INDIAN LAW REPORTS DELHI SERIES 2011 · 2012-05-14 · INDIAN LAW REPORTS DELHI SERIES 2011...

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INDIAN LAW REPORTS DELHI SERIES 2011 (Containing cases determined by the High Court of Delhi) VOLUME-6, PART-II (CONTAINS GENERAL INDEX) EDITOR MR. A.S. YADAV REGISTRAR (VIGILANCE) CO-EDITORS MS. NEENA BANSAL KRISHNA (ADDITIONAL DISTRICT & SESSIONS JUDGES) REPORTERS MR. CHANDER SHEKHAR MS. ANU BAGAI MR. TALWANT SINGH MR. SANJOY GHOSE MR. GIRISH KATHPALIA MR. K. PARMESHWAR MR. VINAY KUMAR GUPTA (ADVOCATES) MS. SHALINDER KAUR MR. KESHAV K. BHATI MR. V.K. BANSAL JOINT REGISTRAR MR. L.K. GAUR MR. GURDEEP SINGH MS. ADITI CHAUDHARY MR. ARUN BHARDWAJ (ADDITIONAL DISTRICT & SESSIONS JUDGES) PUBLISHED UNDER THE AUTHORITY OF HIGH COURT OF DELHI, BY THE CONTROLLER OF PUBLICATIONS, DELHI-110054. I.L.R. (2011) VI DELHI Part-II (December, 2011) (Pages 453-820) P.S.D. 25.12.2011 650 PRINTED BY : J.R. COMPUTERS, 477/7, MOONGA NAGAR, KARAWAL NAGAR ROAD DELHI-110094. AND PUBLISHED UNDER THE AUTHORITY OF HIGH COURT OF DELHI, BY THE CONTROLLER OF PUBLICATIONS, DELHI-110054—2011. Annual Subscription rate of I.L.R.(D.S.) 2011 (for 6 volumes each volume consisting of 2 Parts) In Indian Rupees : 2500/- Single Part : 250/- for Subscription Please Contact : Controller of Publications Department of Publication, Govt. of India, Civil Lines, Delhi-110054. Website: www.deptpub.nic.in Email:[email protected] (&) [email protected] Tel.: 23817823/9689/3761/3762/3764/3765 Fax.: 23817876

Transcript of INDIAN LAW REPORTS DELHI SERIES 2011 · 2012-05-14 · INDIAN LAW REPORTS DELHI SERIES 2011...

Page 1: INDIAN LAW REPORTS DELHI SERIES 2011 · 2012-05-14 · INDIAN LAW REPORTS DELHI SERIES 2011 (Containing cases determined by the High Court of Delhi) VOLUME-6, P ART-II (CONT AINS

INDIAN LAW REPORTS

DELHI SERIES

2011(Containing cases determined by the High Court of Delhi)

VOLUME-6, PART-II(CONTAINS GENERAL INDEX)

EDITOR

MR. A.S. YADAVREGISTRAR (VIGILANCE)

CO-EDITORSMS. NEENA BANSAL KRISHNA

(ADDITIONAL DISTRICT & SESSIONS JUDGES)

REPORTERS

MR. CHANDER SHEKHAR MS. ANU BAGAI

MR. TALWANT SINGH MR. SANJOY GHOSE

MR. GIRISH KATHPALIA MR. K. PARMESHWAR

MR. VINAY KUMAR GUPTA (ADVOCATES)

MS. SHALINDER KAUR MR. KESHAV K. BHATI

MR. V.K. BANSAL JOINT REGISTRAR

MR. L.K. GAUR

MR. GURDEEP SINGH

MS. ADITI CHAUDHARY

MR. ARUN BHARDWAJ

(ADDITIONAL DISTRICT

& SESSIONS JUDGES)

PUBLISHED UNDER THE AUTHORITY OF HIGH COURT OF DELHI,

BY THE CONTROLLER OF PUBLICATIONS, DELHI-110054.

I.L.R. (2011) VI DELHI Part-II (December, 2011)

(Pages 453-820)

P.S.D. 25.12.2011

650

PRINTED BY : J.R. COMPUTERS, 477/7, MOONGA NAGAR,

KARAWAL NAGAR ROAD DELHI-110094.

AND PUBLISHED UNDER THE AUTHORITY OF HIGH COURT OF DELHI,

BY THE CONTROLLER OF PUBLICATIONS, DELHI-110054—2011.

Annual Subscription rate of I.L.R.(D.S.) 2011

(for 6 volumes each volume consisting of 2 Parts)

In Indian Rupees : 2500/-

Single Part : 250/-

for Subscription Please Contact :

Controller of Publications

Department of Publication, Govt. of India,

Civil Lines, Delhi-110054.

Website: www.deptpub.nic.in

Email:[email protected] (&) [email protected]

Tel.: 23817823/9689/3761/3762/3764/3765

Fax.: 23817876

Page 2: INDIAN LAW REPORTS DELHI SERIES 2011 · 2012-05-14 · INDIAN LAW REPORTS DELHI SERIES 2011 (Containing cases determined by the High Court of Delhi) VOLUME-6, P ART-II (CONT AINS

NOMINAL-INDEX

VOLUME-VI, PART-II

DECEMBER, 2011

Pages

Deepti Mandlaus v. State (Govt. of NCT of Delhi) and Anr. ............... 453

Satpal Singh v. Delhi Sikh Gurdwara Management Committee

& Anr. .................................................................................................... 462

M/s. Spice Communications Limited & Anr. ........................................ 470

Bijay v. The State (G.N.C.T. of Delhi) ................................................. 515

Swaran Singh v. State ........................................................................... 527

Yogender Kumar & Another v. Ram Kishan Gupta and Anr. ............... 531

M/s Bhole Baba Dairy Industries Ltd. v. Union of India and Ors. ........ 537

Jaipal v. State ......................................................................................... 553

Braham Prakash Dutta and Anr. v. Railway Protection Force

and Ors. ......................................................................................... 576

North Delhi Power Ltd. v. Surender Kumar ......................................... 584

Delhi Metro Rail Corporation Ltd. v. Samrat Ranga and Ors. .............. 595

M. Arun Ahluwalia v. Arun Oberoi & Anr. ........................................... 605

R.K.P. Nishad v. C.B.I. ......................................................................... 635

Shri M. K. Sharma and Anr. v. Shri SH Tek Chand and Others .......... 652

Anita Devi & Others v. United India Assurance Co. Ltd. & Ors. ........ 673

State v. Sunil Dutt ................................................................................. 679

Dharambir & Anr. v. State .................................................................... 686

C.S. Agarwal v. State & Ors. ............................................................... 701

M/s Sterling Agro Industries Ltd. v. Union of India & Ors. ................ 729

M/s. Krizm Hotels Private Limited v. M/s. Vaishnavi Estates

(P) Ltd. ........................................................................................... 759

Ashok Chachra v. The State .................................................................. 789

Suresh Kalmadi (In Judicial Custody) v. Union of India

& Ors. ........................................................................................... 795

S.P. Arya v. Union of India & Ors. ...................................................... 808

(ii)

(i)

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NOMINAL-INDEX

VOLUME-VI, PART-II

DECEMBER, 2011

CODE OF CIVIL PROCEDURE, 1908—Order XXI Rule 97—

Suit for specific performance of agreement to sell decreed

exparte in favour of plaintiff against the defendant, followed

by registration of sale deed and mutation of property in the

name of plaintiff—Before the execution court, the petitioners/

objectors contended that they had purchased the property from

one Pushpa Singh who had purchased the same from the

defendant prior to the date of agreement to sell between

plaintiff and the defendant and they are in peaceful

possession—Execution court dismissed the objections, holding

that since registered sale deed was executed in favour of

plaintiff and mutation done under the orders of the court, the

objections were not maintainable—Held, the record shows that

the address of the defendant was not correctly mentioned in

the suit though the same was known to the plaintiff and this

shows that contention of the objectors that fraud was played

upon the court cannot be ruled out —Further held, the very

purpose of Order XXI Rule 97&98 CPC is to avoid filing of

separate suit and execution court empowered to conduct

detailed inquiry on the objections—Matter remanded back to

the execution court to decide the objections afresh.

Yogender Kumar & Another v. Ram Kishan Gupta

and Anr. .......................................................................... 531

— Order 1 Rule 10—Motor Vehicles Act, 1988—Section 2(30)-

165—Order of Motor Accident Claims Tribunal rejecting

Petitioner’s application seeking impleading of licensee who had

been granted permission for operation of Feeder Buses for

Metro Link Feeder Bus Project of DMRC Ltd. challenged

before HC—Plea taken, petitioner had entered into agreement

whereunder licensee was granted permission for operation of

feeder buses for Metro Feeder Bus Project—Licensee had

undertaken to indemnify petitioner against accident/claims/

liability arising out of operation of buses—There was no privity

of contract between petitioner and injured victim—Rejection

of application tantamounted to pre-judging issue of liability

even without a trial—Held—Provisions of M.V. Act envisage

that claims Tribunal should hold enquiry to ascertain liabilities

of persons who are involved in use of vehicle or persons who

are vicariously liable—Issue of possession or control of vehicle

assumes importance and may be determining factor in fixing

liabilities of parties to claim petition—Order rejecting

petitioner’s application for impleadment of licensee set aside.

Delhi Metro Rail Corporation Ltd. v. Samrat Ranga

and Ors. .......................................................................... 595

— Section 16, 20 and 22—Legal question framed as to whether

Delhi court has territorial jurisdiction to entertain and try a suit

for specific performance relating to a property situated outside

Delhi—On the basis of legal precedents, held that Delhi Courts

have no jurisdiction to entertain and try a suit for specific

performance relating to an immovable property situated outside

Delhi because the relief cannot be entirely obtained through

the personal obedience of the defendant under the proviso to

Section 16 CPC as the defendant will have to go out of Delhi

to get the sale deed registered—Plaints of both suits directed

to be returned to the plaintiffs.

Shri M. K. Sharma and Anr. v. Shri SH Tek Chand

and Others ...................................................................... 652

— Section 157—Officer In-charge of Police Station enjoined

under Section 157 to forward copy of FIR forthwith to Illka

Magistrate empower to take cognizance of an offence so that

(iv)

(iii)

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to as RPL) made a representation for the purpose of securing

investment to Mr. Sameer Kohli, director of M/s Kohli Housing

and Development Pvt. Ltd—Intended to develop one SEZ on

250 acres land situated at Delhi-Jaipur Highway owned by

RPL—Petitioner received in-principal approval from the Govt.

of India for the project—On the representation, respondent

no. 3 agreed to buy 74% shares worth Rs. 185 crores in the

Special Purpose Vehicle (SPL) formed for this purpose—MOU

was signed—Advance payment of Rs. 40 crores was made

by respondent no. 3 on the condition that either this advance

will be refunded back to him or the land of 250 acres would

be transferred in favour of him in case the SEZ notification

is not received by 31st December 2008—Subsequently an

amount of Rs. 3 crores was given to the petitioner by

respondent no. 3—No notification could be received by RPL

by 31.12.2008—Mr. D.K. Jain, the other director of RPL

issued a public notice revoking all authority given to the

petitioner to act on behalf of RPL—After expiration of the dead

line, respondent no.3 demanded his money back, but in Vain—

Respondent made a complaint, on the basis of which, FIR

no. 266/09 was registered against the appellant herein u/s 420/

406/120-B IPC—Appellant challenged the registration of FIR

and sought quashing of the same—Hon’ble Single Judge

dismissed the petition—Appellant preferred the Letter Patent

Appeal under clause 10 of the Letter Patent Act—Respondent

took a primary objection to the maintainability of the Letter

Patent Appeal on the point that judgment was passed in

exercise of criminal jurisdiction and the Letter Patent appeal

against the order is clearly barred by Clause 10 and 18 of

Letters Patent Act—Held—Proceedings under Article 226 of

the Constitution would be treated as original civil proceedings

only when it concerns civil rights—A fortiori, if it concerns

a criminal matter, then such proceedings would be original

criminal proceedings—Letter Patent would lie when the Single

(vi)(v)

prosecution may not concoct facts and set up false case

against an accused—However, mere delay in forwarding the

copy of FIR to the Magistrate under Section 157 which was

otherwise recorded promptly is of no consequence, if the

Court is otherwise convicted about the truthfulness of the

prosecution case and there is otherwise positive and

trustworthy evidence on record.

Dharambir & Anr. v. State ........................................... 686

— Order 1 Rule 10—Motor Vehicles Act, 1988—Section 2(30)-

165—Order of Motor Accident Claims Tribunal rejecting

Petitioner’s application seeking impleading of licensee who had

been granted permission for operation of Feeder Buses for

Metro Link Feeder Bus Project of DMRC Ltd. challenged

before HC—Plea taken, petitioner had entered into agreement

whereunder licensee was granted permission for operation of

feeder buses for Metro Feeder Bus Project—Licensee had

undertaken to indemnify petitioner against accident/claims/

liability arising out of operation of buses—There was no privity

of contract between petitioner and injured victim—Rejection

of application tantamounted to pre-judging issue of liability

even without a trial—Held—Provisions of M.V. Act envisage

that claims Tribunal should hold enquiry to ascertain liabilities

of persons who are involved in use of vehicle or persons who

are vicariously liable—Issue of possession or control of vehicle

assumes importance and may be determining factor in fixing

liabilities of parties to claim petition—Order rejecting

petitioner’s application for impleadment of licensee set aside.

Delhi Metro Rail Corporation Ltd. v. Samrat Ranga

and Ors. .......................................................................... 595

CODE OF CRIMINAL PROCEDURE, 1973—Section 482—

Clause 10 and 18 of Letters Patent Act—Appellant C.S.

Aggarwal, Director of M/s Rockman Projects Limited (referred

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Judge decides the writ petition in proceedings concerning civil

rights—On the other hand, if these proceedings are concerned

with rights in criminal law domain, then it can be said that

the Single Judge was exercising his ‘criminal jurisdiction’

while dealing with such a petition filed under Article 226 of

the Constitution—In a petition under Article 226 of the

Constitution when the High Court is exercising extraordinary

jurisdiction, the nature of proceedings, whether civil or

criminal, would depend upon the nature of right violated and

the nature of relief sought in the said petition—Writ of this

nature filed under Article 226 of the Constitution—Seeking

quashing of such an FIR would therefore be ‘‘criminal

proceedings’’ and while dealing with such proceedings, the

High Court exercises its ‘‘criminal jurisdiction’’—The LPAs

are barred and not maintainable—Dismissed.

C.S. Agarwal v. State & Ors. ...................................... 701

— Section 311A, Constitution of India, 1950—Article 20—

Appellants preferred appeals to challenge their conviction under

Section 302, 201, 384 read with Section 34 of Act—They

urged, one of circumstance i.e. delivery of ransom note in

the handwriting of the appellant Jaipal not proved—Also police

did not have power to take accused's handwriting under

Section 73 of Indian Evidence Act—Moreover, Section 311

A of Cr.P.C. was incorporated in the statute book only w.e.f.

23.06.2006 and was not retrospective in its application—Held:-

Obtaining the handwriting of an accused during investigation

is not hit by Article 20 (3) of the Constitution of India as an

accused cannot be said to be a witness against himself, if he

is asked to give his handwriting for purpose of verification

of any document purported to be in his handwriting—Some

forms of testimonial acts lie outside the scope of Article

20(3)—Obtaining appellant Jaipal's handwriting during

investigation not illegal.

Jaipal v. State................................................................. 553

COMPANIES ACT, 1956—Section 391 to 394—Jurisdiction to

decide the issue of arrangement of the companies—

Department of Telecommunications (DoT) filed applications

for recall of order dated 05.02.2010 allowing amalgamation

of Spice Communication Limited (Spice) with Idea Cellular

Limited (Idea)—Contending that material documents—DoT’s

letter rejecting the amalgamation and License Agreements and

Merger Guidelines 2008 (guidelines) Suppressed—Wherein it

was clearly mentioned that the prior permission of DoT was

mandatory for filing a petition for merger before the Court-

Unified Access Services License Agreements (licenses)—

Clause 6.1 and 6.2 prohibit transfer of licences without prior

permission of DoT whereas clause 6.3 is restricted to

assignment of license agreement pursuant to approval of

merger scheme by this court under section 391-394 of the

Act—Order approving scheme has caused prejudice to DoT

Delay in filing the explanation does not disentitle DoT from

claiming reliefs sought—Petitioner-Companies contended that

DoT has no locus standi-Under clause 6.3 of license—DoT

has no say in the merger of companies—Guidelines are law

and cannot be suppressed—However admitted

correspondences with DoT-understanding was that DoT had

no objections—DoT on the other hand had suppressed the

letters written by the petitioner Companies—no violation of

guidelines—Clause 6.3 of licenses stipulates that approval of

DoT is to be obtained only on sanction of scheme by the High

Court—Sanction for merger of companies cannot be

conditional upon any statutory or regulatory permission.

Held—High Court alone has exclusive jurisdiction to decide

the issue of arrangement of companies merger of companies

does not result in merger of licenses but all merger/

amalgamation of companies necessarily results in transfer of

licenses for which prior permission is required under clause

(viii)(vii)

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6.1 of licenses—Prior permission under clause 6.1—Attracted

in the present case—Petitioner—Companies had suppressed

material documents to obtain unfair advantage—Sanctioned

scheme is binding on all shareholders, creditors—DoT is a

necessary party being a licensor and regulator—Grave

prejudice caused to DoT—However delay of 13 months in

filing the application for recall of order—Not explained—

Situation on ground—Spice lost its entity—Employees have

become employees of idea—Delisted from stock exchange-

not possible to recall the order in entirety—To bring the

scheme in conformity with the guidelines—The order was

modified—Six overlapping licenses of Spice would not stand

transferred to Idea till DoT grants permission—Overlapping

licenses of Spice shall stand transferred/vested with DoT—

Spectrum allocated would revert back to DoT—In case DoT

refuses or grants conditional approval of transfer licenses—

Idea can challenge it before TDSAT-customers to be provided

uninterrupted services in overlapping license area-Ministry of

Corporate Affairs directed to conduct study and suggest

remedial measures to ensure no party can obtain sanction of

a scheme of arrangement without placing on record relevant

materials.

M/s. Spice Communications Limited & Anr. ............... 470

CONSTITUTION OF INDIA, 1950—Article 19(1) (a), 21, 105

(1) and 326—Petitioner, a Parliamentarian in Judicial Custody

filed writ petition for permission to attend Parliament in Judicial

Custody—Plea taken, Parliamentarian has freedom of speech

subject only to rules and standing orders regulating procedure

of Parliament none of which prevents petitioner from attending

Parliament and speaking while in custody—Constitutional right

of petitioner to participate in Parlimentary proceedings and right

to vote in Parliament as elected representative is essence and

expression of Parliamentary democracy—Parliamentary

democracy is basic feature of Constitution of India and there

is no reason for denying such participation to petitioner while

same is possible in judicial custody—Refusing participation in

Parliamentary proceedings to petitioner would deny him

opportunity to fulfill his constitutional objections to attend

proceedings of Parliament—Unless petitioner is so permitted,

Parliamentary Constituency which had elected him would go

unrepresented in Parliament—Public interest demands that

petitioner, be permitted to attend Parliament—Per contra, plea

taken offences with which petitioner is charged with are

extremely grave and serious causing huge wrongful pecuniary

benefits to certain private parties and consequent loss to public

exchequer—Some of other accused officials of the Organizing

Committee for Common Wealth Games of which petitioner

was chairman are still absconding—CBI apprehends that

petitioner may misuse liberty sought by way of present petition

to influence witnesses and tamper with evidence—Held—

Argument as raised by petitioner amounts to placing Members

of Parliament (M.P.) at a pedestal higher than their electorate—

Argument assumes work of a M.P. is more sacred and

important than work/vocation in which citizens who have

elected said Parliamentarian may be engaged in—Such

argument is archaic and creates two classes of citizens as in

a monarchy i.e. king and subject and is alien to Constitution—

Merely because petitioner is a Parliamentarian does not entitle

him to claim any exception from effect of being in detention—

It is not case of petitioner that vote of petitioner on any aspect

is vital or that without such participation citizens of his

constituency would suffer—Petitioner, in past, as per his

convenience has been missing Sessions of Parliament—When

petitioner could afford to miss parliament to spend time on

National Games or Participate in Games at China, his desire/

keenness to attend parliament can only be understood as

attempt for fresh air outside prison walls—Petitioner is not

entitled to relief claimed—Petition dismissed with costs of Rs.

(x)(ix)

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1,00,000/- payable to Prime Minister’s National Relief Fund.

Suresh Kalmadi (In Judicial Custody) v. Union of India

& Ors. ............................................................................. 795

— Article 226, Guardian and Wards Act, 1890—Section 7—Writ

of Habeas Corpus—Petitioner, the mother seeks issuance of

Writ of Habeas Corpus directing her husband Respondent No.

2 to produce their minor son before Hon’ble High Court—

Petitioner, Respondent No. 2 and the minor son are Indian

Citizens residing in Canada since 04.04.2009—Respondent No.

2 and minor son came to India-Did not return—Before the

petitioner could move Court, respondent filed a petition under

Guardian and Wards Act and Section 6 of Hindu Minority and

Guardianship Act, 1956 for appointment of himself as sole

guardian—Petitioner moved the Superior Court of Justice, in

Canada—Held the child was an Indian Citizen—When the

Canadian Court passed the orders, the Guardianship Court in

New Delhi was already in seisin of the custody matter—No

comity of Courts Principle to apply—When child was brought

to India no custody dispute was pending—Not in violation of

any Court’s order—Golden Rule to be followed—Welfare of

the child—Minor’s right to life and liberty guaranteed under

Article 21 of the Constitution of India—Question to decide

which parent’s care is best for the child—Petition not

allowed—Custody by Respondent No. 2 not unlawful or ill

Deepti Mandlaus v. State (Govt. of NCT of Delhi)

and Anr. .......................................................................... 453

— Article 226—Code of Criminal Procedure, 1973—Section

482—Clause 10 and 18 of Letters Patent Act—Appellant C.S.

Aggarwal, Director of M/s Rockman Projects Limited (referred

to as RPL) made a representation for the purpose of securing

investment to Mr. Sameer Kohli, director of M/s Kohli Housing

and Development Pvt. Ltd—Intended to develop one SEZ on

250 acres land situated at Delhi-Jaipur Highway owned by

RPL—Petitioner received in-principal approval from the Govt.

of India for the project—On the representation, respondent

no. 3 agreed to buy 74% shares worth Rs. 185 crores in the

Special Purpose Vehicle (SPL) formed for this purpose—MOU

was signed—Advance payment of Rs. 40 crores was made

by respondent no. 3 on the condition that either this advance

will be refunded back to him or the land of 250 acres would

be transferred in favour of him in case the SEZ notification

is not received by 31st December 2008—Subsequently an

amount of Rs. 3 crores was given to the petitioner by

respondent no. 3—No notification could be received by RPL

by 31.12.2008—Mr. D.K. Jain, the other director of RPL

issued a public notice revoking all authority given to the

petitioner to act on behalf of RPL—After expiration of the dead

line, respondent no.3 demanded his money back, but in Vain—

Respondent made a complaint, on the basis of which, FIR

no. 266/09 was registered against the appellant herein u/s 420/

406/120-B IPC—Appellant challenged the registration of FIR

and sought quashing of the same—Hon’ble Single Judge

dismissed the petition—Appellant preferred the Letter Patent

Appeal under clause 10 of the Letter Patent Act—Respondent

took a primary objection to the maintainability of the Letter

Patent Appeal on the point that judgment was passed in

exercise of criminal jurisdiction and the Letter Patent appeal

against the order is clearly barred by Clause 10 and 18 of

Letters Patent Act—Held—Proceedings under Article 226 of

the Constitution would be treated as original civil proceedings

only when it concerns civil rights—A fortiori, if it concerns

a criminal matter, then such proceedings would be original

criminal proceedings—Letter Patent would lie when the Single

Judge decides the writ petition in proceedings concerning civil

rights—On the other hand, if these proceedings are concerned

with rights in criminal law domain, then it can be said that

the Single Judge was exercising his ‘criminal jurisdiction’

(xii)(xi)

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while dealing with such a petition filed under Article 226 of

the Constitution—In a petition under Article 226 of the

Constitution when the High Court is exercising extraordinary

jurisdiction, the nature of proceedings, whether civil or

criminal, would depend upon the nature of right violated and

the nature of relief sought in the said petition—Writ of this

nature filed under Article 226 of the Constitution—Seeking

quashing of such an FIR would therefore be ‘‘criminal

proceedings’’ and while dealing with such proceedings, the

High Court exercises its ‘‘criminal jurisdiction’’—The LPAs

are barred and not maintainable—Dismissed.

C.S. Agarwal v. State & Ors. ...................................... 701

— Article 226—Petitioner industry is situated at Industrial area

Q-5-6, Ghirongi, Distt. Bhind, Malanpur in the State of

Madhya Pradesh—Assistant Commissioner of Custom, ICD,

Malanpur ordered that no draw-back facility is admissible to

the petitioner as it had by way of procuring duty free inputs

under Rule 19 (2) of the Central Excise Rules, 2002,

contravened clause (ii) of the second proviso to Rule 3 (1)

of the Central Excise Drawback Rules, 1995 and also

condition No. 7 (F) of the notification No. 68/2007-Cus (NT)

and condition No. 8 (F) of the notification No. 103/2008-Cus

(NT)—Petitioner preferred revision—Revision dismissed by

Revisionary Authority, Government of India, Ministry of

Finance, Department of Revenue—Petitioner challenged the

legal substantiality and sustainability of the order dated

09.07.2010 passed by Revisionary Authority—Division Bench

referred the matter for reconsideration by Full Bench doubting

the correctness and soundness of the decision in New India

Assurance Company Limited v. Union of India and others,

AIR 2010 Delhi 43 (FB)—Full Bench thought it appropriate

that the matter should be considered by a larger Bench—Larger

Bench constituted and matter was placed before the Larger

Bench—Controversy is pertaining to the jurisdiction of Hon’ble

High Court of Delhi in these writ petitions under Article 226—

Held—The principle of forum conveniens in its ambit and

sweep encapsulates the concept that a cause of action arising

within the jurisdiction of the Court would not itself constitute

to be the determining factor compelling the Court to entertain

the matter—While exercising jurisdiction under Articles 226

and 227 of the Constitution of India, the Court cannot be

totally oblivious of the concept of forum conveniens—The

Full Bench in New India Assurance Co. Ltd. (supra) has not

kept in view the concept of forum conveniens and has

expressed the view that if the appellate authority who has

passed the order is situated in Delhi, then the Delhi High Court

should be treated as the forum conveniens—Findings and

conclusions of the Full Bench in New India Assurance

Company Limited (supra) Modified and conclusions in

seriatim Stated as follows : (a) The finding recorded by the

Full Bench that the sole cause of action emerges at the place

or location where the tribunal/appellate authority/revisional

authority is situate and the said High Court i.e., Delhi High

Court cannot decline to entertain the writ petition as that would

amount to failure of the duty of the Court, cannot be accepted

inasmuch as such a finding is totally based on the situs of

the Tribunal/Appellate Authority/Revisional Authority totally

ignoring the concept of forum conveniens (b) Even if a

miniscule part of cause of action arises within the jurisdiction

of this court, a writ petition would be maintainable before this

Court; however, the cause of action has to be understood as

per the ratio laid down in the case of Alchemist Ltd. (c) An

order of the Appellate authority constitutes a part of cause of

action to make the writ petition maintainable in the High Court

within whose jurisdiction the appellate authority is situated—

Yet, the same may not be the singular factor to compel the

High Court to decide the matter on merits—The High Court

may refuse to exercise its discretionary jurisdiction by invoking

(xiv)(xiii)

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the doctrine of forum conveniens. (d) The conclusion that

where the appellate or revisional authority is located constitutes

the place of forum conveniens as stated in absolute terms by

the Full Bench is not correct as it will vary from case to case

and depend upon the lis in question—(e) The finding that the

court may refuse to exercise jurisdiction under Article 226 if

only the jurisdiction is invoked in a malafide manner is too

restricted/constricted as the exercise of power under Article

226 being discretionary, cannot be limited or restricted to the

ground of malafide alone—(f) While entertaining a writ petition,

the doctrine of forum conveniens and the nature of cause of

action are required to be scrutinized by the High Court

depending upon the factual matrix of each case in view of

what has been stated in Ambica Industries (supra) and Adani

Exports Ltd. (supra)—(g) The conclusion of the earlier

decision of the Full Bench in New India Assurance Company

Limited (supra) ‘‘that since the original order merges into the

appellate order, the place where the appellate authority is

located is also forum conveniens’’ is not correct—(h) Any

decision of this Court contrary to the conclusions enumerated

hereinabove stands overruled—Ex consequenti, reference

answered by partially overruling and clarifying the decision

in New India Assurance company Limited (supra) in the above

terms. Matters directed to be listed before the appropriate

Division Bench for appropriate consideration.

