 1st floor. extent that the defendant No.1 will be permitted to use the kitchen E The order dated 26.02.2014 reads as under:- on the ground floor, which is currently being used by him. Both “Counsel for defendant No.1 submits that defendant No.1 was the plaintiff and defendant No.1 are permitted to remove their E using the living room on the ground floor as there is no living respective belongings from the ground floor before 29th November room or dining room on the first floor of the suit property. 2013. This order be scrupulously followed till the next date.” Counsel for the plaintiff and defendants No.2 to 4 dispute this F 22. On 29th November 2013, on an application filed by the plaintiff submission. Counsel for the plaintiff submits that a Local being IA No.19309/2013 a local commissioner was appointed. The F Commissioner may be appointed at the expense of the plaintiff operative portion of the order reads as under:- to visit the first floor of the property No.A-51, Nizamuddin East, New Delhi today itself and give a report as to whether there is “6. There is a dispute as to which of the two kitchens in the a dining room and a drawing room on the first floor of the ground floor is currently being used by defendant No.1. Be that G property or not. as it may, the Court considers it appropriate to appoint G Mr.K.G.Malik, Court Officer (Mob.9971988890) as CC to visit Ms.Priyam Mehta, Advocate, (Mobile No.9953032272), who the premises at A-51, Nizamuddin East, New Delhi at 11 am on is present in Court, is appointed as a Local Commissioner to visit 30th November 2013. One representative each of the plaintiff the first floor of the property bearing No.A-51, Nizammudin and each of the defendants are permitted to remain present along H (East), Delhi, today itself, without waiting for formal orders of with their respective counsel during the visit of the CC. Defendant H this Court, and ascertain as to whether there is any drawing/ No.1 will indicate to the CC one of the kitchens that he has been living room and dining room on the first floor of the suit property. using. The other kitchen and the entire ground floor will be The Local Commissioner will be entitled to take photographs. secured by the CC placing locks on the doors leading into them. I I Aman Nath v. Atul Nath and Ors. (G.S. Sistani, J.) 1579 1580 Indian Law Reports (Delhi) ILR (2014) II Delhi This order is being passed in the presence of the parties. The A (II) The plaintiff, defendant No.1 and 2 are sons of the deceased parties will cooperate with the Local Commissioner. In case any Smt.Sheela Ashok Nath. The defendant No.3 is the daughter of of the parties do not cooperate or obstruct the proceedings of the deceased and sister of the plaintiff and the defendant No.1 the Local Commissioner, this Court would be forced to take a and 2. A serious view of the matter, taking into consideration the previous (III) It is significant to state that each of the plaintiff and defendant allegations made by the plaintiff against the defendant No.1 when B No.1 to 3 are having share in the suit property as per the desire the proceedings of the earlier Local Commissioner were of their mother who had executed a will dated 24th April 2009. obstructed. The fee of the Local Commissioner is fixed at It was registered on 29th April 2009. The Will dated 24th April Rs.40,000/-, which shall be borne by the plaintiff, besides all out B 2009 is a solemn document. Entire execution of the will dated of pocket expenses. C 24.04.2009 in the presence of two of the witnesses was Post lunch the matter has been taken up. Further arguments videographed at the behest of the defendant No.4. The defendant have been addressed. Local Commissioner should file her report No.4 accompanied his sister along with two witnesses to the along with photographs within 2 weeks from today. List on C office of the Sub-Registrar, Mehrauli for its registration. 11.03.2014. Copy of the order be given dasti to the Local (IV) That the defendant No.4 has been named as an Executor Commissioner under signatures of the Court Master.” D and Administrator in the Will of his deceased sister. The defendant 25. Written statement has also been filed by defendant No.4 who No.4 is the legal representative of the deceased sister. As an is the brother of the deceased mother and uncle of the plaintiff and D Executor of Will dated 24th April 2009 at present the defendant defendants No.1 to 3. In his written statement the defendant No.4 has No.4 is a legal representative of the deceased Sheela Ashok Nath supported the case of the plaintiff. The defendant No.4 has stated in his E for all purposes and representing the person of testator after her written statement that plaintiff and defendants No.1 to 3 have been given death. a share in the suit property as per the desire and will of their mother E (V) It is significant to state that the deceased during her lifetime dated 24.04.2009 registered on 29.04.2009. The will was executed in the had made necessary arrangements in respect of enjoyment of her presence of two witnesses and videographed. The defendant No.4 had assets to avoid any misunderstandings against her children. She accompanied his sister along with two witnesses to the office of the F unconditionally bequeathed the ground floor including the store Sub-Registrar, Mehrauli for registration. He has been named as executor cum utility room below ground floor to the plaintiff. First floor and administrator in the will. Defendant No.4 has further stated in the F to the defendant No.1, second floor to the defendant No.2 and preliminary submissions in the written statement as under:- terrace third floor to her daughter the defendant No.3 with the “(I) Before giving parawise reply to the plaint, the defendant G right to use or build a floor on the same and on construction by No.4 who is the brother of the deceased Smt.Sheela Ashok Nath the defendant No.3 the said third floor shall be owned and and maternal uncle of the plaintiff and the defendant No.1 to 3, G possessed by her. However, the terrace above will be shared and submits that he supports the case of the plaintiff who is seeking used jointly by the defendant No.2 and 3. Therefore, all the four decree of injunction against the defendant No.1 his representatives, children of the deceased Sheela Ashok Nath are co-owners assigns and agents from interfering in the peaceful possession, H without any hindrance whatsoever. occupation and enjoyment of the entire ground floor with H (VI) It is pertinent to mention that the defendant No.4 came to storeroom in the basement, including the living room on the know about the severe sickness of his sister on 12.11.2013, as ground floor of the suit property i.e. A-51 Nizamuddin East, such he was planning to come to Delhi. On 17.11.2013, the New Delhi-11013. I sister of the defendant No.4 breathed her last. In the evening of I Aman Nath v. Atul Nath and Ors. (G.S. Sistani, J.) 1581 1582 Indian Law Reports (Delhi) ILR (2014) II Delhi

17.11.2013, the defendant No.4 reached Delhi and attended the A in the kitchen attached to the living room. Till her last breath, the food funeral of his sister at Nizamuddin Cremation ground. The was cooked in the same kitchen.” defendant No.4 was extremely pained to see the behaviour of the 27. Counsel for defendants No.2 to 4 have supported the case of defendant No.1 and his family at the cremation ground when the A the plaintiff. purohit announced 13th day as the last day of ceremony of the mother but the defendant No.1 contrary to that and contrary to B 28. The arguments of learned counsel for the plaintiff can be the decision of the family announced 4th day as the last day of summarized as under:- the ceremony. This incident was noticed by the other visitors B (1) The entire ground floor except one kitchen has been in and relatives who had attended the cremation. continuous possession of the plaintiff, his deceased mother (VII) That after coming from the cremation ground the defendant C and daughter. The defendant No.1 i.e. the contesting No.4 who was in possession of the will dated 24.04.2009 of his defendant has been in possession of the entire first floor. sister handed over a copy of the same to all the four children of Reliance is placed on various independent documents to the deceased. Even at that time the defendant No.1 without any C show that the plaintiff has been a resident of the ground reason had thrown the Will back by saying that he knows about floor of the suit property. it. The defendant No.4 was astonished at the behaviour of the D (2) The first floor has been in occupation of the defendant defendant No.1.” No.1 along with his family with the use of kitchen on the ground floor. The second floor has been in continuous 26. It would also be not out of place to reproduce para 9 of the D use of defendant No.2. The plaintiff and defendants No.2 reply on merits in the written statement of defendant No.4. It reads as and 3 have been looking after the ailing mother including under:- E all expenses for her maintenance, hospital expenses and “9. That the contents of para 9 of the plaint are admitted and need medical expenses have been borne by the plaintiff and no reply. It is admitted that the plaintiff and the defendant No.2 was E defendants No.2 and 3. On learning about the demise of taking care of their ailing mother. Both the brothers were serving her in the mother with a view to grab possession of the living all manner from her day to day needs, medication, hospitalization etc. It F room on the ground floor the defendant No.1 locked the may be noted that the defendant No.1 had a kitchen on the first floor. same illegally. It was later on converted into a bedroom and toilet. Thereafter the F (3) Even as per the Will of the deceased the ground floor defendant No.1 unauthorizedly started using a room below the staircase portion is to fall to the share of the plaintiff and the first of the first floor from rear side of the house as kitchen for himself. The floor to the share of the defendant No.1. The defendant sister of the defendant No.4 objected to this several times. Subsequently G No.1 was never in possession of any part of the ground when she was totally bed ridden, the defendant No.1 took advantage of G floor except one kitchen. The balance of convenience is her sickness and continued to use the said room as kitchen. It is pertinent in favour of the plaintiff, in case the order is not modified to mention that all the three sons of the deceased Smt.Sheela Ashok Nath it is the plaintiff who will suffer irreparable loss and injury were using the premises in question as mentioned in the Will during her as the defendant No.1 has a full floor for his use. lifetime. The desire of the deceased was given effect to during her H 29. The submissions of learned counsel for defendant No.1 can be lifetime. Plaintiff along with his daughter Aadya were using the ground H floor along with the deceased Smt. Sheela Ashok Nath. Cook as employed summarized as under:- by the defendant No.2 was taking care of the meals of the plaintiff and (1) The plaintiff has not been residing at the suit premises but his daughter, the defendant No.2 and their mother by cooking the food I I Aman Nath v. Atul Nath and Ors. (G.S. Sistani, J.) 1583 1584 Indian Law Reports (Delhi) ILR (2014) II Delhi his permanent place of residence is property No.12, First A 32. Ms.Takiar, counsel for the plaintiff has laboured hard to show Floor, Jaipur Esate, New Delhi. The plaintiff is attempting that when the mother was in the house, nurses were employed who were to forcibly take possession of the ground floor. Even as occupying one room on the ground floor; and all the medical expenses per the plaint the defendant No.1 has been using a kitchen have been borne by the plaintiff and defendant no.2. A on the ground floor and the living room. Various 33. Per contra, counsel for the defendant No.1 has argued that the independent documents show the address of the plaintiff B plaintiff has been residing at 12, Jaipur Estate, Nizamuddin (East), New as property No.12, First Floor, Jaipur Esate, New Delhi. Delhi. In support of his submission counsel for the defendant no.1 has It is only the defendant No.1 who looked after the mother placed reliance on documents including directory of Delhi Golf Club, including her medical expenses and the electricity bills of B Residents. Directory and certain other documents, where 12, Jaipur Estate, the ground floor were paid by the defendant No.1. The Nizamuddin (East), New Delhi, has been shown as the residence of fact that the key of the living room was with the defendant C plaintiff. It is also the case of the defendant no.1 that defendant no.1 is No.1 would establish his possession over the living room. in possession of the entire first floor along with possession of ground In the absence of any living room on the first floor it was C floor, including one living room and a kitchen. Counsel for the defendant natural for the defendant No.1 to be using the living room no.1 has also refuted the submission of Ms.Takiar, counsel for the on the ground floor along with kitchen. D plaintiff that the plaintiff and defendants no.2 and 3 were looking after 30. It is well settled that while deciding an application under Order the old ailing mother. XXXIX Rule 1 and 2 CPC the Court must apply the following three 34. It is contended that the defendant no.1 was looking after the old established tests of prima facie case, balance of convenience and whether D ailing mother and was paying the electricity bills of the ground floor the plaintiff would suffer an irreparable loss and injury if an injunction portion. is declined. It is also a well established principle that while deciding an E application for injunction the Court must not deal with the matter as if 35. The plaintiff has placed on record a copy of his pass-port, it were finally deciding the suit. It is also a well established principle that E which shows the suit property as the address of the plaintiff. Copy of the Court must also consider as to whether grant of injunction is likely the documents, such as, driving licence, copy of the pass-book of Central to cause inconvenience to the defendant. It is also not necessary for the Bank Account No.1027445965, Identity Card of Vasant Valley School of F Court while deciding an application for grant of injunction to go into the the daughter of the plaintiff, Voter Identity Card of the plaintiff, the question of title to establish that the plaintiff has been in continuous F directory of Nizamuddin (East) Association Members and various other possession of the entire ground floor except the kitchen. documents, have been filed, in support of the address of the plaintiff. 31. The first argument of counsel for the plaintiff is that the plaintiff 36. On the contrary Mr.Sethi, counsel for the defendant no.1 has has been in continuous possession of the ground floor of the suit property G also drawn attention of the Court to numerous documents of the plaintiff, along with his minor daughter and mother (since deceased) for which G wherein plaintiff has given his address as 12, Jaipur, Estate Nizamuddin learned counsel for the plaintiff has drawn attention of the Court to (East), New Delhi. various documents [Bus Card issued by the Vasant Valley School, ID card issued by the School, birth certificate issued by the school, passport 37. It is not in dispute that the plaintiff is also the owner of 12, and Aadhar card and various receipts issued by the professional institutes]. H Jaipur Estate, Nizamuddin (East), New Delhi as well. The documents It is also the case of the plaintiff that the plaintiff along with the defendants H relied upon by the plaintiff are independent documents and cannot be no.2 and 3 have been continuously looking after their old ailing mother termed as self-serving documents or documents procured after filing of in the house and thereafter when she was hospitalized. the present suit or procured soon before the filing of the present suit. In my view the possession of the plaintiff in the present suit cannot be I I Aman Nath v. Atul Nath and Ors. (G.S. Sistani, J.) 1585 1586 Indian Law Reports (Delhi) ILR (2014) II Delhi ascertained simply on the basis of documents filed by either of the A parties, but the surrounding circumstances are also to be considered, which according to me supports the case of the plaintiff. Defendant no.1 claims that he was exclusively looking after his ailing mother, which A prima facie appears to be incorrect. Voluminous documents have been filed on record by the plaintiff, which includes a large number of bills for B payments made to nurses and the bills of the hospitals, would show that it is the plaintiff who was looking after his ailing mother and not the defendant no.1. B 38. A large number of bills showing payments made to Suraj Nurses C Bureau from 31.7.2011 (81 bills) and details provided, evidencing payments 41. Photographs 5, 6, 7 and 8 annexed along with the report of the together with bills; so many bills of chemist, bills of laboratories, bills of Local Commissioner also show the living room, although strangely a C Moolchant Hospital, would show that it is the plaintiff, who was looking cloth-stand and a bucket has been shown in photographs No.1, 2 and 3 after his mother and the stand of the defendant no.1 is prima facie to be by the defendant No.1. The report of the Local Commissioner along with disbelieved at this stage and in case the defendant no.1 was exclusively D the site plan and photographs leave no room for doubt that there is a looking after his ailing mother, the bills would have been with him. huge living room on the first floor and the argument of defendant No.1 39. It is also the stand of defendant no.1 that there is no living D that the first floor has no living room and thus the defendant No.1 was room on the first floor and thus the defendant no.1 was in occupation using the living room of the ground floor is patently false. and possession of the entire first floor along with the living room and E 42. To say that the plaintiff has admitted in para 10 of the plaint kitchen on the ground floor. Mr.Sethi, counsel for the defendant no.1 that the living room was being used by the defendant No.1, in my view, strongly contended that the kitchen on the ground floor is not disputed E is a misreading of para 10 of the plaint. Para 10 reads as under:- even by the plaintiff and if the kitchen can be on the ground floor then it is to be presumed that defendant no.1 alone was using the first floor “10. That recently when the health of the mother of the plaintiff and the ground floor. F started deteriorating and the plaintiff was running around between the hospital and the house, the defendant No.1 with ulterior 40. This court was forced to test this argument that there is no F motives and malafide intentions had unauthorisedly started using living room on the first floor, by appointing a Local Commissioner during the living room in the absence of the plaintiff. the course of hearing. Ms.Priya Mehta, who was present in court was However, in order to maintain peace and not to do anything directed to visit the suit premises including first floor without waiting for G a formal order from the court and give a report as to whether there is which would cause mental agony, tension and pain to his mother, any living room on the first floor of the suit property or not. The Local G and in order to maintain harmony and peace within the family, Commissioner has, along with the report, filed photographs and a site the plaintiff was tolerating the malafide activities of the defendant plan. The site plan shows that the area marked ‘A. and ‘B. of 16.8” x No.1.” 28. comprising of 470 sq.ft. is the sitting room available on the first floor H 43. A reading of this paragraph would show that the plaintiff has in addition to 4 bedrooms. The scanned site plan filed by the Local H averred that on account of the deteriorating health of his mother, he was Commissioner is as under:- running between the house and the hospital and defendant No.1 with ulterior motives and malafide intentions has unauthorizedly started using the living room and in order to avoid mental agony and tension to his I I Aman Nath v. Atul Nath and Ors. (G.S. Sistani, J.) 1587 1588 Indian Law Reports (Delhi) ILR (2014) II Delhi mother the plaintiff No.1 was tolerating this act of defendant No.1. The A 2 SCC 117 this Court, discussing the principles to be kept in defendant No.1 cannot take advantage of his illegality and thus no benefit mind in considering the prayer for interlocutory mandatory can accrue to defendant No.1 on the basis of averment made by the injunction, observed: plaintiff in the plaint. A “16. The relief of interlocutory mandatory injunctions are thus 44. Principles laid down for grant of interlocutory injunction have B granted generally to preserve or restore the status quo of the last been discussed by the Supreme Court in the case of Hindustan non-contested status which preceded the pending controversy Petroleum Corpn. Ltd. v. Sriman Narayan & Anr. reported at (2002) until the final hearing when full relief may be granted or to 5 SCC 760. Relevant paragraphs of the judgment read as under:- B compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the “7. It is elementary that grant of an interlocutory injunction C party complaining. But since the granting of such an injunction during the pendency of the legal proceeding is a matter requiring to a party who fails or would fail to establish his right at the trial the exercise of discretion of the court. While exercising the may cause great injustice or irreparable harm to the party against discretion the court normally applies the following tests: C whom it was granted or alternatively not granting of it to a party (i) whether the plaintiff has a prima facie case; who succeeds or would succeed may equally cause great injustice D or irreparable harm, courts have evolved certain guidelines. (ii) whether the balance of convenience is in favour of the Generally stated these guidelines are: plaintiff; and D (1) The plaintiff has a strong case for trial. That is, it (iii) whether the plaintiff would suffer an irreparable injury if his shall be of a higher standard than a prima facie case that prayer for interlocutory injunction is disallowed. E is normally required for a prohibitory injunction. 8. The decision whether or not to grant an interlocutory injunction (2) It is necessary to prevent irreparable or serious injury has to be taken at a time when the exercise of the legal right E which normally cannot be compensated in terms of money. asserted by the plaintiff and its alleged violation are both contested (3) The balance of convenience is in favour of the one and remain uncertain till they are established on evidence at the seeking such relief. trial. The relief by way of interlocutory injunction is granted to F mitigate the risk of injustice to the plaintiff during the period 17. Being essentially an equitable relief the grant or refusal of an before which that uncertainty could be resolved. The object of F interlocutory mandatory injunction shall ultimately rest in the the interlocutory injunction is to protect the plaintiff against injury sound judicial discretion of the court to be exercised in the light by violation of his right for which he could not be adequately of the facts and circumstances in each case. Though the above compensated in damages recoverable in the action if the G guidelines are neither exhaustive nor complete or absolute rules, uncertainty were resolved in his favour at the trial. The need for G and there may be exceptional circumstances needing action, such protection has, however, to be weighed against the applying them as a prerequisite for the grant or refusal of such corresponding need of the defendant to be protected against injunctions would be a sound exercise of a judicial discretion.” injury resulting from his having been prevented from exercising H 45. It would also be useful to refer to the decision reported at his own legal rights for which he could not be adequately (1983) 4 SCC 31 Gangubai Bablya Chaudhary & Ors. v. Sitaram H compensated. The court must weigh one need against another Bhalchandra Sukhtankar & Ors. Relevant paragraph of the judgment and determine where “the balance of convenience” lies. reads as under:- 9. In Dorab Cawasji Warden v. Coomi Sorab Warden (1990) I I Aman Nath v. Atul Nath and Ors. (G.S. Sistani, J.) 1589 1590 Indian Law Reports (Delhi) ILR (2014) II Delhi “6. When an interim injunction is sought, the Court may have to A or status of plaintiff is not foreign to the subject-matter.” examine whether the party seeking the assistance of the court 47. Applying the settled law to the facts of the present case, in my was at any time in lawful possession of the property and if it is view the plaintiff has been able to make out a strong prima facie case so established one would prima facie ask the other side contesting A in the light of the documents placed on record. The stand taken by the the suit to show how the plaintiffs were dispossessed? We pin- defendant no.4 in his written statement duly supported by defendants pointed this question and heard the submission. We refrain from B no.2 and 3, the voluminous bills from Suraj Nurses Bureau from 31.7.2011 discussing the evidence and recording our conclusions because onwards (81 bills placed on record), would show that the plaintiff was evidence is still to be led and the contentions and disputes have looking after his mother in the house and not the defendant no.1. to be examined in depth and any expression of opinion by this B Supporting hospital bills, the bills of Chemist, the existence of four bed Court may prejudice one or the other party in having a fair trial rooms and a large living room on the first floor, all lean in favour of the and uninhibited decision. Having given the matter our anxious C plaintiff to establish a strong prima facie case and balance of convenience, consideration, we are satisfied that this is not a case in which and in case the plaintiff is deprived of exclusive use of the ground floor, interim injunction could be refused. Similarly we are of the opinion C including the living room except Kitchen, the plaintiff would suffer that if respondents are allowed to put up construction by the use irreparable loss. Accordingly, the defendant No.1, his servants, agents, of FSI for the whole of the land including the land involved in D relatives, or anyone acting through him are restrained from using any dispute, the situation may become irreversible by the time the portion of the ground floor except access to the kitchen. The defendant dispute is decided and would preclude fair and just decision of No.1 is further restrained from causing any hindrance, inconvenience or the matter. If on the contrary injunction is granted as prayed for D obstruction to the peaceful enjoyment of the plaintiff of the entire ground the respondents are not likely to be inconvenienced because they floor except kitchen. The key deposited with the Registrar (Original) shall are in possession of about 9000 sq. metres of land on which E be handed over to the counsel for the plaintiff forthwith. they can put up construction.” 