M/s Sterling Agro Industries Ltd. v. Union of India

& Ors. ............................................................................. 729

— Writ—Service matter—LIC (staff) Regulations, 1950—

Regulation 39—Industrial Disputes Act, 1947—Petitioner

appointed in LIC as office attendant in 1963—Posted in

Meerut Division—Became a trade unionist—Transferred to

Mhow in Madhya Pradesh in November 1978—Did not

comply with the transfer order—Letter dated 22.12.1978

directing the petitioner to join his duties at Mhow-did not join

duties-continued to address leave applications to Divisional

Office at Meerut—Again, vide letter dated 05.02.1979 asked

to join duty at Mhow-Did not join-continued to defy despite

another letter dated 21.08.1979—Pleaded illness-Panel of

medical examiners at Medical College, Meerut constituted-

petitioner challenged the constitution of panel and refused to

appear—Transfer order modified on 26.04.1980 from Mhow

to Panipat-modified order not complied with-further directed

to join duty at Panipat vide letter dated 15.05.1980—Asked

to get in touch with Dr. Aggarwal for medical examination-

did neither-resorted to hunger strike-submitted fitness

certificate dated 21.05.1980—LIC (staff) Regulation 1960—

Regulation 39 lays down procedure to hold an enquiry-holding

of enquiry dispesed with by the Zonal Manager—Charge

sheet-cum-show cause Notice proposing penalty of removal

from service under Regulation 39 (1) (f) issued on

21.06.1980—Reply not filed-kept on seeking time-vide order

dated 11.08.1980 discussing the charges and documents in

support of punishment of removal from service under

Regulation 39 (1) (f) imposed—Appeal against the order-

dismissed by the Managing Director—Memorial preferred

before the Chairman followed by apology—Writ Petition before

Allahabad High Court filed against the order dated

10.08.1980—Dismissed—Special Leave Petition filed before

the Supreme Court—Liberty given to seek fresh reference of

the dispute to labour court—Process under Industrial Disputes

Act, 1947 invoked—Reference made to CGIT—CGIT passed

award dated 16.06.1998—Award of CGIT challenged through

the Writ Petition—Held—General attitude of petitioner was that

of defiance -decision to dispense with holding of an enquiry

not taken in a hurry-Concurred with CGIT—Petition

dismissed.

S.P. Arya v. Union of India & Ors. ........................... 808

(xvi)(xv)

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CUSTOMS ACT, 1962—Notification No. 23 (RE-2010)/2009-

2014 dated 18.02.2010(ANN-P-I), Notification No. 25 (RE-

2010)/2009-2014 dated 24.03.2011 (ANN-P-II), Notification

No. 37 E (RE-2010)/2009-2014 dated 24.03.2011 (ANN-P-

III)-(impugned Notifications) Export of ‘Casein’ and ‘Casein

Products’-Petitioner manufacturer and exporter of casein and

casein products- eligible and therefore applied and obtained

permission for factory stuffing in terms of CBEC circular no.

60/2011-Cus dated 01.11.2001—Applied to jurisdictional

Central Excise Officers for examination—Goods examined

under four shipping bills on 16.02.2011, 16.02.2011,

16.02.2011 and 18.02.2011—On that very date were removed

from the factory and handed over to ICD, Tuglakabad—

Meanwhile—Impugned notifications were issued prohibiting

export of casein and casein products-AO disallowed export-

goods were presented for examination after the impugned

notifications were passed-CC(A) allowed the appeal-Goods

presented to jurisdictional Central Excise Officers is

presentation for Customs examination-Not hit by the

prohibition—Respondent challenged the order before

Tribunal—Appeal yet to be listed—No stay order—Present

writ petition filed for compliance of the order of CC(A)-

suffering demurrage-continued to be levied at escalating rate.

Held—Petitioner had completed all the formalities for

exportable goods-change of policy provision not applicable to

consignment already handed over to customs for

examination—Petitioner cannot be blamed for procedural

delay-in case the goods are exported, the Petitioner will suffer

irreparable loss as the goods cannot be re-used—Balance of

convenience lies in favour of the Petitioner—Respondents

directed to allow the Petitioner to export the goods.

M/s Bhole Baba Dairy Industries Ltd. v. Union of

India and Ors. ................................................................ 537

DELHI SIKH GURUDWARA ACT, 1971—Section 3(1), 24, 31,

32, 33, 36, 40 (2) (f)—Indian Penal Code, 1860—Section

21—Constitution of India, 1950—Article 226—Right to

Information Act, 2005—Section 2(h)—Writ filed for seeking

mandamus for reinstatement and for payment of wages,

etc.—Question of maintainability of writ petition suo moto

raised by Court—On maintainability, plea taken DSMGC is a

statutory body empowered to manage educational and other

institutions—Members of DSMGC are public servants within

meaning of Indian Penal Code—Terms and conditions of

service of employees of DSMGC have statutory force—Per

contra plea taken, petitioners ought to invoke remedy of

Industrial Disputes Act—Held—Jurisdiction over disputes

between DSGMC and its employees including past employees

is, first of District Judge and Gurudwara Act provides for a

remedy to this Court against orders of District Judge—Act

on basis of which writ remedy is invoked against DSGMC,

having itself provided a remedy for disputes as subject matter

of these writ petition, writ petitions would not be maintainable

on this ground alone—Court would ordinarily not exercise

writ jurisdiction when alternative, efficacious remedy is

available—Present petitions raise disputed questions of fact

which can be appropriately adjudicated in proceedings before

District Judge than in writ jurisdiction—Petitioners directed

to approach Departmental Appellate Authority/District Judge.

Satpal Singh v. Delhi Sikh Gurdwara Management

Committee & Anr. .......................................................... 462

ELECTRICITY ACT, 2003—Section 135—Petitioner filed

complaint against Respondents for committing offence under

Section 135 of Act on basis of raids conducted by inspection

team—All inspections carried out prior to notification of

Government of NCT empowering technical officers, Managers/

Executive Engineers and above rank officers as authorized

(xviii)(xvii)

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officers—Trial Court discharged Respondents holding

inspection in premises not made by authorized officers; so all

consequential proceedings initiated under Section 135 of Act

illegal—Respondent urged any action taken on basis of invalid

raid is nullity—Held:- An evidence even if illegally collected is

admissible in evidence, though the reliability thereof has to be

tested at time of trial—Trial Court to rehear the matter on order

of charge on basis of evidence on record and other contentions

raised by parties.

North Delhi Power Ltd. v. Surender Kumar................ 584

GUARDIAN AND WARDS ACT, 1890—Section 7—Writ of

Habeas Corpus—Petitioner, the mother seeks issuance of Writ

of Habeas Corpus directing her husband Respondent No. 2

to produce their minor son before Hon’ble High Court—

Petitioner, Respondent No. 2 and the minor son are Indian

Citizens residing in Canada since 04.04.2009—Respondent No.

2 and minor son came to India-Did not return—Before the

petitioner could move Court, respondent filed a petition under

Guardian and Wards Act and Section 6 of Hindu Minority and

Guardianship Act, 1956 for appointment of himself as sole

guardian—Petitioner moved the Superior Court of Justice, in

Canada—Held the child was an Indian Citizen—When the

Canadian Court passed the orders, the Guardianship Court in

New Delhi was already in seisin of the custody matter—No

comity of Courts Principle to apply—When child was brought

to India no custody dispute was pending—Not in violation of

any Court’s order—Golden Rule to be followed—Welfare of

the child—Minor’s right to life and liberty guaranteed under

Article 21 of the Constitution of India—Question to decide

which parent’s care is best for the child—Petition not

allowed—Custody by Respondent No. 2 not unlawful or ill

Deepti Mandlaus v. State (Govt. of NCT of Delhi)

and Anr. .......................................................................... 453

INDIAN EVIDENCE ACT, 1873—Section 73, Code of Criminal

Procedure, 1973—Section 311A, Constitution of India,

1950—Article 20—Appellants preferred appeals to challenge

their conviction under Section 302, 201, 384 read with Section

34 of Act—They urged, one of circumstance i.e. delivery of

ransom note in the handwriting of the appellant Jaipal not

proved—Also police did not have power to take accused's

handwriting under Section 73 of Indian Evidence Act—

Moreover, Section 311 A of Cr.P.C. was incorporated in the

statute book only w.e.f. 23.06.2006 and was not retrospective

in its application—Held:- Obtaining the handwriting of an

accused during investigation is not hit by Article 20 (3) of

the Constitution of India as an accused cannot be said to be

a witness against himself, if he is asked to give his handwriting

for purpose of verification of any document purported to be

in his handwriting—Some forms of testimonial acts lie outside

the scope of Article 20(3)—Obtaining appellant Jaipal's

handwriting during investigation not illegal.

Jaipal v. State................................................................. 553

INDIAN PENAL CODE, 1860—Section 398—As per

prosecution, accused with 3-4 persons came to house of

complainant to commit dacoity—Accused armed with

countrymade pistol—Other associates also armed with

weapons—Accused with associates forcibly entered house of

complainant—Complainant raised alarm—His friend PW2

sitting inside came out—Appellant fired shot and tried to flee—

Appellant caught by complainant and PW2 with pistol while

others escaped—Police recovered one countrymade pistol and

five live cartridges from accused besides one empty cartridge

in the barrel—Co-accused arrested subsequently—Trial Court

convicted accused for offence u/s 398—Held, In statement

of PW3 complainant, nowhere alleged that appellant and co-

(xx)(xix)

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accused attempted to commit robbery—PW2 only stated that

when accused along with others entered, they shouted ‘Loot

Lo Mar Do’—Accused came with intention to commit robbery

which did not fructify into an attempt and was at best

preparation—Basic ingredients of 398 not made out—Accused

acquitted—Appeal Allowed.

Swaran Singh v. State ................................................... 527

— Section 302, 201, 384, 34—Indian Evidence Act, 1873—

Section 73, Code of Criminal Procedure, 1973—Section 311A,

Constitution of India, 1950—Article 20—Appellants preferred

appeals to challenge their conviction under Section 302, 201,

384 read with Section 34 of Act—They urged, one of

circumstance i.e. delivery of ransom note in the handwriting

of the appellant Jaipal not proved—Also police did not have

power to take accused's handwriting under Section 73 of

Indian Evidence Act—Moreover, Section 311 A of Cr.P.C.

was incorporated in the statute book only w.e.f. 23.06.2006

and was not retrospective in its application—Held:- Obtaining

the handwriting of an accused during investigation is not hit

by Article 20 (3) of the Constitution of India as an accused

cannot be said to be a witness against himself, if he is asked

to give his handwriting for purpose of verification of any

document purported to be in his handwriting—Some forms

of testimonial acts lie outside the scope of Article 20(3)—

Obtaining appellant Jaipal's handwriting during investigation not

illegal.

Jaipal v. State................................................................. 553

— Section 120B, 420, 467, 468 and 471—Prevention of

Corruption Act, 1988—Section 13(1) (d) and 13(2)—

Constitution of India, 1950—Article 19(1) (a), 21, 105 (1) and

326—Petitioner, a Parliamentarian in Judicial Custody filed writ

petition for permission to attend Parliament in Judicial

Custody—Plea taken, Parliamentarian has freedom of speech

subject only to rules and standing orders regulating procedure

of Parliament none of which prevents petitioner from attending

Parliament and speaking while in custody—Constitutional right

of petitioner to participate in Parlimentary proceedings and right

to vote in Parliament as elected representative is essence and

expression of Parliamentary democracy—Parliamentary

democracy is basic feature of Constitution of India and there

is no reason for denying such participation to petitioner while

same is possible in judicial custody—Refusing participation in

Parliamentary proceedings to petitioner would deny him

opportunity to fulfill his constitutional objections to attend

proceedings of Parliament—Unless petitioner is so permitted,

Parliamentary Constituency which had elected him would go

unrepresented in Parliament—Public interest demands that

petitioner, be permitted to attend Parliament—Per contra, plea

taken offences with which petitioner is charged with are

extremely grave and serious causing huge wrongful pecuniary

benefits to certain private parties and consequent loss to public

exchequer—Some of other accused officials of the Organizing

Committee for Common Wealth Games of which petitioner

was chairman are still absconding—CBI apprehends that

petitioner may misuse liberty sought by way of present petition

to influence witnesses and tamper with evidence—Held—

Argument as raised by petitioner amounts to placing Members

of Parliament (M.P.) at a pedestal higher than their electorate—

Argument assumes work of a M.P. is more sacred and

important than work/vocation in which citizens who have

elected said Parliamentarian may be engaged in—Such

argument is archaic and creates two classes of citizens as in

a monarchy i.e. king and subject and is alien to Constitution—

Merely because petitioner is a Parliamentarian does not entitle

him to claim any exception from effect of being in detention—

It is not case of petitioner that vote of petitioner on any aspect

(xiii)(xxi)

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(xiv)(xxiii)

is vital or that without such participation citizens of his

constituency would suffer—Petitioner, in past, as per his

convenience has been missing Sessions of Parliament—When

petitioner could afford to miss parliament to spend time on

National Games or Participate in Games at China, his desire/

keenness to attend parliament can only be understood as

attempt for fresh air outside prison walls—Petitioner is not

entitled to relief claimed—Petition dismissed with costs of Rs.

1,00,000/- payable to Prime Minister’s National Relief Fund.

Suresh Kalmadi (In Judicial Custody) v. Union of

India & Ors. .................................................................. 795

— Sections 498A, Section 302, read with Section 34—Appellant

convicted under Section 498 (A) & 302 (IPC)—Trial Court

in addition to relying on the restimony of witnesses also relied

on the dying declaration recorded by the Doctor on MLC

Exhibit PW16 though rejected the dying the declaration PW5/

A recorded by PW-13 SI Raghunath Singh on the ground that

it was neither recorded in the presence of the Doctor to vouch

about the fitness of deceased nor was attested by any person

who was present at the time of recording the statement and

the statement had thumb impression in which ridges were

visible despite deceased having suffered 98% burns—Present

appeal filed by Appellants—It was observed that after the

judgment of five Judges Bench of the Supreme Court in

Laxman vs. State of Maharashtra (2002) 6 SCC 710, fitness

certificate in every dying declaration has become immaterial

and what is required to be seen is whether the person hearing

or recording the dying declaration was satisfied that the person

making the dying declaration is mentally fit—PW13’s

deposition that he had obtained fitness certificate from the

Doctor was not shaken in cross-examination to show that

deceased was not conscious—Also, there is no universal rule

that dying declaration recorded by Police Officer is unreliable

or must necessarily be made to a Magistrate—Since SDM had

expressed inability to reach Hospital and patient was critical,

it was duty of PW13 to record statement—There is also no

requirement of Law that dying declaration must be recorded

in a specified format and it is irrelevant if statement is not

recorded in question answer form—The dying declaration

Exhibit PW5/A recorded by PW3 rejected wrongly—The

dying declaration coupled with other evidence sufficient to

prove guilt of Appellants.

Dharambir & Anr. v. State ........................................... 686

— Section 21—Constitution of India, 1950—Article 226—Right

to Information Act, 2005—Section 2(h)—Writ filed for

seeking mandamus for reinstatement and for payment of

wages, etc.—Question of maintainability of writ petition suo

moto raised by Court—On maintainability, plea taken DSMGC

is a statutory body empowered to manage educational and

other institutions—Members of DSMGC are public servants

within meaning of Indian Penal Code—Terms and conditions

of service of employees of DSMGC have statutory force—

Per contra plea taken, petitioners ought to invoke remedy of

Industrial Disputes Act—Held—Jurisdiction over disputes

between DSGMC and its employees including past employees

is, first of District Judge and Gurudwara Act provides for a

remedy to this Court against orders of District Judge—Act

on basis of which writ remedy is invoked against DSGMC,

having itself provided a remedy for disputes as subject matter

of these writ petition, writ petitions would not be maintainable

on this ground alone—Court would ordinarily not exercise

writ jurisdiction when alternative, efficacious remedy is

available—Present petitions raise disputed questions of fact

which can be appropriately adjudicated in proceedings before

District Judge than in writ jurisdiction—Petitioners directed

to approach Departmental Appellate Authority/District Judge.

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(xxvi)(xxv)

Satpal Singh v. Delhi Sikh Gurdwara Management

Committee & Anr. .......................................................... 462

INDUSTRIAL DISPUTES ACT, 1947—Petitioner appointed in

LIC as office attendant in 1963—Posted in Meerut Division—

Became a trade unionist—Transferred to Mhow in Madhya

Pradesh in November 1978—Did not comply with the transfer

order—Letter dated 22.12.1978 directing the petitioner to join

his duties at Mhow-did not join duties-continued to address

leave applications to Divisional Office at Meerut—Again, vide

letter dated 05.02.1979 asked to join duty at Mhow-Did not

join-continued to defy despite another letter dated

21.08.1979—Pleaded illness-Panel of medical examiners at

Medical College, Meerut constituted-petitioner challenged the

constitution of panel and refused to appear—Transfer order

modified on 26.04.1980 from Mhow to Panipat-modified

order not complied with-further directed to join duty at Panipat

vide letter dated 15.05.1980—Asked to get in touch with Dr.

Aggarwal for medical examination-did neither-resorted to

hunger strike-submitted fitness certificate dated 21.05.1980—

LIC (staff) Regulation 1960—Regulation 39 lays down

procedure to hold an enquiry-holding of enquiry dispesed with

by the Zonal Manager—Charge sheet-cum-show cause Notice

proposing penalty of removal from service under Regulation

39 (1) (f) issued on 21.06.1980—Reply not filed-kept on

seeking time-vide order dated 11.08.1980 discussing the

charges and documents in support of punishment of removal

from service under Regulation 39 (1) (f) imposed—Appeal

against the order-dismissed by the Managing Director—

Memorial preferred before the Chairman followed by

apology—Writ Petition before Allahabad High Court filed

against the order dated 10.08.1980—Dismissed—Special

Leave Petition filed before the Supreme Court—Liberty given

to seek fresh reference of the dispute to labour court—Process

under Industrial Disputes Act, 1947 invoked—Reference made

to CGIT—CGIT passed award dated 16.06.1998—Award of

CGIT challenged through the Writ Petition—Held—General

attitude of petitioner was that of defiance -decision to dispense

with holding of an enquiry not taken in a hurry-Concurred

with CGIT—Petition dismissed.

S.P. Arya v. Union of India & Ors. ........................... 808

LETTERS PATENT ACT—Appellant C.S. Aggarwal, Director of

M/s Rockman Projects Limited (referred to as RPL) made a

representation for the purpose of securing investment to Mr.

Sameer Kohli, director of M/s Kohli Housing and Development

Pvt. Ltd—Intended to develop one SEZ on 250 acres land

situated at Delhi-Jaipur Highway owned by RPL—Petitioner

received in-principal approval from the Govt. of India for the

project—On the representation, respondent no. 3 agreed to

buy 74% shares worth Rs. 185 crores in the Special Purpose

Vehicle (SPL) formed for this purpose—MOU was signed—

Advance payment of Rs. 40 crores was made by respondent

no. 3 on the condition that either this advance will be refunded

back to him or the land of 250 acres would be transferred in

favour of him in case the SEZ notification is not received by

31st December 2008—Subsequently an amount of Rs. 3 crores

was given to the petitioner by respondent no. 3—No

notification could be received by RPL by 31.12.2008—Mr.

D.K. Jain, the other director of RPL issued a public notice

revoking all authority given to the petitioner to act on behalf

of RPL—After expiration of the dead line, respondent no.3

demanded his money back, but in Vain—Respondent made a

complaint, on the basis of which, FIR no. 266/09 was

registered against the appellant herein u/s 420/406/120-B

IPC—Appellant challenged the registration of FIR and sought

quashing of the same—Hon’ble Single Judge dismissed the

petition—Appellant preferred the Letter Patent Appeal under

clause 10 of the Letter Patent Act—Respondent took a primary

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(xxviii)(xxvii)

objection to the maintainability of the Letter Patent Appeal on

the point that judgment was passed in exercise of criminal

jurisdiction and the Letter Patent appeal against the order is

clearly barred by Clause 10 and 18 of Letters Patent Act—

Held—Proceedings under Article 226 of the Constitution

would be treated as original civil proceedings only when it

concerns civil rights—A fortiori, if it concerns a criminal

matter, then such proceedings would be original criminal

proceedings—Letter Patent would lie when the Single Judge

decides the writ petition in proceedings concerning civil

rights—On the other hand, if these proceedings are concerned

with rights in criminal law domain, then it can be said that

the Single Judge was exercising his ‘criminal jurisdiction’

while dealing with such a petition filed under Article 226 of

the Constitution—In a petition under Article 226 of the

Constitution when the High Court is exercising extraordinary

jurisdiction, the nature of proceedings, whether civil or

criminal, would depend upon the nature of right violated and

the nature of relief sought in the said petition—Writ of this

nature filed under Article 226 of the Constitution—Seeking

quashing of such an FIR would therefore be ‘‘criminal

proceedings’’ and while dealing with such proceedings, the

High Court exercises its ‘‘criminal jurisdiction’’—The LPAs

are barred and not maintainable—Dismissed.

C.S. Agarwal v. State & Ors. ...................................... 701

MOTOR VEHICLES ACT, 1988—Section 166—Three

deceased, post retirement from Indian Navy, employed with

private company on different posts, travelling together in a

Maruti Wagon R when car collided with Tata Truck—

Tribunal awarded compensation in favour of claimants of

three deceased—Contention of appellants that amount awarded

under head of “Loss of Dependency” inadequate—Held, future

prospects had wrongly not been considered—Tribunal wrongly

did not take allowances into consideration but only annual

salary after deducting 10% as income tax—All three deceased

below the age of 50 years, were mechanical engineers,

specially qualified professional persons working in the field

of their specialized capacity in permanent posts with promotion

prospects; thus future prospects should have been taken into

account—Appellants entitled for “future prospects” which

would be double of the amount of salary after deduction of

tax—Award modified with regard to “Loss of Dependency”—

Appeal allowed.

Anita Devi & Others v. United India Assurance

Co. Ltd. & Ors. ............................................................. 673

NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES

ACT, 1985—Sections 20 & 50—As per prosecution, PW10

along with PW6 and PW7 patrolling on platform at Old Delhi

Railway Station—Secret information received by PW10 that

one person was sitting near the staircase of flyover with Ganja

in iron box—Raiding party constituted and accused nabbed—

Notice u/s 50 NDPS Act given to accused—30 kg Ganja

recovered from iron box of accused out of which 1 kg. taken

as sample—Trial Court convicted accused under Section 20—

Held, notice under Section 50 NDPS not properly given as

Investigating Authority was supposed to give accused the

option of a search either before a Gazetted Officers or a

Magistrate which was not done in present case—FSL Form

never sent to FSL Malviya Nagar and not proved in Court—

Since FSL Form not sent with Samples, samples doubtful—

Sample Ganja taken of 1 kg whereas weight was found to be

910.7 gms.—No explanation as to how weight of Ganja

reduced which casts doubt on sample—IO interpolated

Malkhana Register—FSL form not sent with samples—After

sealing samples, seal not handed over to independent person

but kept with IO—Prosecution case doubtful—Accused

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(xxx)(xxix)

acquitted—Appeal Allowed.

Bijay v. The State (G.N.C.T. of Delhi) ....................... 515

NEGOTIABLE INSTRUMENTS ACT, 1881—Section 138—

Complaint u/s 138 filed—Accused convicted by trial Court and

sentenced to undergo SI for one year and fine of Rs. 5,000/

-—Criminal Revision filed before Sessions Court—Substantive

Sentence of one year SI done away with and fine enhanced

to Rs. 16,40,000/- with direction that entire fine amount be

given to complainant as compensation and in default accused

to undergo SI for one year—Fine Amount directed to be given

directly to complainant in four instalments of Rs.4,10,000/-

each—Accused filed revision before High Court—High Court

granted stay subject to deposit of Rs.10,00,000/- with

Registrar General within four weeks—Criminal Misc. Petition

for staying operation of impugned order passed by ASJ

vacated—Application u/s 424 and another application u/s 421

Cr.P.C. for sentence for imprisonment in default to be carried

out and for issuance of warrants respectively moved before

M.M.—Vide impugned order M.M. directed court notice to

be issued—Contention of applicant that trial Court should have

issued Non Bailable Warrants against convict instead of Court

notice—No question of issuing notice to convict arises

because there is no law that requires that a notice should be

given before a warrant of levy of fine is issued against the

person sentenced to fine—Trial Court directed to ensure arrest

of convict in accordance with law—Appeal Allowed.

Ashok Chachra v. The State ......................................... 789

— Section 138—Respondent no.1 filed complaint under Section

138 of Act—Aggrieved by summoning order passed by Senior

Civil Judge, petitioner preferred petition for quashing of said

order—Petitioner urged, cheque not dishonoured for reason

of insufficient funds or amount due thereon exceeded amount

arranged to be paid from account—However, there was no

discharge of legal liability of petitioner towards complainant—

Thus, case for dishonour of cheque not made out—Per contra,

Respondents urged, petitioner issued two cheques out of

which one cheque dishonoured and a legal liability on part of

petitioner existed as he had purchased shares from Respondent

and his wife—Held:- Where a cheque is dishonoured for any

reason, it has to be co-related to the insufficiency of funds in

account—Legislative intent is to stop dishonoring of cheque

and adopt a no-nonsense situation and punish the unscrupulous

person who purport to discharge this liability by issuing

cheques, not intending to honour it on account of insufficiency

of funds in their accounts—Petitioner’s contention that he had

no liability to pay, is a question of fact and can be determined

only through Trial—Petition dismissed.

M. Arun Ahluwalia v. Arun Oberoi & Anr. ............... 605

PREVENTION OF CORRUPTION ACT, 1988—Section 13(1)

(d) and 13(2)—Constitution of India, 1950—Article 19(1) (a),

21, 105 (1) and 326—Petitioner, a Parliamentarian in Judicial

Custody filed writ petition for permission to attend Parliament

in Judicial Custody—Plea taken, Parliamentarian has freedom

of speech subject only to rules and standing orders regulating

procedure of Parliament none of which prevents petitioner

from attending Parliament and speaking while in custody—

Constitutional right of petitioner to participate in Parlimentary

proceedings and right to vote in Parliament as elected

representative is essence and expression of Parliamentary

democracy—Parliamentary democracy is basic feature of

Constitution of India and there is no reason for denying such

participation to petitioner while same is possible in judicial

custody—Refusing participation in Parliamentary proceedings

to petitioner would deny him opportunity to fulfill his

constitutional objections to attend proceedings of Parliament—

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(xxxi) (xxxii)

Unless petitioner is so permitted, Parliamentary Constituency

which had elected him would go unrepresented in

Parliament—Public interest demands that petitioner, be

permitted to attend Parliament—Per contra, plea taken

offences with which petitioner is charged with are extremely

grave and serious causing huge wrongful pecuniary benefits

to certain private parties and consequent loss to public

exchequer—Some of other accused officials of the Organizing

Committee for Common Wealth Games of which petitioner

was chairman are still absconding—CBI apprehends that

petitioner may misuse liberty sought by way of present petition

to influence witnesses and tamper with evidence—Held—

Argument as raised by petitioner amounts to placing Members

of Parliament (M.P.) at a pedestal higher than their electorate—

Argument assumes work of a M.P. is more sacred and

important than work/vocation in which citizens who have

elected said Parliamentarian may be engaged in—Such

argument is archaic and creates two classes of citizens as in

a monarchy i.e. king and subject and is alien to Constitution—

Merely because petitioner is a Parliamentarian does not entitle

him to claim any exception from effect of being in detention—

It is not case of petitioner that vote of petitioner on any aspect

is vital or that without such participation citizens of his

constituency would suffer—Petitioner, in past, as per his

convenience has been missing Sessions of Parliament—When

petitioner could afford to miss parliament to spend time on

National Games or Participate in Games at China, his desire/

keenness to attend parliament can only be understood as

attempt for fresh air outside prison walls—Petitioner is not

entitled to relief claimed—Petition dismissed with costs of Rs.

1,00,000/- payable to Prime Minister’s National Relief Fund.

Suresh Kalmadi (In Judicial Custody) v. Union of

India & Ors. .................................................................. 795

— Sections 7 & 13—Appellant aggrieved by his conviction under

Section 7 & 13(1)(d) of Act, had preferred appeal and urged

no evidence against him with regard to demand or acceptance

of any bribe money from complainant—Thus, his conviction

not proper—On behalf of State argument raised, from

testimony of independent witness proved that appellant

demanded as well as accepted bribe money for doing favour

to complainant; therefore, conviction legal—Held:- Under

Section 13(1)(d), it is required to be proved that accused, as

a public servant, obtained for himself or any other person any

valuable thing or pecuniary advantage by corrupt or illegal

means or that the misused his position in obtaining for himself

or any other person any valuable thing or pecuniary

advantage—Statutory presumption under Section 20 of Act

is available for offence punishable under Section 7 or Section

11 or Clause (a) and Clause (b) of Section 13 (1) and not for

Clause (d) of Section 13 (1)—For offence under Section

13(1)(d), it will be required to be proved that some initiative

was taken by a person who receives and in that context

demand or request from him will be a pre-requisite—Appellant

rightly held guilty for offences.

R.K.P. Nishad v. C.B.I. ................................................ 635

PREVENTION OF FOOD ADULTERATION ACT, 1954—

Sections 7, 13, 16—Petitioner preferred appeal against

judgment, acquitting Respondent accused for offence

punishable under Section 7 of Act—Respondent was convicted

by learned Metroplitan Magistrate—On appeal by Respondent,

learned Additional Sessions Judge observed, sample obtained

by Food Inspector not homogeneous and consequently not

representative in character—Also, variation in reports of

Director, CFL and Public Analyst about content of adulteration

as well as in values, thus acquitted Respondent—Held:- Once

accused exercises his right under Section 13 (2) of Prevention

of Food Adulteration Act and voluntarily gets second sample

examined from Director, CFL, he does so at his own risk—

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WP(CRL)

DEEPTI MANDLAUS ....PETITIONER

VERSUS

STATE (GOVT. OF NCT OF DELHI) AND ANR. ....RESPONDENTS

(BADAR DURREZ AHMED & MANMOHAN SINGH, JJ.)

WP(CRL) NO. : 1338/2010 DATE OF DECISION: 05.04.2011

Constitution of India, 1950—Article 226, Guardian and

Wards Act, 1890—Section 7—Writ of Habeas Corpus—

Petitioner, the mother seeks issuance of Writ of Habeas

Corpus directing her husband Respondent No. 2 to

produce their minor son before Hon’ble High Court—

Petitioner, Respondent No. 2 and the minor son are

Indian Citizens residing in Canada since 04.04.2009—

Respondent No. 2 and minor son came to India-Did not

return—Before the petitioner could move Court,

respondent filed a petition under Guardian and Wards

Act and Section 6 of Hindu Minority and Guardianship

Act, 1956 for appointment of himself as sole guardian—

Petitioner moved the Superior Court of Justice, in

Canada—Held the child was an Indian Citizen—When

the Canadian Court passed the orders, the

Guardianship Court in New Delhi was already in seisin

of the custody matter—No comity of Courts Principle

to apply—When child was brought to India no custody

dispute was pending—Not in violation of any Court’s

order—Golden Rule to be followed—Welfare of the

child—Minor’s right to life and liberty guaranteed under

Article 21 of the Constitution of India—Question to

decide which parent’s care is best for the child—

Petition not allowed—Custody by Respondent No. 2

not unlawful or illegal.

Thus, none of the decisions sought to be relied upon by the

petitioner actually come to her aid. The common factors

running through those decisions are that the child was a

citizen of a foreign state and that a court of that state was

already in seisin of the custody case. Both these factors are

missing in the present case. Thus, the comity of courts

principle would not come to the aid of the petitioner. It must

also be remembered that each of this decisions have also

emphasized the golden rule in all custody matters that the

welfare of the child would be paramount. There has been

too much focus on the parents’ right to custody, when in

fact, the issue must always be addressed from the standpoint

of the child. An issue of custody of a minor is actually a facet

of the minor’s right to life guaranteed under article 21 of the

constitution of India. Irrespective of anything, the courts

have to look after the interests of the minor and not let

themselves to be sucked into the ugly battles of the minor’s

parents. It is not so much a question as to which parent

deserves to gain custody of the child as it is a question of

which parent’s care is best for the child. (Para 18)

[Ta Si]

APPEARANCES:

FOR THE PETITIONER : Mr. Sanjeev Narula with Mr. Ashish

Sharma and Ms. Sangeeta Sondhi.

FOR THE RESPONDENT : Mr. Pawan Sharma. Mr. J.P. Singh,

Sr. Advocate with Amiet Mr. Andley

and Mr. Arun Kumar Sharma.

CASES REFERRED TO:

1. Shilpa Aggarwal vs. Aviral Mittal & Anr. (2010) 1 SCC

591.

2. V. Ravi Chandran vs. Union of India & Ors. (2010) 1

SCC 174.

3. Aviral Mittal vs. State & Anr. 163(2009) DLT 627 (DB).

Deepti Mandlaus v. State (Govt. of NCT of Delhi) (Badar Durrez Ahmed, J.)

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4. Syed Saleemuddin vs. Dr Rukhsana and others. AIR 2001

SC 2172.

5. Mrs Elizabeth Dinshaw vs. Arvand M. Dinshaw & Anr.

AIR 1987 SC 3.

6. Smt Surinder Kaur Sandhu vs. Harbax Singh Sandhu &

Anr. (1984) 3 SCC 698.

RESULT: Petition dismissed.

BADAR DURREZ AHMED, J.

1. This petition on behalf of a mother (Deepti Mandlaus) seeks the

issuance of a writ of habeas corpus directing the respondents, in particular

her husband, Nitin Mandlaus (respondent no.2), to produce her minor

child, Armaan Mandlaus before this court and to further direct respondent

no.2 to hand over custody of the child to the petitioner.

2. Briefly stated, the petitioner, respondent no.2 and the child, who

are all Indian citizens, were residing in Canada since 04.04.2009 where

the petitioner and respondent no.2 were working as software professionals.

The respondent no.2 and the child came to India on a visit for the

duration 23.06.2010 to 10.08.2010. For this purpose, the petitioner, who

stayed back in Canada, had given her consent for travel of the minor son

with the father outside Canada i.e., to New Delhi, India. The Respondent

no.2 decided not to return to Canada. He got Armaan admitted to a

school in NOIDA, India and had the return tickets cancelled.

3. Before we address the legal issues which arise for consideration,

we need to set out the factual backdrop in somewhat greater detail. On

20.12.2000, the petitioner and respondent no.2 got married in New Delhi

according to Hindu rites and customs. They lived together in New Delhi.

In 2002, the respondent no.2 applied for Canadian immigration under the

‘‘skilled category — Professional Workers”. While this application for

immigration was pending, on 16.04.2004, the minor child Armaan was

born. In 2008, the Canadian authorities granted permanent immigration to

the respondent no.2 under the said category with the petitioner and their

minor child Armaan as his dependants. On 04.04.2009, the respondent

no.2 alongwith the petitioner and their minor son left India for Brampton,

Ontario, Canada. The petitioner took up a job in Toronto, Canada in June

2009. The respondent no.2 and Armaan travelled to India on 09.10.2009

and returned to Canada on 04.11.2009. The petitioner did not accompany

them on that visit and stayed back in Canada. However, the petitioner

travelled to India alone from 15.12.2009 to 26.12.2009.

4. Thereafter, certain disputes arose between the petitioner and the

respondent no.2, the details of which are not necessary for the purposes

of this petition. As mentioned above, the petitioner and the respondent

no.2 signed the Parental Travel Consent for Armaan’s trip to India between

23.06.2010 and 10.08.2010 with the respondent no.2 as the travelling

parent. The return ticket was for ‘to and fro’ flights on 23.06.2010 and

10.08.2010. Both, the respondent no.2 and Armaan, travelled to New

Delhi on 23.06.2010 but did not return to Canada on 10.08.2010, or

thereafter. In the meanwhile, on 28.07.2010, Armaan was admitted to

Class I in Lotus Valley School, NOIDA, UP, India, where he continues

to study. On 09.08.2010, respondent no.2 cancelled the return tickets for

his and his son’s journey to Canada which was to take place on 10.08.2010.

5. On the same day (09.08.2010), respondent no.2 filed a petition

( GP No. 62/2010) under section 7 of the Guardian and Wards Act, 1890

and section 6 of the Hindu Minority and Guardianship Act, 1956 before

guardianship court, Patiala House Courts, New Delhi for his appointment

as the sole guardian of Armaan. The said petition was listed before the

Court on 10.08.2010 when the said Court issued notice to the petitioner

herein for 19.11.2010.

6. In Canada, on 10.08.2010, the petitioner filed a petition (Court

File No. FS-10-69713-00) before the Superior Court of Justice, Family

Court Branch, Ontario, Canada, claiming, inter alia, the following reliefs:-

Divorce under the Divorce Act; support for child, custody of child and

restraining/non-harassment order under the Family Law Act and/or

Children’s Law Reform Act; and, exclusive possession of the matrimonial

home, freezing of assets and sale of family property. It was also prayed,

as a term of the custody order, that the respondent no.2 (Nitin Mandlaus)

shall bring back Armaan Mandlaus to the jurisdiction of the Superior

Court of Justice, Ontario. On 11.08.2010, the said court passed, inter

alia, a ‘‘without prejudice” ad-interim ex-parte order directing that Deepti

Mandlaus shall have sole custody of Armaan and as a term of the custody

order, the respondent no.2 (Nitin Mandlaus) shall bring back Armaan to

the jurisdiction of the said Court, forthwith. On 14.08.2010, the respondent

no.2 received a copy of the petition filed by the petitioner in Canada as

Deepti Mandlaus v. State (Govt. of NCT of Delhi) (Badar Durrez Ahmed, J.)

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well as a copy of the said order dated 11.08.2010.

7. On 06.09.2010, the petitioner filed the present writ petition and

the same was listed before this Court on 08.09.2010, when, notice was

issued on the petition and it was further directed that the notice issued

to respondent no.2 should indicate that he shall produce the child Armaan

before court on 16.09.2010, i.e., the next date of hearing. On 08.09.2010,

itself, the respondent no.2, perhaps oblivious of the present writ petition,

filed a civil suit [CS(OS) 1853/2010] in the Original Side of this Court

praying for an order of injunction restraining the petitioner herein from

proceeding with her petition before the Superior Court of Justice, Family

Court Branch, Ontario, Canada. On 13.09.2010, the said suit was registered.

On 15.09.2010, dasti (by hand) summons were taken. Since, the petitioner

did not appear, she was proceeded against ex-parte by virtue of an order

dated 22.09.2010 and she was also injuncted from prosecuting the petition

in Canada. Subsequently, the petitioner herein entered appearance in the

said suit and the ex-parte proceeding against her was set aside. She filed

the written statement and the suit is pending before the original side of

this Court.

8. Coming back to the present petition, on 16.09.2010 this Court,

inter alia, passed the following order:-

‘‘Renotify on 20.09.2010. In the meanwhile, without prejudice

to the rights and contentions of the parties, the petitioner as well

as the respondent No.2 are agreeable that they shall explore the

possibility of a settlement. For this purpose, they are directed to

appear before the Delhi High Court Mediation and Conciliation

Centre today itself at 4.30 p.m. We direct that Ms Sadhna

Ramachandran and Ms Maldeev Sidhu shall conduct the mediation

proceedings. The object being that the petitioner and the respondent

No.2 should, in the first instance, try to get back inasmuch as

that would be in the best interest of the minor child [Arman].’’

9. Initially, the mediation process showed promise and produced

some positive results as would be apparent from this Court’s order dated

21.09.2010. But, on 27.09.2010, the learned counsel for the petitioner

stated that there was no possibility of a settlement and that the matter be

heard on merits. The petitioner, who had come from Canada, went back

on 24.09.2010. Thereafter, the petition was heard on merits and is being

disposed of by this judgment.

10. The learned counsel for the petitioner submitted that this Court

must recognize the comity of courts principle and direct the respondent

no.2 to honour the order dated 11.08.2010 of the Canadian Court and

take the child Armaan to Canada and submit to the jurisdiction of the

Superior Court of Justice, Ontario, Canada. He placed reliance on a

number of decisions. They are:-

1. Aviral Mittal v. State & Anr: 163(2009) DLT 627

(DB);

2. Mrs Elizabeth Dinshaw v. Arvand M. Dinshaw & Anr:

AIR 1987 SC 3;

3. Smt Surinder Kaur Sandhu v. Harbax Singh Sandhu

& Anr: (1984) 3 SCC 698;

4. Shilpa Aggarwal v. Aviral Mittal & Anr: (2010) 1 SCC

591;

5. V. Ravi Chandran v. Union of India & Ors: (2010) 1

SCC 174.

11. It was also submitted that the respondent no.2 cannot be

permitted to have sole custody through subterfuge. The learned counsel

submitted that the petitioner is only asking that the respondent no.2

should return to Canada with Armaan and face the Divorce and custody

proceedings there. It was also contended that the court in Canada had

the closest connection with Armaan inasmuch as the respondent no.2

and the petitioner (and Armaan, with them) had migrated to Canada on

04.04.2009 and were living there as permanent residents. It was submitted

that the respondent no.2 betrayed the trust of the petitioner when he

cancelled the return tickets and did not return to Canada on 10.08.2010

alongwith Armaan, as promised. It was finally submitted that it would

also be in the interest of Armaan that he be taken back to Canada and

that it cannot be presumed that the petitioner, by herself, would not be

able to look after her son — Armaan.

12. Mr J.P. Sengh, senior advocate, appearing on behalf of the

respondent no.2 submitted that the most important aspect of this case is

that the minor child Armaan is an Indian citizen. In fact, all the three

persons, that is, the petitioner, the respondent no.2 and Armaan are

Deepti Mandlaus v. State (Govt. of NCT of Delhi) (Badar Durrez Ahmed, J.)

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Indian citizens and hold Indian Passports. None of them is a citizen of

Canada. It was also submitted that the petitioner and the respondent no.2

got married in India in 2000 and Armaan was born in India in 2004. They

only left for Canada on 04.04.2009. Armaan was then about 5 years old.

When respondent no.2 and Armaan travelled to India on 23.06.2010, they

had been in Canada for only 14 months. It was also submitted that both

the petitioner and respondent no.2 are IT professionals. While respondent

no.2 works from home, the petitioner has taken up a job. Mr Sengh,

further drew our attention to the petition filed by the petitioner in Canada

wherein she has indicated that support of ‘‘Day Care Services’’ would

be taken in caring for the child. It was submitted that in contrast,

respondent no.2 would be directly looking after Armaan. All of Armaan’s

grand-parents (even the petitioner’s parents) are in India. Other relatives

and friends are also in India. And, therefore, it would be in Armaan’s

interest and welfare that he is in India. In any event, it was submitted

on behalf of respondent no.2 that this petition be dismissed and the

matter be left to the Guardianship Court at Patiala House, New Delhi to

decide the issue of custody. On the strength of the Supreme Court

decision in the case of Syed Saleemuddin v. Dr Rukhsana and others:

AIR 2001 SC 2172, it was contended that unless the respondent no.2’s

custody of Armaan could be said to be unlawful or illegal and not in the

welfare of the child (Armaan), no interference of this Court by way of

exercise of its extraordinary writ jurisdiction was called for.

13. The learned counsel for the petitioner had placed great reliance

on this Court’s decision in Aviral Mittal (supra) which was affirmed by

the Supreme Court in appeal in Shilpa Aggarwal (supra). Undoubtedly,

the principle of comity of courts was recognized and the minor child was

directed to be taken back to UK for a decision as regards custody.

Although the learned counsel for the petitioner suggested that the facts

of that case and the present case are similar, we find that there is a

striking difference. In that case the minor child was born in UK and was

a citizen of UK. Here, Armaan was born in India and continues to be an

Indian citizen. Then, again, in that case there were no proceedings in

India, apart from the writ petition, but, in the present case, before the

Court in Canada passed the order dated 11.08.2010, the respondent no.2

had already invoked the jurisdiction of the Guardianship Court in New

Delhi, on 09.08.2010 and that Court had already taken up the case on

10.08.2010 when it issued notice of the petition to the petitioner herein.

As would be apparent from a reading of the decision in Aviral Mittal

(supra), particularly paragraphs 15, 16 and 20, the fact that the child in

that case was a British citizen weighed heavily with the court. The

Supreme Court, in Shilpa Aggarwal (supra), noted in paragraph 27

thereof, that it found itself placed between ‘‘two contrasting principles of

law’’ and that ‘‘of the two principles, the High Court has placed greater

reliance upon the theory of comity of nations and comity of judgments

of courts of two different countries in deciding the matter’’. The two

contrasting principles were the principle that the welfare of the child was

paramount and the comity of courts principle. The Supreme Court, while

accepting this court’s application of the comity principle in that case took

note of the fact that the UK Court was already in seisin of the matter and

that the ultimate decision as to custody ought to be left to the English

courts ‘‘having regard to the nationality of the child and the fact that

both parents had worked for gain in the UK and had also acquired

permanent resident status in the UK’’. Thus, it is clear that the fact that

the minor child was a British national and also the fact that the UK court

was already in seisin of the custody matter, weighed heavily with the

Supreme Court in upholding the application of the comity of courts

principle in the facts of that case. However, the facts here are entirely

different. Armaan was born in India and continues to be an Indian

citizen. Moreover, when the Canadian Court passed the order on

11.08.2010, the Guradianship Court in New Delhi was already seized of

the custody matter filed by the respondent no.2. Thus, no parallel can be

drawn from the Aviral Mittal (supra) and the Shilpa Aggarwal (supra)

decisions. They are clearly distinguishable.

14. In Elizabeth Dinshaw (supra), the Supreme Court, as noticed

in Aviral Mittal (supra), emphasized that in matters of custody of minor

children, the sole and predominant criterion is what would best serve the

interest and welfare of the minor. The Supreme Court also observed that

courts in all countries are bound to ensure that a parent does not gain

advantage by any wrong-doing like removing children from one country

to another. This would be hardly applicable in the present case as it

cannot be said that the respondent no.2 has gained any advantage over

the petitioner in deciding not to return to Canada with Armaan. The

petitioner, like the respondent no.2, is an Indian citizen. Her parents

reside in India as do her other relatives and friends. She is not alien to

the Indian circumstance. She has lived her entire life in India except the

Deepti Mandlaus v. State (Govt. of NCT of Delhi) (Badar Durrez Ahmed, J.)

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period post 04.04.2009.

15. Similarly, the Supreme Court decision in Smt Surinder Kaur

Sandhu (supra) is also distinguishable for the reason that the minor child

in that case was a Bristish citizen and the father was regarded by the

Supreme Court as ‘‘a man without a character’’ who had offered

solicitation to the commission of his wife’s murder! The Supreme Court,

in any event, invoking the well established principle that the welfare of

the minor is paramount, held the custody of the mother in his best

interest in the following words:-

‘‘..But, that provision cannot supersede the paramount

consideration as to what is conducive to the welfare of the

minor. As the matters are presented to us today, the boy, from

his own point of view, ought to be in the custody of the mother.’’

16. Another factor which weighed heavily with the Supreme Court

was the fact that the child in that case was a British Citizen and therefore

the Courts in England had the most intimate connection with the issue

of his custody. This facet is clearly absent in the present case as Armaan

is an Indian citizen. The character of the father, respondent no.2, is also

not in question as it was in that case.

17. The decision in V. Ravi Chandran (supra) is also a case

where the child was born in USA. The child was brought to India at a

time when a custody dispute was already pending in a court in USA and

the child was brought to India in violation of that court’s order. The

position here is entirely different.

18. Thus, none of the decisions sought to be relied upon by the

petitioner actually come to her aid. The common factors running through

those decisions are that the child was a citizen of a foreign state and that

a court of that state was already in seisin of the custody case. Both these

factors are missing in the present case. Thus, the comity of courts

principle would not come to the aid of the petitioner. It must also be

remembered that each of this decisions have also emphasized the golden

rule in all custody matters that the welfare of the child would be

paramount. There has been too much focus on the parents’ right to

custody, when in fact, the issue must always be addressed from the

standpoint of the child. An issue of custody of a minor is actually a facet

of the minor’s right to life guaranteed under article 21 of the constitution

of India. Irrespective of anything, the courts have to look after the

interests of the minor and not let themselves to be sucked into the ugly

battles of the minor’s parents. It is not so much a question as to which

parent deserves to gain custody of the child as it is a question of which

parent’s care is best for the child.

19. In view of the foregoing discussion we are not inclined to allow

the reliefs prayed for in this petition as we do not find the custody of

respondent no.2 to be unlawful or illegal. Whether it is in the best interest

and welfare of the minor will have to be decided by the guardianship

court in GP No.62/2010 pending in the Patiala House Courts, New Delhi.

It is for this reason that we have not expressed any opinion on which

of the parents of Armaan is best suited to look after his welfare. With

these observations, the petition is dismissed. In the circumstances, the

parties are left to bear their respective costs.

ILR (2011) VI DELHI 462

W.P.(C)

SATPAL SINGH ....PETITIONER

VERSUS

DELHI SIKH GURDWARA ....RESPONDENTS

MANAGEMENT COMMITTEE & ANR.

(RAJIV SAHAI ENDLAW, J.)

W.P.(C) NO. : 236/2010, DATE OF DECISION: 04.07.2011

5365/2010 AND 5229/2010

Delhi Sikh Gurudwara Act, 1971—Section 3(1), 24, 31,

32, 33, 36, 40 (2) (f)—Indian Penal Code, 1860—Section

21—Constitution of India, 1950—Article 226—Right to

Information Act, 2005—Section 2(h)—Writ filed for

Deepti Mandlaus v. State (Govt. of NCT of Delhi) (Badar Durrez Ahmed, J.)

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seeking mandamus for reinstatement and for payment

of wages, etc.—Question of maintainability of writ

petition suo moto raised by Court—On maintainability,

plea taken DSMGC is a statutory body empowered to

manage educational and other institutions—Members

of DSMGC are public servants within meaning of Indian

Penal Code—Terms and conditions of service of

employees of DSMGC have statutory force—Per contra

plea taken, petitioners ought to invoke remedy of

Industrial Disputes Act—Held—Jurisdiction over

disputes between DSGMC and its employees including

past employees is, first of District Judge and

Gurudwara Act provides for a remedy to this Court

against orders of District Judge—Act on basis of which

writ remedy is invoked against DSGMC, having itself

provided a remedy for disputes as subject matter of

these writ petition, writ petitions would not be

maintainable on this ground alone—Court would

ordinarily not exercise writ jurisdiction when

alternative, efficacious remedy is available—Present

petitions raise disputed questions of fact which can

be appropriately adjudicated in proceedings before

District Judge than in writ jurisdiction—Petitioners

directed to approach Departmental Appellate Authority/

District Judge.

Important Issue Involved: (A) Where the Act, on the

basis of which writ remedy is invoked itself provides a

remedy for the disputes as to subject matter of writ petitions,

the writ petitions would not be maintainable.

(B) Court would ordinarily not exercise jurisdiction under

Article 226 when alternative, efficacious remedy is available.

[Ar Bh]

APPEARANCES:

FOR THE PETITIONER : Mr. Raj Kumar Sherawat, Advocate.

FOR THE RESPONDENTS : Ms. Manpreet Kaur Bhasin, Advocate

for DSGMC.

CASES REFERRED TO:

1. Sh. Gurdeep Singh vs. President, Delhi Sikh Gurdwara

Management Committee MANU/DE/2013/2011.

2. Avtar Singh Hit vs. Delhi Sikh Gurdwara Management

Committee (2006) 8 SCC 487.

3. Zee Telefilms Ltd. vs. Union of India (2005) 4 SCC 649.

4. K. Krishnamacharyulu vs. Sri Venkateswara Hindu College

of Engineering 1997 SCC (L&S) 841.

5. All India Garment Exporters Common Cause Guild vs.

Union of India W.P.(C) No.5093/1998.

6. Gurdeep Singh Dua vs. Delhi Sikh Gurdwara Prabandhak

Committee 59 (1995) DLT 115.

7. Andi Mukta Sadguru Shree Muktajee Vandas Swami

Suvarna Jayanti Mahotsav Smarak Trust vs. V.R. Rudani

(1989) 2 SCC 691.

RESULT: Dismissed as not maintainable.

RAJIV SAHAI ENDLAW, J.

1. The very maintainability of the writ petitions is for adjudication.

2. The petitioner in W.P.(C) No.236/2010 claims to have been

employed as Office Superintendent with the respondent No.2 Sri Guru

Tegh Bahadur Industrial Training Centre; he claims that he was issued

a letter dated 13th August, 2009 relieving him from the respondent No.2

Centre and directing him to report to the General Manager of the

respondent No.1 Delhi Sikh Gurdwara Management Committee (DSGMC);

that though he reported to the General Manager of the respondent No.1

but was neither given any duty nor has been paid any wages thereafter.

The writ petition has been filed impugning the order dated 13th August,

2009 and seeking mandamus for reinstatement and for ˇpayment of

wages etc. Notice of the petition was issued and the pleadings got

Satpal Singh v. Delhi Sikh Gurdwara Manag. Committee (Rajiv Sahai Endlaw, J.)

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completed. The respondent No.2 Centre in its counter affidavit has stated

that since the respondent No.2 Centre was being closed down, the process

of transferring its employees to various Institutes / Centres run by the

respondent No.1 DSGMC according to their respective qualifications and

available vacancies was commenced; that the petitioner herein is surplus

and could not be adjusted anywhere inspite of attempt; that the petitioner

has also been absenting himself since 6th July, 2009 without any intimation

whatsoever and did not even report for duty as directed and is habituated

to unauthorized absence and is also guilty of serious misconduct. Rejoinder

has been filed by the petitioner to the said counter affidavit. No counter

affidavit has been filed by the respondent No.1 DSGMC. Though the

parties were referred to the Mediation Cell of this Court but without any

success.

3. The petitioner in W.P.(C) No.5365/2010 claims to have been

employed with the respondent No.1 Sri Guru Tegh Bahadur Industrial

Training Centre as a “Sewadarini” and her grievance also is that though

she ˇwas vide letter dated 13th August, 2009 relieved from the respondent

No.1 Centre and asked to report to the respondent No.2 DSGMC but

inspite of reporting to respondent No.2 DSGMC, has not been given any

duty. She seeks mandamus to the respondents to give her posting and

to pay her arrears of salary etc. Notice of the writ petition was issued.

No counter affidavit has been filed by the respondents till the question

of maintainability of the writ petition was suo moto raised by the Court.

4. The petitioner in W.P.(C) No.5992/2010 claims to have been

employed as a “Granthi” with the respondent No.1 DSGMC and claims

that on 25th November, 2009 he was suspended for alleged misbehaviour

with saints but neither any inquiry was conducted against him nor any

subsistence allowance being paid to him. He has filed this writ petition

impugning the order of his suspension and also impugning the order

dated 12th July, 2010 ordering inquiry into the charges against him. He

also seeks mandamus for reinstatement. Notice of the petition was issued.

The respondents have filed a counter affidavit pleading that the petitioner

is a ˇhabitual offender and has a chequered history and justifying the

order of suspension and inquiry into the charges against the petitioner.

5. The counsels for the petitioners were asked to address on the

maintainability of the writ petitions and have addressed their arguments.

They have contended that the DSGMC, of which each of the petitioners

is an employee, is a statutory body having been constituted vide Section

3(1) of the Delhi Sikh Gurdwaras Act, 1971 (Gurdwaras Act). Attention

is invited to Section 24 of the said Act whereunder the control, direction

and general superintendence over all the Gurdwaras and Gurdwara property

in Delhi has been vested in the DSGMC and DSGMC has also been

empowered to manage educational and other institutions. Attention is also

invited to Section 36 of the Act deeming inter alia the members of

DSGMC, the Executive Board or any other Sub-Committee and every

other officer and employee of the DSGMC to be public servants within

the meaning of Section 21 of the Indian Penal Code. Attention is also

invited to Section 40(2)(f) of the Act whereunder the terms and conditions

of service of employees of DSGMC are stated to have statutory force.

The ˇcounsels for the petitioners have also referred to several writ

petitions entertained by this Court against DSGMC. However, they agree

that the question of maintainability was neither raised nor adjudicated in

any of the said petitions. The counsels for the petitioners however referred

to the judgment dated 22nd July, 2010 of this Court in WP(C) No. 720/

2010 titled DSGMC Vs. Mohinder Singh Matharu holding that DSGMC

is a Body made by law and is a public authority within the meaning of

Section 2(h) of the RTI Act. Reference is also made to judgment dated

18th January, 2011 of this Court in W.P.(C) No.5093/1998 titled All

India Garment Exporters Common Cause Guild Vs. Union of India

holding that Apparels Export Promotion Council exercising public functions

is amenable to the jurisdiction of the High Court under Article 226 of the

Constitution of India. Attention is yet further invited to:

(a) K. Krishnamacharyulu Vs. Sri Venkateswara Hindu

College of Engineering 1997 SCC (L&S) 841 laying

down that when there is an interest created by the

Government in an institution to impart education, the

teachers who impart the education get ˇan element of

public interest in the performance of their duties and are

entitled to invoke the writ jurisdiction.

(b) Andi Mukta Sadguru Shree Muktajee Vandas Swami

Suvarna Jayanti Mahotsav Smarak Trust Vs. V.R.

Rudani (1989) 2 SCC 691 laying down that to be

enforceable by mandamus, a public duty does not

necessarily have to be one imposed by statute and it is

Satpal Singh v. Delhi Sikh Gurdwara Manag. Committee (Rajiv Sahai Endlaw, J.)

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sufficient for the duty to have been imposed by charter,

common law, custom or even contract. It was further

held that the judicial review over the fast expanding maze

of bodies affecting the rights of the people should not be

put into water-tight compartments and technicalities should

not come in the way of granting relief under Article 226

of the Constitution.

(c) Judgment dated 4th October, 2004 of the Division Bench

of this Court in Rahul Mehra Vs. Union of India holding

Board of Control for Cricket in India (BCCI) to be amenable

to writ jurisdiction.

(d) Zee Telefilms Ltd. Vs. Union of India (2005) 4 SCC

649 holding that Bodies which are creature of statute are

amenable to writ jurisdiction.

6. The counsel for the respondent DSGMC on the contrary

contended that the petitioners ought to invoke the remedy of the Industrial

Disputes Act and relies upon orders in two writ petitions preferred against

DSGMC, withdrawing the writ petitions to pursue the remedy under the

Industrial Disputes Act, 1947.

7. The counsels for the petitioners rejoined by contending that it is

not the case of the petitioners that they are workmen.

8. The counsel for the respondent DSGMC has also referred to the

Employees Service Regulations, 1992 of DSGMC enacted in exercise of

powers conferred under Section 40(2)(f) of the Gurdwaras Act and has

drawn attention to the provisions of appeal, revision and review therein.

A copy of the resolution dated 9th February, 2010 of DSGMC constituting

Justice (Retd.) T.S. Doabia as the Appellate Authority has also been

handed over.

9. Though as aforesaid, the question of maintainability of writ

petitions against DSGMC was raised but on studying the Gurdwaras Act,

I find that Part V thereof deals with “Settlement of Election and Other

Disputes” and Sections 32 & 33 under the said Part are as under:

“32. The Court of the District Judge in Delhi shall also

have jurisdiction in respect of the following matters, namely:-

(c) Petitions regarding complaints, irregularities, breach of

trust, mismanagement in any Gurdwara, educational or other

institutions against any member, office-bearer or officer or other

employee of the Committee.