48. The application filed by the plaintiff [IA.No.18453/2013 (under 46. It would also be useful to refer to the decision reported at AIR E Order 39 Rules 1 & 2 CPC)] is allowed and the application filed by the 1998 Bombay 87 Mulji Umershi Shah & etc. v. Paradisia Builders defendant no.1 [IA.No.18860/2013 (under Order 39 Rule 4 CPC), is Pvt. Ltd., Mumbai & Ors. F dismissed. “The contention that in a suit for injunction based primarily on CS(OS) 2250/2013 possession, question of title cannot be gone into and therefore F while considering the application for temporary injunction the 49. List the matter before Joint Registrar for admission/denial of only consideration before the Court was possession and not the documents on 22.7.2014. title of plaintiff is neither impressive nor sound. In the suit for G 50. List the matter before Court for framing of issues on 28.8.2014, perpetual injunction the Court may be called upon to hold inquiry G when parties shall bring suggested issues to Court. Mr.Ashish Nath will in title, right, interest or status, as the case may be, of the remain present in Court on the next date of hearing in terms of the order plaintiff to find out whether plaintiff is entitled to protection of dated 6.12.2013. his possession by decree of injunction. The same consideration, prima facie, is required to be seen while considering an application H for temporary injunction. The question of possession presupposes H lawful possession and for adjudication of that question whether finally or at interlocutory stage, the inquiry into title, right, interest I I Aman Nath v. Atul Nath and Ors. (G.S. Sistani, J.) 1591 1592 Indian Law Reports (Delhi) ILR (2014) II Delhi

ILR (2014) II DELHI 1591 A Accordingly, the present suit is decreed in favour of the CS(OS) plaintiff and against the defendant no.1. Plaintiff will tender the balance sale consideration to the defendant no.1 within A one week from the date of receipt of the judgment. Thereafter NUTAN .... PLAINTIFF the defendant no.1 will execute the sale deed in favour of B VERSUS the plaintiff. In case the sale deed is not executed by the defendant no.1 in favour of the plaintiff, it will be open for MUKESH RANI & ANR. ....DEFENDANT the plaintiff to seek execution of the decree passed. Decree- B sheet be drawn up accordingly. (Para 10) (G.S. SISTANI, J.) C CS (OS) NO. : 2169/2010 & DATE OF DECISION: 28.03.2014 Important Issue Involved: If plaintiff is ready and willing I.A. NO. : 14301/2010 to perform her part of the agreement and defendant neglects C to perform his part of agreement, the plaintiff entitled to decree for specific performance of agreement on tendering Specific Relief Act, 1963—Plaintiff filed suit seeking balance sale consideration to defendant. specific performance of agreement to sell, for D possession, mandatory and permanent injunction [Sh Ka] against defendant no. 1 & 2—Due to non-appearance, D both defendants proceeded ex-parte—As per plaintiff, APPEARANCES: she was wiling to perform her part of contract by E FOR THE PLAINTIFF : Mr. Alok Singh, Advocate along with tendering balance sale consideration amount which the plaintiff in person. was not accepted by defendant no. 1 on pretext suit E property to be converted from lease-hold to free- FOR THE DEFENDANT : None. hold. Held: If plaintiff is ready and willing to perform RESULT: Suit decreed. her part of the agreement and defendant neglects to F perform his part of agreement, the plaintiff entitled to G.S. SISTANI, J. (ORAL) decree for specific performance of agreement on F 1. Plaintiff has filed the present suit for specific performance of an tendering balance sale consideration to defendant. agreement of sell dated 13.5.2009 and for possession, mandatory and permanent injunction. Defendant no.2 entered appearance and filed his It has also been deposed that on 12.8.2009 the plaintiff G requested the defendant no.1 to accept the balance sale written statement and thereafter he stopped appearing. Defendant no.2 G consideration, however, defendant no.1 declined to accept was proceeded ex parte on 19.11.2013. Defendant no.1 was served by the same on the pretext that she was awaiting certain way of publication. Defendant no.1 was proceeded ex parte on 2.5.2013. documents regarding conversion of the suit property to free- 2. The plaintiff is present in court. Counsel for the plaintiff prays hold. A legal notice was issued to the defendant no.1 on H that her additional statement be recorded, as inadvertently the documents 13.8.2009, copy whereof has been filed and exhibited as H [receipt dated 13.5.2009, legal notice dated 13.8.2009 and reply dated Ex.PW-1/3. Reply to the same has also been filed and 20.8.2009 to the legal notice] could not be exhibited during the course exhibited as Ex.PW-1/4. (Para 6) of her evidence. Statement of the plaintiff has been recorded in court I I Aman Nath v. Atul Nath and Ors. (G.S. Sistani, J.) 1593 1594 Indian Law Reports (Delhi) ILR (2014) II Delhi today. Plaintiff has proved the original receipt dated 13.5.2009, as Ex.PW- A 8. I have heard counsel for the plaintiff. There is no rebuttal to the 1/2, copy of the legal notice dated 13.8.2009 as Ex.PW-1/3 and reply evidence of the plaintiff. The original agreement to sell, Ex.PW-1/1 has dated 20.8.2009 as Ex.PW-1/4. been placed on record, which shows that a sum of Rs.1.50 lacs was received by the defendant no.1 towards part payment of the sale 3. Plaintiff has filed ex parte evidence. As per the affidavit of A consideration; the receipt dated 13.5.2009, Ex.PW-1/2 shows plaintiff, Nutan Ex.PW-1/A, she entered into an agreement to sell with B acknowledgement of Rs.1.50 lacs, legal notice issued by the plaintiff, defendant no.1 on 15.12.2008, a copy of which has been placed on Ex.PW-1/3 and the reply thereto, Ex.PW-1/4 show that the defendant record (marked ’-’). It has been deposed that the original agreement was no.1 has not disputed the agreement to sell and her obligation to sell the retained by defendant no.1. As per the agreement dated 15.12.2008, the B suit property to the plaintiff at the price fixed, however, only sought total sale consideration was fixed at Rs.27.0 lacs with respect to the sale further time to get the property converted into free-hold. of suit property bearing flat No.C-506, 1st floor, Yojana Vihar, New C Delhi. The plaintiff paid Rs.1.0 lac as earnest money on 15.12.2008 and 9. The defendant no.2 has been impleaded as a party, as he claims thereafter another agreement to sell was entered into between the parties to be in possession of the suit property. As per the written statement of on 13.5.2009, which is exhibited as Ex.PW-1/1. In the agreement to sell C defendant no.2, he has no title over the property and he was occupying dated 13.5.2009 it was agreed that the defendant no.1 would get the the suit property only for some time. The defendant no.2, however, has property converted into free-hold and another sum of Rs.50,000/- was D vacated the suit property. paid in cash to the defendant no.1 on 13.5.2009. 10. Accordingly, the present suit is decreed in favour of the plaintiff 4. Plaintiff, has further deposed that defendant no.1 also signed a D and against the defendant no.1. Plaintiff will tender the balance sale receipt dated 13.5.2009, acknowledging receipt of Rs.1.50 lacs, ex PW- consideration to the defendant no.1 within one week from the date of 1/2. E receipt of the judgment. Thereafter the defendant no.1 will execute the sale deed in favour of the plaintiff. In case the sale deed is not executed 5. It has further been deposed that the plaintiff approached the by the defendant no.1 in favour of the plaintiff, it will be open for the defendant no.1 on several occasions and requested her to get the property E plaintiff to seek execution of the decree passed. Decree-sheet be drawn converted into free-hold but the defendant no.1 failed to do so. It has up accordingly. also been deposed that the plaintiff has sufficient funds and she has F always been ready and willing to purchase the suit property and perform 11. In view of the fact that the suit has been decreed, the interim her part of the agreement, however, defendant no.1 has neglected to F order dated 26.10.2010 is confirmed. The application [I.A. 14301/2010] perform her part of the agreement. also stands disposed of. 6. It has also been deposed that on 12.8.2009 the plaintiff requested the defendant no.1 to accept the balance sale consideration, however, G defendant no.1 declined to accept the same on the pretext that she was G awaiting certain documents regarding conversion of the suit property to free-hold. A legal notice was issued to the defendant no.1 on 13.8.2009, copy whereof has been filed and exhibited as Ex.PW-1/3. Reply to the same has also been filed and exhibited as Ex.PW-1/4. H H 7. Counsel for the plaintiff relies on the reply dated 20.8.2009 to the legal notice, wherein further time was sought to get the property converted from lease-hold to free-hold. I I INDIAN LAW REPORTS DELHI SERIES 2014 (Containing cases determined by the High Court of Delhi) VOLUME-2, PART-II (CONTAINS GENERAL INDEX) INDIAN LAW REPORTS EDITOR MS. SANGITA DHINGRA SEHGAL DELHI SERIES REGISTRAR GENERAL 2014 (2) CO-EDITOR VOLUME INDEX MS. NEENA BANSAL KRISHNA (ADDITIONAL DISTRICT & SESSIONS JUDGE) REPORTERS MR. CHANDER SHEKHAR MS. ANU BAGAI (DISTRICT & SESSIONS JUDGE) MR. SANJOY GHOSE MR. GIRISH KATHPALIA MR. ASHISH MAKHIJA MR. VINAY KUMAR GUPTA (ADVOCATES) MS. SHALINDER KAUR MR. LORREN BAMNIYAL MR. GURDEEP SINGH REGISTRAR MS. ADITI CHAUDHARY MR. KESHAV K. BHATI MR. ARUN BHARDWAJ JOINT REGISTRAR MS. ANU GROVER BALIGA MR. DIG VINAY SINGH (ADDITIONAL DISTRICT & SESSIONS JUDGES)

PUBLISHED UNDER THE AUTHORITY OF HIGH COURT OF DELHI, BY THE CONTROLLER OF PUBLICATIONS, DELHI-110054. CONTENTS PART-II MARCH AND APRIL, 2014

Pages

1. Comparative Table ...... M(i)-M(iv), A(i)-A(iii)

2. Statute Section ...... M(v)-M(xi)

3. Nominal Index ...... 1-8

4. Subject Index ...... 1-68

5. Case Law...... 1223-1594 LIST OF HON’BLE JUDGES OF DELHI HIGH COURT 24. Hon’ble Mr. Justice Suresh Kait During March and April, 2014 25. Hon’ble Mr. Justice Valmiki J. Mehta 26. Hon’ble Mr. Justice V.K. Jain 1. Hon’ble Mr. Justice G. Rohini Chief Justice (w.e.f. 21.04.2014) 27. Hon’ble Ms. Justice Indermeet Kaur 2. Hon’ble Mr. Justice Badar Durrez Ahmed (ACJ from 17.02.14 Till 20.04.2014) 28. Hon’ble Mr. Justice A.K. Pathak 3. Hon’ble Mr. Justice Pradeep Nandrajog 29. Hon’ble Ms. Justice Mukta Gupta 4. Hon’ble Ms. Justice Gita Mittal 30. Hon’ble Mr. Justice G.P. Mittal 5. Hon’ble Mr. Justice S. Ravindra Bhat 31. Hon’ble Mr. Justice R.V. Easwar (Retired on 28.04.2014) 6. Hon’ble Mr. Justice Sanjiv Khanna 32. Hon’ble Ms. Justice Pratibha Rani 7. Hon’ble Ms. Justice Reva Khetrapal 33. Hon’ble Ms. Justice S.P. Garg 8. Hon’ble Mr. Justice P.K. Bhasin 34. Hon’ble Mr. Justice Jayant Nath 9. Hon’ble Mr. Justice Kailash Gambhir 35. Hon’ble Mr. Justice Najmi Waziri 10. Hon’ble Mr. Justice G.S. Sistani 36. Hon’ble Mr. Justice Sanjeev Sachdeva 11. Hon’ble Dr. Justice S. Muralidhar 37. Hon’ble Mr. Justice Vibhu Bakhru 12. Hon’ble Ms. Justice Hima Kohli 38. Hon’ble Mr. Justice V.K. Rao 13. Hon’ble Mr. Justice Vipin Sanghi 39. Hon’ble Ms. Justice Sunita Gupta 14. Hon’ble Mr. Justice Sudershan Kumar Misra 40. Hon’ble Ms. Justice Deepa Sharma 15. Hon’ble Ms. Justice Veena Birbal 41. Hon’ble Mr. Justice V.P. Vaish 16. Hon’ble Mr. Justice Siddharth Mridul 17. Hon’ble Mr. Justice Manmohan 18. Hon’ble Mr. Justice V.K. Shali 19. Hon’ble Mr. Justice Manmohan Singh 20. Hon’ble Mr. Justice Rajiv Sahai Endlaw 21. Hon’ble Mr. Justice J.R. Midha 22. Hon’ble Mr. Justice Rajiv Shakdher 23. Hon’ble Mr. Justice Sunil Gaur LAW REPORTING COUNCIL DELHI HIGH COURT

1. Hon’ble Mr. Justice Vipin Sanghi Chairman

2. Hon’ble Mr. Justice Rajiv Sahai Endlaw Member 3. Hon’ble Mr. Justice J.R. Midha Member

4. Mr. Nidesh Gupta, Senior Advocate Member 5. Ms. Rebecca Mammen John, Senior Advocate Member

6. Mr. Arun Birbal Advocate Member 7. Ms. Sangita Dhingra Sehgal, Registrar General Secretary NOMINAL-INDEX 2 VOLUME-2, PART-II GE Capital Services India v. Prasanta Ghose & Anr...... 1534 MARCH AND APRIL, 2014 Pages Gangotri Enterprises Ltd; Gail (India) Ltd. v...... 972 Harakaran Dass Deep Chand v. Viren Agrotech Pvt. Ltd...... 1545 Abhishek Vohra v. Sureshta Malhotra & Ors...... 1159 Harish Chander v. Union of India and Ors...... 845 All India Institute of Medical Sciences & Anr. v. Ram Kishore & Anr...... 1501 Herman Properties Ltd. v. Rupali Singla & Ors...... 943 Amar Kumar Gupta v. State of Delhi ...... 1007 Hindustan Unilever Limited v. Reckitt Benckiser India Limited...... 1288 Aman Nath v. Atul Nath and Ors...... 1565 INX News Pvt. Ltd. v. Pier One Construction Pvt. Ltd...... 965 Anil Taneja & Anr. v. State of Delhi ...... 1000 Income Tax Settlement Commission & Ors.; Ashutosh Engineering Industries & Ors.; Ashwani Kumar Goel v...... 1449 Bharat Heavy Electrical Ltd. v...... 1128 Indu Projects Ltd. v. Union of India ...... 987 Ashwani Kumar Goel v. Income Tax Settlement Commission & Ors...... 1449 Jai Singh & Anr. v. Man Singh & Ors...... 1237 Atul Nath and Ors.; Aman Nath v...... 1565 K.L. Bhasin v. Punjab National Bank and Anr...... 1410 Avtar Singh v. Union of India and Ors...... 850 Madan Lal Pawan Kumar v. Govt. of NCT of Delhi & Ors...... 1118 Baldev Raj Jaggi v. National Agricultural Cooperative Mahesh Chand Aggarwal v. Mukesh Kalia & Ors...... 1555 Marketing Federation of India Ltd. & Ors...... 1022 Mahipal Singh v. The Commissioner, Municipal Bharat Heavy Electrical Ltd. v. Ashutosh Engineering Corporation of Delhi & Ors...... 1507 Industries & Ors...... 1128 Miglani Kerosene Oil Depot v. Govt. of NCT of Delhi & Ors...... 1223 Bhola Ram v. GNCTD ...... 909 Mohd. Ashikian Qureshi v. D.D.A. Through Its Chairman Chandan @ Babar v. The State (NCT of Delhi) ...... 1551 & Ors...... 1276 Deep Chand v. State & Anr...... 1038 Mohd. Irfan v. Directorate of Revenue Intelligence ...... 953 Dharampal Satyapal Ltd. v. Sanmati Trading and Mohd. Shamim & Ors. v. The State Through Govt. of Investment Ltd. and Ors...... 1204 NCT of Delhi ...... 1071 Dhiraj Bhatt v. Union of India and Ors...... 921 Narender Kumar Jain v. R.S. Sewak ...... 1090 Dinesh Sud v. Stitchwell Qualitex Pvt. Ltd. & Ors...... 831 National Agricultural Cooperative Marketing Federation Food Corporation of India v. Pratap Rice & General Mills...... 1064 of India Ltd. & Ors.; Baldev Raj Jaggi v ...... 1022 GNCTD; Bhola Ram v...... 909 National Highways Authority of India v. Lanco Infratech Ltd...... 1187 Gail (India) Ltd. v. Gangotri Enterprises Ltd...... 972 National Highways Authority of India v. PCL Suncon (JV) ...... 1138

1 3 4 National Council of Education Research and Training v. S.K. Mathur v. The President Secretariat Represented by the Parash Ram & Ors...... 1496 Secretary and Anr...... 1523 Nutan v. Mukesh Rani & Anr...... 1591 SR Divisional Commercial Manager v. Shriram Food & Fertilizer Industries ...... 1014 Pawan Pathak v. Chhajju Ram ...... 1099 State of Delhi; Amar Kumar Gupta v...... 1007 Pioneer India Electronics (P) Ltd. v. Union of India & Anr...... 791 State of Delhi; Anil Taneja & Anr. v...... 1000 PP Jewellers Pvt. Ltd. v. Modern New Kapoor Jewellers Pvt. Ltd...... 1425 State (NCT of Delhi); Chandan @ Babar v...... 1551 Prasanta Ghose & Anr.; GE Capital Services India v...... 1534 State Trading Corporation of India Ltd. v. Millennium Wires (P) Ltd. & Ors...... 1045 Pratap Rice & General Mills; Food Corporation of India v...... 1064 State & Anr; Deep Chand v...... 1038 Praveen Kumar v. Govt. of NCT of Delhi & Ors...... 1230 Stitchwell Qualitex Pvt. Ltd. & Ors.; Dinesh Sud v...... 831 Preeti Satija v. Raj Kumari and Anr...... 1246 Subhash Chandra v. Union of India & Anr...... 1442 Ram Kishore & Anr.; All India Institute of Medical Sciences & Anr. v...... 1501 Sudarshan Sareen v. National Small Industries Corporation Ltd. and Anr...... 933 Ram Parshad v. The State (Govt. of NCT of Delhi) ...... 981 Sureshta Malhotra v. Urmila Rani Chadha & Ors...... 1151 Ranjeet v. State (NCT of Delhi) ...... 1511 Sureshta Malhotra & Ors.; Abhishek Vohra v...... 1159 Reckitt Benckiser India Limited; Hindustan Unilever Limited v...... 1288 Swaran Lata and Ors. v. Shri Kulbhushan Lal and Ors...... 1362 Renu Agrawal and Anr. v. Delhi Development Authority and Ors...... 1395 Union of India and Ors.; Avtar Singh v...... 850 Rupali Singla & Ors.; Herman Properties Ltd. v...... 943 Union of India and Ors.; Dhiraj Bhatt v...... 921 Salam Kaviraj @ Chuha v. State (Govt. of NCT of Delhi)...... 1469 Union of India and Ors.; Harish Chander v...... 845 Sanmati Trading and Investment Ltd. and Union of India & Ors. v. Radharanjan Pattanaik & Ors...... 818 Ors.; Dharampal Satyapal Ltd. v...... 1204 Union of India v. Deepak Sharma ...... 824 Sanwar @ Razzak v. State ...... 1464 Vikram @ Ganja v. State ...... 1457 SBL Pvt. Ltd. v. V.B. Shukla & Ors...... 1407 Viren Agrotech Pvt. Ltd.; Harakaran Dass Deep Chand v...... 1545 Shekhar @ Chhotu v. The State (NCT of Delhi)...... 1283 Wasim (Passa in J.C) v. State of Delhi ...... 1489 Shyambir v. State Govt. of NCT of Delhi ...... 1218 Yogendra Nath v. Commissioner Kendriya Vidyalaya Sangathan ...... 1428 Shri Ramesh Kumar & Anr. v. Sangeeta Khanna ...... 1106 Xerox India Limited v. Computers Unlimited and Ors...... 1166 Zarar Khan @ Mulla v. State (Govt. of NCT of Delhi) ...... 960 6 arrears would be restricted to a period of three years prior to the SUBJECT-INDEX date of invoking remedy before the court of tribunal—The VOLUME-2, PART-II challenge of the petitioner and his prayers in the instant matter has to be considered in the light of these principles—It cannot be MARCH AND APRIL, 2014 disputed that denial of the ACP benefits to the petitioner and ADMINISTRATIVE TRIBUNAL ACT, 1985—Section 21—Denial wrongful fixation would result in erroneous fixation of all his of the benefits under the Assured Career Progression Scheme emoluments and entitlements—In case, such emoluments were (ACPS)—Petitioner aggrieved by the violation of Rules by the correctly fixed, upon superannuation the petitioner's pension may respondents pension fixation correctly keeping in view his have also been appropriately fixed, perhaps at a figure which is entitlement based on denial of financial benefits under the first more that the amount to which he has been found entitled by the ACPS with effect from 9th August, 1999 as well as financial respondents. The petitioner retired on 31st January, 2005, On benefits under second ACPS with effect from 1st January 2002- application of the principles laid down by the Supreme Court - petitioner did not make any grievance either by way of therefore, it would appears that thought the prayers made by the representations or by way of an application filed within the period petitioner at sl. nos. (i) to (iv) are concerned, the same are specified under Section 21 of the Administrative Tribunal Act, admittedly barred by limitation—However, the factual challenge 1985-Relief in respect of the same was hopelessly barred by on which these prayers were made, does survive and would require limitation on 1st May, 2012 When the petitioner had filed the to be considered as the same is necessary to consider the prayer petition before the Tribunal and sought the reliefs of Quashing/ made at sl. no.(v). This consideration is also essential in order to Setting aside the impugned order dated 17.7.2006 passed by the appropriately mould the relief which the petitioner may be found Respondent no.1, whereby the appeal was disposed against the entitled—In view of the above, the order dated 30th April, 2013 appellants, Quashing/Setting aside the order dated 25.8.2003 passed passed by the Central Administrative Tribunal dismissing the O.A by the Respondent no.3, whereby the penalty of censure was No.1659/2012 on the ground of limitations is hereby set aside and imposed against the appellants, directing the Respondents to grant quashed —Tribunal directed to consider on merits the challenge first ACP under the financial upgradation scheme w.e.f. 9.8.1999 to the denial of the first and second ACPS—Even if the Tribunal with arrears and further grant second ACP w.e.f. 1.1.2002 from sustains the challenge, the petitioner shall not be entitled to the the date of entitlement, directing the Respondents to grant w.e.f. grant of financial benefits. 16.7.2001 instead of 29.1.2004 and count his 3 years seniority Subhash Chandra v. Union of India & Anr...... 1442 towards the financial benefits accruing to the applicant as per the existing rules and directing the Respondents to fix the pension and ARBITRATION & CONCILIATION ACT, 1996—Sec. 9—Grant retirement benefits of the applicant in terms of the reliefs sought of Interim injunction—Petitioner sought an injunction against for in the aforementioned paras and pay the arrears thereof Respondents, so as to prevent them from creating third party immediately—However the petitioner restricts the challenge to the interest and/or executing any agreement or to proceed with grant denial of the benefits under the ACPs only so far as they effect of license or permission for development qua land in issue— fixation of his pension. Held: it is trite that so far as claims involving Whether petitioner was entitled to injunction as prayed for? Held, issues of seniority or promotion which effects others are for grant of an interim injunction, Petitioner would have to show concerned, would be rendered stale and the doctrine of limitation that, it had a prima facie case and balance of convenience was in would apply in case of such belated challenges—So far as the its favour—Petitioner would also have to demonstrate that refusal contention that the same have been wrongfully denied is of relief in form of an interim injunction would lead to irreparable concerned, the Supreme Court in (2008) 8 Supreme Court Cases harm and/or injury. Absence of signatures of other persons/entities 648 entitled Union of India and Others vs. Tarsem Singh has held referred in agreements apart from Respondents made both that the court would consider the same—However, the relief of agreements prima facie inchoate—Third party rights had already interceded in matter as Respondents had executed a fresh 5 collaboration agreement, with another entity—Hence, balance of 7 8 convenience not in favour of Petitioner—Township required in an injury but the loss was not yet quantified. Held, it is trite to minimum contiguous land of 50-55 acres—Whether it was say that bank quarantee is an independent contract. The bank is obligation of petitioner or respondent for that contiguous land, a not to look to the terms of the underlying or the main contract matter of trial—Respondents refunded Rs. 1.76 Crores— entered into between the contractor and the beneficiary. The Therefore, interim order not granted to Petitioner. Petition examination by the Court has to be from the point of view of the dismissed. concerned bank furnishing bank guarantee and not independent to it. The only exceptions are the exceptions of fraud or whether Herman Properties Ltd. v. Rupali Singla & Ors...... 943 the invocation of bank guarantee is in terms of the bank guarantee. — Sec. 34—Delay in re-filing of the petition U/s 34 of the Act after The tests adopted by the Courts are: Is the fraud “egregious”? Is objections were raised by the Registry—Delay of 149 days—Two it an established fraud of the beneficiary known to the bank? Or reasons given seeking condonation—First that the lawyer of whether independent of the bank, the aggrieved party sets up a petitioner had to be changed and second that the lawyer was ill. case of special equity. A broad test would be that, would an Held, both the events occurred in March 2013—There is no aggrieved party find it difficult to realize or recover the amounts explanation for the period which occurred prior to March and for reflected in bank guarantee from the opposite party, if the the delay which occurred in the month of April and May— aggrieved party were to ultimately succeed in the principal action. Objections were finally removed in July 2013. Held, that Courts Held, in the present case, the case of petitioner does not come does have the power to condone the delay in re-filing if the initial within the ambit of any exception—Petition dismissed. filing is within the period prescribed U/s 34 (3) of the Act, but the Indu Projects Ltd. v. Union of India ...... 987 result would depend on facts & circumstances of each case— The reasons advanced by the petitioner does not supply sufficient — Sec. 34—Delay—Ld. Arbitrator dispatched signed copies of award cause—Application rejected. through registered post to the General Manager, Head quarter and, Senior Divisional Commercial Manager of Railways on 4.11.2010. INX News Pvt. Ltd. v. Pier One Construction Copies received by GM and Head Quarter on 8.11.2010—Senior Pvt. Ltd...... 965 DCM denying having received copy on 8.11.2010. Held, once it — Sec. 34—Challenge to rejection of Counter Claim of the petitioner is shown that document was sent properly addressing, prepaying by the Arbitrator—No infirmity in conclusions of Ld. Arbitrator, and posting by registered post to addressee than the presumption which were based on record. Held Sec. 31(7)(b) of the Act provided U/s 27 of General Clauses Act read with Sec. 114 permits recovery of interest, post award, @ 18% per annum, Illustration (f) of Indian Evidence Act gets triggered. A noting on provided the arbitrator has not stated anything to the contrary. the award reflected that it was received on 8.11.2010 in the office The petitioner failed to take advantage of time granted by the of Senior DCM—No cogent explanation why the copy received arbitrator—No interference. So far as costs are concerned, Ld. in the Office of GM & HQ not transmitted to Office of Sr. DCM. Arbitrator allowed one fourth of the total costs incurred by the Held, from 8.11.2010 the petition was beyond period of 3 months respondents—Conclusion of arbitrator fair and equitable— and 30 days and the court has no power to condone the delay Challenge rejected. where the initial filing is beyond the prescribed period U/s 34 (3) of the Act. Gail (India) Ltd. v. Gangotri Enterprises Ltd...... 972 SR Divisional Commercial Manager v. Shriram — Petition U/s. 9 seeking injunction qua encashment of the Food & Fertilizer Industries ...... 1014 performance bank guarantee—Bank guarantee was unconditional—Bank was required to pay, merely on a demand, — Section 7, 16(2) and 37—Code of Civil Procedure, 1908—Order to the beneficiary. The terms of the bank guarantee envisages two 1 Rule 10—Respondent No. 1 filed suit against petitioner and scenarios; first, where the beneficiary by virtue of breach suffered respondent no. 2 to 5 for recovery challenging action of petitioner injury and also quantified the loss; secondly, the breach has resulted in encashing a bank guarantee issued by respondent no.1 to 9 10 petitioner in respect of certain purchase orders placed by petitioner — National Agricultural Cooperative Marketing Federation of India on respondent no.1—Petitioner entered appearance in suit and Ltd. (NAFED) decree holder—Kripa Overseas—M/s. Rital Impex raised a preliminary issue as to jurisdiction of Court to try suit in Ltd.—Collectively referred as judgments debtors—involved in view of existence of arbitral clause/s in purchase orders— arbitral proceedings—NAFED preferred petition under Section 9 Respondent No. 1 sought to contend at that juncture that matter of the Arbitration and Conciliation Act—Resulted in an order of is not arbitrable inasmuch as it has raised issues of fraud against injunction restraining the sale of several properties, including the petitioner and respondents no.2 to 5—A joint application filed by property in question (A-13, Block B-1, Mohan Cooperative parties for compromise whereunder parties agreed to refer Industrial Estate, Mathura Road, New Delhi, 110044)— controversy in suit to arbitration was allowed by Lok Adalat and Subsequently, the three parties entered into a settlement dated respondent no.1 proceeded to file its claim before Sole Arbitration 03.05.2007 Rs. 20 Cr. shall be paid within next 60 days upon praying for substantially same relief as in suit, against petitioner raising loan by mortgaging the property in question - property in and respondent no.2 to 5—Application of petitioner to delete question was mortgaged with ICICI Bank against advance of Rs. respondent no.2 to 5 from array of parties in claim allowed by 1.5 crores other properties subject matter of attachment, in Section arbitrator—Order of arbitrator set aside by learned Additional 9 proceedings, were released from the attachment order of the District Judge in appeal of respondent no. 1—Order of learned Court on 14.12.2007—The Order dated 14.12.2007, did not refer Additional District Judge challenged before High Court—Plea taken, to the property in question; it described another property— order of lok adalat cannot bind respondents no.2 to 5, given that Subsequently corrected and previous order modified through an they never appeared before Lok Adalat nor were they party to joint order of 18.412.2007—Property in question was allowed to be compromise application—Per contra plea taken, given that order sold by the owner/judgment debtor—Sale deed was executed by of Lok Adalat referred all parties to arbitration, logical sequitur one of the judgment debtors in favour of the objector total thereof is that respondents no.2 to 5 were also referred to consideration of Rs. 3.5 crores payment of Rs. 1.5 crores made arbitration—Held—Scope of a reference has to be decided on to ICICI Bank to clear the mortgage and recover the title deeds basis of terms of arbitration agreement—Respondents no.2 to 5 remainder to the owner/judgment debtor arbitration proceedings are not party to any agreement embodied in document with between NAFED, and the two judgment debtors award dated respondent no.1 agreeing to refer their disputes to arbitration— 24.09.2009 was made in terms of the settlement dated 03.05.2007 Nor is it case of respondent no.1 that there has been exchange of modified by the subsequent order dated 04.04.2008 holding, inter statements of claims and defence in which it had alleged existence alia, that NAFED is (sic) held entitled to the outstanding amount of arbitration agreement and same has been accepted and not by sale of the properties, mentioned in the deed of settlement dated denied by respondent no.2 to 5 in their defence statement—It is 3.5.2007, by public auction—NAFED instituted execution also not case of respondent no.1 that any exchange of letters, telex, proceedings property in question was attached—NAFED instituted telegrams, or other means of telecommunication referred to provide execution proceedings property in question was attached appellant, a record of any arbitration agreement between parties— preferred objections contending that he had clear title to the Respondents no.2 to 5 are not party to purchase orders— property sold without any precondition learned Single Judge Respondent no.1 has not led any evidence or even pleadings to concluded—Court in its order dated 14.12.2007 did not permit contend that respondents no.2 to 5 had consented before Lok an unconditional sale by the respondents/judgment debtors Adalat that matter be referred to arbitration—Findings in impugned condition respondents shall deposit Rs. 18 crores by the sale of order that order of Lok Adalat is binding upon respondents no.2 two properties including the one in question, within 75 days of to 5 is in excess of jurisdiction and patently illegal being contrary the sale to satisfy a part of the petitioner/decree holders claim— to records—Consequently, impugned order deserves to be and is To acquire a clear and unencumbered title to the property in accordingly set aside. question, the objector/applicant should have ensured that the said condition was complied with by the respondents/judgment debtors Bharat Heavy Electrical Ltd. v. Ashutosh Engineering sale deed in question is clearly in contravention of the order dated Industries & Ors...... 1128 14.12.2007 and is subject to Section 52 of the Transfer of Property 11 12 Act property in question was not released from the lot of properties in respect of the suit property faced attachment for a brief period under the cover of attachment sale consideration of Rs. 3.5 crores attachment was lifted, to enable its sale, in order to satisfy to the objector for the property gross undervaluation judicial notice NAFED’s claims sale ought to have proceeded in a particular of this fact in holding that such a transfer would also violate Section manner, nothing prevented it from insisting upon imposition of 53 of the Transfer of Property Act—Hence the present appeal. conditions—Having failed to do so, its mere allegation of Held: Conjoint reading of the two orders 16.05.2007 and undervaluation of the property could not have resulted in the 18.12.2007 clarify that whereas the first order lifted or vacated impugned finding. the attachment made earlier in respect of two properties did not Baldev Raj Jaggi v. National Agricultural Cooperative include the property in question the second order specifically Marketing Federation of India Ltd. & Ors...... 1022 vacated the attachment in respect of the property in question— NAFED never chose to apply for its modification or recall—No — Sec. 34—Condonation of delay in re-filing the petition U/s 34 of conditions or restrictions of the kind—Applicable to the sale of Arbitration & Conciliation Act, 1996—After deducting 30 days the title documents in respect of the property in question. which is maximum cumulative period permissible for removing — Applicability of Section 52—A transferee from a judgment debtor the objections, under Delhi High Court Rules., the net delay in re- is presumed to be aware of the proceedings before a Court of filing of 138 days. Held the Court is empowered to condone the law recognizes the doctrine of lis pendens—Rule 102 of Order delay in re-filing, provided there is no neglect and sufficient causes XXI of the Code take into account the ground reality and refuses shown to explain the delay. The sufficiency of cause would depend to extend helping hand to purchasers of property in respect of facts & circumstances of the case. Held further that the span of which litigation is pending unfair, inequitable or undeserved delay as well as bonafides/quality of the explanation tendered protection is afforded to a transferee pendente lite, a decree holder seeking condonation are both relevant factors, especially in the will never be able to realize the fruits of his decree—In the present context of the Arbitration Act, 1996, where as per Sec. 34 (3) of case, NAFES’S claim was one for money in arbitral proceedings— the Act Sec. 5 of the Limitation Act 1963 would have no Pending adjudication it sought for attachment of the judgment applicability. Held a large number of time spent in refiling would debtor’s properties—But in no manner enlarge the scope of its itself tend to demonstrate negligence, unless a credible explanation claim into one encompassing any right to immovable property is set forth. The reason put forth in this case was that paper book “directly” or “specifically—Absence of any restriction as to the was inadvertently placed in a file by the clerk of the counsel and marketability of the title, or direction by the Court, amounting to was not traceable. The negligence and callousness on the part of an encumbrance or charge order of 18.12.2007 operated to lift FCI in prosecuting the matter is clear from the fact that FCI did the attachment—This was done to facilitate sale direction in the not seek to know from its counsel about status of its petition— previous order of 14.12.2007 that NAFED could retain the title Petition for condonation of delay in re-filing dismissed. deeds till it was paid Rs. 18 crores was meaningless and Food Corporation of India v. Pratap Rice & inapplicable because the title deeds were with ICICI Bank, which General Mills ...... 1064 were later redeemed by the purchaser objector who was made aware of the mortgage in favour of that bank. — Section 34—Arbitral Tribunal awarded Rs. 2,29,50,919/- on account of the fact that during execution of the work, certain items — Applicability of Section 53—In the present case, far from of the bill of quantities were omitted resulting in loss of overheads discharging the onus of proving want of good faith—NAFED and profits to the respondent—The claim thus pertains to merely relied on a textual interpretation of the orders dated reimbursement sought on the account. Held, the contract between 14.12.2007 and 18.12.2008 argued that the property was sold for the parties required no interpretation as the plain language of the inadequate consideration impugned order is based on “judicial clauses signified intent of the parties—No compensation was to notice” having been taken about the prices of land law casts a be paid so long as variations do not cross 15% of the contract burden on the decree holder (NAFED), who has gotten its rights price—Held, ignoring this intent of the parties and granting crystallized subsequently in the award—Till then, it had no claim 13 14 compensation for losses at a certain percentage point of the value principle in facts of case—Per contra plea taken, interpretation of omitted item, is contrary to the plain intent of the parties. Held placed on clause 507.2.2. of MoRTH specifications by arbitral that, interpretation of provisions of contracts is within the exclusive tribunal is not only a plausible interpretation, it is only domain of the arbitrator. Unless the interpretation is implausible interpretation—Limited jurisdiction under Section 34 and Section or absurd, the Courts will not interdict a decision of the arbitrator. 37 of Act does not permit Court of decide present appeal—Held— In other words, if only one interpretation is possible and the Arbitral tribunal has considered terms of MoRTH specifications arbitrary tribunal chooses to ignore the same, the Court is not and also considered fact that provisions of 507.2.2 of MoRTH obliged to accept the interpretation given by the arbitral tribunal. specifications to specify word shingle while clause 1004 read with The arbitral tribunal is not to ignore the law or misapply the law. clause 1007 thereof does not, and consequently held that same The arbitrator cannot ignore the specific terms of the contract. indicates that shingle being retained in clause 507.2.2 is not Scope of interpretation arises only if there is ambiguity in the terms erratum—This is a plausible interpretation of contract, it is of the contract. In absence of such a situation, there is no scope apparent that it follows principle enunciated in maxim expression of interpretation. However, the route of interpretation is not uninus est exclusion alterius (Expression of one is exclusion of available, when words are plain and unambiguous. other) a well established rule of interpretation qua deeds and other instruments—So long as interpretation placed by arbitral tribunal — Impugned award set aside partially. upon a contract is plausible, this Court shall not interfere with same—It is a well established principle of construction of contract National Highways Authority of India v. PCL Suncon that if terms employed by one party are unclear, interpretation (JV) ...... 1138 against that party will be preferred—Given that no argument as — Section 34—Cost of Rs. 6 Lakhs awarded by the Arbitrator which to error in law has been pursued, interpretation placed on contract included expenses incurred towards fare, lodging, food and local is a matter within jurisdiction of arbitral tribunal, and thus, even if travel—Proprietor of respondent no. 1 visited Delhi from error exists, this is error of fact within jurisdiction, which cannot Darjeeling on various occasions during arbitral sittings in the be re-appreciated by Court under sections 34 or 37 of Act—This matter—Respondent no. 1 did not file any documents, such as, Court finds no reasons to interfere with impugned order. air or railway tickets, verifiable bills and invoices qua expenses National Highways Authority of India v. Lanco incurred on lodging, food and local travel etc. Held in absence of Infratech Ltd...... 1187 such verifiable proof, one has to adopt measure which would appear to be reasonable, based on the arbitrator’s own experience. ARMS ACT, 1959—A1 and A2 convicted for offence u/S 392/34 Held—Amount of cost granted by arbitrator cannot be said to be IPC—In addition A1 convicted u/S 397 IPC. excessive, by taking recourse to his experience, by Ld. Arbitrator. — Held, It is well settled that substantive evidence of the witness is Xerox India Limited v. Computers Unlimited his evidence identification in the court—Complainant who had and Ors...... 1166 direct confrontation with the assailants for sufficient duration had — Section 28(3), 33, 34, 37—Appellant challenged order of learned ample opportunity to observe and grasp the broad features of the Single judge dismissing OMP of appellant under Section 34 of Act culprits—No ulterior motive assigned to the complainant for falsely as not disclosing any ground warranting interference with award identifying the accused—No conflict between ocular and medical of Arbitral Tribunal—Plea taken, award was in excess of contract evidence—recovery of robbed articles from the possession of that came into existence upon award of tender by appellant to assailants is a vital incriminating circumstance to connect them respondent for four laning of part of National Highway 31 in State with the crime—Police will plant substantial amount of Rs. 12,000/ of West Bengal—Award fell into error in holding that clause - to implicate falsely is unbelievable—Minor contradiction and 507.2.2. of MoRTH specifications permitted using aggregate based discrepancies not material when presence of complainant at the on shingles—Arbitral tribunal had misapplied contra proferentem 15 16 spot was natural and probable and he was also injured. the Tribunal, so far as grant of consequential benefits to the respondents is concerned, for the time being, the same has to be Zarar Khan @ Mulla v. State (Govt. of NCT restricted up to 1st August, 2013—Parties shall abide by the of Delhi) ...... 960 adjudication by the Tribunal so far as the petitioners are bound to CCS (CCA) RULES, 1965—Sub-Rule (1) of Rule 10 & Rule 10 comply with the order dated 6th November, 2013—Appropriate (6) and (7)—Respondents were placed under suspension vide orders to be passed within 15 days—Writ petition and the stay orders dated 17th and 19th July, 2012 in terms of sub-rule (1) of application dismissed. Rule 10 of the CCS (CCA) Rules, 1965—Suspension was National Council of Education Research and reviewed by the Review Committee extending for another period Training v. Parash Ram & Ors...... 1496 of three months—Respondents premised their application before the Tribunal on the plea that the review of suspension was due in CCS (PENSION) RULES, 1972—Rule 48-A—Petitioner challenged accordance with law on 17th October, 2012—As such, the order of CAT directing it to consider applicant’s letter dated suspension not having been reviewed within the time prescribed 31.08.2007 requesting for voluntary retirement as per provisions under Rule 10 (6) and (7) of the CCS (CCA) Rules, 1965, the of Rule 48-A and also to release retiral benefits—Plea taken, letter continued suspension beyond 90 days after the issuance of the dated 31.08.2007 is unambiguous in its language and meaning— order dated 17th July, 2012 and 19th July, 2012 was null and Letter firstly requests for a voluntary retirement, failing which, it void—This contention of the respondents was accepted by the offers resignation with immediate effect—Respondent/applicant Tribunal placing reliance upon sub-rule (6) and (7) of Rule 10 of did not wait even for a day to receive any response from CCS (CCA) Rules, 1965—The Tribunal has also placed reliance Government and proceeded to join UN Mission—Aforesaid letter on a pronouncement of Supreme Court reported in (2010) 2 SSC could not be treated as a request under Rule 48-A (1) for being 222 entitled Union of India and others vs. Dipak Mali wherein it considered for voluntary retirement—Per contra plea taken, under has been held that by operation of Rule 10 (6), the suspension Rule 48-A (3-A) (b) it was always open for Government to curtail order would not survive after a period of 90 days unless it stood period of three months on merits and on appointing authority being extended after review—Tribunal directed that the orders of satisfied that period of notice would not cause any administrative suspension in these cases would be deemed to have been revoked inconvenience, period could be relaxed (on condition that from the expiry of the prescribed period i.e. 17th October, 2012 Government servant would not apply for commutation of a part and 19th October, 2012—The Tribunal directed that the applicants of his pension before expiry of notice period)—Respondent/ shall be treated on duty on the aforesaid dates with all consequential applicant had categorically offered to Government that three benefits, including arrears of pay and allowances. The respondents months, salary be recovered in lieu of three months, mandatory were directed to pass an order in terms thereof within a period of notice for voluntary retirement from leave due to him— 15 days from the date of receipt of coy of that order—Hence the Respondent/applicant had duly complied with requirement for Rule present petition. Held In compliance of the order of the Tribunal, 48-A but appellant had failed to act diligently, fairly and the petitioner has passed an order dated 21st November, 2013 responsibly—Held—Requirement under Rule 48-A (1) is that revoking the suspension of three persons, namely. Smt. Kamal Government servant, upon being eligible for voluntary retirement, Sharma, Smt. Premlata Gianey and Sh. Dinesh K. Tokas with must first give a notice in writing under to appointing authority, effect from 17th October, 2012 and has also granted all of not less than three months—It is only after this specific request consequential benefits including arrears of pay and allowances— is made, that applicant could invoke benefit of sub-rule (3-A) (a) No reason is forthcoming for why the present respondents are whereby “government servant referred to in Sub-rule (1) may not entitled to the same relief—Petitioners have issued a fresh order make a request in writing to appointing authority to accept notice of suspension dated 1st August, 2013 against the present of voluntary retirement of less than three months giving reasons respondents which stands challenged before the Tribunal—Given therefor”—So it is only upon application being made three months the fact that the order dated 1st August, 2013 is subjudice before prior to intended date of retirement that request for lessening or 17 18 waiving period of waiting for three months could be made—When were false and fabricated learned Single Judge rejected plaint on request is made in this manner, Appointing Authority could exercise two grounds first, LC constitutes an independent transaction, discretion, based upon exigencies of case, for relaxation of three obligations are not contingent on the intricacies of the underlying months period under Rule 48-A (3-A) (b)—In present case, just contract rather, on the presentation of the necessary documents exact opposite was done, i.e., application for voluntary retirement to the bank in question second limited exception in interfering with was made to be with immediate effect and three months, notice LC is that of fraud played upon by the seller on the purchaser and period was sought to be adjusted against pay for subsequent three the paying bank was has notice of such fraud—Comprised solely months; respondent/applicant had misconstrued relevant Rule— of allegations of fraud learned single judge rejected the suit under Insofar as respondent/applicant had not made any request in Order VII Rule 11 CPC—Hence this appeal. Held: Payment under writing three months earlier, and had instead notified government LC injuncted first, there is a possibility of irretrievable damage to accept his resignation with immediate effect from 31.08.2007, second, were there is fraud in the underlying transaction which is aforesaid provision for relaxation of three months period would brought to the notice of the bank contract of the bank guarantee not be available to him—In circumstances, government was well or the LC is independent of the main contract between the seller within its rights to accept resignation as was done in instant case. and the buyer irrevocable bank guarantee or LC the buyer cannot obtain injunction against the banker on the ground that there was Union of India v. Deepak Sharma...... 