(d) Petitions arising out of any type of disputes between

the Committee and its employees including past employees.

(e) Applications regarding failure of publication of, or non-

implementation or non-clearance of the objections raised in, any

annual report of the auditors of the Committee.

33. (1) Any person aggrieved by an order passed by the

District Judge may, within sixty days of the order, prefer an

appeal to the High Court at Delhi and the orders of the

High Court on such appeal shall be final and conclusive.

(2) The provisions of Section 5 and 12 of the Limitation Act,

1963, shall, so far as may be, apply to appeals under this Section.”

10. It would thus be seen that the jurisdiction over disputes between

DSGMC and its employees including past employees, as the disputes

subject matter of the present petitions are, is first of the District Judge,

Delhi and the Act also provides for a remedy to this Court against the

orders of the District Judge.

11. The Act, on the basis of which writ remedy is invoked against

the respondent DSGMC, having itself provided a remedy for the disputes

as subject matter of these writ petitions, in my view, the writ petitions

would not be maintainable on this ground alone. The remedy of the

petitioners is before the District Judge. The Act having provided a complete

machinery for adjudication of the disputes as raised by way of present

writ petitions, the writ petitions would not be maintainable. It is the

settled principle of law that this Court would ordinarily not exercise

jurisdiction under Article 226 when alternative, efficacious remedy is

available. The present petitions in any case raise disputed questions of

fact and which can be appropriately adjudicated in proceedings before

the District Judge rather than in the present jurisdiction. I have already

in ˇSh. Gurdeep Singh Vs. President, Delhi Sikh Gurdwara

Management Committee MANU/DE/2013/2011 taken a view that owing

to the said Section 32 of the Act, the writ remedy is barred.

Satpal Singh v. Delhi Sikh Gurdwara Manag. Committee (Rajiv Sahai Endlaw, J.)

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12. Though I have not found any case law qua Sections 32 & 33

(supra) of the Gurdwaras Act but I find that the Division Bench of this

Court in Gurdeep Singh Dua Vs. Delhi Sikh Gurdwara Prabandhak

Committee 59 (1995) DLT 115 in relation to Section 31 of the Act

providing for the jurisdiction of the District Judge qua election disputes,

held that ordinarily the writ remedy would not be available in the face of

the alternative remedy having been provided in the Statute itself. The

Supreme Court in Avtar Singh Hit Vs. Delhi Sikh Gurdwara

Management Committee (2006) 8 SCC 487 in relation to Section 31

has also held that the appropriate remedy is to prefer an election petition

and unless exceptional or extraordinary circumstances are disclosed

justifying recourse to extraordinary remedy under Article 226, the same

would not be maintainable.

13. I do not find any reason to take a contrary view qua Section

32.

14. I also find that the Employees Services Regulations (supra)

of DSGMC provide for appeal against all penalties imposed. Thus the

remedy of the petitioners is first by preferring the departmental appeal

provided for under the Employees Service Regulations and if still remain

aggrieved, to approach the District Judge under Section 32 (supra) of the

Act and not by way of these writ petitions.

15. The writ petitions are accordingly dismissed as not maintainable.

However, having not found any earlier judgment on the aforesaid aspect,

it is directed that subject to the petitioners approaching the Departmental

Appellate Authority within 30 days of today or if do not deem Departmental

Appellate Authority to be appropriate, the District Judge within 45 days

of today, the Departmental Appellate Authority and / or the District

Judge, as the case may be, shall entertain the appeal / petition

notwithstanding the same being barred by time / delay.

No order as to costs.

ILR (2011) VI DELHI 470

CO. APPLS.

M/S. SPICE COMMUNICATIONS ....PETITIONERS

LIMITED & ANR.

(MANMOHAN, J.)

CO. APPLS. NO. : 578–579/2011 DATE OF DECISION: 04.07.2011

& 611/2011 IN CO. PET.

NO. : 403/2009

Companies Act, 1956—Section 391 to 394—Jurisdiction

to decide the issue of arrangement of the companies—

Department of Telecommunications (DoT) filed

applications for recall of order dated 05.02.2010

allowing amalgamation of Spice Communication Limited

(Spice) with Idea Cellular Limited (Idea)—Contending

that material documents—DoT’s letter rejecting the

amalgamation and License Agreements and Merger

Guidelines 2008 (guidelines) Suppressed—Wherein it

was clearly mentioned that the prior permission of

DoT was mandatory for filing a petition for merger

before the Court-Unified Access Services License

Agreements (licenses)—Clause 6.1 and 6.2 prohibit

transfer of licences without prior permission of DoT

whereas clause 6.3 is restricted to assignment of

license agreement pursuant to approval of merger

scheme by this court under section 391-394 of the

Act—Order approving scheme has caused prejudice

to DoT Delay in filing the explanation does not

disentitle DoT from claiming reliefs sought—Petitioner-

Companies contended that DoT has no locus standi-

Under clause 6.3 of license—DoT has no say in the

merger of companies—Guidelines are law and cannot

be suppressed—However admitted correspondences

with DoT-understanding was that DoT had no

objections—DoT on the other hand had suppressed

the letters written by the petitioner Companies—no

Satpal Singh v. Delhi Sikh Gurdwara Manag. Committee (Rajiv Sahai Endlaw, J.)

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Indian Law Reports (Delhi) ILR (2011) VI Delhi471 472M/s. Spice Communications Limited & Anr. (Manmohan, J.)

decide the issue of arrangement of companies. In fact, it has

been repeatedly held by various courts that sanction under

Sections 391 to 394 of the Act is a ‘single window clearance’

for the purposes of the Act and there is no need for filing

applications under the Act for instance for change of name

of company or alteration of memorandum/articles of

association except for reduction of capital in certain

circumstances which requires a special procedure. This is

because the procedure under Sections 391 to 394 is so

elaborate that if separate independent applications under

the Act are insisted upon, it would result in unnecessary

duplication of applications and would be cumbersome. The

law on this aspect has been succinctly stated by the Bombay

High Court in Vasant Investment Corporation Ltd. v.

Official Liquidator, Colaba Land and Mill Co. Ltd. (1981)

51 Comp. Cas. 20 which following In re: Maneckchowk

and Ahmedabad Manufacturing Co. Ltd., (1970) 40

Comp. Cas. 819 (Guj.) held as under:

‘Basically, the court is given wide powers under section

391 of the Companies Act to frame a scheme for the

revival of the company. Section 391 of the Companies

Act is a complete code under which the court can

sanction a scheme containing all the alterations

required in the structure of the company for the

purpose of carrying out the scheme, except reduction

of share capital which requires a special

procedure……..The whole purpose of section 391 is

to reconstitute the company without the company

being required to make a number of applications

under the Companies Act for various alterations which

may be required in its memorandum and articles of

association for functioning as a reconstituted company

under the scheme…..” (Para 47)

The scope and ambit of Clauses 6.1 and 6.2 are totally

distinct and separate from Clause 6.3. Prior permission in

Clauses 6.1 and 6.2 gets attracted as and when transfer of

licence is to occur like in the present case of merger of two

violation of guidelines—Clause 6.3 of licenses

stipulates that approval of DoT is to be obtained only

on sanction of scheme by the High Court—Sanction

for merger of companies cannot be conditional upon

any statutory or regulatory permission. Held—High

Court alone has exclusive jurisdiction to decide the

issue of arrangement of companies merger of

companies does not result in merger of licenses but

all merger/amalgamation of companies necessarily

results in transfer of licenses for which prior

permission is required under clause 6.1 of licenses—

Prior permission under clause 6.1—Attracted in the

present case—Petitioner—Companies had suppressed

material documents to obtain unfair advantage—

Sanctioned scheme is binding on all shareholders,

creditors—DoT is a necessary party being a licensor

and regulator—Grave prejudice caused to DoT—

However delay of 13 months in filing the application

for recall of order—Not explained—Situation on

ground—Spice lost its entity—Employees have become

employees of idea—Delisted from stock exchange-not

possible to recall the order in entirety—To bring the

scheme in conformity with the guidelines—The order

was modified—Six overlapping licenses of Spice would

not stand transferred to Idea till DoT grants

permission—Overlapping licenses of Spice shall stand

transferred/vested with DoT—Spectrum allocated would

revert back to DoT—In case DoT refuses or grants

conditional approval of transfer licenses—Idea can

challenge it before TDSAT-customers to be provided

uninterrupted services in overlapping license area-

Ministry of Corporate Affairs directed to conduct study

and suggest remedial measures to ensure no party

can obtain sanction of a scheme of arrangement

without placing on record relevant materials.

On an analysis of Sections 391 to 394 of the Act, this Court

is of the view that it alone has the exclusive jurisdiction to

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independent telecommunication companies. (Para 49)

This Court is also of the view that Clauses 6.1 and 6.2 relate

to transfer of licences, whereas Clause 6.3 provides for

transfer of assignment of the licence agreement. Clause 6.3

is attracted for instance when formal transfer or arrangement

of licence agreement is sought – which will naturally happen

after scheme of merger/amalgamation is sanctioned by this

Court. The requirement of prior permission of DOT for

transfer of licences (under Clause 6.1) is of utmost

importance when licences of overlapping areas are to be

transferred like in present case and that too, when some of

the licences are not three years old. In fact, Idea’s own

understanding was that merger of companies would mean

transfer of licences as would be apparent from Idea’s own

letters dated 25th June, 2008, 15th July, 2008 and also the

application filed in the Demerger Scheme. (Para 50)

Consequently, this Court is of the opinion that permission of

DOT is required prior to scheme of amalgamation coming

into force since the effect of the said scheme is that licences

of Transferor/Spice will stand transferred to Transferee/Idea.

This Court is of the view that merger of companies does not

result in merger of licences but all merger/amalgamation of

companies necessarily results in transfer of licences—for

which prior permission is required under Clause 6.1 of the

Licence. Accordingly, the submission of petitioner-companies

that the issue of merger of companies is separate, distinct

and extraneous to the terms of the licence and merger

guidelines, is untenable in law. (Para 51)

In the opinion of this Court, suppression of a material fact or

a material document by a litigant disqualifies such a litigant

from obtaining any relief. This rule has evolved out of the

role of the Court to deter a litigant from abusing the process

of Court by deceiving it. (Para 63)

But the suppressed fact/document cannot be an irrelevant

one. It must be a material one in the sense that had it not

been suppressed, it would have had effect on the merits of

the case. It must be a matter which is material for the

consideration of the Court, whatsoever decision the Court

may ultimately take. (Para 64)

Keeping in view the aforesaid mandate of law as well as the

facts of the present case, it is apparent that non-placing of

DOT’s letters dated 7th January, 2010 and 18th January,

2010 was not an innocent act. Non-filing of the aforesaid

letters was a part of design to misdirect and mislead this

Court as would be apparent from non-filing of Licences as

well as Merger Guidelines, 2008 and correspondence

exchanged between the parties. It is pertinent to mention

that the primary business of both the petitioner-companies

pertain to telecommunication licences which were not

produced before this Court. In fact, both the petitioner-

companies did not bring to the notice of this Court that

unlike any other case in the past decided by this Court, the

present Scheme of Arrangement would result in transfer of

some overlapping licences within the prohibited period of

three years. Since this Court and the Regional Director were

not aware of the prior permission and temporary prohibition

contained in the licence conditions and merger guidelines

respectively, the petitioner-companies reliance upon this

Court’s observation with regard to post merger sanction/

approval of DOT is irrelevant. Consequently, withholding of

relevant and material documents like licences, merger

guidelines and DOT’s letters dated 7th January, 2010 and

18th January, 2010 was deliberate, intentional and with a

view to obtain an unfair advantage. (Para 67)

In the opinion of this Court it is also not necessary that there

should be direct proof of fraud, the same can be inferred

from various circumstances which are brought on record.

Even if individual facts are not able to prove a fraud, it would

be sufficient if all the circumstances taken together indicate

a fraud. (Para 68)

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The ‘design’ of the petitioner-companies is also apparent

from their subsequent conduct, i.e., after this Court had

sanctioned the merger scheme. It is pertinent to mention

that before the amalgamation scheme was sanctioned by

this Court, Idea in its own affidavit had confirmed that

approval of DOT would be taken after approval of scheme

of amalgamation by this Court, but post merger the stand of

Idea has been that DOT has no further say in the matter

and only a formal approval of transfer of licences is required

which DOT is obliged under law to give. To illustrate, Idea

vide its letter dated 31st May, 2010 addressed to DOT

stated ‘in this regard you may note that our Punjab Service

area, as stated in our application for 2.1 GHz auction,

license held by Spice Communications Limited stands

amalgamated into Idea Cellular Limited through a Court

process as per provisions of the license agreements, which

process of amalgamation has been completed. The DoT

has already been informed about the same. Hence the

Letter of Intent for Punjab too may be has to be in favour

of IDEA Cellular Limited.’ Further, Idea’s Managing Director

vide letter dated 21st December, 2010 addressed to DOT

stated ‘therefore we were surprised when we received a

letter from the DoT dated 7th January, 2010 saying the

merger of the companies cannot be permitted (18 months

after our merger announcement and 16 months after our

meeting with DoT – this letter came soon after we confirmed

the approval of Hon’ble High Court). The same was evidently

wrong and uncalled for, considering the advise for approval

given earlier and given that merger of companies is not in

the DoT‘s domain, and was appropriately responded by us.

In fact on the contrary, upon us informing DoT about

completion of the Court process of amalgamation, the DoT

ought to have issued formal orders forthwith.’ Also, Idea in

its petition bearing No. 143/2011 filed before TDSAT stated

‘once the merger is approved it mandates the DoT to give

its approval as it does not leave the DoT with any discretion

to refuse the same.’ Idea in its application for withdrawal of

demerger application being Co. Appl.(M) 98/2009 stated ‘in

light of the aforesaid sanctioning of the Scheme of

Amalgamation, the application filed by Spice before this

Hon‘ble Court for the proposed demerger of its overlapping

UASLs would not be maintainable as Spice has already

merged into the Applicant Company and the overlapping

UASLs of Spice now vest in the Applicant Company by virtue

of the Scheme of Amalgamation.’ (Para 69)

In any event, even if this Court were not to accept the plea

of dishonest intent on the part of petitioner-companies, this

Court cannot lose sight of the fact that as the sanctioned

scheme is binding on all shareholders, creditors of petitioner-

companies, the Court is obliged to examine the Scheme in

its proper perspective together with its various manifestations

and ramifications with a view to finding out whether the

scheme is fair, just and reasonable to the members

concerned and is not contrary to any law or public policy.

Though the expression ‘public policy’ is not defined in the

Act, it connotes some matter which concerns the public

good and public interest. Thus, the question that arises is

whether the petitioners had disclosed sufficient information

to this Court so as to enable it to arrive at an informed

decision, that means, whether the information supplied was

sufficient and whether the real issue was flagged before

Court and whether all relevant documents were on record

for the Court to arrive at a just decision. (See Sesa

Industries Limited Vs. Krishna H. Bajaj & Ors., (2011) 3

SCC 218). (Para 70)

The petitioner-companies’ challenge to the locus of DOT to

file the present applications is also untenable in law. DOT is

an interested/necessary party as it is both a Licensor and a

Regulator. It is pertinent to mention that at the second

motion stage in any scheme of arrangement, the Company

Court invites objections from the public at large, if any, to

the proposed scheme and the petitioner-companies’ are

obliged in law to disclose to this Court objection if any

received by them to the Scheme of Arrangement.

(Para 74)

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However, the present applications for recall of sanction

order dated 5th February, 2010 have been filed after a

delay of thirteen months. There is no plausible explanation

for the delay except for the submission that Government’s

decisions are ‘proverbially slow’. (Para 77)

In fact, today, the ‘situation at the ground’ is that Spice has

lost its entity after having been dissolved without following

the process of winding up and all its employees have

become employees of Idea. The assets and liabilities of

Spice have got vested in Idea. The shares of erstwhile Spice

have also been delisted from the relevant stock exchange.

Further, some of the shareholders of erstwhile Spice, who

had received the shares of Idea, would have also transferred

the same to third parties. Consequently, today it is not

possible for this Court to ‘unscramble the eggs’ by recalling

in its entirety the order dated 5th February, 2010 sanctioning

the Scheme of Amalgamation. (Para 78)

Consequently, to bring the sanctioned scheme, in the present

case, in conformity with the Licence and Merger Guidelines,

2008 as well as in view of the fact that simultaneous

demerger scheme has been withdrawn, it is directed that

notwithstanding anything stated in the sanctioned scheme

(in particular paras 5.2 as well as 10.2) and/or in the order

dated 5th February, 2010, the six overlapping licences of

the Transferor Company/Spice would not stand transferred

or vested with Transferee Company/Idea till prior permission

of DOT is obtained. In fact, till permission of DOT is granted,

the overlapping licences of Spice shall forthwith stand

transferred/vested with the Licensor, i.e., DOT. The spectrum

allocated for such overlapping licences shall also forthwith

revert back to DOT. In the event DOT refuses or grants

conditional approval to transfer of licences, Idea would be

entitled to challenge the same before TDSAT who would

decide the same in accordance with law after hearing both

the parties. Since the Transferee Company has used the

overlapping licences without any prior permission of DOT

from 5th February, 2010 till date in contravention of the

Licence and Merger Guidelines, it is directed that it shall be

open to DOT to pass any order for such breach. Needless

to say, any order passed by DOT can be challenged by Idea

before any competent court or tribunal. To avoid

inconvenience to public at large, DOT is directed to ensure

that cell phone customers of the two overlapping licence

areas namely, Punjab and Karnataka are provided regular

and uninterrupted services like in the past. (Para 81)

To meet the ends of justice, this Court is also of the view

that costs should be imposed on Idea for not bringing to the

notice of this Court the rejection letters dated 7th January,

2010 and 18th January, 2010 issued by DOT and for not

placing on record relevant and material documents like

Licence, Merger Guidelines and correspondence exchanged

between the parties. In the opinion of this Court, the

suppression of aforesaid documents was not an innocent

act especially in view of petitioners’ own understanding of

licences and merger guidelines as reflected in the

contemporaneous correspondences. Accordingly, this Court,

keeping in view the nature of petitioners’ business, imposes

costs of Rupees One Crore to be paid by Idea to DOT within

six weeks. It is further directed that the Ministry of Corporate

Affairs shall conduct a study with regard to special statutes,

guidelines and licences applicable to super specialised

companies like the petitioners and suggest remedial

measures to ensure that no party can obtain sanction of a

scheme of arrangement without placing on record material

and relevant documents before the Court. In fact, both the

Ministry and DOT must suggest remedial measures by which

suppression of facts and documents can be detected at the

earliest stage in a scheme filed under Sections 391 to 394

of the Act including appointment of more professionals like

Chartered Accountants, Company Secretaries and Cost

Accountants in the offices of Regional Director and Official

Liquidator. (Para 83)

477 478

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Important Issue Involved: High Court has the exclusive

jurisdiction to decide the issue of arrangement of companies.

Permission of DoT is required where merger/amalgamation

of companies necessarily results in transfer of licences.

[Sa Gh]

APPEARANCES:

FOR THE PETITIONERS : Dr. A M. Singhvi, Mr. Neeraj Kishan

Kaul and Mr. C. Vaidyanathan,

Senior Advocates with Mr. Sandeep

Singhvi, Mr. Gopal Jain, Mr. Manjul

Bajpai, Mr. Rishi Agarwala, Mr.

Ankit Shah, Mr. Aneesh Patnayak

and Mr. Rajiv Kumar, Advocates for

IDEA Cellular Limited. Mr. A.S.

Chandhiok, ASG with Ms. Maneesha

Dhir, Mr. Ritesh Kumar, K.P.S.

Kohli, Mr. Simranjeet Singh and Mr.

N. Bhavi, Advocates for DOT. Mr.

Rajiv Bahl, Advocate for Official

Liquidator.

CASES REFERRED TO:

1. Sesa Industries Limited vs. Krishna H. Bajaj & Ors.,

(2011) 3 SCC 218).

2. Meghmala and Ors. vs. G. Narasimha Reddy and Ors.,

(2010) 8 SCC 383.

3. Meghmala & Ors. vs. G. Narasimha Reddy & Ors., JT

2010 (8) SC 658.

4. A.V. Papayya Sastry and Ors. vs. Government of A.P.

and Ors., (2007) 4 SCC 221].

5. Hamza Haji vs. State of Kerala and Anr., (2006) 7 SCC

416.

6. United India Insurance Co. Ltd. vs. Rajendra Singh &

Ors. [JT 2000 (3) SC 151: AIR 2000 SC 1165].

7. Central Bank of India vs. Ambalal Sarabhai Enterprises

Ltd., (1999) 3 Comp. LJ 98 (Guj).

8. Miheer H. Mafatlal vs. Mafatlal Industries Ltd., (1997)

1 SCC 579.

9. S.P. Chengalvaraya Naidu (Dead) by LRs vs. Jagannath

(Dead) & LRs & Ors., (1994) 1 SCC 1.

10. Vasant Investment Corporation Ltd. vs. Official Liquidator,

Colaba Land and Mill Co. Ltd. (1981) 51 Comp. Cas.

20.

11. S.K. Gupta & Anr. vs. K.P. Jain & Anr., (1979) 3 SCC

54.

12. Maneckchowk and Ahmedabad Manufacturing Co. Ltd.,

(1970) 40 Comp. Cas. 819 (Guj.).

RESULT: Applications disposed of.

MANMOHAN, J.

1. Company Applications No. 578-579/2011 have been filed by the

Department of Telecommunication (in short ‘DOT’) under Rules 6 and

9 of the Companies (Court) Rules, 1959 for recall and stay of this

Court’s order dated 5th February, 2010 by virtue of which amalgamation

of Spice Communication Limited (for short ‘Spice’) with Idea Cellular

Limited (for short ‘Idea’) was allowed.

2. Upon the present applications being mentioned before the Division

Bench, the matter was directed to be listed before this Court on 30th

March, 2011. On the said date, this Court passed the following order:

“Co. Appl. 578/2011 in Co. Pet. 403/2009

Mr. A.S. Chandhiok, learned ASG has drawn my attention to

the fact that the Ministry of Telecommunication vide its letters

the dated 07 January, 2010 (page 60) and 18 January, 2010

(page 63) of the present application, had rejected the application

of Amalgamation of M/s. Spice Communication Limited with M/

s. Idea Cellular Limited.

Mr. Chandhiok further submits that these facts were to brought

to the notice of the Court on 28th January, 2010 when this

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Court had reserved the judgment in the present case.

Issue notice to non-applicants by all modes including dasti,

returnable for 25th April, 2011.

Co. Appl. 579/2011 in Co. Pet. 403/2009

Issue notice to non-applicants by all modes including dasti,

returnable for 25th April, 2011.

Keeping in view the aforesaid, the operation of order dated

05th February, 2010 is stayed till the disposal of the present

application.”

3. Thereafter Company Application No. 611/2011 was filed by the

petitioner-companies namely, Spice and Idea seeking vacation of the

aforesaid order dated 30th March, 2011. Keeping in view the urgency in

the matter, this Court, with consent of parties, decided to finally hear all

the aforesaid applications.

4. Briefly stated the relevant facts of the present case are that both

the petitioner-companies are telecommunication companies which have

been granted various Unified Access Services Licence Agreements (for

short ‘licences’) for different areas on terms and conditions mentioned

therein. The said licences have been issued under Section 4 of the

Telegraph Act, 1885. The relevant clauses of a sample Licence are

reproduced hereinbelow:

“1. Ownership of the LICENSEE Company…….

1.3 The merger of Indian companies may be permitted as long

as competition is not compromised as defined in condition 1.4

(ii).

1.4 The LICENSEE shall also ensure that:

(i) Any change in share holding shall be subject to all applicable

statutory permissions.

(ii) No single company/legal person, either directly or through

its associates, shall have substantial equity holding in more

than one Licensee Company in the same service area for

the Access Services namely; Basic, Cellular and Unified

Access Service. ‘Substantial equity’ herein will mean

equity of 10% or more’. A promoter company/Legal person

cannot have stakes in more than one Licensee Company

for the same service area……………………

xxx xxx xxx xxx

6. Restrictions on ‘Transfer of Licence’

6.1 The LICENSEE shall not, without the prior written consent

as described below of the LICENSOR, either directly or indirectly,

assign or transfer this LICENCE in any manner whatsoever to

a third party or enter into any agreement for sub-Licence and/

or partnership relating to any subject matter of the LICENCE to

any third party either in whole or in part i.e. no sub-leasing/

partnership/third party interest shall be created. Provided that the

LICENSEE can always employ or appoint agents and employees

for provision of the service.

6.2 Intra service area mergers and acquisitions as well as transfer

of licences may be allowed subject to there being not less than

three operators providing Access Services in a Service Area to

ensure healthy competition as per the guidelines issued on the

subject from time to time.

6.3 Further, the Licensee may transfer or assign the License

Agreement with prior written approval of the Licensor to be

granted on fulfillment of the following conditions and if otherwise,

no compromise in competition occurs in the provisions of Telecom

Services:

(i) When transfer or assignment is requested in accordance with

the terms and conditions on fulfillment of procedures of Tripartite

Agreement if already executed amongst the Licensor, Licensee

and Lenders; or

(ii) Whenever amalgamation or restructuring i.e. merger or de-

merger is sanctioned and approved by the High Court or Tribunal

as per the law in force; in accordance with the provisions; more

particularly Section 391 to 394 of the Companies Act, 1956; and

(iii) The transferee/assignee is fully eligible in accordance with

eligibility criteria contained in tender conditions or in any other

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document for grant of fresh license in that area and show its

willingness in writing to comply with the terms and conditions

of the license agreement including past and future roll out

obligations; and

(iv) All the past dues are fully paid till the date of transfer/

assignment by the transferor company and its associate(s)/ sister

concern(s)/ promoter(s) and thereafter the transferee company

undertakes to pay all future dues inclusive of anything remained

unpaid of the past period by the outgoing company.

xxx xxx xxx xxx

16. General

16.1 The LICENSEE shall be bound by the terms and conditions

of this Licence Agreement as well as by such orders/directions/

regulations of TRAI as per provisions of the TRAI Act, 1997 as

amended from time to time and instructions as are issued by the

Licensor/TRAI.……………...

(emphasis supplied)

5. Admittedly, the merger of aforesaid licences is subject to guidelines

issued from time to time by the Government of India. For the present

case, the Guidelines dated 22nd April, 2008 for intra service area Merger

are relevant. The relevant extract of Merger Guidelines, 2008 is reproduced

hereinbelow:

No. 20-100/2007-AS-I

Government of India

Ministry of Communications and Information Technology

Department of Telecommunications

Sanchar Bhawan, 20, Ashok Road, New Delhi

22nd April, 2008

Subject : Guidelines for intra service area Merger of Cellular

Mobile Telephone Service (CMTS)/Unified Access Services

(UAS) Licences

The intra service area Merger of CMTS/UAS Licences shall

be permitted as per the guidelines mentioned below for proper

conduct of Telegraphs and Telecommunication services, thereby

serving the public interest in general and consumer interest in

particular:

1. Prior approval of the Department of Telecommunications shall

be necessary for merger of the licence………….

xxx xxx xxx xxx

17. “Any permission for merger shall be accorded only after

completion of 3 years from the effective date of the

licences………….

(emphasis supplied)

6. It is pertinent to mention that Spice had licences for six different

areas which were overlapping with Idea. While four out of the six

overlapping licences were non-operative, two licences namely for Punjab

and Karnataka areas were operative.

7. On 25th June, 2008 Idea through its letter informs DOT that

there is a proposal to merge Spice with Idea in accordance with Sections

391 to 394 of the Companies Act, 1956 (hereinafter referred to as ‘Act’)

on receipt of all necessary approvals. In this letter, Idea admits that

merger of companies will result in vesting of Spice licences with Idea.

8. Idea vide its letter dated 15th July, 2008 seeks DOT’s opinion

as to whether overlapping licences can be merged in view of Clause 17

of the Merger Guidelines, 2008 dated 22nd April, 2008. Idea also seeks

DOT’s guidance as to whether it would be appropriate for Idea to

demerge the overlapping licences prior to merger of companies and/or

whether it would be better for Idea to surrender the non-operative

overlapping licences.

9. On 1st August, 2008, Idea reiterates that it would seek DOT’s

prior written approval as well as approval of the High Court for transferring

the overlapping Spice licences.

10. On 7th August, 2008 a meeting is held between officials of

petitioner-companies and DOT in which DOT opines that overlapping

licences should be surrendered and clarifies that in the event of surrender,

the entry fee for obtaining such licences would be non-refundable and

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the spectrum allocated for such licences would have to be surrendered.

From the Minutes of Meeting on record it is apparent that the demerger

proposal is not discussed in the said meeting.

11. On 1st December, 2008 Idea seeks DOT’s approval for demerger

of two overlapping licences for Punjab and Karnataka areas along with

already granted spectrum for the said areas.

12. On 17th October, 2008, without getting any prior permission,

Idea acquires 41.09% equity in Spice. It is pertinent to mention that this

fact is intimated for the first time to DOT vide six monthly FDI compliance

letter of Spice dated 28th January, 2009. Thereafter, Spice and Idea

repeatedly write letters to DOT claiming that acquisition of 41.09% equity

in Spice is not violative of Clause 1.4(ii) of Licences which deals with

substantial equity cross holding.