824 a breach of the contract by the seller—Documents constitute CODE OF CIVIL PROCEDURE, 1908—Order 9 Rule 13—Appeal complying presentation of LC is solely that of the issuing bank against dismissal of application u/o 9 r 13 for setting aside ex parte (Allahabad Bank) bank does so determine, the non-acceptance by decree. Held—An ex parte decree can be set aside when a the buyer (STC/Millennium) is not determinative issuing bank Defendant satisfies the Court that the summons had not been duly accepted the documents considerable lapse of time, informed the served or he was prevented by sufficient cause from appearing foreign bank about the discrepancy which could not be done in when the suit was called for hearing. Appellant had admitted the view of Article 16 UCP notice to be given no later than the close service of summons. Appellant was aware of the pendency for of the fifth banking day fraud exception to honouring an LC foreign the suit and had sufficient time to appear and answer the claim of bank must have notice or knowledge of such fraud before making respondent no. 1. Only reason given by Appellant for not appearing payment evidence must be clear both as to the fact of fraud and in Court is the alleged assurance given by Respondent no. 2 that as to the bank’s knowledge plaint in this case disclosed sufficient the Appellant would be duly represented in the matter. This reason pleadings as to the alleged fraud played upon STC/Millennium by cannot constitute a sufficient cause for non-appearance of the two Synergic companies only reference to the foreign bank’s Appellant. Appellant has been willfully negligent, recourse to Or. knowledge of such fraud plaint refers casually and vaguely, 9 R. 13 not available. Appeal Dismissed. without referring to any details, to the question of notice of fraud on the foreign bank, which forms a crucial part of the cause of Sudarshan Sareen v. National Small Industries action absence of any particulars pleaded, or any evidence to Corporation Ltd. and Anr...... 933 support, the claim that the foreign bank colluded with the Synergic — Order VII Rule 11—‘Associateship’ agreement dated companies, or even had notice of such fraud, the claim as disclosed 02.12.2011—STC and Millennium import of continuous cast in the plaint is bound to fail, as the cause of action pleaded does copper rods—Millennium importing such rods from two not entitle STC to the remedy it prays for. Synergic companies (Synergic, Singapore and Synergic, State Trading Corporation of India Ltd. v. Millennium Malaysia)—Letter of Credit (LC) opened by STC through Wires (P) Ltd. & Ors...... 1045 Allahabad Bank payable to the two Synergic companies through foreign bank plaintiffs, Millennium and STC contended before the — Section 151, Order VII Rule 14 (3) and Order VIII Rule 1A(3)— learned Single Judge that the two Synergic companies had Applications filed by petitioner for placing documents on record defrauded STC documents concerning shipment of the products and for leading secondary evidence qua photocopies of documents 19 20 so filed dismissed by Trial Court—Order challenged before High correct and Court cannot take into consideration whether the Court—Plea taken, Trial Court has failed to exercise jurisdiction plaintiff may ultimately succeed or not. vested in it by not granting leave to file documents—Petitioner Sureshta Malhotra v. Urmila Rani Chadha was always diligent in prosecuting case and in any event, & Ors...... 1151 respondent would not be prejudicially affected if documents were placed on record—Documents were necessary for effective — O.VII Rule 11(a), (b) & (c). Held, While deciding an application adjudication of dispute before Trial Court and hence they ought U/o.7 R. 11 CPC, Court is not required to take into consideration to be allowed to be exhibited—Held—Appropriate time for filing the defence set up by the defendant in his written statement. The a document in support of a defendant’s defence is when written question whether plaint discloses any cause of action, is to be statement is filed—A document that is not produced along with decided from the averments of plaint itself. Strength and weakness written statement or entered in list filed with written statement of the case of plaintiff cannot be weighed for deciding such ought not to be received in evidence without leave of Court— application. Assertions in the plaint must be assumed to be correct Injunction of law under Order VIII Rule 1A(1) is not one to be and Court cannot take into consideration whether the plaintiff may lightly ignored, a fortiori and especially in matters such as present ultimately succeed or not. case, where excessive delay of over 11 years, has been caused by defendant in eventually approaching Court under said Abhishek Vohra v. Sureshta Malhotra & Ors...... 1159 provision—For exercise of discretion by Court under Order VIII — Order 1 R. 10—Plaintiff filed a suit for specific performance to Rule 1A(3) of Code in Favour of a defendant, defendant would enforce an agreement to sell entered into with the defendant— have to satisfy Court to qualifying criteria (i) that documents were Defendant informing that the suit property was sold before filing earlier not within knowledge of party; or (ii) that documents could of the suit to proposed defendant—Application U/o. 1 R.10 CPC not be produced despite exercise of diligence on part of defendant filed by the plaintiff to impaled buyer as proposed defendant. Held, —Petitioner has failed to provide sufficient and cogent reasons since property was sold prior to filing of the suit the doctrine of for allowing documents to be filed—It is not case of petitioner the Lis - pendent would not be applicable. that documents were not within his power nor has petitioner made out any case of exercise of diligence, despite which documents — Also held, that the claim of proposed defendant that Section 19(b) could not be filed—To the contrary, impugned order observes of Specific Relief Act would be applicable is a question of trial as lack of diligence on part of petitioner, as documents had not been it's a question of evidence whether proposed defendant had filed for a period of eleven years from date of filing of written knowledge of the previous agreement or not and also whether he statement and not even adverted to in evidence filed later—Only purchased the property benefice or mollified. The proposed explanation proffered by petitioner is inadvertence which cannot defendant who is a subsequent purchaser and who is not claiming be regarded as a ground for exercise of discretion under Order adverse title to the seller, therefore, is a necessary party irrespective VIII Rule 1A(3)—Impugned order does not suffer from material or the fact whether he purchased the property with or without irregularity warranting interference of this Court in its revisionary notice of the prior agreement, as he would be affected by the final jurisdiction. outcome of the case between plaintiff and defendant. Shri Ramesh Kumar & Anr. v. Sangeeta Khanna ...... 1106 Dharampal Satyapal Ltd. v. Sanmati Trading and Investment Ltd. and Ors...... 1204 — O. VII Rule 11(a), (b) & (c). Held, while deciding an application U/O.7 R. 11 CPC, Court is not required to take into consideration — Section 107, 151 r/w Order 41 Rule 27—Additional documents— the defence set up by the defendant in his written statement— Brief Facts—Respondents had filed Photocopies of twenty five The question whether plaint discloses any cause of action, is to documents under an index dated 22.05.2002, which was be decided from the averments of plaint itself. Strength and subsequent to their filing the written statement in the trial court— weakness of the case of plaintiff cannot be weighed for deciding The said list of documents includes copies of the lease deeds dated such application. Assertions in the plaint must be assumed to be 11.08.1953 and 11.02.1954 executed by the Delhi improvement 21 22 Trust in respect of the subject in favour of the respondents No.1 in the case of Wedi Vs. Amilal & Ors. reported as MANU/0729/ and 2, who were then minors, under the Guardianship of their 2002MANU/SC/0729/2002: 2004 (1) SCALE 82, "invocation of father, Shri Ram Singh—The said documents also include copies clause (b) does not depend upon the vigilance or negligence of of two sale deeds, both dated 06.09.1940, executed by the legal the parties for it is not meant for them—It is for the appellant to heirs of Shri Budhu, the original lessee of the subject Premises, in resort to it when on a consideration of material on record, it feels favour of the respondents/defendants No.1 and 2, that have been that admission of additional evidence is necessary to pronounce a mentioned at Sr. No. 1 and 10 of the documents—Respondents/ satisfactory judgment in the case. "In the present case, for the defendants No.1 & 2 states that the aforesaid documents are very issue of title of the subject properties to be established satisfactorily, material for deciding the suit instituted by the appellants/plaintiffs it was necessary that the ownership documents came on record— praying inter alia for a decree of partition of the subject plots— For purposes of dispelling the obscurity on the issue of title, which However, the counsel who was conducting the case committed is of paramount consideration in a suit of partition, interest of a blunder by failing to place on record the original documents or justice demands that the documents of title relating to the subject producing the same at the time of admission and denial of premises and in the power and possession of the respondents/ documents, so that they could have been exhibited—As a result, defendants be looked into to arrive at a just and correct decision— the trial court did not have an opportunity to examine the aforesaid Accordingly, the originals of the documents relating to the title of documents, the defendants having failed to exhibit them— the subject premises, photocopies whereof were filed by the Respondents state that they ought not to be made to suffer for respondents/defendants in the trial court under index 22.5.2002 the folly of their counsel and interest of justice demands that the are permitted to be taken on record as additional evidence— said documents be permitted to be produced by way of additional However, considering the fact that it is on account of failure on evidence and be taken into consideration—In the accompanying the part of the respondents/defendants to file the original title appeal, the appellants/plaintiffs have assailed the judgment dated documents that had an important bearing on the case and were 25.09.2009 passed by the trial court dismissing their suit for material for the consideration of the trial court, for purposes of partition and permanent injunction in respect of the subject satisfactorily adjudication the present suit, it is deemed appropriate properties—Now the respondents/defendants have filed the to allow this application subject to payment of Rs. 50,000/- as present application seeking leave to produce the original casts to the other side within four weeks—Resultantly, the appeal documents, photocopies whereof were already placed on record is allowed and the impugned judgment is set aside. by them before the trial court, and grant of permission to have Jai Singh & Anr. v. Man Singh & Ors...... 1237 the admission and denial thereof conducted so that they can be exhibited in accordance with law and a fresh decision taken by — S. 9—Suit—Suit for possession—Order XII Rule 6—Decree on the trial court. Held: Section 107 of the CPC empowers the appellate admission—Admission unequivocal—Held—Court cannot base court "to take additional evidence or to require such evidence to their decision to a decree on the basis of particular pleading or be taken", "subject to such conditions and limitation as may be admission—rather overall effect of pleadings and documents of prescribed"—Rule 27 of Order 41 of the CPC prescribes the the concerned parties are to be weighed. conditions and limitations placed on this discretion—Rules starts by laying down that the parties to an appeal shall not be entitled to Preeti Satija v. Raj Kumari and Anr...... 1246 produce additional whether oral or documentary, in the appellate — S. 9—Suit—Suit for partition possession—Hindu Joint Family court—It then proceeds to carve out two circumstances where Property—Co-parcenerary property—Hindu Succession Act— the appellate court may allow additional evidence to be produced— Amendment of S. 6—Appellants were three sisters—filed suit for The first circumstance is where the court appealed from has partition against two brothers and two sisters—Third brother refused to admit such evidence that ought to have been admitted Sudharshan Lal died on 01.02.1978—Father Bakshi Ram died on and the second circumstance is where the appellate court requires 10.02.1960—Mother Smt. Chanan Devi died 03.08.1978—Suit such evidence either to enable it to pronounce judgment or for dismissed by learned Single Judge—Appellant contended before any other substantial cause—As observed by the Supreme Court 23 24 the partition of the country the family was a Hindu Undivided Family jurisdiction—In purview of the Loan Agreement stipulating for (HUF) and father ran various businesses in the name of Bakshi execution by defendant at Delhi—Loan disbursed from Delhi, Ram & Sons in a part of Punjab now in Pakistan—Post partition— promissory note were signed and payable at Delhi—Held—Part Bakshi Ram allotted various properties in lieu of those left properties cause of action has arisen in Delhi, thereby no merit in defendants numbering 08 and various businesses run by using the funds of contention qua lack of jurisdiction. Leave to Defend—Defendant HUF—Respondent contended—The various properties self urged that the statement of accounts sought to be relied upon by acquired properties and not co-parcernery properties—Secondly the Plaintiff is not signed by the Defendant and that the Promissory the properties already partitioned post the death of Bakshi Ram— not does not contain the liquidated debt due—Without expressing Thirdly since partition had already taken place hence the 2005 any opinion on the merits of the matter Held—It is triable issue Amendments of Section 6 of Hindu Succession Act not operation and granted conditional leave to defend. — lastly the properties governed by Succession Rules under Delhi GE Capital Services India v. Prasanta Ghose Land Reforms Act and subject matter beyond the jurisdiction of & Anr. B+ ...... 1534 the Court — Held In concurrence with Ld. Single judge that various properties were Hindu Joint Family Property — further held — — Order 37—Suit under Order 37 of CPC for recovery of Rs. deemed partition cannot be said to have taken place merely on the 60,36,522/- pendente lite & future interest @ 18% p.a.— death of family member — instead — the operation of S. 6 Defendant served by publication under order 5 rule 20 of CPC— Amendment would not depend on date of institution of the suit or Plaintiff a partnership firm—Defendant approached at its Delhi at the time of intermediate order—But on whether the partition office for the supply of Palm Stearine Oil—Contract between the actually took place either through by registered deed of partition parties for final price & other terms-oil supplied—Cheques or by decree of the court before or after 2005 Amendment—In received—Owing to the financial crunch the defendant’s company the present case the partition was yet to take place—Further Held— has been facing, the cheques not presented on the request of 2005—Amendment to the Hindu Succession Act would be Defendant—Assurance of defendant that cheques could be operative and finally held subject matter of Land Reform Act — presented for payment—Cheques dishonoured despite assurances. rural—agriculture properties rather than urban land—The case in Held—Invoice/bill not covered within definition of written present appeal—No limitation on the jurisdiction of the court— contract—Defendant failed to enter appearance in the matter Finding and judgment of learned single judge set aside—Suit despite substituted service also failed to make payments—Suit remitted for further proceedings to carry out partition of the decreed in favor or plaintiff. property in accordance with the law—Appeal allowed. Harakaran Dass Deep Chand v. Viren Agrotech Swaran Lata and Ors. v. Shri Kulbhushan Lal Pvt. Ltd...... 1545 and Ors...... 1362 — Order 39 Rule 1 & 2 and Order 39 Rule 4—Plaintiff suit for — Order 37—Plaintiff filed suit U/o 37 of Code praying for recovery injunction against three defendants i.e. his two brothers and one of amount with pendente lite and future interest on basis of invoices sister and his maternal uncle was impleaded as defendant no. 4— issued by defendant company—Defendant failed to file application According to Plaintiff, he along with his minor daughter and seeking leave to defend—Plaintiff prayed for decree of suit. Held:- deceased mother was in possession of ground floor in suit property In the absence of any application for leave to defend, as per Rule which was owned by his mother-Mother executed will which was 3(5) of Order 37, the suit is to be decreed. registered and defendant no. 4 was named as Executor of will— PP Jewellers Pvt. Ltd. v. Modern New Kapoor Jewellers Pvt. As per Will, ground floor of suit property was bequeathed to him Ltd...... 1425 first floor to defendant no. 1, second floor to defendant no. 2, third floor, if and when constructed, to defendant no. 3 (sister) — Order 37 Rule 3 (5)—Leave defend—Defendant assailing etc.—Plaintiff also moved application seeking interim injunction Petitioners claim on grounds of lack of jurisdiction and absence which was contested by defendant no. 1 though supported by of written contract or acknowledged liability—Question as to 25 26 defendant nos. 2 to 4. Held:- The relief of interlocutory mandatory denied to them thirteen years later in 2008—Responsibility towards injunctions are thus granted generally to preserve or restore the post retirement benefits with respect to employees of AERC was status quo of the last non-contested status which preceded the settled between Government and respondent University by pending controversy until the final hearing when full relief may transferring same to latter on assurance that former would give be granted or to compel the undoing of those acts that have been grants-in-aid and adequate annual budgetary allocation to meet illegally done or the restoration of that which was wrongfully taken responsibility and relevant contingencies—Employees were never from the party complaining. consulted for a part of shift in such responsibility—They were content in fact that their terms of employment had not been altered Aman Nath v. Atul Nath and Ors...... 1565 to their detriment and had indeed been improved—This cannot COMPANIES ACT, 1956—Appeal U/s 10 F of the impugning order be altered unilaterally now, to their detriment—Withdrawing of CLB dismissing application for rectification of register of benefits as per impugned order would be to leave them in lurch members—Petition filed after 16 years from when the name of and to virtually disown them by subterfuge—This act would be appellant was omitted from the register. unfair and impermissible and would warrant to be quashed. Dinesh Sud v. Stitchwell Qualitex Pvt. Ltd. Union of India & Ors. v. Radharanjan Pattanaik & Ors...... 831 & Ors...... 818 CONSTITUTION OF INDIA, 1950—Article 14—Respondent — Petitioners preferred writ petitions aggrieved by non-payment of employees has filed writ petition and had sought entitlement to Bhutan Compensatory Allowance (BCA)—It was alleged by them, pension as was available to other employees of Visa Bharati they were compensated under DANTAK in Bhutan but were not University who had completed ten years of continuous service— paid as per rules and regulations—As per respondent, petitioners Learned Single Judge quashed notification of respondent University did not fulfill eligibility criteria for posting to BCA, thus, not entitled that had stopped pension by its order to AERC staff of University— to BCA—Petitioners received without any objection payment of Impugned order challenged before Division Bench in appeal—Plea Dearness Allowance and House Rent Allowance during alleged taken, Allahabad High Court had dismissed a claim for a similar periods . relief which was sought against Allahabad University by members of AERC attached to that University—Held—Learned Single Judge — Held:- Petitioners not entitled to BCA as neither posted to 504 SS distinguished facts of cited was with present case and found that & TC under BCA criteria nor physically served in the area where ruling to be inapplicable to present case—Language employed in BCA was applicable for their entire posting—Moreover, no Memorandum of Understanding is clear as daylight and requires complaint or representation was made by them promptly and they no interpretation with respect to its intent and import—Objective also received amounts of Dearness Allowance and House Rent was clearly that employees of AERC attached to respondent Allowance. University should be merged with and treated at par with other Harish Chander v. Union of India and Ors...... 845 employees of said University and all benefits would be available to these newly merged employees entering into a larger pool of — Article 14, 19 (1) (g) and 21—Navy Act, 1957—Regulation 159, employees as it were—A perusal of language used in MOU would 161, 163, 169—petitioner by way of writ petition challenged order clearly set out intent of Union of India to first merge and integrate dated 01/11/1990 in terms of Regulation 156 of Act convening employees of AERC and put them at par with those of University— court martial of petition on 27 charges—He also challenged order Having done so on its own, appellants would be estopped from dated 15/03/1991 of Court Martial finding him guilty of subsequently disowning them or denying them pensionary benefits commission of 8 charges and order of sentence awarding him that were otherwise guaranteed under MOU—Although said sentence of 24 months RI, dismissal from service and fine of Rs. employees were not party to MOU, benefits having been granted 1,000/- or 6 months imprisonment in default of payment of fine— to them w.e.f. 1995 cannot be unilaterally withdrawn from or Petitioner further challenged order dated 27/08/1991 passed by 27 28 Chief of Naval for maintaining conviction of petitioner on all by adjusting the absence of the petitioner against leave admissible, charges except on Charge 20 and reducing sentence of respondents have treated the petitioner’s leave as bonafide—No imprisonment to period already undergone by him—Also, order order has been passed treating the period as a break in service, dated 08/12/2010 and 23/12/2010 passed by Armed Forces thus the same cannot be so treated—Further, scheme of the Tribunal was challenged by petitioner whereby findings of guilty examination does not stipulate 4 continuous years of service of Court Martial on all charges other than charge no. 7 was set preceding the LDCE—Order converting petitioner’s casual leave aside—According to petitioner, he had illustrious, unblemished to earned leave is quashed and the said period shall be treated as career of over 20 years of service with Indian Navy and was casual leave—Respondents directed to consider petitioner’s committed soldier till he was wrongly implicated in the case—It candidature for appointment as Sub-Inspector—Petitioner entitled was urged on behalf of petitioner that court martial was convened to notional seniority, but not backwages or arrears in salary. without application of mind on the material placed before Dhiraj Bhatt v. Union of India and Ors...... 921 Convening Authority as documents were so voluminous which could not have been considered on the same day by Authority to — Article 