13. On 12th May, 2009, Idea intimates to DOT that it has on 11th

May, 2009 filed a restructuring scheme for demerger between Idea and

Vitesse Telecom Private Limited in the High Court of Gujarat. However,

filing of amalgamation scheme of Spice with Idea is not disclosed to

DOT. The said scheme is disclosed to DOT for the first time on 23rd

June, 2009.

14. In fact, from the documents on record it is apparent that in

May, 2009 petitioner-companies had filed four ‘mirror schemes’ in the

High Courts of Gujarat and Delhi. While two schemes are filed seeking

sanction of scheme of amalgamation of Spice with Idea, the other two

demerger schemes are filed with a view to transfer the overlapping six

licences to independent third parties namely, Vitesse Telecom Private

Limited and Claridges Communications Private Limited. The intent behind

filing the four schemes is to ensure that the merged company does not

hold more than one operative licence for any particular area.

15. However, neither in the merger application being CA(M) 99/

2009 nor in the demerger application being CA(M) 98/2009 filed in this

Court copies of licences or Merger Guidelines, 2008 or correspondence

exchanged between the parties are placed on record.

16. On 18th May, 2009, this Court allows the first motion demerger

application being CA(M) 98/2009 by directing convening of meetings of

equity shareholders, secured and unsecured creditors of Spice. The said

meetings are directed to be convened on 11th September, 2009.

17. However, during the summer vacation, upon an application

being filed by petitioner in CA(M) 98/2009 holding of meetings is deferred

as the applicant states that fresh guidelines from Ministry of

Communication and Information Technology are awaited with regard to

allocation of spectrum to telecom operators and transfer of the same.

18. On 26th November, 2009, the Gujarat High Court approves the

merger scheme between Idea and Spice.

19. On 7th January, 2010 and 18th January, 2010, DOT communicates

to Idea that merger as well as demerger as proposed by the petitioner-

companies is impermissible as some of the overlapping licences are less

than three years old. DOT in the said letters relies upon Clause 17 of the

intra service area merger guidelines dated 22nd April, 2008.

20. Idea in its reply dated 25th January, 2010 states that merger of

licences was different from merger of companies and that Clause 17 of

the Merger Guidelines, 2008 is not attracted to the present case.

21. On 28th January, 2010, this Court reserves its judgment in the

second motion petition for amalgamation being CP 403/2009. It is an

admitted position that DOT’s letters dated 7 January, 2010 and 18 January,

2010 are not brought to the notice of this Court when it reserves its

judgment.

22. On 5th February, 2010, this Court allows the aforesaid merger

petition and sanctions the scheme of amalgamation. One of the conditions

precedent for the scheme of amalgamation is that overlapping licences

would have to be transferred in accordance with the scheme of demerger.

The relevant portion of the Clause 17 of the Scheme sanctioned by this

Court is reproduced hereinbelow:-

“17. Scheme Conditional on approvals/sanctions

The Scheme is conditional upon and subject to:

xxxx xxxx xxxx xxxx

17.3 the sanction of the Scheme of Demerger-Spice and the

sanction of the Scheme of Demerger-Idea by the Courts and the

same being made effective in terms of the Scheme of Demerger-

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is placed on record at pages 167-168 of the paper book. A

perusal of the same shows that the said letter applies to the

transfer of licences in respect of internet services and the written

approval of the licencor will be granted only after the Scheme is

sanctioned by the High Court. In view thereof, the objection

raised by the Regional Director is overruled.”

24. On 11th May, 2010, petitioner-companies withdraw the demerger

scheme being CA(M) 98/2009.

25. Thereafter various petitions are filed by Idea challenging penalty

and termination orders passed by DOT in Telecom Disputes Settlement

and Appellate Tribunal (for short ‘TDSAT’). Further, Idea has also

challenged before the TDSAT the validity and legality of the letters dated

7th January, 2010 and 18th January, 2010 issued by DOT rejecting their

merger proposal. Subsequent to this Court’s order dated 05th February,

2010, the petitioner-companies took the stand in correspondence and

legal proceedings that upon the merger scheme being sanctioned by this

Court, overlapping licences stand vested in Idea and that DOT has no

other option but to grant its formal approval for transfer of licences.

26. In March, 2011 the present applications for recall and stay of

this Court’s order dated 5th February, 2011 are filed.

27. Mr. A.S. Chandhiok, learned Additional Solicitor General of

India submits that DOT’s letters dated 7th January, 2010 and 18th January,

2010, by which amalgamation of petitioner-companies is rejected, has

been suppressed from this Court. In the letter dated 7th January, 2010,

DOT states .This has reference to M/s. Idea Cellular Limited (ICL) and

M/s. Spice Communications Limited intimated to DoT vide their letter

dated 25 June 2008, July 15, 2008 and ICL letter dated July 17, 2008,

August 1, 2008, regarding proposed merger of Spice Communications

Limited with Idea Cellular Limited. Also letter dated December 1, 2008,

May 12, 2009 & June 23, 2009 from IGL regarding de-merger of 2 over

lapping licences. M/s. Spice Communications Limited having UAS Licence

in Punjab and Karnataka, M/s Idea Cellular Limited also hold UAS

licences with effective date of 25 January 2008, which is less than 3

years and M/s ICL holds CMTS Licences in Andhra Pradesh, Maharashtra,

Haryana and Delhi where M/s. Spice Communications Ltd. (SCL) also

holds UAS licence with effective date 29.02.2008 and 03.03.2008, which

Spice and the Scheme of Demerger-Idea, respectively, or such

other arrangement being made by Idea and Spice with respect to

Overlapping Idea UASLs and Overlapping Spice UASLs,

respectively, in accordance with the prevailing UASL conditions

and applicable regulations in the event the Scheme of Demerger-

Spice and the Scheme of Demerger-Idea is not pursued or that

the said Scheme of Demerger – Spice and the Scheme of

Demerger-Idea do not become effective for any reason

whatsoever..

(emphasis supplied)

23. It is pertinent to mention that during the course of hearing of

merger petition, the Regional Director (Northern Region) relies upon

DOT’s letter dated 9th June, 2003 pertaining to internet service and

thereafter, this Court observes that written approval of licensor should be

obtained after scheme is sanctioned by this Court. The relevant portion

of this Court’s order dated 5th February, 2010 is reproduced hereinbelow:

“21. The Regional Director, while referring to Para 5.2 of the

Scheme regarding transfer of licences of the transferor company

to the transferee company, has submitted that the transferee

company may be directed to obtain the necessary approvals

from the Ministry of Telecommunications for transfer of licences

after the sanction of the Scheme by this Court, since the Ministry

of Telecommunications vide letter No. 820-1/2003-LR dated

9.06.2003 has clarified that the licencee may transfer the licence

with prior written approval of the licensor, even in the case of

Scheme of Amalgamation under Section 391/394 of the Companies

Act, 1956.

22. In response to the above objection, the petitioner/ transferor

company in the affidavit dated 11th December, 2009 of Sh.

Sumit Arya, authorised signatory of the transferor company, has

submitted that the letter dated 9.06.2003 issued by the Ministry

of Telecommunications pertains to licences of internet service

and not for Telecom licences and that approval of Department

of Telecommunication is required to be taken only after approval

of the Scheme of Amalgamation by the High Court under Section

391-394 of the Companies Act, 1956. A copy of the said letter

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is less than 3 years. Therefore, as per licence condition 17 of intra circle

merger guideline dated 22.04.2008 merger of companies cannot be

permitted.” According to him, the suppression of aforesaid letters is

deliberate, with an intent to obtain transfer of licences and merger of

petitioner-companies.

28. Mr. Chandhiok further submits that both the petitioner-companies

have not only suppressed the aforesaid letters but also the Licence

Agreements and Merger Guidelines, 2008, under which prior permission

of DOT for merger of companies is mandatory. He places on record

various letters exchanged between the parties to show that petitioner-

companies have suppressed that they were in the midst of discussion of

various options with DOT including simultaneous demerger and merger

of petitioner-companies and/or surrender of overlapping licences. He points

out that petitioner-companies have also not brought to the notice of this

Court that a ‘prior issue’ had already arisen between the parties as to

whether the substantial equity clause in the Licence Agreements had been

violated.

29. In this connection, Mr. Chandhiok places reliance upon

observations of the Apex Court in S.P. Chengalvaraya Naidu (Dead)

by LRs Vs. Jagannath (Dead) & LRs & Ors., (1994) 1 SCC 1

wherein the Supreme Court has held as under:-

“5. The High Court, in our view, fell into patent error. The short

question before the High Court was whether in the facts and

circumstances of this case, Jagannath obtained the preliminary

decree by playing fraud on the court. The High Court, however,

went haywire and made observations which are wholly perverse.

We do not agree with the High Court that .there is no legal duty

cast upon the plaintiff to come to court with a true case and

prove it by true evidence.. The principle of ‘finality of litigation,

cannot be pressed to the extent of such an absurdity that it

becomes an engine of fraud in the hands of dishonest litigants.

The courts of law are meant for imparting justice between the

parties. One who comes to the court, must come with clean

hands. We are constrained to say that more often than not,

process of the court is being abused. Property-grabbers, tax-

evaders, bank-loan-dodgers and other unscrupulous persons from

all walks of life find the court-process a convenient lever to

retain the illegal gains indefinitely. We have no hesitation to say

that a person, who‘s case is based on falsehood, has no right to

approach the court. He can be summarily thrown out at any

stage of the litigation.

6. The facts of the present case leave no manner of doubt that

Jagannath obtained the preliminary decree by playing fraud on

the court. A fraud is an act of deliberate deception with the

design of securing something by taking unfair advantage of another.

It is a deception in order to gain by another’s loss. It is a

cheating intended to get an advantage. Jagannath was working as

a clerk with Chunilal Sowcar. He purchased the property in the

court auction on behalf of Chunilal Sowcar. He had, on his own

volition, executed the registered release deed (Ex. B-15) in favour

of Chunilal Sowcar regarding the property in dispute. He knew

that the appellants had paid the total decretal amount to his

master Chunilal Sowcar. Without disclosing all these facts, he

filed the suit for the partition of the property on the ground that

he had purchased the property on his own behalf and not on

behalf of Chunilal Sowcar. Non-production and even non-

mentioning of the release deed at the trial is tantamount to playing

fraud on the court. We do not agree with the observations of the

High Court that the appellants-defendants could have easily

produced the certified registered copy of Ex. B-15 and non-

suited the plaintiff. A litigant, who approaches the court, is bound

to produce all the documents executed by him which are relevant

to the litigation. If he withholds a vital document in order to gain

advantage on the other side then he would be guilty of playing

fraud on the court as well as on the opposite party.”

30. Mr. Chandhiok further submits that without prior permission of

DOT, the petition for merger of petitioner-companies could not have

been filed before this Court. In this connection, he draws the attention

of this Court to Clauses 1.3, 1.4 and 6 of Licence which, according to

him, entail that prior to merger of companies, permission is required to

be taken from DOT. According to him, Clauses 6.1 and 6.2 of Licence,

while dealing with transfer of licences, prohibit transfer of licences without

prior permission of DOT/Licensor. He clarifies that after approval of

merger under Sections 391-394 of the Act, Clause 6.3 provides for

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transfer or assignment of agreement. He submits that under the scheme

of the licence, prior permission having been obtained under Clauses 6.1

and 6.2, the scope of 6.3 is restricted to assignment of licence agreement

pursuant to approval of merger scheme by this Court under Sections

391-394 of the Act. Mr. Chandhiok lays emphasis on the petitioner’s

own letter dated 1st August, 2009 to show that petitioner’s own

understanding is that prior permission of DOT is required under Clause

6.

31. Without prejudice to his interpretation of Clauses 6.1, 6.2 and

6.3, Mr. Chandhiok submits that after the Merger Guidelines, 2008 have

come into force, prior permission is required for merger of companies.

32. Mr. Chandhiok submits that this Court’s order approving scheme

of amalgamation has caused grave prejudice to DOT. He submits that in

accordance with Clause 17 of the merger guidelines, transfer of licences

and/or merger of petitioner companies is not permissible prior to 25th

January, 2011. He points out that this Court’s order granting merger of

petitioner-companies is being used by petitioner-companies to contend

that once merger has been approved by the Company Court, all violations

prior to that date of various clauses of licences and of guidelines have

ceased to exist.

33. He also submits that delay in filing the application for recall

does not disentitle DOT from claiming the reliefs sought for in the

present application. He points out that the Gujarat High Court in Central

Bank of India Vs. Ambalal Sarabhai Enterprises Ltd., (1999) 3

Comp. LJ 98 (Guj) had not only entertained an application filed after four

years for recall of the amalgamation scheme but had also set aside the

amalgamation order ten years after the scheme had been sanctioned. In

this connection, he refers to and relies upon the following observations

of the Gujarat High Court:

“24. The main contention raised on behalf of the respondent is

that the appellants are contending that the order in question is

obtained by playing fraud and that claim of the appellants could

not be entertained in the appeal and that they will have to go for

a separate proceeding by way of filing a suit to challenge the

order. We would like to mention here that when the appeal is

admitted under the law, appeal amounts to the continuation of

the original proceeding. Therefore, when the appeal is the

continuation of the original proceeding, it is open for a party to

show that the party which has obtained an order or seeking an

order has played or playing fraud on the court. When there is an

allegation of fraud, it must be always remembered that there

could not be a direct proof of fraud. The fraud will have to be

inferred from the various circumstances which have to be brought

on record by a party. Each circumstance may not be sufficient

to prove a fraud, but all the circumstances taken together may

indicate the fraud. It is always open to a party to show to the

court that the party which is seeking an order in his favour is

playing fraud on the court. Similarly, it must be also mentioned

that the provisions of sections 391 and 392 confer wide powers

on the courts and those powers are exercisable not at the time

of making order under section 391 but also at any time thereafter,

because the courts have wider statutory powers and responsibility

in order to see as to whether the working of arrangement scheme

is in the best interest of the persons who are to be principally

effected, i.e., the shareholders and the creditors, and, therefore,

subsequent conduct of the respondent No.1 ASE after passing of

the order by the learned Company Judge on 24 December, 1987,

could be taken into consideration by this Court while considering

these appeals. We have quoted above the correspondence between

ASE and the banks. The same clearly shows that the banks had

laid a condition that ASE to continue as guarantor even after the

approval of the arrangement/ amalgamation scheme till some

arrangement to the satisfaction of the banks is made. When ASE

had showed in the affidavits in support of the petition as well as

in the petition that they have obtained consent of the secured

creditors—the banks, it is obvious that the consent is on account

of ASE accepting to be a guarantor even after the approval of

the scheme. But when ASE refuses that position after the

approval, it is clear case of ASE playing fraud on the court as

well as the banks.

25. It was vehemently urged before us that the appellant will

have to go before a regular court to establish its claim of fraud

and that claim could not be considered in these appeals. At the

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cost of repetition, it must be stated that the appeal is continuation

of the original proceeding, it is always open for a party to show

that the opposite party is playing fraud on the court and is

misleading the court and trying to obtain order in his favour. For

that purpose, it is not necessary for him to take a separate

proceeding. Therefore, we are unable to accept that contention

of the respondent. In our opinion, by not producing the latest

audited accounts and balance sheet of the company and by not

putting on record the actual agreement which took place between

ASE and the banks – secured creditors and by making a false

statement that secured and unsecured creditors have approved

the scheme, the respondent had played fraud on the court. We,

therefore, hold that the order passed by the learned Company

Judge was obtained by the respondent by playing fraud.

26. At the time of arguing these appeals, the learned advocate for

the respondent had made it clear that it was not at all possible

for the respondent to have rethinking on the said scheme and to

get reapproval for the said scheme. Therefore, in the

circumstances, there is no alternative other than rejecting the

scheme of arrangement and amalgamation. Thus, we hold that

the present appeals will have to be allowed and the schemes put

forth by the petitioner in Company Petitions Nos. 90/86 and 91/

86 will have to be rejected.”

34. On the other hand, Dr. A.M. Singhvi, learned senior counsel for

petitioner-companies submits that DOT has no locus standi to file the

present applications as it is neither a shareholder nor a creditor of erstwhile

Spice. He further submits that the case set out by learned ASG during

the course of arguments that DOT is a creditor of Idea is an afterthought

inasmuch as this fact has not been averred in the applications filed by

DOT. He also points out that DOT has never claimed to be a creditor

and it never approached this Court at the initial stage even though it was

well aware of the merger process since its inception. According to him,

mere condition for payment of periodic licence fee and/or spectrum

charges does not make DOT a creditor of Idea/Spice. He further submits

that even assuming that the DOT is a creditor, it has to show that it was

affected by the Scheme in its capacity as an alleged creditor of erstwhile

Spice. In this connection, Dr. Singhvi relies upon the judgments of

different High Courts namely, In Re: Hindalco Industries Limited,

Company Petition No. 293 of 2009 (Bom.) decided on 22nd June, 2009,

In Re: SIEL Limited, (2004) 122 Comp Cas. 536 (Del.) and Sequent

Scientific Ltd., (2009) 151 Comp Cas. 1 (Bom.).

35. Dr. Singhvi further submits that every non-disclosure does not

amount to suppression. According to him, the omission to place on

record letters dated 7th January, 2010 and 18th January, 2010 is an innocent

act without effect since DOT has no jurisdiction or authority to reject the

merger of companies. Dr. Singhvi vehemently submits that merger of

licences and merger of companies are separate, distinct, mutually exclusive

and non-overlapping. According to him, Clause 6.3 of the Licence

Agreement makes it clear beyond doubt that DOT has no say in the

merger of companies and can only adjudicate on the merger of licences.

36. Dr. Singhvi submits that licence agreement and merger guidelines

are public documents that constitute ‘law’ which are incapable of being

suppressed. According to him, suppression can only be of facts and not

of documents.

37. Dr. Singhvi refers to the correspondence exchanged between

the parties to contend that on 25th June, 2008 itself Idea had informed

DOT about the proposed merger and thereafter Spice/Idea addressed

various letters intimating DOT about different options including surrender

of non-operative overlapping licences as well as simultaneous merger and

demerger of companies. He also states that a meeting was held with high

ranking officers of DOT and Idea on 7th August, 2008 wherein all points

regarding the merger guidelines and licence conditions were exhaustively

discussed and considered. According to him, in the said meeting, DOT

raised no objection to the merger or the proposed course of action

suggested by Spice/Idea and accordingly, petitioner-companies proceeded

with the merger process on the understanding that DOT had no objections

whatsoever. Dr. Singhvi clarifies that it is not the claim of petitioner-

companies that there is an automatic merger of licences in view of

sanction of merger of companies by the Court. He relies upon the

observations of this Court in order dated 05th February, 2010 as

reproduced in para 23 hereinabove and states that, if required, this Court

may issue necessary clarifications protecting the interest of both petitioner-

companies as well as DOT.

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Indian Law Reports (Delhi) ILR (2011) VI Delhi495 496M/s. Spice Communications Limited & Anr. (Manmohan, J.)

38. Dr. Singhvi also submits that DOT has suppressed material

facts and has approached this Court with unclean hands while filing the

present proceedings. He contends that DOT has suppressed the petitioners’

letter dated 25th January, 2010 sent in reply to the DOT’s letter dated 7th

January, 2010 wherein the petitioner-companies have clarified that the

DOT has no jurisdiction in respect of merger of companies. He emphasises

that DOT has suppressed from this Court the factum of meeting held on

7th August, 2008 between senior officers of DOT and petitioner-companies

wherein all points regarding merger guidelines and licence conditions

were exhaustively considered. Since considerable emphasis is laid by Dr.

Singhvi on the Minutes of Meeting dated 7th August, 2008, this Court had

asked learned Additional Solicitor General to produce the DOT’s file. The

Minutes of Meeting dated 7th August, 2008 are reproduced hereinbelow:-

“Reference note from pre-page.

2. A meeting was held on 7th August, 2008 under the

chairmanship of Secretary (T) attending by Member(T), DDG(AS-

I) and DDG(AS-II) with Managing Director of Idea, Mr. Sanjeev

Aga, representative of Idea, Shri Rajat Mukherjee and Shri Rahul

Vats.

3. Provisions of Guidelines for intra service area Merger of

Cellular Mobile Telephone Service (CMTS)/Unified Access

Services (UAS) Licences were noted.

4. It was observed that clause 17 states that any permission for

merger shall be accorded after three years from effective date of

licence. The opinion of Legal Adviser is based on Clause 17.

However, clause 18 states that during all licences of the merged

entity in the respective service area will be equal to the remaining

duration of the all merging licences whichever is less on the date

of merger. The merger, in fact, is not of the licenses but of the

companies in pursuance of Section 391 and 239(4) of the

Companies Act. Reading the clause 17 with clause 18, it can be

inferred that the intent is not to bar transfer of licences consequent

upon merger of companies which are otherwise more than three

years old, but the duration of the licences of the merged entity

will be equal to the remaining duration of the licences of the two

merging licences whichever is less on the date of merger.

Therefore, it will not be appropriate to impose a self-restriction

in the instant case.

5. Further, the same objective can be achieved by surrendering

one of the licences, transferring the subscribers to the other

entity. In case of surrender of licence, the spectrum returns to

the Government and can be allocated to the licence to which

subscribers have migrated based upon the subscriber criteria. In

the event of merger also, the excess spectrum held by the merged

entity has to be returned to the Government within a stipulated

period of three months. Therefore, in both the cases, any excess

spectrum is being returned to the Government and it does not

remain an issue.

6. As regards entry fee paid for obtaining such licences, it was

clarified that entry fee is non-refundable.

7. Shri Ajay Chakraborty, Hon‘ble M.P.(LS) has addressed

Hon‘ble MOC&IT on the subject vide PUC-I and PUC-II. It has

been stated that as per para 17 of the guidelines dated 22nd

April, 2008 clearly specifies that any permission for merger shall

be accorded only after completion of 3 years from the effective

date of the license. Since both Spice Communications and Idea

Communications do not meet this requirement, hence, the merger

violates Intra-Circle Merger Guidelines. Further, the case for

surrender of license or refund of entry fee should not be

considered.

8. In the second letter dated 21st July, 2008, it has been stated

that the merger and acquisition should not take place in blatant

violation of existing policy norms and a proper investigation be

initiated and policy compliance made mandatory at all costs.

9. The issue regarding merger of licences was discussed as

indicated in para 4 and 5 above. Further, surrender of licence is

permitted and there is no bar. However, the entry fee is not

refundable in any case. A draft reply to the Hon‘ble MP on the

above lines is placed below 20/C.

Submitted for kind consideration and approval of proposal in

para 9 please.

Sd/-20/8/08

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(P.K. Mittal)

DDG(AS-II)

DDG(AS-I) Sd/-20/8/08

Member(T) Sd/-20/8

Secretary Sd/-22/8/2008

Hon‘ble MOC&IT Sd/-28/8/2008.

39. In fact, Dr. Singhvi points out that DOT has suppressed from

this Court that the same Department had permitted Idea to participate in

the 3G Spectrum bid subsequent to sanction of merger Scheme.

40. Dr. Singhvi also submits that DOT is not entitled to seek

adjudication of disputes by this Court under Sections 391 to 394 of the

Act in respect of issues which are already pending adjudication before

TDSAT. He submits that by virtue of Section 14 of the Telecom

Regulatory Authority of India Act, 1997 (in short ‘TRAI Act’), all issues

relating to licences as well as merger guidelines can be adjudicated only

by TDSAT and this Court should not hold any enquiry or go into the

questions which are pending before TDSAT.

41. Dr. Singhvi further submits that the petitioner companies have

not violated any licence conditions/guidelines. According to him, in the

present case as the overlapping licences are non-operational, the purport

of Clause 1.3 of the licence is not attracted and the raison d‘etre for

Clause 1.4 (ii) does not exist. He further submits that Clause 17 of the

merger guidelines is violative of Section 11(a) of the TRAI Act. Without

prejudice to the aforesaid, he submits that as the three years’ bar in

respect of new licences is today over, DOT is obliged to merge the

licence.

42. According to him Clause 6.3 clearly stipulates that approval of

DOT for merger of licences is to be obtained only on sanction of the

scheme of merger of companies by the High Court. He submits that if

Clause 6 of the licence condition read with Clause 1 of the guidelines

dated 22nd April, 2008 is read as sought by DOT, then Clause 6.3 of the

licence will become otiose.

43. Dr. Singhvi points out that DOT while approaching this Court

on 30th March, 2011 has failed to comply with the mandatory provisions

of Rule 19 of Companies (Court) Rules, 1959, inasmuch as it has not

served an advance copy of the applications on the petitioner-companies.

44. Dr. Singhvi further states that DOT has not made even a single

averment in its applications or disclosed any fact about the urgency for

passing of ex-parte order more particularly when it has approached this

Court after a gap of more than 12 months from the date of sanctioning

of the Scheme. Dr. Singhvi also submits that the judgment of Division

Bench in Central Bank of India Vs. Ambalal Sarabhai Enterprises Ltd.

(supra) has been set aside by the Supreme Court vide its judgment and

order dated 20th November, 2003. The passages of said judgment and

order relied upon by Dr. Singhvi are reproduced hereinbelow:

“The question then arises whether the Scheme is to be maintained.

In deciding this question, we have to keep in mind the fact that

the Scheme was sanctioned as far back on 24th December,

1987. The banks were well aware that the Scheme has been so

sanctioned. They did not immediately move to have the Scheme

set aside. After the Scheme was sanctioned, the lead bank carried

on corresponding with ASE. A meeting of the consortium of

banks was held where, except for Citi Bank and New Bank of

India no other bank objected to the Scheme having been

sanctioned. Thereafter two banks, namely, Bank of Baroda and

Central Bank participated in the proceedings before the BIFR.

After almost a year these two banks asked for a guarantee from

ASE. This came to be refused by a letter dated 16th January,

1989. It is only thereafter that these two banks filed the suit on

29 June, 1989. They filed their appeal on 9th March, 1990. They

took out an application for condonation of delay three years

thereafter. Undoubtedly delay has been condoned, but the facts

still remain that in the meantime, third party rights have been

created to the knowledge of the bank.

In our view, it would not be equitable at this stage to set aside

the Scheme. At the same time the interest of these two banks

must be protected. Before reorganisation they had security of all

assets of ASE. By and under the Scheme their security is confined

to assets of SSL. Central Bank was thus right in insisting on a

guarantee by ASE. We are quite sure that had the Company fairly

pointed out to the learned Single Judge that the consent was a

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Indian Law Reports (Delhi) ILR (2011) VI Delhi499 500M/s. Spice Communications Limited & Anr. (Manmohan, J.)

Rs.5.00 lakhs

conditional consent, in the Scheme itself a condition regarding

giving of a guarantee by ASE for all dues of the Swastik Household

and Industrial Products Limited would have been incorporated.

In our view it would be equitable, under these circumstances, to

set aside the impugned judgment and maintain the order sanctioning

the Scheme with an additional condition of the Scheme that ASE

shall execute within one month from today a guarantee as required

by Central Bank. We are unable to accept submission that the

Central Bank was only asking for a guarantee for its dues. A

plain reading of the letter of Central Bank shows that it was

asking for a guarantee to cover of the Swastik Division and for

losses of the new company i.e. SSL. It is now admitted that the

suit filed by these two Banks is for recovery of losses of the

Swastik Division. Therefore, in our view, ASE must execute a

guarantee guaranteeing the dues in Suit No. 2520/1989 filed by

these two banks and which is pending before the Debts Recovery

Tribunal, Mumbai. We so direct. The guarantee shall be executed

within one month from today. On such guarantee being executed

the impugned judgment will stand set aside and the order

sanctioning Scheme with the additional condition set out

hereinabove shall stand approved. In the event of a guarantee not

being executed within time aforesaid, these Appeals shall stand

dismissed without any further orders. With these directions, these

Appeals stand disposed of. There will be no order as to costs.”

45. Dr. Singhvi lastly submits that balance of convenience is entirely

in favour of petitioner-companies and against DOT. He states that even

though the dispute between the parties is only in respect of six over

lapping licences (four belonging to erstwhile Spice and two belonging to

Idea), the DOT is virtually seeking stay of business of merged entity by

seeking stay of order dated 5th February, 2010 passed by this Court.

46. Having heard the parties at length, this Court would first like

to examine the extreme stand taken by both the parties, namely, DOT’s

submission that the present petition for merger could not have been filed

before this Court and petitioner-companies’ submission that that this

Court cannot make the sanction for merger of companies conditional

upon any statutory or regulatory permission.

47. On an analysis of Sections 391 to 394 of the Act, this Court

is of the view that it alone has the exclusive jurisdiction to decide the

issue of arrangement of companies. In fact, it has been repeatedly held

by various courts that sanction under Sections 391 to 394 of the Act is

a ‘single window clearance’ for the purposes of the Act and there is no

need for filing applications under the Act for instance for change of name

of company or alteration of memorandum/articles of association except

for reduction of capital in certain circumstances which requires a special

procedure. This is because the procedure under Sections 391 to 394 is

so elaborate that if separate independent applications under the Act are

insisted upon, it would result in unnecessary duplication of applications

and would be cumbersome. The law on this aspect has been succinctly

stated by the Bombay High Court in Vasant Investment Corporation

Ltd. v. Official Liquidator, Colaba Land and Mill Co. Ltd. (1981) 51

Comp. Cas. 20 which following In re: Maneckchowk and Ahmedabad

Manufacturing Co. Ltd., (1970) 40 Comp. Cas. 819 (Guj.) held as

under:

‘Basically, the court is given wide powers under section 391 of

the Companies Act to frame a scheme for the revival of the

company. Section 391 of the Companies Act is a complete code

under which the court can sanction a scheme containing all the

alterations required in the structure of the company for the

purpose of carrying out the scheme, except reduction of share

capital which requires a special procedure……..The whole

purpose of section 391 is to reconstitute the company without

the company being required to make a number of applications

under the Companies Act for various alterations which may be

required in its memorandum and articles of association for

functioning as a reconstituted company under the scheme…..”

48. But, in the opinion of this Court, this does not mean that if

some permission is required under any separate statute or licence, then

the same would not be obtained. This Court while sanctioning the scheme

can always stipulate that the scheme will come into effect only when

other statutory and contractual permissions have been obtained. Also, if

there is a prohibition of a particular time period on transfer of an asset,

then the Court can even adjourn the amalgamation proceedings till the

‘eclipse period’ is over. To hold otherwise would amount to not only

conferring supremacy on the Act vis-à-vis other statues/contracts, but

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would also amount to rendering nugatory other statutory and contractual

provisions – which the Act does not provide.

49. The scope and ambit of Clauses 6.1 and 6.2 are totally distinct

and separate from Clause 6.3. Prior permission in Clauses 6.1 and 6.2

gets attracted as and when transfer of licence is to occur like in the

present case of merger of two independent telecommunication companies.

50. This Court is also of the view that Clauses 6.1 and 6.2 relate

to transfer of licences, whereas Clause 6.3 provides for transfer of

assignment of the licence agreement. Clause 6.3 is attracted for instance

when formal transfer or arrangement of licence agreement is sought –

which will naturally happen after scheme of merger/amalgamation is

sanctioned by this Court. The requirement of prior permission of DOT

for transfer of licences (under Clause 6.1) is of utmost importance when

licences of overlapping areas are to be transferred like in present case

and that too, when some of the licences are not three years old. In fact,

Idea’s own understanding was that merger of companies would mean

transfer of licences as would be apparent from Idea’s own letters dated

25th June, 2008, 15th July, 2008 and also the application filed in the

Demerger Scheme.

51. Consequently, this Court is of the opinion that permission of

DOT is required prior to scheme of amalgamation coming into force

since the effect of the said scheme is that licences of Transferor/Spice

will stand transferred to Transferee/Idea. This Court is of the view that

merger of companies does not result in merger of licences but all merger/

amalgamation of companies necessarily results in transfer of licences—

for which prior permission is required under Clause 6.1 of the Licence.

Accordingly, the submission of petitioner-companies that the issue of

merger of companies is separate, distinct and extraneous to the terms of

the licence and merger guidelines, is untenable in law.

52. Dr. Singhvi’s submission that petitioner-companies have not

used overlapping licences is contrary to facts as it is an admitted position

that after the merger order dated 05th February, 2010, it is Transferee/

Idea who is using the Transferor/Spice’s licences for Karnataka and

Punjab circles.

53. Moreover, the submissions that petitioner-companies have

simultaneously not used two overlapping licences, does not impress this

Court inasmuch as non roll-out of licence obligations within a particular

time frame itself makes the licencee liable to pay compensation and

penalties. Also holding of two licences simultaneously by a company,

even if one of the licences is non-operative, prevents competition.

Consequently, in the opinion of this Court, a breach of licence condition

cannot be accepted as a ‘virtue’ – as is being sought to be submitted in

the present case by petitioner-companies.

54. Dr. Singhvi’s further submission that this Court should not

interpret the provisions of the licence and merger guidelines as this

jurisdiction vests with TDSAT, is both misconceived on facts and untenable

in law. To arrive at a conclusion that there is no impediment to the

amalgamation of companies and/or that no fraud has been played upon

this Court, this Court is vested with wide powers including interpretation

of other laws, interpretation of terms and conditions of licences etc.

55. As far as issue of non-service of advance copy of the application

is concerned, this Court is of the view that there is no requirement for

serving an advance copy in a disposed of matter. In any event, today this

order is being passed after hearing both the parties at length.

56. The further contention of Dr. Singhvi that petitioner-companies

proceeded with the merger process on the understanding that DOT has

no objection, is contrary to record. On a careful perusal of the documents

placed on record it is apparent that petitioner-companies were sitting on

the fence and were giving various proposals to DOT on different dates

with regard to merger, demerger and also qua surrendering of overlapping

licences.

57. From the documents on record it is apparent that petitioner-

companies did not accept DOT’s suggestion in the meeting held on 7th

August, 2008 of surrender of overlapping licences along with return of

spectrum and non-refund of licence fee. It is pertinent to mention that

after the meeting dated 07th August, 2008, Transferee/Idea not only filed

the Scheme for Demerger to facilitate transfer of overlapping licences to

third parties namely, Vitesee Telecom Private Limited and Claridges

Communications Private Limited but also accepted spectrum in the year

1st 2008 and 2009 in licences it proposed to surrender. In fact, on

December, 2008, much after the alleged consensual meeting dated 7th

August, 2008, Idea had sought prior permission of DOT for demerger

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of two overlapping licences. If permission had been granted by DOT on

7th August, 2008 as claimed by the petitioner-companies, then it is not

understood as to why Idea sought prior permission for demerger in

2008. Even the demerger plan was given up by petitioner-companies

after they obtained sanction for merger of Spice with Idea!

58. It is also not understood as to how DOT’s consent in August,

2008 could be claimed for transfer of overlapping licences to Idea when

the Scheme itself proposed by Idea and sanctioned by this Court on 5th

February, 2010 states in para 17.3 that the said Scheme is conditional on

approval/sanction of demerger of overlapping licences of Spice and Idea

to third companies namely, Vitesse Telecom Private Limited and Claridges

Communications Private Limited. In fact, in the opinion of this Court, the

petitioner-companies are today in violation of their own scheme!

59. It may also be noted that Mr. Chandhiok has pointed out that

Idea has not been allocated 3G Spectrum licences in Punjab Service areas

in view of the alleged violation. It was also stated at the bar that Idea has

challenged the non-allocation of 3G Spectrum in Punjab before TDSAT.

60. Before this Court decides the heart of the controversy, namely,

as to whether there is suppression and/or fraud played upon the Court,

this Court is of the view that it is essential to clearly outline what the

aforesaid concepts mean and whether every non-disclosure of a document

constitutes suppression.

61. In fact, the Supreme Court in its various judgments has dealt

with the aforesaid concepts at length. In Hamza Haji Vs. State of

Kerala and Anr., (2006) 7 SCC 416, the Supreme Court has held as

under:-

“10. It is true, as observed by De Grey, C.J., in R. v. Duchess

of Kingston that:

“‘Fraud’ is an extrinsic, collateral act, which vitiates the most

solemn proceedings of courts of justice. Lord Coke says it avoids

all judicial acts ecclesiastical and temporal.”

11. In Kerr on Fraud and Mistake, it is stated that:

“In applying this rule, it matters not whether the judgment

impugned has been pronounced by an inferior or by the highest

court of judicature in the realm, but in all cases alike it is

competent for every court, whether superior or inferior, to treat

as a nullity any judgment which can be clearly shown to have

been obtained by manifest fraud.”

xxxx xxxx xxxx xxxx

15. The law in India is not different. Section 44 of the Evidence

Act enables a party otherwise bound by a previous adjudication

to show that it was not final or binding because it is vitiated by

fraud. The provision therefore gives jurisdiction and authority to

a court to consider and decide the question whether a prior

adjudication is vitiated by fraud. In Paranjpe v. Kanade it was

held that: (ILR p. 148)

“It is always competent to any court to vacate any judgment

or order, if it be proved that such judgment or order was obtained

by manifest fraud;”

xxxx xxxx xxxx xxxx

21. In Ram Preeti Yadav v. U.P. Board of High School and

Intermediate Education this Court after quoting the relevant

passage from Lazarus Estates Ltd. v. Beasley and after referring

to S.P. Chengalvaraya Naidu v. Jagannath reiterated that fraud

avoids all judicial acts. In State of A.P. v. T. Suryachandra

Rao this Court after referring to the earlier decisions held that

suppression of a material document could also amount to a fraud

on the Court. It also quoted (at SCC p. 155, para 16) the

observations of Lord Denning in Lazarus Estates Ltd. v.

Beasley that: (All ER p. 345 C)

“No judgment of a court, no order of a Minister, can be

allowed to stand if it has been obtained by fraud. Fraud unravels

everything.”

22. According to Story's Equity Jurisprudence, 14th Edn., Vol.

1, para 263

“Fraud indeed, in the sense of a Court of Equity, properly

includes all acts, omissions, and concealments which involve a

breach of legal or equitable duty, trust, or confidence, justly

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reposed, and are injurious to another, or by which an undue and

unconscientious advantage is taken of another.”

23. In Patch v. Ward Sir John Rolt, L.J. held that:

“Fraud must be actual positive fraud, a meditated and intentional

contrivance to keep the parties and the court in ignorance of the

real facts of the case, and obtaining that decree by that

contrivance.”

24. This Court in Bhaurao Dagdu Paralkar v. State of

Maharashtra held that: (SCC p. 607)

“Suppression of a material document would also amount to a

fraud on the court. Although, negligence is not fraud but it can

be evidence on fraud.”

(emphasis supplied)

62. The Supreme Court in Meghmala & Ors. Vs. G. Narasimha

Reddy & Ors., JT 2010 (8) SC 658 has also held as under:

“20. It is settled proposition of law that where an applicant gets

an order/office by making misrepresentation or playing fraud

upon the competent Authority, such order cannot be sustained in

the eyes of law.”

xxxx xxxx xxxx xxxx

23. In United India Insurance Co. Ltd. v. Rajendra Singh &

Ors. [JT 2000 (3) SC 151: AIR 2000 SC 1165], this Court

observed that .Fraud and justice never dwell together. (fraus et

jus nunquam cohabitant) and it is a pristine maxim which has

never lost its temper over all these centuries.

24. The ratio laid down by this Court in various cases is that

dishonesty should not be permitted to bear the fruit and benefit

to the persons who played fraud or made misrepresentation and

in such circumstances the Court should not perpetuate the

fraud……

xxxx xxxx xxxx xxxx

26. An act of fraud on court is always viewed seriously. A

collusion or conspiracy with a view to deprive the rights of the

others in relation to a property would render the transaction void

ab initio. Fraud and deception are synonymous. Although in a

given case a deception may not amount to fraud, fraud is

anathema to all equitable principles and any affair tainted with

fraud cannot be perpetuated or saved by the application of any

equitable doctrine including res judicata. Fraud is proved when

it is shown that a false representation has been made (i) knowingly,

or (ii) without belief in its truth, or (iii) recklessly, careless

whether it be true or false. Suppression of a material document

would also amount to a fraud on the court.

28………Suppression of any material fact/document amounts to

a fraud on the court. Every court has an inherent power to recall

its own order obtained by fraud as the order so obtained is non

est.”

(emphasis supplied)

63. In the opinion of this Court, suppression of a material fact or

a material document by a litigant disqualifies such a litigant from obtaining

any relief. This rule has evolved out of the role of the Court to deter a

litigant from abusing the process of Court by deceiving it.

64. But the suppressed fact/document cannot be an irrelevant one.

It must be a material one in the sense that had it not been suppressed,

it would have had effect on the merits of the case. It must be a matter

which is material for the consideration of the Court, whatsoever decision

the Court may ultimately take.

65. Consequently, one in turn has to examine the scope and ambit

of the jurisdiction of the Company Court under Sections 391 to 394 of

the Act. Proviso to Section 391(2) of the Act states .provided that no

order sanctioning any compromise or arrangement shall be made by the

[Court] unless the [Court] is satisfied that the company or any other

person by whom an application has been made under sub-section (1) has

disclosed to the [Court], by affidavit or otherwise, all material facts

relating to the company, such as the latest financial position of the

company, the latest auditor's report on the accounts of the company, the

pendency of any investigation proceedings in relation to the company

under sections 235 to 351, and the like. In the opinion of this Court, the

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expressions ‘all material facts’ and ‘and the like’ mean all material facts

relating to affairs of the company.

66. In fact the Supreme Court in Miheer H. Mafatlal Vs. Mafatlal

Industries Ltd., (1997) 1 SCC 579 has outlined the parameters of the

scope and ambit of the jurisdiction of this Court as under:-

“29……In view of the aforesaid settled legal position, therefore,

the scope and ambit of the jurisdiction of the Company Court

has clearly got earmarked. The following broad contours of such

jurisdiction have emerged:

1. The sanctioning court has to see to it that all the

requisite statutory procedure for supporting such a scheme

has been complied with and that the requisite meetings as

contemplated by Section 391(1)(a) have been held.

2. That the scheme put up for sanction of the Court is

backed up by the requisite majority vote as required by

Section 391 sub-section (2).

3. That the meetings concerned of the creditors or

members or any class of them had the relevant material

to enable the voters to arrive at an informed decision for

approving the scheme in question. That the majority decision

of the concerned class of voters is just and fair to the

class as a whole so as to legitimately bind even the

dissenting members of that class.

4. That all necessary material indicated by Section

393(1)(a) is placed before the voters at the meetings

concerned as contemplated by Section 391 sub-section

(1).

5. That all the requisite material contemplated by the

proviso of sub-section (2) of Section 391 of the Act is

placed before the Court by the applicant concerned seeking

sanction for such a scheme and the Court gets satisfied

about the same.

6. That the proposed scheme of compromise and

arrangement is not found to be violative of any provision

of law and is not contrary to public policy. For ascertaining

the real purpose underlying the scheme with a view to be

satisfied on this aspect, the Court, if necessary, can pierce

the veil of apparent corporate purpose underlying the

scheme and can judiciously X-ray the same.

7. That the Company Court has also to satisfy itself that

members or class of members or creditors or class of

creditors, as the case may be, were acting bona fide and

in good faith and were not coercing the minority in order

to promote any interest adverse to that of the latter

comprising the same class whom they purported to

represent.

8. That the scheme as a whole is also found to be just,

fair and reasonable from the point of view of prudent men

of business taking a commercial decision beneficial to the

class represented by them for whom the scheme is meant.

9. Once the aforesaid broad parameters about the

requirements of a scheme for getting sanction of the Court

are found to have been met, the Court will have no further

jurisdiction to sit in appeal over the commercial wisdom

of the majority of the class of persons who with their

open eyes have given their approval to the scheme even

if in the view of the Court there would be a better scheme

for the company and its members or creditors for whom

the scheme is framed. The Court cannot refuse to sanction

such a scheme on that ground as it would otherwise

amount to the Court exercising appellate jurisdiction over

the scheme rather than its supervisory jurisdiction.

The aforesaid parameters of the scope and ambit of the jurisdiction

of the Company Court which is called upon to sanction a scheme

of compromise and arrangement are not exhaustive but only

broadly illustrative of the contours of the Court‘s jurisdiction.”

(emphasis supplied)

67. Keeping in view the aforesaid mandate of law as well as the

facts of the present case, it is apparent that non-placing of DOT’s letters

dated 7th January, 2010 and 18th January, 2010 was not an innocent act.

Non-filing of the aforesaid letters was a part of design to misdirect and

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mislead this Court as would be apparent from non-filing of Licences as

well as Merger Guidelines, 2008 and correspondence exchanged between

the parties. It is pertinent to mention that the primary business of both

the petitioner-companies pertain to telecommunication licences which

were not produced before this Court. In fact, both the petitioner-companies

did not bring to the notice of this Court that unlike any other case in the

past decided by this Court, the present Scheme of Arrangement would

result in transfer of some overlapping licences within the prohibited

period of three years. Since this Court and the Regional Director were

not aware of the prior permission and temporary prohibition contained in

the licence conditions and merger guidelines respectively, the petitioner-

companies reliance upon this Court’s observation with regard to post

merger sanction/approval of DOT is irrelevant. Consequently, withholding

of relevant and material documents like licences, merger guidelines and

DOT’s letters dated 7th January, 2010 and 18th January, 2010 was deliberate,

intentional and with a view to obtain an unfair advantage.

68. In the opinion of this Court it is also not necessary that there

should be direct proof of fraud, the same can be inferred from various

circumstances which are brought on record. Even if individual facts are

not able to prove a fraud, it would be sufficient if all the circumstances

taken together indicate a fraud.

69. The ‘design’ of the petitioner-companies is also apparent from

their subsequent conduct, i.e., after this Court had sanctioned the merger

scheme. It is pertinent to mention that before the amalgamation scheme

was sanctioned by this Court, Idea in its own affidavit had confirmed

that approval of DOT would be taken after approval of scheme of

amalgamation by this Court, but post merger the stand of Idea has been

that DOT has no further say in the matter and only a formal approval

of transfer of licences is required which DOT is obliged under law to

give. To illustrate, Idea vide its letter dated 31st May, 2010 addressed to

DOT stated ‘in this regard you may note that our Punjab Service area,

as stated in our application for 2.1 GHz auction, license held by Spice

Communications Limited stands amalgamated into Idea Cellular Limited

through a Court process as per provisions of the license agreements,

which process of amalgamation has been completed. The DoT has already

been informed about the same. Hence the Letter of Intent for Punjab too

may be has to be in favour of IDEA Cellular Limited.’ Further, Idea’s

Managing Director vide letter dated 21st December, 2010 addressed to

DOT stated ‘therefore we were surprised when we received a letter from

the DoT dated 7th January, 2010 saying the merger of the companies

cannot be permitted (18 months after our merger announcement and 16

months after our meeting with DoT – this letter came soon after we

confirmed the approval of Hon’ble High Court). The same was evidently

wrong and uncalled for, considering the advise for approval given earlier

and given that merger of companies is not in the DoT‘s domain, and was

appropriately responded by us. In fact on the contrary, upon us informing

DoT about completion of the Court process of amalgamation, the DoT

ought to have issued formal orders forthwith.’ Also, Idea in its petition

bearing No. 143/2011 filed before TDSAT stated ‘once the merger is

approved it mandates the DoT to give its approval as it does not leave

the DoT with any discretion to refuse the same.’ Idea in its application

for withdrawal of demerger application being Co. Appl.(M) 98/2009

stated ‘in light of the aforesaid sanctioning of the Scheme of Amalgamation,

the application filed by Spice before this Hon‘ble Court for the proposed

demerger of its overlapping UASLs would not be maintainable as Spice

has already merged into the Applicant Company and the overlapping

UASLs of Spice now vest in the Applicant Company by virtue of the

Scheme of Amalgamation.’

70. In any event, even if this Court were not to accept the plea of

dishonest intent on the part of petitioner-companies, this Court cannot

lose sight of the fact that as the sanctioned scheme is binding on all

shareholders, creditors of petitioner-companies, the Court is obliged to

examine the Scheme in its proper perspective together with its various

manifestations and ramifications with a view to finding out whether the

scheme is fair, just and reasonable to the members concerned and is not

contrary to any law or public policy. Though the expression ‘public

policy’ is not defined in the Act, it connotes some matter which concerns

the public good and public interest. Thus, the question that arises is

whether the petitioners had disclosed sufficient information to this Court

so as to enable it to arrive at an informed decision, that means, whether

the information supplied was sufficient and whether the real issue was

flagged before Court and whether all relevant documents were on record

for the Court to arrive at a just decision. (See Sesa Industries Limited

Vs. Krishna H. Bajaj & Ors., (2011) 3 SCC 218).

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71. Even if this Court examines the present case from this narrow

and limited perspective, this Court finds that non-filing of licences as well

as merger guidelines and correspondence exchanged between the parties

amounts to non-production of requisite material as contemplated under

the proviso to Sub-section 2 of Section 391 of the Act and further that

sufficient information was not disclosed to this Court so as to enable it

to arrive at an informed decision. Consequently, this Court is of the view

that there has been suppression of material and relevant documents from

this Court.

72. Also, just because petitioner-companies state that DOT was

constantly kept informed of all developments, it cannot be said that there

is no suppression from this Court.

73. Dr. Singhvi’s submission that DOT has indulged in suppression

is misconceived on facts. In fact, DOT has brought to surface the fraud

played by the petitioner-companies upon this Court by non-filing of

Licences, Merger Guidelines, 2008 and the correspondence exchanged

between the parties.

74. The petitioner-companies’ challenge to the locus of DOT to file

the present applications is also untenable in law. DOT is an interested/

necessary party as it is both a Licensor and a Regulator. It is pertinent

to mention that at the second motion stage in any scheme of arrangement,

the Company Court invites objections from the public at large, if any, to

the proposed scheme and the petitioner-companies’ are obliged in law to

disclose to this Court objection if any received by them to the Scheme

of Arrangement.

75. In any event, in the present case, this Court is of the opinion

that Mr. Chandhiok’s submission that grave prejudice has been caused

to DOT by approval of sanction of amalgamation without DOT’s prior

approval, is well founded as sanction is in contravention of licence

conditions and merger guidelines. In fact, the Supreme Court in S.K.

Gupta & Anr. Vs. K.P. Jain & Anr., (1979) 3 SCC 54 has held as

under:

“16………….The Court has to reach an affirmative conclusion

before acting under Section 392(2) that the compromise and/or

arrangement cannot be worked satisfactorily with or without

modification [see J.K. (Bombay) P. Ltd.) supra]. It follows as

a corollary that if the compromise or arrangement can be worked

as it is or by making modifications, the Court will have no power

to wind up the company under Section 392(2). Now, if the

arrangement or compromise can be worked with or without

modification, the Court must undertake the exercise to find out

what modifications are necessary to make the compromise or

arrangement workable and that it can do so on its own motion

or on the application of any person interested in the affairs of the

company. If such be the power conferred on the Court, it is

difficult to entertain the submission that an application for

directions or modification cannot be entertained except when

made by a member or creditor. It would whittle down the power

of the Court in that it cannot do so on its own motion.”

(emphasis supplied)

76. It is settled law that in judicial proceedings, once a fraud is

proved, all advantages gained by playing fraud can be taken away. In

such an eventuality the questions of non-executing of statutory remedies

or statutory bars like res judicata are not attracted. Suppression of any

material fact/document amounts to a fraud on the Court. Every Court has

an inherent power to recall its own order obtained by fraud as the order

so obtained is non est. [See Meghmala and Ors. Vs. G. Narasimha

Reddy and Ors., (2010) 8 SCC 383, A.V. Papayya Sastry and Ors.

vs. ˇGovernment of A.P. and Ors., (2007) 4 SCC 221]. In fact, the

Supreme Court in S.P. Chengalvaraya Naidu (supra) has held as under:

“1. “Fraud avoids all judicial acts, ecclesiastical or temporal”

observed Chief Justice Edward Coke of England about three

centuries ago. It is the settled proposition of law that a judgment

or decree obtained by playing fraud on the court is a nullity and

non est in the eyes of law. Such a judgment/decree — by the

first court or by the highest court — has to be treated as a

nullity by every court, whether superior or inferior. It can be

challenged in any court even in collateral proceedings.”

77. However, the present applications for recall of sanction order

dated 5th February, 2010 have been filed after a delay of thirteen months.

There is no plausible explanation for the delay except for the submission

that Government’s decisions are ‘proverbially slow’.

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78. In fact, today, the ‘situation at the ground’ is that Spice has lost

its entity after having been dissolved without following the process of

winding up and all its employees have become employees of Idea. The

assets and liabilities of Spice have got vested in Idea. The shares of

erstwhile Spice have also been delisted from the relevant stock exchange.

Further, some of the shareholders of erstwhile Spice, who had received

the shares of Idea, would have also transferred the same to third parties.

Consequently, today it is not possible for this Court to ‘unscramble the

eggs’ by recalling in its entirety the order dated 5th February, 2010

sanctioning the Scheme of Amalgamation.

79. It is also pertinent to mention that Section 392 of the Act vests

power with this Court to modify the scheme even after it has been

sanctioned and the said modification can be done either suo moto by the

Court or at the instance of any person who is interested in the affairs of

the company.

80. Even, the Supreme Court in Central Bank of India Vs.

Ambalal Sarabhai Enterprises Ltd. (supra) observed that due to passage

of time it would not be equitable at a belated stage to set aside the

scheme in its entirety. The Supreme Court in the said case decided to

maintain the order sanctioning the scheme with some additional conditions.

81. Consequently, to bring the sanctioned scheme, in the present

case, in conformity with the Licence and Merger Guidelines, 2008 as

well as in view of the fact that simultaneous demerger scheme has been

withdrawn, it is directed that notwithstanding anything stated in the

sanctioned scheme (in particular paras 5.2 as well as 10.2) and/or in the

order dated 5th February, 2010, the six overlapping licences of the

Transferor Company/Spice would not stand transferred or vested with

Transferee Company/Idea till prior permission of DOT is obtained. In

fact, till permission of DOT is granted, the overlapping licences of Spice

shall forthwith stand transferred/vested with the Licensor, i.e., DOT.

The spectrum allocated for such overlapping licences shall also forthwith

revert back to DOT. In the event DOT refuses or grants conditional

approval to transfer of licences, Idea would be entitled to challenge the

same before TDSAT who would decide the same in accordance with law

after hearing both the parties. Since the Transferee Company has used

the overlapping licences without any prior permission of DOT from 5th

February, 2010 till date in contravention of the Licence and Merger

Guidelines, it is directed that it shall be open to DOT to pass any order

for such breach. Needless to say, any order passed by DOT can be

challenged by Idea before any competent court or tribunal. To avoid

inconvenience to public at large, DOT is directed to ensure that cell

phone customers of the two overlapping licence areas namely, Punjab

and Karnataka are provided regular and uninterrupted services like in the

past.

82. Moreover, as simultaneous demerger scheme has been

withdrawn, paragraphs 2.4, 2.13, 2.14, 2.19, 17.3 as well as the last two

sentences in para 1.7 of the sanctioned scheme are deleted.

83. To meet the ends of justice, this Court is also of the view that

costs should be imposed on Idea for not bringing to the notice of this

Court the rejection letters dated 7th January, 2010 and 18th January, 2010

issued by DOT and for not placing on record relevant and material

documents like Licence, Merger Guidelines and correspondence exchanged

between the parties. In the opinion of this Court, the suppression of

aforesaid documents was not an innocent act especially in view of

petitioners’ own understanding of licences and merger guidelines as

reflected in the contemporaneous correspondences. Accordingly, this

Court, keeping in view the nature of petitioners’ business, imposes costs

of Rupees One Crore to be paid by Idea to DOT within six weeks. It

is further directed that the Ministry of Corporate Affairs shall conduct a

study with regard to special statutes, guidelines and licences applicable

to super specialised companies like the petitioners and suggest remedial

measures to ensure that no party can obtain sanction of a scheme of

arrangement without placing on record material and relevant documents

before the Court. In fact, both the Ministry and DOT must suggest

remedial measures by which suppression of facts and documents can be

detected at the earliest stage in a scheme filed under Sections 391 to 394

of the Act including appointment of more professionals like Chartered

Accountants, Company Secretaries and Cost Accountants in the offices

of Regional Director and Official Liquidator.

84. With the aforesaid observations, the present applications stand

disposed of.

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Indian Law Reports (Delhi) ILR (2011) VI Delhi515 516Bijay v. The State (G.N.C.T. of Delhi) (Suresh Kait, J.)

ILR (2011) VI DELHI 515

CRL. A

BIJAY ....APPELLANT

VERSUS

STATE (G.N.C.T. OF DELHI) ....RESPONDENT

(SURESH KAIT, J.)

CRL. A. NO. : 700/2005 DATE OF DECISION: 05.07.2011

Narcotic Drugs and Psychotropic Substances Act,

1985—Sections 20 & 50—As per prosecution, PW10

along with PW6 and PW7 patrolling on platform at Old

Delhi Railway Station—Secret information received by

PW10 that one person was sitting near the staircase

of flyover with Ganja in iron box—Raiding party

constituted and accused nabbed—Notice u/s 50 NDPS

Act given to accused—30 kg Ganja recovered from

iron box of accused out of which 1 kg. taken as

sample—Trial Court convicted accused under Section

20—Held, notice under Section 50 NDPS not properly

given as Investigating Authority was supposed to give

accused the option of a search either before a

Gazetted Officers or a Magistrate which was not done

in present case—FSL Form never sent to FSL Malviya

Nagar and not proved in Court—Since FSL Form not

sent with Samples, samples doubtful—Sample Ganja

taken of 1 kg whereas weight was found to be 910.7

gms.—No explanation as to how weight of Ganja

reduced which casts doubt on sample—IO interpolated

Malkhana Register—FSL form not sent with samples—

After sealing samples, seal not handed over to

independent person but kept with IO—Prosecution

case doubtful—Accused acquitted—Appeal Allowed.

[Ad Ch]

APPEARANCES:

FOR THE APPELLANT : Mr. Rajesh Mahajan, Advocate

(Amicus Curiae).

FOR THE RESPONDENT : Mr. Arvind K. Gupta, APP.

CASES REFERRED TO:

1. Balban Singh vs. State, decided on 05.05.2009.

2. Rajesh Jagdambha Avasthi vs. State of Goa (2005) 9

SCC 773.

3. State of Gujarat vs. Ismail U Haji Patel (2003) 12 SCC

29.

4. Radha Kishan vs. State 87 (2000) DLT 106.

5. Satinder Singh vs. State (NCT of Delhi) 69 (1997) DLT

577.

6. Valsala vs. State of Kerala 1993 (2) Crimes 267 (SC).

RESULT: Appeal Allowed.