227—Indian Evidence Act, 1872—Section 63—Code of pass order to convene court martial. Civil Procedure, 1908—Section 151, Order VII Rule 14 (3) and Avtar Singh v. Union of India and Ors...... 850 Order VIII Rule 1A(3)—Applications filed by petitioner for placing documents on record and for leading secondary evidence qua — Article 14, 19 (1) (g) and 21—Navy Act, 1957—Regulation 159, photocopies of documents so filed dismissed by Trial Court— 161, 163, 169—Petitioner urged summary of evidence along with Order challenged before High Court—Plea taken, Trial Court has charge sheet placed before Convening Authority did not contain failed to exercise jurisdiction vested in it by not granting leave to iota of evidence on charge no. 7 for which petitioner was found file documents—Petitioner was always diligent in prosecuting case guilty by Armed Forces Tribunal. Held:- Convening Authority is and in any event, respondent would not be prejudicially affected required to satisfy himself not only that the charges are properly if documents were placed on record—Documents were framed but also that the evidence if uncontradicted or unexplained necessary for effective adjudication of dispute before Trial Court would probably suffice to ensure a ' conviction'. and hence they ought to be allowed to be exhibited—Held— Appropriate time for filing a document in support of a defendant’s Avtar Singh v. Union of India and Ors...... 850 defence is when written statement is filed—A document that is — Article 226, General Conditions of the CCS (Leave Rules), Rule 7 not produced along with written statement or entered in list filed of Chapter 2, 25: Petitioner has filed writ aggrieved by order with written statement ought not to be received in evidence without rejecting Petitioner's candidature for appointment as SI in the leave of Court—Injunction of law under Order VIII Rule 1A(1) Limited Departmental Competitive Examination (LDCE) and older. is not one to be lightly ignored, a fortiori and especially in matters Further aggrieved by order whereby sanctioned casual leave was such as present case, where excessive delay of over 11 years, cancelled and the period was regularized as earned leave. Petitioner has been caused by defendant in eventually approaching Court applied for 10 days of casual leave in April, 2010 and was supposed under said provision—For exercise of discretion by Court under to report back on 15.04.2010—Ongoing Kumbh Mela caused Order VIII Rule 1A(3) of Code in Favour of a defendant, defendant disruption in transport—Causing Petitioner to report back to work would have to satisfy Court to qualifying criteria (i) that documents one day late. The said explanation was acception as bonafide. were earlier not within knowledge of party; or (ii) that documents Respondents passed an order on 03.05.2010 converting the could not be produced despite exercise of diligence on part of Petitioner’s casual leave to half pay leave without salary and defendant —Petitioner has failed to provide sufficient and cogent allowances, and that the same would be treated as a break in service reasons for allowing documents to be filed—It is not case of rendering the Petitioner ineligible for the LDCE. Held: Respondents petitioner that documents were not within his power nor has failed to communicate order dated 03.05.2010—Burden of petitioner made out any case of exercise of diligence, despite which disclosing the same lay on the respondents—In the present case documents could not be filed—To the contrary, impugned order 29 30 observes lack of diligence on part of petitioner, as documents had cause notice issued after gap of 6 years licence renewed from not been filed for a period of eleven years from date of filing of time to time—Penalty of forfeiture of security amount already written statement and not even adverted to in evidence filed later— imposed—Punishment of the same offence cannot be imposed Only explanation proffered by petitioner is inadvertence which again on the present proprietor-per contra- the respondent well cannot be regarded as a ground for exercise of discretion under within their right to take action in terms of Control Order—Delay Order VIII Rule 1A(3)—Impugned order does not suffer from procedural due to transfer of Assistant Commissioner—Held— material irregularity warranting interference of this Court in its Statutory authority required to act reasonable, fairly and revisionary jurisdiction. expeditiously no reasonable or plausible explanation for gross delay—Respondent waived their right to take action—Respondent Shri Ramesh Kumar & Anr. v. Sangeeta Khanna ...... 1106 agreed to transfer the licence in the name of present proprietor — Article 226— Writ Petition—Delhi Kerosene Oil (Export & Price) condoned the act of previous licencee—Licence of present Order, 1962—Clause 6—Cancellation of licence—Conviction- proprietor cannot be canceled for the act of previous proprietor— transfer of licence in the name of petitioner upon the death of Cancellation quashed—Writ petition allowed. father—Petitioner firm was issued a licence for distribution of Madan Lal Pawan Kumar v. Govt. of NCT of Delhi kerosene oil in the year 1977-on 28.04.1995 inspection staff of & Ors...... 1106 respondent found shortage of 1233 litres for the period from 01.04.1995 to 28.04.1995 an FIR registered deceased father of — Article 227—Arbitration and Conciliation Act, 1996—Section 7, the petitioner proprietor of the firm at that time on 07.06.1995 an 16(2) and 37—Code of Civil Procedure, 1908—Order 1 Rule 10— Assistant Commissioner (East) suspended the licence on the basis Respondent No. 1 filed suit against petitioner and respondent no. of report on 16.08.1995 Assistant Commissioner (Judicial) after 2 to 5 for recovery challenging action of petitioner in encashing a considering the facts and circumstances-material placed on record bank guarantee issued by respondent no.1 to petitioner in respect revoked the order of suspension imposed the penalty of forfeiture of certain purchase orders placed by petitioner on respondent of security amount-ground-actual shortage 68 litres within no.1—Petitioner entered appearance in suit and raised a preliminary permissible limit not on higher side—Meanwhile proceedings issue as to jurisdiction of Court to try suit in view of existence of initiated upon filing of FIR—Additional Sessions Judge vide arbitral clause/s in purchase orders—Respondent No. 1 sought judgment dated 03.04.2001 convicted the father of the present to contend at that juncture that matter is not arbitrable inasmuch proprietor and sentenced him to undergo imprisonment till rising as it has raised issues of fraud against petitioner and respondents of the Court and imposed fine of Rs. 2000/- after conviction the no.2 to 5—A joint application filed by parties for compromise father continue to run the kerosene depot till his death on whereunder parties agreed to refer controversy in suit to arbitration 24.02.2006-in June, 2006 present proprietor applied for change was allowed by Lok Adalat and respondent no.1 proceeded to file of the name of the proprietor in the licence due to death of his its claim before Sole Arbitration praying for substantially same relief father—Assistant Commissioner vide order dated 13.06.2006 as in suit, against petitioner and respondent no.2 to 5—Application allowed the change of the name—directed to deposit security of petitioner to delete respondent no.2 to 5 from array of parties amount on 17.08.2007 show cause notice issued as to why in claim allowed by arbitrator—Order of arbitrator set aside by authorization may not be cancelled under Clause 6 (3) of Delhi learned Additional District Judge in appeal of respondent no. 1— Kerosene Oil (Export & Price) Control Order, 1962—Reply Order of learned Additional District Judge challenged before High filed—Respondent dissatisfied with reply cancelled the licence vide Court—Plea taken, order of lok adalat cannot bind respondents order dated 01.09.2007—Appeal preferred—dismissed preferred no.2 to 5, given that they never appeared before Lok Adalat nor writ petition—Contended act of respondent cancelling the licence were they party to joint compromise application—Per contra plea after long period-unjustified—Respondent allowed change of taken, given that order of Lok Adalat referred all parties to proprietor name in 2006—No action survives against present arbitration, logical sequitur thereof is that respondents no.2 to 5 petitioner same stale act of previous proprietor condoned—Show were also referred to arbitration—Held—Scope of a reference has to be decided on basis of terms of arbitration agreement— 31 32 Respondents no.2 to 5 are not party to any agreement embodied initiated within reasonable time—after—also unjustified— in document with respondent no.1 agreeing to refer their disputes respondent allowed the change of proprietorship—by their own to arbitration—Nor is it case of respondent no.1 that there has act condoned the act of deceased husband—respondent been exchange of statements of claims and defence in which it contested—once the order of conviction passed respondent well had alleged existence of arbitration agreement and same has been within the right to cancel the licence in terms of Clause 6 of Control accepted and not denied by respondent no.2 to 5 in their defence Order, 1962—the previous committed breach—convicted—the statement—It is also not case of respondent no.1 that any exchange respondent bound to cancel the licence—Held—statutory authority of letters, telex, telegrams, or other means of telecommunication required to act reasonable, fairly and expeditiously—no reasonable referred to provide a record of any arbitration agreement between explanation for long delay —thus respondent waived their right parties—Respondents no.2 to 5 are not party to purchase orders— for taking any action—respondent reliance on Wadhwa Committee Respondent no.1 has not led any evidence or even pleadings to constituted by Supreme Court of India also did not entitle the contend that respondents no.2 to 5 had consented before Lok respondent to get the benefit of their own inaction—writ petition Adalat that matter be referred to arbitration—Findings in impugned allowed. order that order of Lok Adalat is binding upon respondents no.2 Miglani Kerosene Oil Depot v. Govt. of NCT of Delhi to 5 is in excess of jurisdiction and patently illegal being contrary & Ors...... 1223 to records—Consequently, impugned order deserves to be and is accordingly set aside. — Article 226—Writ Petition—Essential Commodities Act, 1955— Bharat Heavy Electrical Ltd. v. Ashutosh Engineering Delhi Specified Articles (Regulation & Distribution) Order, 1981— Industries & Ors...... 1128 Clause 7—Cancellation of authorization of Fair Price Shop (FPS)—Probation of Offenders Act, 1958 (PO Act)—S. 12— — Article 226—Writ Petition—Delhi Kerosene Oil (Export & Price) Conviction—Disqualification—The licence of FPS granted to Sh. Control Order, 1962 (Control Order, 1962 in short)—Clause 6 Puran Mal-father of petitioner on 06.06.1977—Puran Mal as sole —Cancellation of licence —Conviction—petitioner firm issued proprietor carried out business till 09.01.2002-died-petitioner licence for distribution of kerosene oil in 1981—Proprietor Sh. approached the department for transfer of licence in his name— Kanahya Lal died on 02.10.2003—on his death, wife Smt. Leela On 14.06.2002 application allowed—Licence renewed from time Kumari, Present Proprietor carried on affairs of oil depot after to time—Lastly renewed from 24.04.2006 to 23.04.2009—Show taking permission of the respondent—necessary amendment cause notice issued on 17.08.2007 to petitioner—Alleging—Puran carried out in official record—licence transferred in the name of Mal convicted under Essential Commodities Act—Petitioner present proprietor vide order dated 30.12.2003—licence renewed appeared before Assistant Commissioner-pointed out-father from time to time till 09.09.2008—on complaint against petitioner released on probation for one year—Explanation not found since the transfer of licence in the name of the present proprietor satisfactory—Licence cancelled on 29.10.2007—Preferred writ —in Sept, 2007 show cause notice issued—based on—conviction petition—Contended—Once the fine of Rs. 5000/- imposed after order passed against the husband of present Proprietor under releasing his father on probation for one year—Therefore the Essential Commodities Act, 1955 in the year 1994—Present petitioner could not be punished twice for the same offence— Proprietor submitted reply —firm under control and supervision Further contended in view of S. 12 of PO Act—Petitioner could of deceased husband when conviction passed—she had no not suffer any disqualification-action initiated has became stale - knowledge about conviction and fine—explanation not accepted— violation - if any-stood condoned-licence renewed subsequently licence cancelled on 15.11.2007—preferred writ petition— for 11 years—Respondent contended—Entitled to take action as Contended—order unreasonable—non-application of mind and per Clause 7 of Order of 1981—Once father of petitioner arbitrary—similarly situated persons got relief from the court— committed breach-convicted-respondent bound to cancel the reliance on the stale material not justified—action arbitrary— licence—Delay procedural as many Assistant Commissioner Further contended—cancellation proceedings based on conviction transferred in 10 years—Held—Statutory authority required to act order passed against husband in the year 1994—the action not reasonably and expeditiously—Transfer of licence of FPS in the 33 34 name of the petitioner upon the death of his father condoned the — Article 226—Writ Petition—Delhi Development Act, 1957—S. earlier conviction—Further as per the provision of PO Act—The 30(1)—S. 31(A)—Unauthorized construction—Section of person released on probation shall not suffer from any building plans—Structural safety—National Capital Territory of disqualification attached to the conviction—Writ petition allowed. Delhi Laws (Special Provisions) Bill, 2009—One Smt. Shakuntala Devi mother of petitioner no. 2 and Respondent No. 3—Owner Praveen Kumar v. Govt. of NCT of Delhi & Ors...... 1230 of—The Property at Shivalik Malviya Nagar, New Delhi— — Article 226—Writ Petition —Disputed questions of facts—cannot Shakuntala Devi executed a Gift Deed in respect of basement- be taken up in writ petition—civil suit pending on same issue— ground-mezzanine floor-in-favour of her daughter-in-law decision of civil court to be awaited-right of offering namaz— Respondent No. 4/ Ms. Manju Agrawala—Registered on raising of boundary wall of colony—do not amount to restriction 02.06.2005—Also executed gift deed in respect of first floor and of right—petitioner a resident of Kalkaji—had been offering namaz terrace in favour of her other daughter-in-law petitioner no. 1— in Madini Masjid near Gate No.7, Alaknanda Apartments, Registered on 26.10.2005—Mutation with respect to first floor Alaknanda, New Delhi—due to cars illegally parked near Masjid and terrace done in favour of petitioner no.1 in the record of his—ingress—egress—other namajis into the masjid obstructed— MCD—Mutation in respect of basement-ground floor-mezzanine car parked in the open courtyard of masjid—not meant for car floor carried out in favour of respondent no.4 on 27.10.2011 parking—an unauthorized wall has been constructed near the petitioner submitted plans to respondent no. 1 and 2 for carrying masjid which ought to be removed—namajis form the adjoining out—Addition—Alteration on the first floor—Construction of locality facing difficulty in offering namaz due to lack of apace— proposed second—Third floor alongwith requisite fees— Respondent DDA contested—filed affidavit—stated that relief Respondent did not sanction the plan—Instead issued a show cause prayed in writ petition subject matter of civil suit instituted by local notice on 05.03.2012—Petitioner no. 1 and respondent no. 4 to Managing Committee of Madini Masjid and Dargah Pending in the explain as to why demolition of unauthorized and illegal court of Sr. Civil Judge, Saket, New Delhi—said suit after Division development be not undertaken on 02.04.2012 petitioner submitted Bench of High Court in LPS in case titled Aravali Residents reply—Reiterated request for sanction—Aggrieved by inaction on Welfare Association and Others v. DDA and Others. had expressed the part of respondent no. 1 and 2—Preferred writ petition— an opinion that there were number of factual disputes raised for During the hearing submitted by petitioner that respondent no. 3 consideration which could not be determined in writ proceedings— and 4 not co-operative with petitioner—On account of their non- evidence required to be led before coming to any conclusion— corporation—Resistance in raising any construction—Respondent Court observed —having to the facts that civil court seized of the no. 2 declined to grant sanction to the proposed building plan— issue being agitated in the petition—court not inclined to entertain However—Respondent 3 and 4 denied—Submitted building plan the same with respect to relief sought—with regard to relief of may be sanctioned subject to ensuring that the structural strength removal of illegal wall—observed—wall of 1 1/2 to 2 feet would of the existing built-up structure not adversely affected—Petitioner hardly be treated as obstruction to the petitioner to have free access submitted a tabulated chart in respect of deviation mentioned in to the masjid—further there were two gates affixed on the the show cause notice—Pointed out deviation in the portion of boundary to regulate vehicular and pedestrian traffic—further premises under the occupation of petitioner and mezzanine floor— observed—simply because the petitioner desire free access to the Either compoundable nature or did not concern them—Chart masjid did not mean that safety and security of residents living furnished to respondent no. 1 and 2—Director (Building), DDA within gated colony could be compromised—DDA also stated that directed to take into consideration the chart for an efficacious the wall in question not raised illegally—Held—petition ought to resolution of the dispute—directed to pass reasoned order dealing await the decision of civil suit—petition and pending application with contention raised by petitioner and keeping in mind the disposed off accordingly. decision rendered in WP(C) No.3535/2001 entitled as Ashok kapoor and Ors. v. MCD—An order dated 02.09.2013 Passed Mohd. Ashikian Qureshi v. D.D.A. Through Its by Director Building) for sealing—Cum-Demolition—order Chairman & Ors...... 1276 challenged by the petitioner—Contending-Contrary to the 35 36 guidelines laid down in above mentioned case—Court observed— Enquiry officer appointed—Submitted report on 26.02.1993—On The facts in the case of Ashok Kapoor similar to the present case the basis of the report—Disciplinary authority dismissed the where the subject property segregated in different portion and petitioner from the services—The appellate authority sustained the mutated in individual names specifying the portion of the punishment—In the interregnum—The petitioner acquitted in the property—Held—(A) when segregation of interest of different Criminal case—Preferred writ petition—Contended—Findings of co—Owner recognized by the MCD by mutation of different disciplinary authority perverse—Enquiry officer returned the portion in individual named of different persons there cannot be findings qua the first charge only and not on other charges— any requirement of signature of all the co—Owners in considering Disciplinary authority overlooked this aspect—Proceeded on the the sanction of building plan of one of Co—Owner of the subject basis that all charges had been dealt with by enquiry officer— property in his/her portion (b) even if there is embargo on DDA Further contended—Punishment disproportionate to the gravity and on civic authority from taking an action in respect of non of alleged misconduct—Further contended at time sanctioning the compoundable deviation/misusers till December, 2014 in terms loan advanced to the five entities—No practice of conducting a of National Capital Territory of Delhi Laws (Special Provisions) pre-sanction inspection—Practice brought into force much later— Bill, 2009—It can hardly be ground of refusing the sanction of Petitioner recommended the loan at the end of the day approved building plane submitted by petitioner for their portion of subject by superior authority AGM—Recommendation of sanction made property or from preventing them from raising construction in inter-alia on the basis of opinion rendered by lawyer w.r.t. security their portion of subject premises in accordance with law—(c) furnished by borrowers—Lawyers discharged in criminal structural safety certificate placed on record shall be duly proceedings—Respondent contended—Court could not re- considered by DDA and if it needs stipulated requirement the same appreciate the evidence while exercising jurisdiction under Article shall be accepted—If there is any requirement of meeting alternation 226—The enquiry officer has given findings on the main charge in the building plan on account of structural concern the same the remaining charges off-short of first charge—The acquittal of shall be intimated to the DDA by petitioner in writing—Petition the petitioner in the criminal proceedings could not be ground to disposed off. set aside the departmental proceedings as standard of proof in criminal proceedings is different—Court observed—Court cannot Renu Agrawal and Anr. v. Delhi Development re-appreciate the evidence in a proceedings under Articles 226 Authority and Ors...... 1395 unless a case of no evidence or case of perversity—Certainly — Article 226-227—Writ Petition—Service law—Departmental interdict the proceedings if the authorities below not followed the Enquiry (DE)—Dismissal-findings on all charges—Petitioner principles of natural justice or have failed to return the finding qua joined New Bank of India on 01.04.1969—Which merged with all charges—Held—Enquiry officer has recorded the findings only Respondent No. 1 was serving as Manager at Defence Colony, on the first charge—Impugned order of disciplinary authority is New Delhi Branch—Certain loan advances sanctioned under his liable to be set aside—Even if—Accepted that remaining five vigil-approved by superior w.r.t. sanctioning of advances an charges were off shoot of the first charge—The quantum of investigation was conducted and secret report generated by punishment need modification—Although the standard of proof vigilance department qua petitioner—One Sh. P.K. Salia, Chartered different in criminal proceedings and departmental proceedings— Accountant and the Assistant General Manager—Petitioner himself However acquittal in criminal proceedings relevant for reviewing filed two FIRs against some of the borrowers in around 21/ the quantum of punishment—Observed—Normally such cases 22.03.1990—Though petitioner complainant but at some stage remanded back for fresh enquiry—But in view of the facts of the arrayed as an accused in the criminal proceedings in the case of prolong litigation of 20 years-advance age of petitioner interregnum on 17.07.1990 petitioner placed under suspension- with the consent of both the parties modified the quantum of served with charge sheet alongwith six article of charges—First punishment of dismissal of the service to compulsory retirement charge—Acted in a manner prejudicial to the interest of bank other with all consequential benefit—Writ petition disposed of. five charges related to this each charge independent to each other— K.L. Bhasin v. Punjab National Bank and Anr...... 1410 37 38 — Article 226-227—Writ Petition—Central Administrative Tribunal lacuna in the case—Further held—Tribunal rightly rejected the (CAT)—Service law—Termination—Education Code of Kendriya grievances of the petitioner that punishment of termination of Vidyalaya Sangathan (Code)—Article 81 (b)—Termination services disproportionate to the charges—Writ petition dismissed. without right to cross—Examine witnesses—Case of immoral Yogendra Nath v. Commissioner Kendriya sexual behaviour towards student—Petitioner a Post Graduate Vidyalaya Sangathan ...... 