SURESH KAIT, J. (Oral)

1. The instant appeal is filed by the appellant against the judgment

dated 22.03.2005 whereby the appellant was convicted under Section 20

of NDPS Act and by order dated 06.04.2005, the appellant was sentenced

to undergo RI for 10 years and to pay a fine of ‘1 lac. In default of

payment of fine, the convict shall further undergo RI for 6 months. The

benefit of Section 428 Cr.P.C was also given.

2. In spite of several efforts made, this Court is handicapped since

the Trial Court are not available. Vide order dated 05.07.2010, the registry

had been directed by this Court to reconstruct the records of the Trial

Court. In further order dated 10.09.2010, registry was directed to place

on record whatever papers it has received in the matter during

reconstruction of file. Vide order dated 22.09.2010, learned counsel for

the accused at Trial Court was directed to be contacted but till date

nothing concrete has been found in the matter. Therefore, in the absence

of complete records of the Trial Court, I am proceeding with the matter.

3. Mr.Rajesh Mahajan, learned counsel who has been appointed as

amicus in this matter by Delhi High Court Legal Services Committee is

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also handicapped in the absence of the complete records of the Trial

Court. However, he is ready with the case on merits.

4. The case of the prosecution in brief is that on 03.03.2003 PW-

10 SI Braham Pal Singh along with PW-6 HC Ayaj Khan and PW-7 HC

Ram Avtar was on patrolling and present at platform No.3-5 Old Delhi

Railway Station. At about 09:10 pm secret information was received by

the SI that one person was sitting on black colour iron box near staircase

of flyover and Ganja was inside the said box.

5. This information was conveyed to 4/5 passerby by PW-10 SI

Braham Pal Singh, they were requested to join the investigation but they

refused and left without disclosing their names and addresses. A raiding

party consisting of police officials was organized and they proceeded

towards the place where accused was sitting on a black colour iron box

and the secret informer pointed towards the accused. On seeing the

police the accused tried to slip away with the iron box, but he was

stopped by the PW-10 SI Braham Pal Singh.

6. The said SI conveyed the secret information to the accused and

he again requested public persons to join them. On his instance one

public person by the name of Khalil Khan PW-5 joined the police party.

In the meantime, PW- 4 Insp. Jai Kishan, SHO police station RMD also

reached the spot.

7. SI Braham Pal PW-10 Singh told the accused that search of the

iron box and of his person is to be conducted and it is his legal right that

search of the iron box can be conducted before a magistrate or a gazetted

officer or they can be called at the spot. Accordingly, notice under

Section 50 of NDPS Act was given to the accused. Accused declined the

offer of search before a magistrate or a gazetted officer, accordingly, his

reply was noted down on the notice. SI also offered the search of the

members of raiding party to the accused but he declined. Even then PW-

10 SI Braham Pal Singh gave his search to PW-5 Khalil Khan but no

contraband was recovered from his search.

8. PW-10 SI Braham Pal Singh directed the accused to take out the

keys of the box from the pocket of his pant and opened the box. On

opening, Ganja was found inside the said box. The Ganja was taken out

of the box and on weighing it came out to be 30 kgs., out of which 1

kg. was separated as sample. After completing the formalities under the

NDPS Act, the said SI prepared the ruqqa and sent the same to the police

station for registration of the case.

9. Accordingly, FIR bearing no. 106/2003 was registered at police

station RMD, New Delhi. After completion of investigation, challan under

Section 20/61/85 NDPS Act was prepared and filed in the court.

10. The Trial Court framed the charged against the accused vide

order dated 06.08.2003 under Section 20 NDPS Act to which accused

pleaded not guilty and claimed trial.

11. The prosecution has examined as many as 11 witnesses but the

accused has not produced any defence witnesses in spite of opportunity

given.

12. Since there is no record of evidences on record, therefore,

there is no purpose to discuss the deposition of the witnesses.

13. Learned Amicus Curiae submits that under Section 50 of NDPS

Act, notice had to be issued in advance since on the secret information,

the police had to search the person of the accused and his belongings.

However, in this case Section 50 of NDPS Act has not been fully

complied with. Though the police has issued notice thereafter, as alleged

he declined the same.

14. The Trial Court has come to the conclusion that notice under

Section 50 of NDPS Act was not required since the recovery was not

effected from the person of the accused but was effected from the iron

box which he was carrying.

15. Further, learned Amicus Curiae points out the para 20 of the

judgement wherein PW-5 Khalil Khan, an independent witness who

participated in search and recovery proceedings has stated that the police

officials were requesting the public persons to join them whereby PW-

5 willingly joined the police officials. The police officials also told PW-

5 that they have received information about Ganja in an iron box of black

colour at the spot. He further pointed out that some documents were also

given to the accused in writing and police officials also told the accused

that if he wants, a gazetted officer can be called at the spot to which the

accused declined the said offer.

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16. Learned Amicus Curiae further submits that, the police officials

were duty bound as per statute to give absolute right to the accused i.e.

either to call the magistrate or a gazetted officer but in the present case,

it was just a mere formality as the person apprehended was only given

the option of gazetted officer. The other option is missing as per the

deposition of PW-5, Khalil Khan, therefore, the statutory provisions were

not complied in its letter and spirit.

17. PW-4 Insp. Jai Kishan and SHO concerned reached at the spot

and joined the investigation. They found 30 kgs. of Ganja from the spot

out of which 1 kg. was separated for sample purpose. The same was

sealed with ‘BPS’ and ‘JK’ and sent to the malkhana. The report as

required under Section 57 of the NDPS Act was prepared and sent to

the ACP. It is submitted by learned counsel that vide letter dated 17.04.2003,

the sample was sent to the FSL, Malviya Nagar, New Delhi, whereas,

the sample was deposited on 21.04.2003 to the FSL.

18. Learned Amicus Curiae has drawn the attention of this Court

towards the FSL report dated 03.06.2003 in respect of receipt of parcel

dated 21.04.2003 containing one cloth parcel sealed with the seals of

‘JK’ and ‘BPS’. It is found to contain exhibit-‘1’ kept in a polythene bag.

(Exhibit-‘1’) Dark greenish brown coloured dried plant material consisting

of dried leaves, seeds and twigs stated to be ‘Ganja’ weight approx.

910.7 gms. with polythene.). On chemical examination, exhibit-‘1’ was

found to contain Tetrahydrocannabinol which is main constituents of

Cannabis Plant. However, as per the report dated 03.06.2003 in respect

of receipt of parcel dated 12.05.2003, the weight of exhibit-‘1’ was

found 619.0 gms of dried, greenish, brownish, flowery vegetative material

along with seeds described as ‘Ganja’.

19. Learned Amicus Curiae has pointed out that initially the sample

was taken of 1 kg. of Ganja, whereas, the weight reduced to 910.7 gms.

and there is no explanation given by the prosecution as to how the weight

of the Ganja was reduced to this extent. It creates suspicion whether the

FSL report is on the same sample as was sent by the police.

20. Learned Amicus Curiae further submits that the ‘FSL Form’

was to be sent alongwith the sealed parcel of the sample of Ganja.

Further he states that there was some interpolation in the Malkhana

Register which is called as ‘‘Store Room Register’’ (part-I) against entry

no. 91 wherein he noted that the words ‘‘And FSL Form’’ were

subsequently added. Therefore, it proves that the FSL Form was not sent

alongwith the sample taken. The Road Certificate dated 21.04.2003 also

does not indicate any ‘FSL Form’. Therefore, it further proves that no

FSL Form was sent along with sealed sample.

21. Learned Amicus Curiae further submits that while passing the

judgment, learned Trial Court has not considered the deposition in cross-

examination. He submits that in the instant case, the Trial Judge has not

discussed anywhere throughout the judgment about the cross-examination

being done by the counsel for the accused. Though the judgment only

indicates that there was some cross-examination being done by the learned

counsel for the accused.

22. Learned Amicus Curiae had relied upon the judgment of Radha

Kishan vs. State 87 (2000) DLT 106 wherein in para 26 it was discussed

that it is the normal procedure that when the incriminating articles are

seized and are required to be sent to the CFSL, those articles are

immediately sealed and deposited in malkhana at the police station till

they are taken out and sent to the laboratory. However, in the instant

case, this was not done. Contemporaneously with seizure and sealing of

such articles, impression of seal used on sealed articles is put on a form,

commonly called the ‘CFSL Form’. This is being done so because at the

time of analysis of sealed parcels in laboratory, the analyst concerned is

able to tally the seal impressions on sealed packets with those appearing

on the ‘CFSL Form’ in order to rule out any possibility of tampering of

seals or sealed packets after seizure, anywhere or in-transit, till receipt

in laboratory. This is a safeguard to an accused to ensure that no tampering

has been done.

23. In para 29 of this judgment of Radha Kishan (supra), it was

observed that in a large number of NDPS cases the prosecution has to

establish that the ‘CFSL Form’ should be deposited in malkhana and

thereafter be sent to the CFSL along with the seized sample; otherwise

there is a strong possibility of tampering with the seals of samples sent

to CFSL.

24. Further, learned Amicus Curiae relied upon the judgement of

Mool Chand vs. State 49 (1993) DLT 649 wherein in para 3, the main

contention on behalf of the appellant was that the ‘CFSL Form’ although

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allegedly filled up at the spot, neither was deposited in the malkhana nor

was it sent to the CFSL alongwith the sample and thus the very recovery

of the opium becomes doubtful.

In the present case also, learned counsel has taken the same stand

that the ‘FSL Form’ was neither sent nor produced or proved in the

Court.

25. Learned Amicus Curiae further points out that the sample on

17.04.2003 was made ready to deposit at FSL, Malviya Nagar, New

Delhi, however, the sample reached there on 21.04.2003 as indicates by

the Road Certificate dated 21.04.2003. This fact has been proved by

PW-1, HC Kunji Lal. This gap of period creates suspicion on the samples,

whether it remained intact or tampered with. Even as per the chargesheet,

Ex. PW- the sample was sent on 17.04.2003 vide R/C No. 12/21 to FSL

Malviya Nagar, New Delhi.

26. On the other hand, learned counsel for the respondent submits

that the ‘FSL Form’ is not to be proved but only the report of FSL has

to be proved, therefore, the issue in the present case on the FSL Form

has no relevance at all. Therefore, the argument of learned Amicus

Curiae has to be discarded.

27. Learned counsel for the respondent has further pointed out that

it is recorded in Store Room Register (part-I) that the result of FSL was

deposited at malkhana on 06.06.2003, after the report came back alongwith

the ‘CFSL Form’.

28. On perusal of the said store room Register, I found that there

is no mention of ‘FSL Form’ and therefore, there is no force in the

statement of learned counsel for the respondent. This issue has already

been dealt in the case of Balban Singh v. State, decided on 05.05.2009

in Criminal Appeal No. 921/2005, in which the Court has observed on

the issues of inter-collision, variation, delay, interpolation as under:

8. Mr. Mahajan is also right in pointing out that in the road

certificate (Exhibit PW 3/B at page 107 of the trial court record),

the words ‘‘& F.S.L. form’’ appear to have been added later to

the line ‘‘one pulanda of cloth sealed with seal of LSY & HSY

containing 1 kg ganja.’’ The endorsement on its reverse signed

by Constable Jitender Singh reads: ‘‘Retained one sealed cloth

parcel in chemistry (sic chemical) division.’’ There is no mention

of any FSL form. The date under the signature of the person

preparing the Road certificate reads 18th September 2002 whereas

the endorsement of the person receiving it is dated 13th September

2002. This is yet another unexplained anomaly. In the cross-

examination of PW-3, a suggestion was put that no FSL form

was prepared and sent with the sample, which was of course

denied by the witness. These factors taken collectively lead to

the conclusion that the prosecution has failed to prove the

preparation and dispatch of the FSL form with the sample for

testing.’’ Para 9 and 10 of the judgment in the case of Balban

Singh (supra) deals on the issue of the importance of ensuring

the FSL form duly signed, which reads as under:-

9. In Radha Kishan v. State (supra), this Court has

explained the importance of ensuring that the FSL form

is duly sent with the sample for testing. IN para 26 of the

said judgment, it was explained:

‘‘26. It is normal procedure that when the incriminating

articles are seized and are required to be sent to the

Central forensic Science laboratory, those articles are

immediately sealed and deposited at the Malkhana at the

police station till they are taken out and sent to the

Laboratory. In the instant case, this was not done.

Contemporaneously with seizure and sealing of such

articles, impression of seal used on the seal is put on a

form, commonly called, the CFSL form. This is so done

because at the time of analysis of sealed packets in the

laboratory, the analyst concerned is ablse to tally seal

impressions on sealed packets with those appearing on

the CFSL form in order to rule out any possibility of

tampering of tampering of seals on sealed packets after

seizure anywhere or in transit till receipt in laboratory.

The importance of the CFSL form thus cannot be

overemphasized because this document provides a

valuable safeguard to an accused to ensure that no

tampering has been done during intervening period.

The CFSL form is a document or forwarding note

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Indian Law Reports (Delhi) ILR (2011) VI Delhi523 524Bijay v. The State (G.N.C.T. of Delhi) (Suresh Kait, J.)

accompanying a sample sent by the police to the Forensic

Science Laboratory. Such a form contains the nature of

the crime, list of samples being sent for examination,

nature of examination required and specimen of the seal/

seals affixed on the exhibit besides particulars of the

case/ police station.’’ (emphasis supplied)

10. In Radha Kishan, after referring to the Delhi High Court

Rules, Part III Chapter 18 B, regarding proper proof of custody

of articles, it was held by this Court that the evidence of

preparation and dispatch of the FSL form was critical for ensuring

that the sealed sample was kept intact in the police malkhana. An

adverse inference would be drawn against the prosecution in the

event the FSL form was not proved to have been prepared and

dispatched. To the same effect are the judgments in Moolchand

and Phool Kumar. Further, it has been held in Satinder Singh

v. State (NCT of Delhi) 69 (1997) DLT 577, that oral evidence

which is contrary to the documentary evidence ought not to be

relied upon. In the instant case, despite the prosecution witnesses

asserting that the FSL form was prepared, not only is the FSL

form unavailable on the record but the photocopies of the store

room register and road certificate throw considerable doubts

whether the FSL form was in fact prepared and dispatched.

These documents are unreliable. For the above reasons, it is held

that in the instant case the non-compliance with the mandatory

requirement of preparation and dispatch of the FSL form with

the sample sent for testing is fatal to the case of the prosecution.

Para 11 of the said judgment deals with the issue of seal to be handed

over to an independent witness which reads as under:

11. It was next submitted by Mr.Mahajan that where there is an

independent witness to the arrest and search, in the person of

PW6, the seal used by the police officer to seal the pulandas

containing the seized material and sample must be handed over

to such the independent witness. On the contrary, Head Constable

Ayaj Khan PW-4 states that ‘‘seal after use was handed over to

me ............ I took the rukka to Police Station along with from

box, sealed parcel, form FSL and copy of seizure memo.’’ SI

Lal Sahib also confirms that ‘‘seal after use is handed over to SI

Ayaj Khan.’’ The law in this regard has been explained by the

Supreme Court in Rajesh Jagdambha Avasthi v. State of Goa

(2005) 9 SCC 773 where in para 15, it was observed: (SCC, p.

778) ‘‘15. This is not all. We find from the evidence of PW-4

that he had taken the seal from PSI Thorat and after preparing

the seizure report, panchnama etc. he carried both the packets

to the police station and handed over the packets as well as the

seal to Inspector Yadav. According to him on the next day, he

took back the packets from the police station and sent them to

PW-3 Manohar Joshi, Scientific Assistant in the Crime Branch,

who forwarded the same to PW-1 for chemical analysis. In

these circumstances there is justification for the argument

that since the seal as well as the packets were in the custody

of the same person, there was every possibility of the seized

substance being tampered with, and that is the only

hypothesis on which the discrepancy in weight can be

explained. The least that can be said in the facts of the case

is that there is serious doubt about the truthfulness of the

prosecution case.’’ (emphasis supplied)

Para 13 of the judgment deals with the issue of the sample being seen

late for deciding to FSL and reads as under:-

13. The next submission concerned the delay of over a month

and a half in sending the seized sample for testing to the FSL.

The seizure was made on 22nd July 2002 and the sample was

sent for testing on 13th September 2002. The Supreme Court

has in Valsala v. State of Kerala 1993 (2) Crimes 267 (SC)

and later in State of Gujarat v. Ismail U Haji Patel (2003) 12

SCC 29 held that the delay per se would not be material. What

had to be established was that the seized articles were in proper

custody and in the proper form and that the sample sent to the

Chemical Analyst for testing was the same that was seized.

Para 15 of the Judgment deals with the issue of seal to be handed over

to an independent witness, and reads as under:-

15. The further submission was that PW-6 Ramesh Chand was

in fact a stock witness for the prosecution. It is seen from the

cross-examination of PW-6 that ‘‘he had appeared as a witness

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525 526Bijay v. The State (G.N.C.T. of Delhi) (Suresh Kait, J.)

once, in a narcotics case.’’ He further stated: ‘‘he appeared as

witness in some other drug case about one year back.’’ In

Rajesh Jagdambha Avasthi, among other grounds, the acquittal

of the accused was based on the ground that one of the panch

witnesses was a stock witness. It was observed (SCC, p. 778)

‘‘16. There is one other aspect of the matter. PW-2, the

panch witness associated in this case appears to be a

stock witness. The other panch witness has not been

examined. PW-2 admitted in very clear terms that he was

earlier associated in two other cases under the NDPS Act

as panch witness. In both those cases, PSI Thorat was

the Investigating Officer. On 14.12.1994 he had been

summoned by PSI Thorat and acted as a panch witness

in the case against P.C. Kulbi, who as noticed earlier

disclosed the complicity of the appellant. Thereafter, in

the instant case, he was requested by PW-4 to act as a

panch witness. It appears that PSI Thorat was also

associated with this case as he was present with PW-4

when PC Kulbi was apprehended and thereafter when the

appellant herein was apprehended and searched at the

instance of the aforesaid Kulbi.’’

30. At the end, learned counsel for the respondent feels handicapped

in the absence of the Trial Court records, therefore, he has not argued

further.

31. I have heard both the parties. The notice under Section 50 of

the NDPS Act was not properly given as the Investigating Authority was

supposed to give him both the option of a Gazetted Officer or a Magistrate

as is provided in the act which the Investigating Authority has failed in

the instant case which is supported by PW5 Khalil Khan who stated that

police official told the accused that if he wants a gazetted officer, can

be called at the spot to which the accused declined the said offer.

32. As regard the question of ‘FSL Form’ is concerned, it has been

proved from the above discussion that it was never sent to the FSL

Malviya Nagar and not proved in the Court also. By not sending the FSL

Form along with the samples make the samples doubtful.

33. The sample of Ganja was taken of 1 Kg, wheras the weight

was found to be 910.7 grams and there is no explanation as to how the

weight of the Ganja was reduced, this also creates doubt on the sample.

The Investigating Officer interpolated Malkhana Register and mentioned

and ‘FSL Form’ which proves that the Police Officer never sent the FSL

Form along with samples.

34. After sealing the samples, the seal was not handed over to an

independent person, rather he kept with him only, which also creates

doubt on the sample whether the samples, were intact and not tempered

with.

35. I have perused the nominal roll dated 04.02.2010. The appellant

has already undergone 6 years 10 months and 29 days and the unexpired

portion of sentence is only 3 years 1 months and one day (IFP).

36. Putting the curtain down, in the above said facts and

circumstances of the case, the judgment dated 22.03.2005 and the order

dated 06.04.2005, whereby he was sentenced to RI for ten years and to

pay a fine of ‘1 Lac, is set aside.

37. Criminal Appeal No.700/2005 is accordingly allowed and the

appellant is acquitted from all the charges and he shall be released

forthwith. His personal Bond and surety bond are cancelled.

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Indian Law Reports (Delhi) ILR (2011) VI Delhi527 528Swaran Singh v. State (Mukta Gupta, J.)

ILR (2011) VI DELHI 527

CRL. APPEAL

SWARAN SINGH ....APPELLANT

VERSUS

STATE ....RESPONDENT

(MUKTA GUPTA, J.)

CRL. APPEAL NO. : 693/2001 DATE OF DECISION: 05.07.2011

Indian Penal Code, 1860—Section 398—As per

prosecution, accused with 3-4 persons came to house

of complainant to commit dacoity—Accused armed with

countrymade pistol—Other associates also armed with

weapons—Accused with associates forcibly entered

house of complainant—Complainant raised alarm—His

friend PW2 sitting inside came out—Appellant fired

shot and tried to flee—Appellant caught by complainant

and PW2 with pistol while others escaped—Police

recovered one countrymade pistol and five live

cartridges from accused besides one empty cartridge

in the barrel—Co-accused arrested subsequently—

Trial Court convicted accused for offence u/s 398—

Held, In statement of PW3 complainant, nowhere alleged

that appellant and co-accused attempted to commit

robbery—PW2 only stated that when accused along

with others entered, they shouted ‘Loot Lo Mar Do’—

Accused came with intention to commit robbery which

did not fructify into an attempt and was at best

preparation—Basic ingredients of 398 not made out—

Accused acquitted—Appeal Allowed.

[Ad Ch]

APPEARANCES:

FOR THE APPELLANT : Mr. B. Deva Sekhar, Amicus Curiae.

FOR THE RESPONDENT : Mr. Pawan Bahl, APP for the State

with SO Gurjeev Singh, P.S.

Ambedkar Nagar.

CASE REFERRED TO:

1. Relying on Chinnadurai vs. State of Tamil Nadu, AIR

1996 SC 546.

RESULT: Appeal Allowed.

MUKTA GUPTA, J.

1. By this appeal, the Appellant lays a challenge to the judgment

dated 7th August, 2001 convicting him for offence punishable under

Section 398 IPC and order dated 3rd September, 2001 awarding the

sentence of Rigorous Imprisonment for seven years.

2. Briefly the prosecution case is that on 7th February, 1996, accused

Swaran Singh accompanied by 3/4 associates came to the house of Ram

Niwas at Sangam Vihar with an intention to commit dacoity. They were

armed with weapons and the Appellant was having one country-made

pistol. On reaching the house of Ram Niwas they knocked the door and

when Ram Niwas opposed their entry in his house all the accused persons

on the instructions of Appellant forcibly entered into the house of Ram

Niwas. He raised an alarm and his friend Dharambir who was sitting

inside the house came out and the Appellant fired a shot. Then the

Appellant along with his associates tried to flee away but after chasing,

the Appellant was caught by the Complainant and Dharambir with his

pistol while the others managed to escape. Police arrived at the spot and

from the Appellant one country-made pistol and five live cartridges were

recovered. Also one empty cartridge was found in the barrel of the katta

and all the articles were seized and sealed. Thereafter on 10th October,

1996 co-accused Kanwar Pal Singh was arrested in some other case and

in his disclosure statement he disclosed about his involvement in the

present offence. Investigation was conducted and a charge-sheet was

filed. After recording the statement of witnesses and the accused under

Section 313 Cr.P.C. the learned Trial Judge held as above.

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3. Learned counsel for the Appellant contends that the Appellant is

a handicapped person. There are many lacunas in the prosecution version

and statements of the alleged eye-witnesses i.e. PW2 and PW3 are full

of contradictions. There is no recovery of alleged robbed articles from

the Appellant. The witnesses on the basis of whose testimony conviction

has been based are interested witnesses and no public witness has been

examined by the prosecution despite the fact that it is stated by the

witnesses that on raising an alarm public got collected at the house of

the Complainant. The co-accused, who were charged for the said offence,

have been given the benefit of doubt and acquitted by the learned Trial

Judge. However, the benefit of doubt has not been extended to the

Appellant. The Appellant claims that he be acquitted on parity. It is

further stated that no shell has been recovered, no finger prints or chance

prints have been picked up from the place of occurrence. No photographs

of the crime scene have been taken. Relying on Chinnadurai v. State

of Tamil Nadu, AIR 1996 SC 546, it is contended that since no attempt

of robbery has been proved, the Appellant cannot be convicted for an

offence punishable under Section 398 IPC. The entire prosecution story

is full of contradictions and improvements and hence the Appellant is

entitled to be acquitted.

4. Per contra, learned APP for the State contends that the prosecution

has established its case beyond reasonable doubt. The Appellant was

apprehended at the spot with the katta and five live cartridges in the

barrel and one empty cartridge case which was used at the time of

commission of offence. The version of PW2 and PW3 who have deposed

about the Appellant firing a gun shot is corroborated by his apprehension

and recovery on the spot. The Appellant cannot claim parity with co-

accused Kanwar Pal as no overt act is attributed to the co-accused by

the witnesses. It is, thus, prayed that the appeal be dismissed being

devoid of merit.

5. I have heard learned counsels for the parties. The moot question

involved in the present case is whether the ingredients of Section 398

IPC are satisfied in the present case. PW 2 Dharambir in his testimony

has stated that on 7th February, 1996 when he was present at the house

of Ram Niwas, 2/3 persons came and knocked at the door of the house

of Ram Niwas. On Ram Niwas opening the door, those persons shouted

‘Loot Lo, Mar Do’ and a scuffle ensued. He rushed where Ram Niwas

was standing but he could not see the other persons while Ram Niwas

caught hold of accused Swaran Singh, he fired a shot from the revolver

and the neighbours gathered. The shot did not hit anyone. Somebody

informed the police at 100 number and police came at the spot and

accused was handed over to the police. PW 3 Ram Niwas in his testimony

has deposed that on 7th February, 1996, while he was present at his

house, there was a knock at the door of his house. He opened the door

and found 4/5 persons present there. Three of them came inside the

room and one of them pointed out a katta on his chest on his right side.

He raised alarm and Dharambir rushed to his help. He caught hold of the

person who was having katta in his hand but that person fired a shot

from the katta and the shot did not hit anyone. The persons who attacked

ran away from the spot. He along with Dharambir chased those persons

and after a distance of 10/15 steps, the Appellant was apprehended and

katta was snatched from him. Appellant was given beating by the public

and on getting the information, the police reached at the spot and arrested

him with katta.

6. A perusal of the statement of PW 3 shows that he nowhere

alleges that the Appellant and his co-accused attempted to commit robbery.

Even PW2 has only stated that when the Appellant and the other accused

entered, they shouted ‘Loot Lo, Mar Do’. Thus, at best it can be said

that Appellant came with the intention to commit robbery, however, that

intention did not fructify into an attempt and it was at best the preparation.

Further this statement of PW 2 is not corroborated by PW3. From his

testimony, it is evident that the Appellant at best had the intention to kill

Ram Niwas. Thus, the basic ingredient of Section 398 IPC that is an

attempt to commit robbery is not made out in the present case. Therefore,

the conviction of the Appellant for offence under Section 398 IPC cannot

be sustained. The Appellant has not been convicted for the offence

punishable under Section 307 IPC. No appeal has been filed by the State

on this count.

7. For the reasons mentioned above, the appeal is allowed. The

Appellant is acquitted of the charge under Section 398 IPC. The Appellant

is in custody. The Superintendent, Tihar Jail, is directed to release him

forthwith, if not required in any other case.

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Indian Law Reports (Delhi) ILR (2011) VI Delhi531 532Yogender Kumar v. Ram Kishan Gupta (Indermeet Kaur, J.)

ILR (2011) VI DELHI 531

EX. F.A.

YOGENDER KUMAR & ANOTHER ....APPELLANTS

VERSUS

RAM KISHAN GUPTA AND ANR. ....RESPONDENTS

(INDERMEET KAUR, J.)

EX F.A. NO. : 18/2010 AND DATE OF DECISION: 05.07.2011

C. M. NO. : 18758/2010

Code of Civil Procedure, 1908—Order XXI Rule 97—

Suit for specific performance of agreement to sell

decreed exparte in favour of plaintiff against the

defendant, followed by registration of sale deed and

mutation of property in the name of plaintiff—Before

the execution court, the petitioners/objectors

contended that they had purchased the property from

one Pushpa Singh who had purchased the same from

the defendant prior to the date of agreement to sell

between plaintiff and the defendant and they are in

peaceful possession—Execution court dismissed the

objections, holding that since registered sale deed

was executed in favour of plaintiff and mutation done

under the orders of the court, the objections were not

maintainable—Held, the record shows that the address

of the defendant was not correctly mentioned in the

suit though the same was known to the plaintiff and

this shows that contention of the objectors that fraud

was played upon the court cannot be ruled out —

Further held, the very purpose of Order XXI Rule

97&98 CPC is to avoid filing of separate suit and

execution court empowered to conduct detailed inquiry

on the objections—Matter remanded back to the

execution court to decide the objections afresh.

The statutory scheme envisaged under Order 21 Rule 97 of

the Code in fact provides a remedy both to the decree

holder as well as to the obstructionist/objector to have their

respective say in the matter and to get a proper adjudication

done before the executing court which would be binding

between the parties and a separate suit would be barred

with a view to ensure that multiplicity of proceedings and

parallel proceedings are avoided; procedure provided in

Order 21 Rules 97 to 103 of the Code is the remedy

available to a such concerned party to have their grievance

once and for all finally resolved in the execution proceedings.

There is no dispute to this proposition. (Para 8)

From the perusal of the impugned order it is evident that the

executing court has dismissed the objections of the objector

under Order 21 Rule 97 of the Code cursorily without giving

him a chance to the objector to prove the alleged fraud

having been played upon the court by the plaintiff/decree

holder; vehement contention of the objector being that

Samay Singh was deliberately not served at his correct

address; a vague address has been given in order that the

matter could be proceeded ex-parte and the decree could

be obtained by the decree holder. (Para 9)

Important Issue Involved: Order XXI Rule 97 in effect

provides a remedy to the decree holder as well as the objector

and require proper adjudication to be done before the

execution court which would be binding between the parties.