1428 Teacher (PGT) posted with Kendriya Vidyalaya Yol Cantonment— Complaints received from students—Lady teachers—Parents in — Article 226-227—Writ Petition—Central Administrative Tribunal the office of Assistant Commissioner, Regional Office, Jammu— (CAT)—Service law-equal pay for equal work pay scale- Alleging petitioner indulged in moral turpitude involving in immoral equivalent to his counterpart in the cadre of origin—Petitioner an sexual behaviour towards the girls students-Fact finding enquiry Assistant Director (Horticulture), CPWD sent on deputation to ordered—Enquiry Committee conducted the proceedings- DDA in same capacity sent to President’s Secretariat at the Committee interacted with 07 victim girls students—One victim President’s Garden, Rashtrapati Bhawan on 19.12.1970 as Garden lady parent—Three staff members recorded their statement— Superintendent on 08.04.1974 permanently to Deputy Director Submitted report dated 18.08.2002 to Commissioner, KVS— (Horticulture) in CPWD—Post upgraded to Director in the pay Prima—Facie finding petitioner guilty of moral turpitude involving scale of 3700-5000 on 30.04.1996 as per 4th Central Pay immoral sexual behaviour—Commissioner considered entire Commission—Order passed by President’s Secretariat on matter including the enquiry report—Formed an opinion-Finding 30.04.1996 to this effect mentioned upgraded scale purely personal of enquiry committee substantiated by material on record— to petitioner as and when he would leave the post—Pay scale of Exercising jurisdiction under Article 81 (b) of the code—Opined— the post would be brought down to its earlier level—On 5th Pay not expedient to hold regular enquiry under CCS (CCA) Rules, Commission Report President’s Secretariat revised the pay scale 1965—Would cause serious embarrassment to the students— for the post of Superintendent at 12000-16500—Petitioner granted Cause trauma to them because of their tender age—Memorandum the scale—Retired on 01.04.1998 dues calculated on the said scale dated 08.04.2003 setting out charges communicated—Called in the meantime revised recommendation made by 5th Central Pay upon the show case—Why his services be not terminated under Commission for the post of Director (Horticulture) and Additional Article 81 (b)—with the memorandum—copies of preliminary Director (Horticulture) on their representation pay scale upgraded enquiry and report of the committee served upon the petitioner— to 14300-18300 w.e.f. 01.01.1996—Office order passed on given full opportunity to submit his representation—Petitioner 06.10.1999 and 28.08.2001—Petitioner made several submitted his reply dtd. 15.05.2013—On consideration of entire representation based on revised recommendation to calculate the record—commissioner passed order dated 07.01.2004 terminating retirement benefit on this basis-representation rejected by the services of the petitioner—Petitioner preferred appeal— President’s Secretariat by several order-last order dated 13.06.2008 Rejected being time barred-Filled O.A before CAT-Assailed the preferred O.A. before CAT for issuance of appropriate order to order of appellate authority-CAT disposed off holding the appellate refix the revised pay scale and pay the consequential benefit authority rejected again recording reasons—Petitioner filed O.A including retirement benefit alongwith interest @ 10% per annum before CAT—O.A dismissed—Preferred writ petition-Contended on the basis of pay scale 14300-18300—Tribunal rejected the -Complaints against petitioner false—had unblemished record for application—Tribunal observed nature of work carried by the 9 years with Govt. of Himachal Pradesh—25 years service with petitioner as Garden Superintendent in President’s Secretariate not KVA—entitle to an opportunity to cross—Examine the similar to nature or function of Director/Additional Director witnesses-Held the spirit—Purpose—Intent—Of incorporating (Horticulture) or Superintendent Engineer working in CPWD pay article 81 (b) of the Code to prevent traumatization of victim of parity pre-supposes the work equal and inexplicable pay difference such immoral sexual behaviour—The Commissioner specifically alone can be looked upon as discriminatory against an employee- opined that the cross-Examination of witnesses would cause absent in the present case-prerogative of the executive which has serious embarrassment to the student and would cause trauma to considered the representation and rejected the same would upset them because of their tender age-Further there was no procedural 39 40 the constitutional principle of separation of power among the three — Impugned Circular No. 23/2010—Customs dated 29th July, 2010 organs of the State—Petitioner preferred writ petition— and Circular No. 93/2008 dated 1st August, 2008 sought to Contended-post of Garden Superintendent in the President’s prescribe a time limit whereby an importer was entitled to a refund Secretariate is equivalent to that of Deputy Director (Horticulture), only if claim was made with one year of payment of actual duty— CPWD upgradation recommended by 3rd and 4th Central Pay Whether paid on provisional or final assessment thereby rendering Commission awarded to the petitioner no reason to withhold the date of finalization of assessment inconsequential. revised recommendation of 5th Central Pay Commission — Petitioner imported electric goods-present transaction contained upgrading the pay scale from 12000-16500 to 14300-18300— three sets of bill of exchanges—Petitioner’s three separate claims Respondent contended—Requirement of pay parity both groups for refund were rejected on the ground that they were filed beyond should not only work in the indentical condition but should also the stipulated period of one year—Therefore, the present petition discharge the same duty—Held—Granting earlier pay scale in 4th wherein the Petitioner claims that u/s 27 limitation period is and 5th Pay Commission—Implicitly recognition of the fact that prescribed from the period of final assessment, and the impugned nature of duties and responsibilities of both petitioner and Additional notification seeks to change the period prescribed under the statute. Director (Horticulture) in CPWD same—Revision of that pay scale on 02.07.2001 to 14300-18300 should logically followed and could — Respondent contends that section 27 had no application in the not be denied—Respondent directed to calculate to retirement present case, and that u/s 25 the Government had the power to benefit of the petitioner accordingly pay 10 % interest as due on grant exemption, subject to certain conditions—Further application the date of payment—Writ Petition allowed. for refund had to be made within time period stipulated in the notification. S.K. Mathur v. The President Secretariat Represented by the Secretary and Anr...... 1523 Pioneer India Electronics (P) Ltd. v. Union of India & Anr...... 791 COURT FEES ACT, 1870—Section 16A—Plaintiff filed suit for permanent and mandatory injunction along with damages against DELHI DEVELOPMENT ACT, 1957—S. 30(1)—S. 31(A)— defendants—Defendant no. 1 was employed with plaintiff Unauthorized construction—Section of building plans—Structural company who resigned and joined defendant no. 2 company of safety—National Capital Territory of Delhi Laws (Special which defendant no. 3 and 4 were Directors—Plaintiff Provisions) Bill, 2009—One Smt. Shakuntala Devi mother of apprehended that defendant no. 1 would share confidential and petitioner no. 2 and Respondent No. 3—Owner of—The Property internal information of plaintiff company with defendant no. 2 at Shivalik Malviya Nagar, New Delhi—Shakuntala Devi executed company for which he was seeking restrain order— However, a Gift Deed in respect of basement-ground-mezzanine floor-in- parties consented before Court and resolved disputes amicably— favour of her daughter-in-law Respondent No. 4/ Ms. Manju Plaintiff, thus, prayed for refund of court fees. Held:- when matter Agrawala—Registered on 02.06.2005—Also executed gift deed stands resolved before framing of issues, plaintiff entitled to refund in respect of first floor and terrace in favour of her other daughter- of court fees in terms of Act. in-law petitioner no. 1—Registered on 26.10.2005—Mutation with respect to first floor and terrace done in favour of petitioner SBL Pvt. Ltd. v. V.B. Shukla & Ors...... 1407 no.1 in the record of MCD—Mutation in respect of basement- CUSTOMS ACT, 1962—Section 18, 25, 27—Present writ petition ground floor-mezzanine floor carried out in favour of respondent filed impugning Custom Circular and Notification and seeking no.4 on 27.10.2011 petitioner submitted plans to respondent no. quashing of orders passed by Commissioner of Customs and 1 and 2 for carrying out—Addition—Alteration on the first floor— refund of provisional duty paid-Central issue arising in the petition Construction of proposed second—Third floor alongwith requisite is whether the Central Government while imposing conditions for fees—Respondent did not sanction the plan—Instead issued a grant of exemption u/s 25(1) of the Act can lay down conditions show cause notice on 05.03.2012—Petitioner no. 1 and in derogation to the specific statutory provisions and stipulations respondent no. 4 to explain as to why demolition of unauthorized in section 27. 41 42 and illegal development be not undertaken on 02.04.2012 petitioner requirement of meeting alternation in the building plan on account submitted reply—Reiterated request for sanction—Aggrieved by of structural concern the same shall be intimated to the DDA by inaction on the part of respondent no. 1 and 2—Preferred writ petitioner in writing—Petition disposed off. petition—During the hearing submitted by petitioner that Renu Agrawal and Anr. v. Delhi Development respondent no. 3 and 4 not co-operative with petitioner—On Authority and Ors...... 1395 account of their non-corporation—Resistance in raising any construction—Respondent no. 2 declined to grant sanction to the DELHI KEROSENE OIL (EXPORT & PRICE) ORDER, 1962— proposed building plan—However—Respondent 3 and 4 denied— Clause 6—Cancellation of licence—Conviction-transfer of licence Submitted building plan may be sanctioned subject to ensuring in the name of petitioner upon the death of father—Petitioner firm that the structural strength of the existing built-up structure not was issued a licence for distribution of kerosene oil in the year adversely affected—Petitioner submitted a tabulated chart in 1977-on 28.04.1995 inspection staff of respondent found shortage respect of deviation mentioned in the show cause notice—Pointed of 1233 litres for the period from 01.04.1995 to 28.04.1995 an out deviation in the portion of premises under the occupation of FIR registered deceased father of the petitioner proprietor of the petitioner and mezzanine floor—Either compoundable nature or firm at that time on 07.06.1995 an Assistant Commissioner (East) did not concern them—Chart furnished to respondent no. 1 and suspended the licence on the basis of report on 16.08.1995 2—Director (Building), DDA directed to take into consideration Assistant Commissioner (Judicial) after considering the facts and the chart for an efficacious resolution of the dispute—directed circumstances-material placed on record revoked the order of to pass reasoned order dealing with contention raised by petitioner suspension imposed the penalty of forfeiture of security amount- and keeping in mind the decision rendered in WP(C) No.3535/ ground-actual shortage 68 litres within permissible limit not on 2001 entitled as Ashok kapoor and Ors. v. MCD—An order dated higher side—Meanwhile proceedings initiated upon filing of FIR— 02.09.2013 Passed by Director Building) for sealing—Cum- Additional Sessions Judge vide judgment dated 03.04.2001 Demolition—order challenged by the petitioner— convicted the father of the present proprietor and sentenced him Contending-Contrary to the guidelines laid down in above to undergo imprisonment till rising of the Court and imposed fine mentioned case—Court observed—The facts in the case of Ashok of Rs. 2000/- after conviction the father continue to run the Kapoor similar to the present case where the subject property kerosene depot till his death on 24.02.2006-in June, 2006 present segregated in different portion and mutated in individual names proprietor applied for change of the name of the proprietor in the specifying the portion of the property—Held—(A) when licence due to death of his father—Assistant Commissioner vide segregation of interest of different co—Owner recognized by the order dated 13.06.2006 allowed the change of the name—directed MCD by mutation of different portion in individual named of to deposit security amount on 17.08.2007 show cause notice different persons there cannot be any requirement of signature of issued as to why authorization may not be cancelled under Clause all the co—Owners in considering the sanction of building plan 6 (3) of Delhi Kerosene Oil (Export & Price) Control Order, of one of Co—Owner of the subject property in his/her portion 1962—Reply filed—Respondent dissatisfied with reply cancelled (b) even if there is embargo on DDA and on civic authority from the licence vide order dated 01.09.2007—Appeal preferred— taking an action in respect of non compoundable deviation/ dismissed preferred writ petition—Contended act of respondent misusers till December, 2014 in terms of National Capital Territory cancelling the licence after long period-unjustified—Respondent of Delhi Laws (Special Provisions) Bill, 2009—It can hardly be allowed change of proprietor name in 2006—No action survives ground of refusing the sanction of building plane submitted by against present petitioner same stale act of previous proprietor petitioner for their portion of subject property or from preventing condoned—Show cause notice issued after gap of 6 years licence them from raising construction in their portion of subject premises renewed from time to time—Penalty of forfeiture of security in accordance with law—(c) structural safety certificate placed amount already imposed—Punishment of the same offence cannot on record shall be duly considered by DDA and if it needs stipulated be imposed again on the present proprietor-per contra- the requirement the same shall be accepted—If there is any respondent well within their right to take action in terms of Control 43 44 Order—Delay procedural due to transfer of Assistant required to be given—Provisions contained in Regulation 9 (i) of Commissioner—Held—Statutory authority required to act the DMC Services (Control & Appeal) Regulations, 1959 which reasonable, fairly and expeditiously no reasonable or plausible also provide that no departmental enquiry is essential for imposition explanation for gross delay—Respondent waived their right to take of penalty upon the municipal employee on the ground of conduct action—Respondent agreed to transfer the licence in the name of leading to his conviction in a criminal case—The challenge by the present proprietor condoned the act of previous licencee—Licence petitioner on the ground of denial of opportunity to show cause is of present proprietor cannot be canceled for the act of previous therefore contrary to the specific statutory prescription and is proprietor—Cancellation quashed—Writ petition allowed. untenable—Tribunal has not given liberty to the petitioner that in the event of his success in the criminal appeal preferred by him Madan Lal Pawan Kumar v. Govt. of NCT of Delhi against his conviction, he would be entitled to work out his claim & Ors...... 1106 of reinstatement in accordance with law and dismissal of his case DELHI LAND REFORM ACT, 1954 (DLR ACT)—S.185—Bar of would not come in the way of consideration of his request—In the jurisdiction of the Civil Court—The Bar only applies to rural— view of the above, the impugned order of respondents and the Agriculture properties—The area notified as urbanized—Out of Tribunal cannot be faulted on any legally tenable ground—The the purview of DLR ACT—Held—Does not bar the jurisdiction writ petition and the application are hereby dismissed. of the Civil Court. Mahipal Singh v. The Commissioner, Municipal Swaran Lata and Ors. v. Shri Kulbhushan Lal Corporation of Delhi & Ors...... 1507 and Ors...... 1362 DELHI RENT CONTROL ACT, 1958—Section 25B—Petitioner filed DELHI MUNICIPAL CORPORATION ACT, 1957—Section 95 revision petition challenging order of learned ACJ-cum-CCJ-cum- (2) (a): Dismissal of an employee—Brief Facts—Petitioner stands ARC (E) dismissing application of petitioner-tenant seeking leave convicted by judgment dated 24th January, 2012 passed by Special to defend and passing order of eviction against tenant in Eviction Judge, Anti corruption Branch, Delhi for commission of offence Petition—Plea taken, landlord already possesses a chamber, which under Sections 7 and 13 (i) (d) of Prevention of Corruption Act, has been allotted to him in Rohini District Courts and this fact has 1988—In view of the conviction of the petitioner, the respondents been suppressed from learned ARC and by stating that he is not proceeded to take action the petitioner under Section 95 (2) (a) of in possession of any chamber—Shop adjoining suit property would the Delhi Municipal Corporation Act, 1957 which empowers the be more suitable for running a lawyer’s chamber out of, in view Municipal Corporation of Delhi to dismiss an employee on the of its on looking a wider road than suit property and hence ground of conduct which led to his conviction on a criminal requirement of landlord is not bona fide—Per contra plea taken, charge—Vide an order dated 9th July, 2012, the petitioner was document now sought to be relied upon by tenant list issued by thus dismissed from service—Petitioner challenged his dismissal Rohini Courts Bar Association was not before learned ARC and by way of O.A. No. 2811/2013—Tribunal rejected the challenge hence cannot be considered—In any case, list does not indicate on the ground that the respondents had proceeded in accordance that landlord is in possession of any chamber—Held—This Court, with law in exercise of Statutory power—Hence the present petition in exercise of its power under proviso to Section 25-B of Act acts primarily on the ground that no opportunity order and that his only as a Court of revision, and not of appellate Court—Not being special circumstances including the responsibility of three children appellate Court, this Court cannot, at this stage, consider fresh and wife etc. deserved to be compassionately considered. Held: evidence that was not before learned ARC—It would not be a Under the proviso to sub-Section (2) of Section 95 of the Delhi proper exercise of power under Section 25-B of Act if Court were Municipal Corporation Act, it is specifically provided that where to now decide this petition on basis of said document—Learned an officer or employee is dismissed on the ground of conduct ARC has, in fact, given a reasoned order in this regard and held which has led to his conviction on a criminal charge, no opportunity that it is a bona fide request of landlord, which is reasonable and of showing cause against the proposed action to be taken is well within his prerogative—Issue of whether another property 45 46 in possession of landlord is more suitable than suit property and one year—Therefore the petitioner could not be punished twice whether requirement of landlord is bona fide are issues of fact for the same offence—Further contended in view of S. 12 of PO that this Court would abstain from getting into—All that this Court Act—Petitioner could not suffer any disqualification-action initiated is mandated to do is to satisfy itself as to whether impugned order has became stale - violation - if any-stood condoned-licence is in accordance with law i.e., whether finding that requirement renewed subsequently for 11 years—Respondent contended— of landlord is bona fide is a finding in accordance with law—This Entitled to take action as per Clause 7 of Order of 1981—Once Court finds no merit in petition requiring exercise of its jurisdiction father of petitioner committed breach-convicted-respondent bound under Section 25-B of Act. to cancel the licence—Delay procedural as many Assistant Narender Kumar Jain v. R.S. Sewak ...... 1090 Commissioner transferred in 10 years—Held—Statutory authority required to act reasonably and expeditiously—Transfer of licence — Section 25B—Revision petition filed challenging order of learned of FPS in the name of the petitioner upon the death of his father SCJ-cum-RC dismissing application of petitioner-tenant seeking condoned the earlier conviction—Further as per the provision of leave to defend and passing order of eviction against tenant in PO Act—The person released on probation shall not suffer from eviction petition—Plea taken, site plan of ground floor clearly any disqualification attached to the conviction—Writ petition shows four shops and landlord would have demolished one wall allowed. between two shops to make it seem like one shop—Held— Praveen Kumar v. Govt. of NCT of Delhi & Ors...... 1230 Jurisdiction of this Court in exercise of its powers under Section 25B has to be to a limited extent and only to ensure that findings DOMESTIC VIOLENCE ACT, 2005 (DV ACT)—Sec. 2(a)— of fact are in accordance with law—Tenant, by this petition, is definition—aggrieved person—Sec. 2(f)—domestic praying that Court upset reasoned findings of learned ARC in relationship—Sec.2.(s)—shared households—Sec.2(q) — impugned order—Findings of learned ARC on basis of documents repondent—Sec.3(a)—domestic violence—economic abuse— on record is a possible interpretation and is reasonable, based on Sec.26(1)—relief in any legal proceedings—terms respondent documents on record—Given same, this Court does not find it includes female relatives of husband—right of residence— appropriate to substitute reasoned findings of learned ARC with disowning of sons—through public notice—a mere any other possible opinion. proclamation—does not have dispositive legal effect— Pawan Pathak v. Chhajju Ram...... 1099 respondent—plaintiff—mother—in—law of the defendent— petitioner—filed a suit for possession/eviction of dependent DELHI SPECIFIED ARTICLES (REGULATION & daughter in law in respect of one bed room—a bathroom and small DISTRIBUTION) ORDER, 1981—Clause 7—Cancellation of kitchen—suit property belong to plaintiff’s deceased husband— authorization of Fair Price Shop (FPS)—Probation of Offenders died on 30.06.2008—leaving behind a registered Will dated Act, 1958 (PO Act)—S. 12—Conviction—Disqualification—The 20.11.2006—bequeathed a suit property in favour of the Plaintiff— licence of FPS granted to Sh. Puran Mal-father of petitioner on after her husband's death—She become sole and absolute owner— 06.06.1977—Puran Mal as sole proprietor carried out business back Portion of the suit property in the possession of defendent till 09.01.2002-died-petitioner approached the department for no. 1 her daughter-in-law and defendant no. 2 her son—Alleged— transfer of licence in his name—On 14.06.2002 application Since the relationship between her and defendants became allowed—Licence renewed from time to time—Lastly renewed estranged—She wanted them to vacate the property filed from 24.04.2006 to 23.04.2009—Show cause notice issued on application for decree on admission defendant contested that the 17.08.2007 to petitioner—Alleging—Puran Mal convicted under plaintiff not absolute owner—WILL had not been granted probate Essential Commodities Act—Petitioner appeared before Assistant intestate in law without being probated the WILL could not come Commissioner-pointed out-father released on probation for one into force—Ld. Single Judge opined—Not disputed due execution year—Explanation not found satisfactory—Licence cancelled on of WILL—No legal effect because it had not been probated— 29.10.2007—Preferred writ petition—Contended—Once the fine Therefore an admission—Further held—inessential to seek a of Rs. 5000/- imposed after releasing his father on probation for 47 48 probate—Thus WILL being admitted remain operative between from 24.04.2006 to 23.04.2009—Show cause notice issued on the parties—Decreed the suit on admission—Court observed— 17.08.2007 to petitioner—Alleging—Puran Mal convicted under Appellant had relied upon the provision of protection of woman Essential Commodities Act—Petitioner appeared before Assistant from violence as per DV Act before Ld. Single Judge—Also filed Commissioner-pointed out-father released on probation for one a suit before Civil Judge Rohini Court pending—However—Ld. year—Explanation not found satisfactory—Licence cancelled on Single Judge rejected the arguments with respect to applicability 29.10.2007—Preferred writ petition—Contended—Once the fine of the provision of DV Act—Holding—Suit property could not of Rs. 5000/- imposed after releasing his father on probation for considered as a shared household preferred appeal against the one year—Therefore the petitioner could not be punished twice order of Single Judge—Contended—No unambiguous admission for the same offence—Further contended in view of S. 12 of PO of the kind warranted exercise of discretion under Order XII Rule Act—Petitioner could not suffer any disqualification-action initiated 6 CPC—Further argued entitled to right to live in the suit property has became stale - violation - if any-stood condoned-licence under domestic violence Act, 2005 keeping in mind the proviso renewed subsequently for 11 years—Respondent contended— to definition of respondent in S.2(q) which included relatives of Entitled to take action as per Clause 7 of Order of 1981—Once male respondent in the domestic relationship with aggrieved wife— father of petitioner committed breach-convicted-respondent bound S. 19 (1) (f) of the Act also allowed grant of residence order against to cancel the licence—Delay procedural as many Assistant the respondent to provide accommodation equivalent to that Commissioner transferred in 10 years—Held—Statutory authority enjoyed by aggrieved party in the share household—Plaintiff/ required to act reasonably and expeditiously—Transfer of licence respondent contended—Definition of share household was of FPS in the name of the petitioner upon the death of his father conclusively laid down in previous cases since the husband being condoned the earlier conviction—Further as per the provision of disowned had no right of ownership in the household—The wife PO Act—The person released on probation shall not suffer from could not claimed any right of residence in it—Held—The intent any disqualification attached to the conviction—Writ petition of the Parliament to secure the right of residence in the household allowed. of respondent (including his relatives) even if the household is one Praveen Kumar v. Govt. of NCT of in which respondent is tenant or one in which he jointly or singly Delhi & Ors...... 1230 had any right—Title interest in law or equity—Thus enabling a wife of deceased male/estranged male to claim a domestic EVIDENCE ACT, 1872—Appreciation of Evidence—Early reporting relationship with the mother-in-law—This right not dependent on of the occurrence by the informant with all its vivid details gives husband having any right—Share or title in the premises by secular an assurance regarding truth of the version. or Hindu Law—Even if mere fact of residence was sufficient and consequently the aggrieved woman could claim right of residence — Evidence Act—Appreciation of Evidence—The testimony of the in any such household of the husband—Appeal allowed. injured witness is accorded a special status in law. Preeti Satija v. Raj Kumari and Anr...... 1246 — Evidence Act—TIP Adverse inference is to be drawn against the appellants for declining to participate in the Test Indentification ESSENTIAL COMMODITIES ACT, 1955—Delhi Specified Articles Proceedings. It is settled legal preposition that Identification Parade (Regulation & Distribution) Order, 1981—Clause 7—Cancellation is a tool of investigation and is used primarily to strengthen the of authorization of Fair Price Shop (FPS)—Probation of Offenders case of the prosecution on the one hand and to make doubly sure Act, 1958 (PO Act)—S. 12—Conviction—Disqualification—The that accused in the case are actual culprits. It is trite to say that licence of FPS granted to Sh. Puran Mal-father of petitioner on substantive evidence is the evidence of identification in Court. 06.06.1977—Puran Mal as sole proprietor carried out business Amar Kumar Gupta v. State of Delhi ...... 1007 till 09.01.2002-died-petitioner approached the department for transfer of licence in his name—On 14.06.2002 application — Section 63—Code of Civil Procedure, 1908—Section 151, Order allowed—Licence renewed from time to time—Lastly renewed VII Rule 14 (3) and Order VIII Rule 1A(3)—Applications filed 49 50 by petitioner for placing documents on record and for leading decree—Does not amount to partition—Would not apply to secondary evidence qua photocopies of documents so filed partition by way of settlement—Registered instrument of dismissed by Trial Court—Order challenged before High Court— partition-By oral arrangements of the parties—Decree of the Plea taken, Trial Court has failed to exercise jurisdiction vested in court—Held—Amendment applicable as partition yet to take place. it by not granting leave to file documents—Petitioner was always Swaran Lata and Ors. v. Shri Kulbhushan Lal diligent in prosecuting case and in any event, respondent would and Ors...... 1362 not be prejudicially affected if documents were placed on record— Documents were necessary for effective adjudication of dispute INCOME TAX ACT, 1961—Section 25—F(1), 132, 142, 142-(2)A, before Trial Court and hence they ought to be allowed to be 158BE, 245(1), 245—A(b), 245—C, 245—D(4), 245(E), 245— exhibited—Held—Appropriate time for filing a document in F(2)—On 07-08-1997, search and seizure operations were support of a defendant’s defence is when written statement is conducted at residential and business premises in respect of filed—A document that is not produced along with written petitioner, his wife and other relatives-Several articles and statement or entered in list filed with written statement ought not documents were seized—Upon receipt of notice, petitioner filed to be received in evidence without leave of Court—Injunction of a return for period from 01.04.1986 to 07.04.1986—As accounts law under Order VIII Rule 1A(1) is not one to be lightly ignored, indicated sufficient complexities, Special Auditor submitted his a fortiori and especially in matters such as present case, where report-During pendency of these proceedings Settlement excessive delay of over 11 years, has been caused by defendant Commission entertained application made to it—While Settlement in eventually approaching Court under said provision—For Commission's proceedings were pending petitioner contended that exercise of discretion by Court under Order VIII Rule 1A(3) of entire proceedings had become time barred—Settlement Code in Favour of a defendant, defendant would have to satisfy Commission rejected petitioner's argument—Order challenged Court to qualifying criteria (i) that documents were earlier not before High Court—Plea taken, since Assessing Officer did not within knowledge of party; or (ii) that documents could not be complete assessment within time period permitted by law, produced despite exercise of diligence on part of defendant — Settlement Commission which was invested with his power could Petitioner has failed to provide sufficient and cogent reasons for not likewise have proceeded further—Per contra plea taken, power allowing documents to be filed—It is not case of petitioner that of Assessing Authority to make order does not allow applicant documents were not within his power nor has petitioner made approaching Settlement Commission to contend that jurisdiction out any case of exercise of diligence, despite which documents ceases automatically if assessment is not framed—Held—Pre— could not be filed—To the contrary, impugned order observes Condition for Commission to receive application is that a case lack of diligence on part of petitioner, as documents had not been should be pending as on date of its presentation-No objection as filed for a period of eleven years from date of filing of written to jurisdiction of Settlement Commission was made when statement and not even adverted to in evidence filed later—Only application was admitted—Observation in impugned order of explanation proffered by petitioner is inadvertence which cannot Commission that to re—Visit order would in effect amount to be regarded as a ground for exercise of discretion under Order impermissible review is, in opinion of this Court, sound reasoning— VIII Rule 1A(3)—Impugned order does not suffer from material Authority of a Settlement Commission to make such orders as irregularity warranting interference of this Court in its revisionary are necessary in regard to matters before it also extends to other jurisdiction. matters relating to case not covered by application but referred to Shri Ramesh Kumar & Anr. v. Sangeeta Khanna ...... 1106 in report of Commission—Settlement Commission is empowered to re—Open any proceeding connected with case in respect of HINDU SUCCESSION (AMENDMENT) ACT. 2005—S.6— which assessment too has been completed—Given these powers, Amendment—S.6(1)—not applicable partition or testamentary fact as to whether Assessing Officer was in process of making disposition of property before 20th December, 2004—Prospective assessment or not becomes irrelevant—A machinery provision in nature—Applicable to pending suits—Preliminary partition in Income Tax Act cannot be subjected to literal or strict rule of 51 52 construction that is adopted to interpret a charging Section— it can provide a good and sound basis for conviction. Consequence of accepting argument of assessee would be that — Prior to the occurrence, there was no animosity of these with the even though there was a search of his premises under Section appellant to falsely implicate him in the incident. 132 of Act which yielded incriminating material, proceedings arising out of which he wanted to settle by approaching Settlement Ram Parshad v. The State (Govt. of NCT Commission, he would still end up not paying any tax, as block of Delhi) ...... 981 assessment became barred by time and there would also be no settlement order under Section 245D(4)—Such a situation could — Section 301-embodies doctrine of transfer of malice and is not have been intended by statute-There is no merit in petition and attracted when accused causes death of a person whose death he it is accordingly dismissed. neither intends nor knows will be the result of his act. Ashwani Kumar Goel v. Income Tax Settlement — Evidence Act—There is no legal hurdle in convicting a person on Commission & Ors...... 1449 the sole testimony of a single evidence if his version is clear and reliable, for the principle that the evidence has to be weighed and INDIAN PENAL CODE, 1860—Section 394/396/307/120B/34— not counted. Section 25-27—Arms Act, 1959—A1 and A2 convicted for Anil Taneja & Anr. v. State of Delhi...... 1000 offence u/S 392/34 IPC—In addition A1 convicted u/S 397 IPC. — Held, It is well settled that substantive evidence of the witness is — Section 308—Attempt to commit culpable homicide—Section his evidence identification in the court—Complainant who had 34—Common intention—Appellant and one Harish inflicted injuries direct confrontation with the assailants for sufficient duration had to the victim fled the spot after causing injuries—Injured removed ample opportunity to observe and grasp the broad features of the to hospital by brother—Information given to the police station DD culprits—No ulterior motive assigned to the complainant for falsely No. 63B recorded at PS Najafgarh police reached hospital FIR identifying the accused—No conflict between ocular and medical No. 189/1998 u/s. 308/34 IPC lodged making endorsement DD evidence—recovery of robbed articles from the possession of No. 63B—Statement of injured recorded injuries opined to be assailants is a vital incriminating circumstance to connect them grievous accused persons arrested charge sheet filed accused with the crime—Police will plant substantial amount of Rs. 12,000/ persons charged prosecution examined eight witnesses statement - to implicate falsely is unbelievable—Minor contradiction and of accused persons recorded denied involvement and pleaded false discrepancies not material when presence of complainant at the implication examined one witness in defence appellant convicted spot was natural and probable and he was also injured. for offence u/s. 308 IPC accused Harish convicted for offence u/s. 323 IPC and released on probation appellant sentenced to Zarar Khan @ Mulla v. State (Govt. of NCT substantive sentence aggrieved appellant preferred appeal of Delhi) ...... 960 contended injured in the habit of teasing the women folk and was — Sec. 302, 304(II)—FIR is a vital and valuable piece of evidence beaten report not lodged immediately soon after the incident for the purpose of appreciating the evidence led at trial. The object unexplained delay of three days crime weapon not recovered blood to insist prompt lodging of FIR is to obtain the earliest information stained clothes of the injured not seized no independent public regarding the circumstances in which the crime committed. witness associated name of the assailant not disclosed to the doctor—Doctor who declared injured unfit for statement not — There is no such universal rule as warrant rejection of the evidence examined APP contended no strong reasons to discard the of a witness merely because he/she was related to or interested in testimony of injured grievous injuries inflicted on vital organs the parties to either side. If the presence of such a witness at the testimony corroborated by medical evidence Held:- No challenge time of occurrence is proved or considered to be natural and the to the injuries sustained by victim testimony of PW2 remained evidence tendered by such witness is found in the light of unchallenged injuries opined to be grievous causes by blunt object surrounding circumstance and probabilities of the case to be true, testimony of doctors remained unchallenged presence at the crime 53 54 scene at the time of incident not denied by the appellant not also produced appellant Sonu arrested at the pointing our of disclosed whom the victim used to tease no complaint lodged appellants made disclosure produced a bag containing ornaments against the victim for teasing no reason for victim falsely implicate knife also recovered from the bag accused Kanhaiya Lal s/o. Shri the accused persons material facts deposed by injured remained Laxmi Narain arrested at the pointing of appellants made disclosure unchallenged cogent and reliable testimony of victim cannot be statement ornaments recovered from his house appellants refused brushed aside on account of delay in recording his statement non to join TIP jewellers to whom jewellery articles sold arrested the examination of independent public witness of no consequence non person who sold country made pistol also surrendered TIP of recovery of weapon of offence not fatal discrepancies/omissions recovered articles conducted charge sheet filed charges for offence in injured’s statement do not affect the prosecution case testimony u/s. 120B/302/394/395/396 IPC framed against all the appellants of victim in consonance with medical evidence no vital discrepancy and for offence u/s. 390 IPC against appellant Mohd. Shamim in cross examination to doubt his version specific motive attributed for offence u/s. 412 IPC against jewellers u/s. 27 Arms Act against to the appellant all relevant contentions taken into consideration appellant Kanhaiya Lal framed prosecution examined 23 witnesses judgment warrants no interference substantive sentence modified statement of appellants recorded u/s. 313 Cr. P.C. appellants compensation awarded appeal disposed of. examined witnesses in their defense appellants convicted of offences under section 120B, 394 r/w.397 and u/s. 302/34 IPC Deep Chand v. State & Anr...... 1038 aggrieved appellants preferred appeals contended secret — Section 394 voluntarily causing hurt in robbery—Section 397 information, disclosure statements, arrests and recoveries robbery with attempt to cause death or grievous hurt—Section implausible and not believable identification of appellants improper 120B criminal conspiracy—Section 302 murder—Section 34 no injuries on the body of the deceased no eye-witnesses to common intention complainant informed police about looting in strangulation by any of the appellants doctor who conducted post his house DD No. 51B recorded police reached the spot wife and mortem nor examined gagging of mouth was done only to silence servant of the complainant found in injured condition household her no intention to cause such injury as may cause death. Held: articles scattered in the house injured sent to hospital complainant Witnesses identified appellants as intruders having weapon during declared fir for statement on statement of complainant FIR no. examination challenge to disclosure statements and recoveries 539/2003 PS New Friends Colony under sections 395/396/397/ misconceived jewellery items recovered at the instance of and from 120B/412/307/34 IPC and 27 Arms Act recorded complainant wife the appellants identified as stolen articles appellants armed with caught by two boys hands of the servant tied and made to lie down pistol, dagger barged into the house in pursuance of criminal hands of the another person (PW-15) also tied up behind his back conspiracy of committing robbery disconnected telephone lines one of the boys hit the complainant-complainant started raising immobilised the occupants mouth of the PW 15 and others gagged hue and cry one of the witnesses caused injuries to the complainant, not allowing them to raise alarm rooms ransacked and jewellery his wife and servant two boys threatened other two ransacked stolen mouth of the wife of the complainant gagged—She was and looted the house disconnected telephone lines complainant gave unable to breath and suffered asphyxia appellants deemed to have description of the boys wife of the complainant declared brought knowledge that injuries are such as would cause her death done dead cause of death asphyxia as a result of smothering list of in pursuance of conspiracy all appellants liable no evidence of missing/stolen articles prepared blood stained rope, blood stained intention of appellants to cause her death-death of the lady cannot pillow, blood stained guaze, blood stained muffler blood stained be murder act do. cushion cover seized appellants Pradeep and Mohd. Shamim Mohd. Shamim & Ors. v. The State Through Govt. arrested jewellery articles, watch and mobile phone recovered at of NCT of Delhi ...... 1071 their instance one desi katta also recovered made disclosure statement led to recovery of stolen property appellant Kanhaiya — Section 392/397—Conviction—Appeal against. Held, no ulterior Lal arrested on the pointing out of appellant Shamim made motive assigned to the witnesses, who had no prior acquaintance disclosure produced a pulanda containing jewellery articles a knife with appellant, to falsely implicate him. Non-examination of the 55 56 person who was instrumental in apprehending the appellant is of given to the police without variation—Identified the assailants— no consequence as the appellant identified without hesitation by Attributed specific role to the appellant—Appellant did not cross material witnesses who had direct confrontation with the appellant examine the witness despite opportunity—Testimony of in the bus. Acquittal of co-accused due to lack of evidence and complainant unchallenged and unrebutted—No motive assigned lapses on the part of investigation is inconsequential to give benefit to complainant to falsely implicate the appellant—No prior to appellant. Appellant did not give any plausible explanation qua acquaintance or animosity with the appellant—No explanation incriminating circumstances against him. Appellant did not give furnished by the accused to the incriminating circumstance as any reasonable explanation about this presence with a knife inside appearing against him—prosecution established doubt of having the bus at the relevant time. He was arrested soon after the incident, committed dacoity—No injuries inflicted on complainant by any therefore, TIP was not necessary. weapon—Weapon used in the crime not recovered—No description, size or dimension of knife used give—Broad featured Shyambir v. State Govt. of NCT of Delhi ...... 1218 of the weapon used not described—Evidence lacking on — Section 452/394/398- minor contradictions and discrepancies do possession and use of deadly weapon—Conviction u/s. 397 IPC not affect the core of the prosecution case-ocular testimony in not permissible—Appellant at par with another convict— consonance with medical evidence- Conviction u/s. 397 IPC set aside—Sentence u/s. 395 IPC — Merely because blood was not found on the knife at the time of modified and reduced. its production in the court, cogent and credible statement of victim Vikram @ Ganja v. State ...... 1457 cannot be discarded. — Use of brick to cause injuries in an attempt to get released co- — Sections 395—Punishment for dacoity—Section 398 attempt to accused only from the clutches of the victim and to commit commit robbery or dacoity when armed with deadly weapon— robbery, cannot be considered 'use of a deadly weapon' to attract Arms Act, 1950—Section 27 use of prohibited arm—Complainant and prove commission of an offence U/section 398 IPC. a security guard outside the godown of EIT at Alipur—Notices two tempos moving towards godown at about 2:15 am—Raised Shekhar @ Chhotu v. The State (NCT of Delhi) ...... 1283 alarm saying daku daku—Two assailants caught hold of him— — Section 395/397 IPC—Dacoity while armed with deadly Other assailants attacked him with a knife—Two police men weapon—Causing hurt while committing dacoity—Appellant and arrived on motorcycle—Assailants fled from the spot tempos were his associated committed dacoity of 28 bags of plastic raw stopped after chase—Four accused persons alighted and started material—One Salim @ khan found in possession of 28 bags filled running overpowered and apprehended—Knife recovered tempos with plastic raw material—case FIR no.158/07 u/s,395/397 IPC seized—Statement of the complainant recorded FIR No. 72/08 registered at P.S Civil Lines—Appellant and his associates arrested u/s. 395/397/398 IPC r/w. Section 25/27 Arms Act registered in case FIR No161/07 u/s. 399/402/34 IPC P.S Civil Lines—made charge-sheet filed—All the accused persons charged and brought disclosures—Involvement in present case emerged 28 bags to trial—Prosecution examined seven witnesses—Statements u/ recovered—Statements of complainant and witnesses recorded— s. 313 Cr. P.C. of the accused persons recorded—Pleaded false Charge-sheet filed against all the accused persons—One accused implication—Three accused persons including appellant convicted faced proceedings before juvenile justice Board—Accused person two accused persons acquitted aggrieved appellant preferred duly charged—Prosecution examined 14 witnesses in statement appeal—Held testimony of complainant and police witnesses is u/s. 313 cr. P.C the accused persons pleaded false implication similar—No prior animosity with the appellant—No ulterior motive accused persons convicted of offences u/s 395/97 IPC two to falsely implicate the appellant—Complainant had no reason to accused persons confessed their guilt and their appeals disposed let the real culprit go scot free—Injury on the person of of aggrieved appellant preferred appeal Held—complainant's (PW- complainant opined to be simple caused by sharp weapon tempos 3) statement recorder at the earliest point of time—Gave detailed recovered from the possession of assailants—Appellant did not account of the occurrence—Complainant supported his version give explanation for his presence at the spot were armed with 57 58 various weapons—No theft taken place—No cutting material etc. by the appellant is contrary to the proven facts and also the other found or recovered no marks of hammer on the shutter—Mere plea taken by the appellant stand falsified at the face of the proven preparation or attempt to commit house breaking with intention facts and therefore adverse inference can be drawn on his refusal to commit theft—Violence/hurt was unconnected with theft—No to participate in TIP—Nature of injuries and the wounds on the property delivered by the complainant under fear of instant hurt— vital body parts of the accused prove that the injured had intention No dacoity conviction u/s. 395/398 IPC not permissible—Offence to kill—Convicting the appellant u/s 307 IPC suffers no infirmity u/s. 379 r/w s. 511 IPC and section 324 IPC proved—Conviction & Based on cogent evidence. u/s. 395/398 IPC set aside—Sentence modified. — Falsely implicated—Disclosure statement of the appellant is hit by Sanwar @ Razzak v. State ...... 1464 section 24 of the Indian Evidence Act—No evidence to connect the appellant with the commission of offence of theft—Conviction — Sec. 396—Conviction on the basis of the disclosure statements of appellant not sustainable u/s 379 IPC—The appellant is a drug made by a juvenile Akram about his and others ‘Involvement in addict and a habitual criminal previously involved in 11 cases— the dacoity—Certain allegedly recovered articles not mentioned The amount of punishment and conviction u/s 307 is maintained— in the crime scene report—Recovery disbelieved—Non holding Acquitted of the charges u/s 379 IPC. of the TIP and delay in filing FIR—Non fatal to the prosecution case as witness had sufficient time to watch and observed the Ranjeet v. State (NCT of Delhi) ...... 1511 culprits and it was not the case of fleeing glimpse—Mere recovery — Section 120B/392/397—Conviction—Appeal against. Held, of stolen property from an accused—Not sufficient to prove evidence of prosecution on the aspect of use of deadly weapon at conviction u/s 396 or 449 or 412 IPC. the time of committing robbery deficient. PW1 & 4 not certain if Salam Kaviraj @ Chuha v. State (Govt. of NCT knife was used by the appellant at the time of robbery. No knife of Delhi) ...... 1469 recovered in presence of the witnesses. The knife allegedly recovered in another case not shown to the witnesses to ascertain — Appellants convicted u/s 307/34—Conviction challenged— if it was the same knife used by the appellant. Witnesses did not Appellant had stabbed the injured with a ‘vegetable knife’ in an give particulars i.e. size, dimension etc of the knife to establish auto parking of a metro station—Trial Court charged the accused that it was a deadly weapon. No injuries inflicted with any weapon u/s 307/34 IPC—Conviction challenged on ground—No intention to the victims. Conviction with the aid of Sec. 397 unsustainable to kill and no premeditation. Held—No preparation or motive and appellant deserves benefit of doubt on that score. Conviction found to kill injured—Injuries received simple in nature—Alteration under section 120 B/392 IPC however maintained. of conviction into 324 IPC—Appellate released for the period already undergone. Chandan @ Babar v. The State (NCT of Delhi) ...... 1551 Wasim (Passa in J.C) v. State of Delhi ...... 1489 INJUNCTION—Appeal directed against a decree for permanent injunction: Brief Facts—Plaintiff (hereafter "Reckitt") sought to — Sec. 307 & Sec. 379—Head constable stabbed at railway track— restrain the defendent Hindustan Lever Ltd. (hereafter "HUL") by No eye witness—Appellant arrested and made a disclosure permanent injunction from telecasting the advertisement or statement which confirmed his involvement in the case—Appellant otherwise disparaging Reckitt’s goodwill and reputation and its refused Test Identification Parade (TIP) on the ground that he product sold under the trade mark DETTOL, in any other had been shown to the injured in the hospital—Trial Court held advertisements and in all media—Reckitt also sought damages to him guilty u/s 307/309 IPC—Appeal by the accused on the ground the tune of Rs.20,00,050/- towards disparagement, denigration that he is falsely implicated and that conviction is solely based on and tarnishment of ist goodwill and reputation by the impugned identification of the PW7—No adverse inference can be drawn advertisement—A claim for exemplary damages too was made against him on account of his refusal to participate in TIP—No in the suit—Reckitt is involved in the manufacture of the famous recovery of stolen article and knife from him. Held—The plea taken antiseptic disinfectant under the trade mark DETTOL for over 59 60 70 years. It was averred that the mark DETTOL is synonymous LAND ACQUISITION ACT, 1894—Section 4, 5A, 6, 9, 10, 17 (1) with good hygience and, today, it is a household name and is the and (4)—Petition filed challenging Notification issued by most widely used antiseptic disinfectant in the country—Reckitt respondent under Section 4 and 17 (1) and (4) of L.A. Act became aware that the HUL introduced an advertisement on dispensing with hearing under Section 5A of Act as well as television, which intentionally and deliberately disparages Reckitt’s Notification under Section 6 of Act, declaring that land was soap under the trade mark DETTOL and the unique and distinctive required for ‘public purpose’—Plea taken, notification under packaging —The offending advertisement concerns the Section 6 was issued merely four days before expiry of one year defendant’s LIFEBUOY soap—Impugned decree for permanent statutory period for Section 6 declaration—Lackadaisical approach injunction was issued by the learned Single Judge in a claim alleging of Government shows that there was no real urgency for that the defendant/appellant’s advertisement had disparaged the acquisition of property and it was only for denying a fair hearing plaintiff’s good —The impugned judgment also directed payment under Section 5A that notification under Section 17 (4) was of punitive damages to the extent of Rs. 5 lakhs to the plaintiff— issued—Per contra plea taken, there was actually no delay in Hence Present Appeal—The Plaintiff/respondent argued that the matter and that time taken in processing of file was on account of Dettol had been famous as an antiseptic/disinfectant, and had official movement of same and issuance of notifications was in become synonymous with good hygiene as a household name, ordinary course—Held—Power under Section 17(4) to dispense and that the defendant had subjected the Dettol Toilet soap (in with hearing under Section 5-A must not only be exercised which its the distinctive and unique shape, unique orange colour sparingly and only in cases where public purpose for which were clearly visible, albeit without the logo) and the green, acquisition is sought brooks no delay, but Government ought to distinctive packaging to intentional and deliberate disparagement exhibit such urgency in its actions as well—During process of by depicting it to be the type of “normal antiseptic soaps that make acquisition—Both pre and pose notification—While it cannot be the skin dry...” thereby “permitting the germs to enter the cracks held that delays by Government, whether by pre or post in the skin”, unlike the defendant’s soap. The appellant argued that, notification would, by itself be good ground for courts to interfere first, Dettol is neither an antiseptic soap (as held in a previous with State's invocation of power under Section 17(4), Court would judgment of the Delhi HC) nor an unbranded soap, second, that rightly exercise its power of judicial review and restore to land the respondent neither had a monopoly over the colour, shape or owner his/her right to be heard under Section 5A where delay is packaging of the soap, nor had registered the shape, contours and of such a nature as to negate very urgency claimed for invoking curvatures of its soap under the Designs Act to create an exclusive Section 17(4)—Perusal of file pertaining to property shows that right of use, third, that “totality of impression” (and not either the subsequent to issuance of a letter to LAC on 13th May, 2009, “test of confusion” applied in passing off actions, or the isolated there is a perplexing silence of inactivity till 20th April, 2010— frame-by-frame approach) must be used as the test of This stares in face of aforesaid urgency which was otherwise disparagement, so that the intent, manner, story line and message vigorously emphasized by respondent for sake of invocation of of the advertisement is conveyed, fourth, that the audience of the Section 17(4)—It is evident that although acquisition was impugned advertisement must be considered to be the reasonable requisitioned in February, 2009 to remove paraneal traffic man with imperfect recollection, and the consumer/user base of bottleneck coupled with sense of urgent for a smooth of traffic the soap, by virtue of being acquainted with what the product looks especially in view of then ensuing CWG in October, 2010 yet like, would not have imperfect recollection and fifth, that the test respondent itself took about 19 months to issue Section 4 of malice was not fulfilled i.e. nothing was done with the direct notification—This , by no stretch of imagination, can be said to object of injuring the other person’s business—Appellant/defendant demonstrate any urgency—There was clearly no justification for challenged the grant of punitive damages while the respondent/ invocation of urgency provision of Section 17 (4) and consequent plaintiff argued that general or compensatory damages ought to denial to petition of valuable right of hearing under Section 5 A— have been awarded, first. Consequently notification under Section 17 (40 as well as under Section 6 along with notice issues under Sections 9 & 10 of Act Hindustan Unilever Limited v. Reckitt Benckiser India Limited...... 1288 61 62 quashed. New Delhi Railway Station not joined.—Steps of log book of vehicle not filed.—No information given to security guards/RPF Bhola Ram v. GNCTD ...... 909 personnel present at the station and no railway official/vendors/ LIMITATION ACT, 1963—Sec. 5—Arbitration and Conciliation Act, stall owners joined in the proceedings.—No proceeding conducted 1996—Sec. 34—Condonation of delay in re-filing the petition U/ at the spot and no material came out on record to infer that the s 34 of Arbitration & Conciliation Act, 1996—After deducting 30 place of apprehension was not conducive to conduct the days which is maximum cumulative period permissible for proceedings. removing the objections, under Delhi High Court Rules., the net delay in re-filing of 138 days. Held the Court is empowered to — Also held, that the contents of disclosure statement of accused condone the delay in re-filing, provided there is no neglect and was found incorrect during investigation and remained unproved— sufficient causes shown to explain the delay. The sufficiency of It is now well Settled that the court must seek corroboration of cause would depend facts & circumstances of the case. Held the purported confession from independent sources—Accused further that the span of delay as well as bonafides/quality of the acquitted. explanation tendered seeking condonation are both relevant factors, Mohd. Irfan v. Directorate of Revenue especially in the context of the Arbitration Act, 1996, where as Intelligence ...... 953 per Sec. 34 (3) of the Act Sec. 5 of the Limitation Act 1963 would have no applicability. Held a large number of time spent in refiling NAVY ACT, 1957—Regulation 159, 161, 163, 169—petitioner by would itself tend to demonstrate negligence, unless a credible way of writ petition challenged order dated 01/11/1990 in terms explanation is set forth. The reason put forth in this case was that of Regulation 156 of Act convening court martial of petition on paper book was inadvertently placed in a file by the clerk of the 27 charges—He also challenged order dated 15/03/1991 of Court counsel and was not traceable. The negligence and callousness Martial finding him guilty of commission of 8 charges and order on the part of FCI in prosecuting the matter is clear from the fact of sentence awarding him sentence of 24 months RI, dismissal that FCI did not seek to know from its counsel about status of its from service and fine of Rs. 1,000/- or 6 months imprisonment petition—Petition for condonation of delay in re-filing dismissed. in default of payment of fine—Petitioner further challenged order Food Corporation of India v. Pratap Rice & dated 27/08/1991 passed by Chief of Naval for maintaining General Mills ...... 1064 conviction of petitioner on all charges except on Charge 20 and reducing sentence of imprisonment to period already undergone NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCES by him—Also, order dated 08/12/2010 and 23/12/2010 passed by ACT—Section 21 (c) of Appellant convicted—Conviction Armed Forces Tribunal was challenged by petitioner whereby primarily based no statement of complainant PW1 and confessional findings of guilty of Court Martial on all charges other than charge statement u/S 67 of the Act—Held, the panchnama merely reflects no. 7 was set aside—According to petitioner, he had illustrious, name of the two public witnesses without further details about unblemished career of over 20 years of service with Indian Navy their addresses and parentage—No sincere attempts made to serve and was committed soldier till he was wrongly implicated in the summons upon them at specific addresses and prosecution case—It was urged on behalf of petitioner that court martial was dropped them without valid reasons.—Complainant version convened without application of mind on the material placed before remained uncorroborated from independent sources. Joining of Convening Authority as documents were so voluminous which independent public witnesses is not a mere formality and sincere could not have been considered on the same day by Authority to attempts were required to be made before apprehension of pass order to convene court martial. accused.—Complainant was evasive as to who were other members in the raiding team.—Other members of raiding team — Held: Convening Authority is required to satisfy himself not only not examined.—Secret informer was not a member in the raiding that charges are properly framed but also that evidence if team.—The driver of vehicle in which the raiding team went to uncontradicted or unexplained would probably suffice to ensure 63 64 conviction should have sufficient time to scrutinize requisite charge memo dated 11th December, 2006 containing identical records before taking a decision. allegations which were denied by him vide reply dated 22nd December, 2006 and no further action was taken thereon— Avtar Singh v. Union of India and Ors...... 850 However, the enquiry officer submitted a report dated holding that PROBATION OF OFFENDERS ACT, 1958 (PO ACT)—S. 12— the charged officer had admitted the article of charge and therefore Conviction—Disqualification—The licence of FPS granted to Sh. it stood proved—Three years after the submission of the enquiry Puran Mal-father of petitioner on 06.06.1977—Puran Mal as sole report, the Disciplinary Authority passed an order dated 15th proprietor carried out business till 09.01.2002-died-petitioner November, 2011 accepting the report and imposing the penalty approached the department for transfer of licence in his name— of compulsory retirement upon the respondent—His appeal dated On 14.06.2002 application allowed—Licence renewed from time 14th December, 2011 was rejected by the order dated 9th May, to time—Lastly renewed from 24.04.2006 to 23.04.2009—Show 2012—The respondent has challenged these orders against him cause notice issued on 17.08.2007 to petitioner—Alleging—Puran by way of O.A. No. 2047/2013 inter alia on the ground that there Mal convicted under Essential Commodities Act—Petitioner was no evidence at all before the enquiry officer and that a appeared before Assistant Commissioner-pointed out-father communication dated 23rd June, 2008 had been wrongly treated released on probation for one year—Explanation not found as admission of guilt on his part—Petitioner assails the order dated satisfactory—Licence cancelled on 29.10.2007—Preferred writ 26th November, 2013 passed by the Central Administrative petition—Contended—Once the fine of Rs. 5000/- imposed after Tribunal accepting the O.A. No. 2047/2012 which was filed by releasing his father on probation for one year—Therefore the the respondent challenging the order of the disciplinary authority petitioner could not be punished twice for the same offence— dated 15th November, 2011 as well the appellate authority’s order Further contended in view of S. 12 of PO Act—Petitioner could dated 9th May, 2012 whereby the respondent’s appeal was not suffer any disqualification-action initiated has became stale - rejected. Held: Central Administrative Tribunal has considered the violation - if any-stood condoned-licence renewed subsequently import of the statement made by the respondent in the letter dated for 11 years—Respondent contended—Entitled to take action as 23rd June, 2008 holding that the respondent had not admitted guilt per Clause 7 of Order of 1981—Once father of petitioner of the charge of theft but had only stated that on 24th April, 2008, committed breach-convicted-respondent bound to cancel the he had been asked by another employee Prem Singh to load licence—Delay procedural as many Assistant Commissioner cylinders in an auto rickshaw—It was stated that these cylinders transferred in 10 years—Held—Statutory authority required to act were unloaded on instructions of Prem Singh at his residence reasonably and expeditiously—Transfer of licence of FPS in the (Prem Singh’ residence)—The Tribunal has also noted that even name of the petitioner upon the death of his father condoned the before the enquiry officer on 24th April, 2008, the respondent had earlier conviction—Further as per the provision of PO Act—The stated that he had simply acted as per the instructions of Prem person released on probation shall not suffer from any Singh without intention of committing theft—It is an admitted disqualification attached to the conviction—Writ petition allowed. position that other than the said letter dated 23rd June, 2008, the enquiry officer recorded no evidence at all–In his background, it Praveen Kumar v. Govt. of NCT of Delhi & Ors...... 1230 was held that the recommendations of the enquiry officer were SERVICE LAW—Compulsory Retirement—Penalty of compulsory based on no evidence and that there was no admission of the retirement on the basis of admission of guilt—Respondent was charge by the respondent as well—The Tribunal had therefore subjected to disciplinary proceedings based on the charge that set aside the inquiry report dated 5th August, 2008, the Disciplinary while working as Masalchi/Bearer in the Cafetaria Department, Authority’s order dated 15th November, 2011 and the Appellate AIIMS, stolen, two gas cylinder from the gas manifold room and Authority’s order dated 9th May, 2012—The petitioner has been taken awayby three wheeler—Respondent disputed the charges given liberty to proceed afresh if deem appropriate and pass levelled against him vide his reply pointing out that prior to the appropriate orders in accordance with law—Petitioner has not charge sheet dated 7th January, 2008, the petitioner had issued a pointed out any material which enables us to take a view different than that taken by the Tribunal—There was no evidence in support 65 66 of the charge against the petitioner before the enquiry officer— Legality of attachment of Property—Section 9—Arbitration and No merit in the writ petition—The writ petition and the application Conciliation Act, 1996—National Agricultural Cooperative are hereby dismissed. Marketing Federation of India Ltd. (NAFED) decree holder—Kripa Overseas—M/s. Rital Impex Ltd.—Collectively referred as All India Institute of Medical Sciences & Anr. v. judgments debtors—involved in arbitral proceedings—NAFED Ram Kishore & Anr...... 1501 preferred petition under Section 9 of the Arbitration and SPECIFIC PERFORMANCE—Suit for specific performance of an Conciliation Act—Resulted in an order of injunction restraining agreement (28.06.2005) & for permanent injunction—Plaintiff filed the sale of several properties, including the property in question his evidence by way of affidavit—Despite several opportunities (A-13, Block B-1, Mohan Cooperative Industrial Estate, Mathura defendant failed to file evidence—Right to lead evidence closed Road, New Delhi, 110044)—Subsequently, the three parties on 06.12.2013. Plaintiff co-owner of the suit property entered into entered into a settlement dated 03.05.2007 Rs. 20 Cr. shall be paid a sale agreement with Defendant—Down payment of Rs. 2.50 within next 60 days upon raising loan by mortgaging the property lacs—Repeated reminder by the plaintiff to transfer the title of suit in question - property in question was mortgaged with ICICI Bank property in the plaintiff—Defendant delayed the matter & did not against advance of Rs. 1.5 crores other properties subject matter obtain No Objection Certificate from the Notification Branch of of attachment, in Section 9 proceedings, were released from the Revenue Department. Defendants also misled the plaintiffs as attachment order of the Court on 14.12.2007—The Order dated regards to the real ownership of the property—Suit property 14.12.2007, did not refer to the property in question; it described originally belonged to the Gaon Sabha of Village Libaspur as against another property—Subsequently corrected and previous order the portrayal of the defendants that the same was purchased by modified through an order of 18.412.2007—Property in question one Sh. Manohar. Held—Plaintiff ready and willing to pay was allowed to be sold by the owner/judgment debtor—Sale deed necessary amount—Proof of willingness available—Legal notice was executed by one of the judgment debtors in favour of the was sent to the defendant with regard to the balance payment— objector total consideration of Rs. 3.5 crores payment of Rs. 1.5 Defendant did not obtain the Non-Objection Certificate decreed crores made to ICICI Bank to clear the mortgage and recover the in the favor of the plaintiff and against the defendant. title deeds remainder to the owner/judgment debtor arbitration proceedings between NAFED, and the two judgment debtors Mahesh Chand Aggarwal v. Mukesh Kalia award dated 24.09.2009 was made in terms of the settlement dated & Ors...... 1555 03.05.2007 modified by the subsequent order dated 04.04.2008 SPECIFIC RELIEF ACT, 1963—Plaintiff filed suit seeking specific holding, inter alia, that NAFED is (sic) held entitled to the performance of agreement to sell, for possession, mandatory and outstanding amount by sale of the properties, mentioned in the permanent injunction against defendant no. 1 & 2—Due to non- deed of settlement dated 3.5.2007, by public auction—NAFED appearance, both defendants proceeded ex-parte—As per plaintiff, instituted execution proceedings property in question was she was wiling to perform her part of contract by tendering attached—NAFED instituted execution proceedings property in balance sale consideration amount which was not accepted by question was attached appellant, preferred objections contending defendant no. 1 on pretext suit property to be converted from lease- that he had clear title to the property sold without any precondition hold to free-hold. Held: If plaintiff is ready and willing to perform learned Single Judge concluded—Court in its order dated her part of the agreement and defendant neglects to perform his 14.12.2007 did not permit an unconditional sale by the respondents/ part of agreement, the plaintiff entitled to decree for specific judgment debtors condition respondents shall deposit Rs. 18 crores performance of agreement on tendering balance sale consideration by the sale of two properties including the one in question, within to defendant. 75 days of the sale to satisfy a part of the petitioner/decree holders claim—To acquire a clear and unencumbered title to the property Nutan v. Mukesh Rani & Anr...... 1591 in question, the objector/applicant should have ensured that the said condition was complied with by the respondents/judgment TRANSFER OF PROPERTY ACT, 1882—Sections 52 and 53 of debtors sale deed in question is clearly in contravention of the order 67 68 dated 14.12.2007 and is subject to Section 52 of the Transfer of crystallized subsequently in the award—Till then, it had no claim Property Act property in question was not released from the lot in respect of the suit property faced attachment for a brief period of properties under the cover of attachment sale consideration of attachment was lifted, to enable its sale, in order to satisfy Rs. 3.5 crores to the objector for the property gross undervaluation NAFED’s claims sale ought to have proceeded in a particular judicial notice of this fact in holding that such a transfer would manner, nothing prevented it from insisting upon imposition of also violate Section 53 of the Transfer of Property Act—Hence conditions—Having failed to do so, its mere allegation of the present appeal. Held: Conjoint reading of the two orders undervaluation of the property could not have resulted in the 16.05.2007 and 18.12.2007 clarify that whereas the first order impugned finding. lifted or vacated the attachment made earlier in respect of two properties did not include the property in question the second order Baldev Raj Jaggi v. National Agricultural Cooperative specifically vacated the attachment in respect of the property in Marketing Federation of India Ltd. & Ors...... 1022 question—NAFED never chose to apply for its modification or recall—No conditions or restrictions of the kind—Applicable to the sale of the title documents in respect of the property in question. — Applicability of Section 52—A transferee from a judgment debtor is presumed to be aware of the proceedings before a Court of law recognizes the doctrine of lis pendens—Rule 102 of Order XXI of the Code take into account the ground reality and refuses to extend helping hand to purchasers of property in respect of which litigation is pending unfair, inequitable or undeserved protection is afforded to a transferee pendente lite, a decree holder will never be able to realize the fruits of his decree—In the present case, NAFES’S claim was one for money in arbitral proceedings— Pending adjudication it sought for attachment of the judgment debtor’s properties—But in no manner enlarge the scope of its claim into one encompassing any right to immovable property “directly” or “specifically—Absence of any restriction as to the marketability of the title, or direction by the Court, amounting to an encumbrance or charge order of 18.12.2007 operated to lift the attachment—This was done to facilitate sale direction in the previous order of 14.12.2007 that NAFED could retain the title deeds till it was paid Rs. 18 crores was meaningless and inapplicable because the title deeds were with ICICI Bank, which were later redeemed by the purchaser objector who was made aware of the mortgage in favour of that bank. — Applicability of Section 53—In the present case, far from discharging the onus of proving want of good faith—NAFED merely relied on a textual interpretation of the orders dated 14.12.2007 and 18.12.2008 argued that the property was sold for inadequate consideration impugned order is based on “judicial notice” having been taken about the prices of land law casts a burden on the decree holder (NAFED), who has gotten its rights