[Gk]

APPEARANCES:

FOR THE APPELLANTS : Mr. Ved Prakash Sharma and Ms.

Amrit Kaur oberoi, Advocates,

FOR THE RESPONDENTS : Mr. Praveen Chauhan, Advocate.

CASES REFERRED TO:

1. Usha Sinha vs. Dina Ram & others 2008 V AD (SC)

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201.

2. Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal &

Another AIR 1997 Supreme Court 856.

3. Babulal vs. Raj Kumar & others, AIR 1996 (Supreme

Court) 2050.

4. Sekar Mudaliar vs. Shajathi Bi and another AIR 1987

Madras 239.

RESULT: Allowed.

INDERMEET KAUR, J. (Oral)

1. The impugned order of the executing court is dated 27.09.2010.

The objections filed by the petitioner/objector (Yogender Kumar and Om

Kumar) under Order 21 Rule 97 read with Section 151 of the Code of

Civil Procedure (hereinafter referred to as the ‘Code’) had been dismissed.

2. The plaintiff/decree holder (Ram Kishan Gupta) had filed a suit

for specific performance in terms of an agreement to sell dated 18.03.1988.

His contention was that he had entered into an agreement to sell to

purchase the suit property i.e. (land measuring 4 bighas 16 biswa bearing

in khasra No.506, situated at Village Naib Sarai, Tehsil Mehrauli, Delhi)

from Samay Singh, its erstwhile owner. Part payment had been made

and the balance amount of Rs. 3,85,000/- was yet payable; suit had

accordingly been filed. This suit had been decreed in favour of the

plaintiff/decree holder vide an ex-parte judgment and decree dated

02.05.1990. Sale deed had been executed in favour of the decree holder

on 15.07.2003 which was registered on 08.10.2007 and mutation had

also been effected in his name on 12.05.2008.

3. Before the executing court, the present petitioners/objectors

(Yogender Kumar and Om Kumar) had preferred objections under order

21 Rule 97 of the Code. Their contention was that Pushpa Singh had

purchased 2100 square yards of constructed land from Samay Singh

vide agreement to sell, receipt, power of attorney dated 05.01.1988; the

petitioners had stepped into the shoes of Pushpa Singh by virtue of an

agreement to sell and other related documents executed between

themselves and Pushpa Singh dated 16.09.2008; they are in peaceful

possession of this land since 16.09.2008; they had contested the execution

filed by the decree holder and objections as aforenoted had been filed by

them along with documentary evidence.

4. The executing court after consideration of the documents of the

respective parties had dismissed the objections of the petitioner; the

executing court was of the view that a registered sale deed had been

effected in favour of the decree holder under the orders of the Court and

since mutation of the land had also been effected in favour of the said

decree holder, the objections were not maintainable.

5. Counsel for the objectors has vehemently contended that the

decree obtained by the decree holder was in fact a fraudulent decree; it

is liable to be set aside; Samay Singh was the only defendant arrayed in

the suit; his address had been shown as Village Naib Sarai without any

details of the house number or the lane. Attention has been drawn to the

order of the High Court dated 19.01.2000 where in the execution

proceedings, the High Court had noted that the decree holder has not

given the complete address of Samay Singh; it was only thereupon i.e.

on 19.01.2000 that the complete address of Samay Singh was disclosed

to the Court i.e. he being a resident of H-221, Valmikiwali Gali, Naib

Sarai, Tehsil Mehrauli, Delhi. This was on 19.01.2000. Suit had been

filed in the year 1989. Address of Samay Singh in the suit proceedings

was only described as Village Naib Sarai, Tehsil Mehrauli, Delhi; house

number and details of gali had not been given; learned counsel for the

respondent on repeated query has no answer as to how subsequently on

19.01.2000 he learnt about this address of Samay Singh. In the suit

proceedings Samay Singh had been proceeded ex-parte; the report of the

process server was that he has been served. Learned counsel for the

objector has drawn attention of this Court to the service report of Samay

Singh in the execution proceedings which reports are dated 17.08.2022

and 17.09.2002. In the report of process server dated 17.08.2002 it had

been recorded that ‘bahar chale gaye’; in the report of 17.09.2002, it had

been recorded that ‘no one lives there’; on these two service reports, the

Court had recorded a finding that judgment debtor/Samay Singh stands

served.

6. Record clearly shows that the address of Samay Singh had not

been correctly depicted in the suit proceedings although it appears to

have been known to the plaintiff and that is how it has disclosed to the

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High Court on 19.01.2000. Contention of learned counsel for the objector

is that in these circumstances the ex parte decree has been obtained by

playing a fraud upon the court; this submission cannot be ruled out

straight away.

7. Counsel for the objector has further pointed out that the procedure

under Order 21 Rule 97 of the Code postulates that a detailed scrutiny

and enquiry has to be conducted by the executing court; it is for this

reason that it specifically stipulates that no separate suit is required to be

filed; provisions of Order 21 Rules 97 & 98 of the Code are wide enough

to enable the executing court to enter into a detailed enquiry to decided

the objections of such an objector. In AIR 1996 (Supreme Court 2050

Babulal Vs. Raj Kumar & others, the Apex Court while adverting to

the provisions of Order 21 Rule 98 of the Code read with Rule 103 had

held that the procedure to deal with the objections of an objector is

prescribed in the Code itself; the executing court is required to determine

the questions which have been urged in a detailed manner. This has been

reiterated in AIR 1997 Supreme Court 856 Brahmdeo Chaudhary Vs.

Rishikesh Prasad Jaiswal & Another.

8. The statutory scheme envisaged under Order 21 Rule 97 of the

Code in fact provides a remedy both to the decree holder as well as to

the obstructionist/objector to have their respective say in the matter and

to get a proper adjudication done before the executing court which would

be binding between the parties and a separate suit would be barred with

a view to ensure that multiplicity of proceedings and parallel proceedings

are avoided; procedure provided in Order 21 Rules 97 to 103 of the Code

is the remedy available to a such concerned party to have their grievance

once and for all finally resolved in the execution proceedings. There is

no dispute to this proposition.

9. From the perusal of the impugned order it is evident that the

executing court has dismissed the objections of the objector under Order

21 Rule 97 of the Code cursorily without giving him a chance to the

objector to prove the alleged fraud having been played upon the court by

the plaintiff/decree holder; vehement contention of the objector being that

Samay Singh was deliberately not served at his correct address; a vague

address has been given in order that the matter could be proceeded ex-

parte and the decree could be obtained by the decree holder.

10. It is not in dispute that the objectors are in legal possession of

the suit land since 2008; their contention is that they are in legal possession

by virtue of an agreement to sell and other related documents dated

16.09.2008 executed by Pushpa Singh in their favour; Pushpa Singh had

derived her title from Samay Singh by virtue of documents executed by

Samay Singh in favour of Pushpa Singh on 05.03.1988; objectors have

stepped into the shoes of Pushpa Singh. In these circumstances, the

objections raised by the respondent qua the provisions of Section 102 of

the Code ( rights of the transferee pendente lite) is of little relevance as

the instant suit was filed in 1989 but Pushpa Singh had allegedly purchased

the suit land on 05.01.1988 i.e. prior to the filing of the present suit; the

objectors are claiming their right and title through Pushpa Singh which

is prior in time to the filing of the present suit. Section 102 would thus

have no relevance. Judgment relied upon by learned counsel for the

respondent reported in 2008 V AD (SC) 201 Usha Sinha Vs. Dina Ram

& others is thus inapplicable.

11. The contention of learned counsel for the respondents that even

assuming that documents had been executed by Pushpa Singh in favour

of the present objector yet Pushpa Singh herself was only a power of

attorney holder of Samay Singh and as such documents executed by

Pushpa Singh in favour of the present objectors is hit by the provisions

of Sections 32 & 33 of the Registration Act, 1908 and for this proposition

reliance has been placed upon AIR 1987 Madras 239 Sekar Mudaliar

Vs. Shajathi Bi and another. This aspect cannot be gone into at this

stage; this would also require adjudication and a detailed scrutiny.

12. Lastly it has been pointed out that a separate suit bearing No.

1657/2009 seeking cancellation of sale deed dated 15.07.2003 has been

filed by Pushpa Singh and is pending in the Court of District Judge,

Saket; in those proceedings, the present objectors who were initially

arrayed as defendants have been transposed as plaintiffs; it is pointed out

by learned counsel for the respondent that the objection now raised in

this Court can be adjudicated in those proceedings. This Court is not

inclined to agree to this submission of learned counsel for the respondent.

It is the threat of execution which is pending before the executing court

where the present objectors are at sufferance; that threat cannot be taken

care of in the suit pending in the Saket Court. That apart learned counsel

for the petitioner submits that they would not be pressing the said suit

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537 538 Bhole Baba Dairy Indus. Ltd. v. Union of India (Manmohan Singh, J.)

and in fact would seek permission of the Court to withdraw the said suit

pending in the court of District Judge, Saket.

13. In view of the aforenoted contentions raised by respective

parties, this appears to be a fit case where the matter should be remanded

to the executing court to enter into a detailed enquiry and examine the

objections of the objector giving him an opportunity to adduce evidence,

if required to prove the alleged fraud committed by the plaintiff/decree

holder in obtaining the ex parte decree against Samay Singh. The procedure

contained in Order 21 Rules 97 & 98 of the Code read with the ratio of

the judgments in Babu Lal (Supra) and Brahmdeo Chaudhary (Supra)

shall be strictly adhered to. 14. Execution petition is allowed and disposed

of in the above terms. The parties to appear before the District Judge,

Saket who shall make an endevour to dispose of the objections within an

outer limit of six months from the receipt of the order.

ILR (2011) VI DELHI 537

C.M.

M/S BHOLE BABA DAIRY INDUSTRIES LTD. ....PETITIONER

VERSUS

UNION OF INDIA AND ORS. ....RESPONDENTS

(MANMOHAN SINGH & SURESH KAIT, JJ.)

C.M. NO. : 8010/2011 IN DATE OF DECISION: 05.07.2011

WP (C) NO. : 3839/2011

Customs Act, 1962—Notification No. 23 (RE-2010)/2009-

2014 dated 18.02.2010(ANN-P-I), Notification No. 25 (RE-

2010)/2009-2014 dated 24.03.2011 (ANN-P-II), Notification

No. 37 E (RE-2010)/2009-2014 dated 24.03.2011 (ANN-P-

III)-(impugned Notifications) Export of ‘Casein’ and

‘Casein Products’-Petitioner manufacturer and exporter

of casein and casein products- eligible and therefore

applied and obtained permission for factory stuffing in

terms of CBEC circular no. 60/2011-Cus dated

01.11.2001—Applied to jurisdictional Central Excise

Officers for examination—Goods examined under four

shipping bills on 16.02.2011, 16.02.2011, 16.02.2011

and 18.02.2011—On that very date were removed from

the factory and handed over to ICD, Tuglakabad—

Meanwhile—Impugned notifications were issued

prohibiting export of casein and casein products-AO

disallowed export-goods were presented for

examination after the impugned notifications were

passed-CC(A) allowed the appeal-Goods presented to

jurisdictional Central Excise Officers is presentation

for Customs examination-Not hit by the prohibition—

Respondent challenged the order before Tribunal—

Appeal yet to be listed—No stay order—Present writ

petition filed for compliance of the order of CC(A)-

suffering demurrage-continued to be levied at

escalating rate. Held—Petitioner had completed all

the formalities for exportable goods-change of policy

provision not applicable to consignment already

handed over to customs for examination—Petitioner

cannot be blamed for procedural delay-in case the

goods are exported, the Petitioner will suffer

irreparable loss as the goods cannot be re-used—

Balance of convenience lies in favour of the

Petitioner—Respondents directed to allow the

Petitioner to export the goods.

In terms of para 9.12 of Handbook procedures 2009-14,

which provides that in case of change of policy provisions,

the same shall not be applicable to the consignment already

handed over to Customs for examination and subsequent

exports up to Public Notice/Notification date. The relevant

provisions are as below:

‘‘However, wherever Procedural/Policy provisions have

been modified to disadvantage of exporters, same

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shall not be applicable to consignments already

handed over to Customs for examination and

subsequent exports upto Public Notice/Notification date.

Similarly, in such cases where goods are handed over

to the customs authorities before expiry of export

obligation period but actual Exports take place after

expiry of the export obligation period, such exports

shall be considered within export obligation period

and taken towards fulfilment of export obligation.’’

The grievance of the petitioner is that the respondent No.3

has not informed the concerned parties about the notification

dated 18.02.2011 otherwise there was no occasion on the

part of the petitioner not to comply any other formality, if left

and is required by the custom authorities. (Para 29)

After having considered the above, we feel that in case

there is any procedural delay, the petitioner cannot be

blamed as the petitioner has completed the formalities in

terms of notification dated 07.07.1987. Therefore, it is

apparent on the face of it that the exports are not hit by the

provision imposed under the notification dated 18.02.2011.

(Para 30)

Important Issue Involved: Subsequent case of change of

policy provisions shall not be applicable to the consignment

already handed over to Customs for examination.

[Sa Gh]

APPEARANCES:

FOR THE PETITIONER : Mr. Maninder Singh, Sr. Advocate

with Mr. J.S. Bakshi and Mr. Amitesh

Singh, Advocates.

FOR THE RESPONDENTS : Mr. Nitish Gupta and Mr. Ravinder

Aggarwal, CGSC for respondent No.

1 and 2 Mr. Mukesh Anand and Mr.

Shailesh Tiwari, Advocates for

respondent No. 3.

RESULT: Interim application allowed.

MANMOHAN SINGH, J.

1. The petitioner has filed the present writ petition under Article 226

and 227 of the Constitution of India thereby amongst others challenging

the Notification No. 23 (RE-2010)/2009-2014 dated 18.02.2010(ANN-P-

I), Notification No. 25 (RE-2010)/2009-2014 dated 24.02.2011 (ANN-P-

II), Notification No. 37 E (RE-2010)/2009-2014 dated 24.03.2011 (ANN-

P-III) and sought other reliefs.

2. The matter was listed first time before the court on 31.05.2011

when notice was issued. On oral request the prayer to implead the

Custom Authority was allowed. The matter was adjourned to 17.06.2011

before the Vacation Division Bench. When the matter was listed on

17.06.2011, time was granted to file the reply to the Custom Authority

who is the main contesting party.

3. Learned counsel appearing on behalf of the petitioner has made

a statement before us that at this stage the petitioner is only pressing the

following relief made in CM. No. 8010/2011 which is listed for disposal:

To permit the petitioner to export 135 MT of casein lying at ICD

Tuglkabad, New Delhi and 70 MT of casein lying in the godowns

of the petitioner. Further the petitioner be permitted to fulfill their

total pending export orders of 560 MT of Casein as enumerated

in ANN-P-XII.

4. Both the parties were heard in the interim application and orders

were reserved on 27.06.2010.

5. The brief facts of the case relevant for the disposal of the

present writ petition are that the petitioner is a manufacturer of dairy

products having factory at Agra-Aligarh By-pass Road, Khaireshwar Dham

(U.P.) which is duly registered with the Central Excise Division-Aligarh

(Lucknow Commissionrate) under Registration No. AACCB2221MXM001.

6. The petitioner is eligible for opting clearance of goods for export

and examination thereof at the factory itself in terms of CBEC’s Circular

No. 60/2001-Cus dated 01.11.2001, being a Central Excise registered

manufacturer. It is the admitted position that the petitioner had time to

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time applied and obtained the permission for factory stuffing under Excise

provision in terms of the aforesaid Circular.

7. The petitioner had time bound export contractual obligations of

560 MT of casein prior to 18.02.2011, the details of the order in respect

of the same are:

(i) P.O. No.0004916 dated 21.01.2011 quantity 153MT.

(ii) P.O. No.0004930 dated 07.02.2011 quantity 102MT.

(iii) P.O. No.11563 dated 25.01.2011 quantity 51 MT.

(iv) P.O. No.11566 dated 14.02.2011 quantity 102 MT.

(v) P.O. No.0004920 dated 24.01.2011 quantity 102MT.

(vi) P.O. No.LE 110046 dated 02.02.2011 quantity 50MT.

8. Consignment of 135 MT of casein was made ready for export

to the importers. The petitioner filed four shipping bills and sought factory

stuffing permission in respect of the same. In terms of the factory

stuffing permission the petitioner requisitioned seven containers for stuffing

of the consignments for exports at the petitioner’s permission and

thereafter applied to the jurisdictional Central Excise Officers for

examination of the goods, stuffing thereof in the containers, seeking of

the containers and endorsement of the ARE-1’s.

9. The excise officers examined the goods under four shipping bills

(in seven containers) on 16.02.2011, 16.02.2011, 16.02.2011 and

18.02.2011 and thereafter the same were removed from the factory on

the same very date and they were handed over at ICD Tuglakabad on

17.02.2011 (at 06:07 am and 06:06 am in two containers); 18.02.2011

(at 04.26 am and 04.26 am in two containers); 17.02.2011 (at 07:23 am

and 11:49 am in two containers);19.02.2011 (at 2.47 am in one container).

A chart depicting the said movement of goods is already filed.

10. In the meanwhile, three notifications were issued by respondent

No.2 i.e. Notification No.23(RE-2010)/2009-2014 dated 18.02.2011,

Notification No.25 (RE-2010/2009-2014) dated 24.02.2011, Notification

No.37 E(RE-2010)/2009-2014 dated 24.03.2011 issued by the respondent

No.2 purportedly in the exercise of the powers conferred by the Section

5 of the Foreign Trade (Development & Regulation) Act, 1992 whereby

Director General of Foreign Trade has prohibited the export of inter alia

various milk and milk products, including ‘casein’ and ‘casein products’,

which the petitioner was exporting.

11. The containers of the goods arrived at ICD Tughlakabad on

various dates and the petitioner thereafter presented the Shipping Bills to

the adjudicating authority for formal ‘Let Export Order’, however, the

adjudicating authority disallowed the exports on the reason that the goods

that the goods were presented for examination before the Custom Officer

on 21.02.2011. Therefore, it cannot be permitted in terms of the said

notification. Thereafter the petitioner filed the appeal in the office of

Commissioner of Customs (Appeals) bearing No. CCA/ICD/207/2011.

12. After hearing the parties on 27.04.2011, the said appeal was

allowed and the impugned order disallowing the export of the in goods

was set aside. The Commissioner of Customs (Appeals) came to the

conclusion that the said order was not legal in view of the notification

No. 31/1997-Cus(NT) dated 07.07.1997 wherein it is mentioned that all

Supreintendents and Inspectors of Central Excise Department in any

place of India have been appointed as Officers of Customs and therefore

presentation of goods for examination before the jurisdictional Central

Excise Officers for export is nothing but presentation of goods for

Customs examination for export in terms of Para 9.12 of the Foreign

Trade Policy and the stipulations of Notification 37 (RE-2010)/2009-

2014 dated 24.03.2011. As the goods were presented for examination

before the said officers prior to 18.02.2011 the exports are not hit by the

prohibition imposed under the Notification 23(RE-2010)/2009-2014 dated

18.02.2011 as the same are covered under transitional provision of the

said notification.

13. The operating part of order of Commissioner (Appeals) dated

27.04.2011 reads as under:-

‘‘I find that in terms of Para 9.12 of the Handbook of procedures

2009-14, in change of policy provisions, the same shall not be

applicable to the consignment already handed over to Customs

for examination and subsequent exports upto public Notice/

Notification date. The relevant provisions are as below:

‘‘However, wherever procedural /policy provisions have been

modified to disadvantage of exporters, same shall not be applicable

to consignment already handed over to Customs for examination

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and subsequent exports upto Public Notice/Notification date.

Similarly, in such cases where goods are handed over to the

customs authorities before expiry of export obligation period but

actual Exports take place after the expiry of the export obligation

period, such exports shall be considered within export obligation

period and taken towards fulfillment of export obligation.

’’I find that export goods can be stuffed in containers at the

Port of Export as well as at the factory premises of a

manufacturer. The Appellant being a registered unit under the

Central Excise registered with Registration No. AACCB2221

MXM001 was permitted factory stuffing in terms of CBEC’s

circular No.60/2001 dated 01.11.2001. I also find that in terms

of Notification 31/1997- Cus(NT) dated 07.07.1997 all

Superintendents and Inspectors of Central Excise Department in

any place of India have been appointed as Officers of Customs

and therefore presentation of goods for examination for export

in terms of para 9.12 of the Foreign Trade policy and the

stipulations of Notification No.37 E(RE-2010)/2009-2014 dated

24.03.2011(ANN-P-III). As the goods were presented for

examination before the said officers prior to 18.02.2011, the

exports are not hit by the prohibition imposed under Notification

No.23 (RE-2010)/2009-2014 dated 18.02.2010 (ANN-P-I) as the

same are covered under transitional provision of the said

notification.

In view of the above, the impugned order is not legal and is

therefore set aside.’’

14. Learned counsel appearing on behalf of respondent No.3 has

informed the Court that the order dated 27.04.2011 has been challenged

by the respondent No.3 by filing an appeal on 23.06.2011 before the

Custom Excise and Service Tax Tribunal, New Delhi. Since the said

appeal is yet to be listed and there is no stay of the operation of the said

order, thus, the order dated 27.04.2011 is operational.

15. The main concern of the petitioner at this stage is that the

petitioner has already suffered a demurrage to the tune of rupees Twenty

lacs, (now Twenty Seven lacs approximately) and the same is being

continued to be levied at an escalating rate. Further the product in question

‘casein’ has no domestic market. It has a shelve life of one year. The

goods in question were manufactured in January-February 2011. Thus,

the five months have passed. After clearance the required shipping time

to destination is one and a half month and the importers also accept the

product if approximate six months of the shelve life of the products is

remaining. As on date five and a half months of shelve life of the product

only remains.

16. The petitioner states that the effect of the impugned notifications

is that all the plant and machinery worth crores of rupees is lying idle

and the dues of the bank over Rs.150 Crores are mounting and the

Petitioner has the liability of paying the interests and term loan repayment.

The Petitioner has given direct employment to hundreds of skilled and

unskilled workers, professionals, technicians, scientists in the filed of

Diary Science, Nutrition, Veterinary, Food Technology, life sciences and

research professionals.

17. The petitioner imported machinery against the EPCG license. As

per the terms of this license, import duty was partially waived of against

the guarantee given by the petitioner that they will make exports to the

tune of certain crores and as per the said license. If the petitioner fails

in discharging the said obligation, then the petitioner shall have to pay the

import duty that was waived on the import of the machines along with

interest.

18. The petitioner submits that Commissioner of Customs ICD

Tuglakabad New Delhi has not till date, permitted the Petitioner to export

135 MT of cases of the Petitioner, in spite of the clear Orders dated

27.4.2011 passed by the Commissioner (Appeals) in the Appeal filed by

the Petitioner wherein he, inter alia, held that the petitioner was to be

permitted to export Casen as the case of the Petitioner was covered

under notification dated 24.03.2011. Therefore, the petitioner had no

alternative except to file the present writ petition.

19. It is also mentioned in the petition that the Additional

Commissioner Customs ICD Dadri NOIDA in the matter of another

exporter vide orders dated 04.05.2011 was pleased to permit the export

of the skimmed milk powder in respect of the goods as were handed

over to the Customs for export before the dead line i.e., 18.02.2011 as

per the notification dated 24.03.2011 and the examination of the goods

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by the ‘Excise Officer’ were taken to be examination by the ‘Customs

Officer’.

20. It is further stated by the petitioner that in the case of M/s VRS

Foods Ltd., the department did not file any appeal against the Orders

dated 04.05.2011 of Addl. Commissioner Customs, ICD Dadri ANN-P-

XVI Page 122 and the product which was factory stuffed and examined

by officers of the Central Excise was permitted to be exported by the

Custom Officials.

21. Respondent No. 3 has filed reply affidavit of Sh. Navraj Goel,

Deputy Commissioner of Customs (Export) on 24.6.2011 who has stated

in his affidavit that the petitioner export 135 MT of casein is hit by

prohibition imposed under notification 23(RE-2010)/2009-2012 dated

18.2.2011. In the affidavit it is not denied that the petitioner filed four

shipping bills for export of Acid Casein at ICD, Tuglakabad which are

on or before 18th February, 2011. However, the contention of the

respondent No. 3 is that the date of assessment of shipping bill and the

date of production of cargo to customs were subsequent to the date of

notification as the cargo was handed over to the customs for examination

and export subsequent to the said date. In nut shell, respondent No. 3

states that the goods ought to have handed over to the customs on or

before 18th February, 2011 for examination of export. Further contention

of respondent No. 3 is that in case of factory stuffed cargo, where

goods are examined in the factory in the presence of jurisdiction Central

Excise Officers, the goods are not produced to Customs at the ICD/Port.

Hence, it was not permissible to permit export of impugned goods due

to prohibition in the notification.

22. Other submission of learned counsel for respondent No. 3 is

that since the appeal has been filed by the respondents against the order

dated 27th April, 2011 therefore the issue in question is now sub-judice

and no order can be passed in the present writ petition, however, some

directions may be issued to the CESTAT for early disposal of the appeal

filed by respondent No. 3.

23. Now the question before this Court is as to whether the exports

are hit by prohibition imposed under notification dated 18th February,

2011 or some are covered under transitional provision of the notification

and in terms of notification 31/1997-Cus(NT) dated 7th July, 1997 wherein

the Superintendents and Inspectors of Central Excise Department in any

place of India have been appointed as Officers of Customs and therefore

the presentation of goods for examination before the jurisdictional Central

Excise Officers for export is nothing but presentation of goods for

Customs examination for export.

24. The notification No. 31/97-Cus.(N.T.), dated 7th July, 1997

reads as under:-

‘‘Appointment of Appraisers, Examiners, Superintendents,

Inspectors, Preventive Officers, Women Searchers, Ministerial

Officers and Class IV officers in the Customs Department in any

place in India. Officers of DRI, Narcotics Control Bureau and

EIB appointed as ‘‘Officers of Customs’’. — In exercise of the

powers conferred by sub-section (1) of section 4 of the Customs

Act, 1962 (52 of 1962) and in supersession of the notification

of the Government of India in the Ministry of Finance (Department

of Revenue) No. 38/63-Customs, dated 1st February, 1963 the

Central Government hereby appoints the following persons to be

the Officers of Customs, namely:-

1. Appraisers, Examiners, Superintendent Customs

(Preventive), Preventive Officers , Women Searchers,

Ministerial Officers and Class IV Officers in the Customs

Department in any place in India.

2. Superintendents, Inspectors, Women Searchers, Ministerial

staff and Class IV staff of Central Excise Department,

who are for the time being posted to a Customs port,

Customs airport, Land-Customs station, Coastal por,

Customs preventive post, Customs Intelligence post or a

Customs warehouse.

3. Superintendents, and Inspectors of Central Excise

Department in any place in India.

4. All Officers of the Directorate of Revenue Intelligence.

5. All Officers of the Narcotics Control Bureau.

6. All Intelligence Officers of the Central Economic

Intelligence Bureau.’’

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Indian Law Reports (Delhi) ILR (2011) VI Delhi547 548 Bhole Baba Dairy Indus. Ltd. v. Union of India (Manmohan Singh, J.)

25. The learned counsel for respondent No. 3 has not shown/

produced any other contrary notification other than the notification dated

7th July, 1997 referred by the learned counsel for the petitioner wherein

it is clearly mentioned that all the Superintendents and Inspectors of

Central Excise Department in any place of India have been appointed as

Officers of Customs.

26. In the present case it is not disputed fact that the petitioner is

eligible for opting clearance of goods for exports and examination thereof

at the factory itself in terms of CBEC’as Circular No. 60/2001-Cus dated

01.11.2001 and the exports are permissible for dairy products

manufactured by the petitioner till 18.02.2011. The respondent No.3 has

also not disputed the fact that the petitioner sought stuffing permission

in respect of the same. The Circular No. 60 dated 1st November, 2001

referred by the petitioner reads as under:-

‘‘CIRCULAR NO. 60 DATED 1st November 2001

I am directed to refer to Board’s instructions issued vide telex/

letter F.No. 434/47/95-Cus.IV, dated 9.10.95 and Circular No.

90/98-Cus. dated 8/12/98 regarding factory stuffing on containers

with export cargo. The said instructions provide detailed guidelines

for factory stuffing of container. It has been brought to the

notice of the Board by the trade that exporters are required to

obtain permission for factory stuffing from Customs every six

months. It has been suggested that the Customs should do away

with the practice of six monthly permission for factory stuffing

and this should be made one time permission.

2. The matter has been examined by the Board. It has been

decided to discontinue the practice of renewal of permission for

factory stuffing every six months. The permission for factory

stuffing shall be granted on one time basis and exporters shall

not be required to come to Customs every six months for renewal

of the same. However, in case something adverse is noticed

against the exporter, the Customs may withdraw the permission.

3. These instructions may be brought to the notice of all concerned

by way of issuance of suitable Public Notice/ Standing Order.

4. Difficulties, if any, in implementation of these instructions,

may be brought to the notice of the Board. Kindly acknowledge

receipt of this circular.

G. Circular No. 20/2010-Customs

F. No.450/ 98 /2010-Cus.IV

Government of India

Ministry of Finance

Department of Revenue

Central Board of Excise & Customs

North Block,

New Delhi 22nd July, 2010

To

All Chief Commissioners of Customs / Customs (Prev.).

All Chief Commissioners of Customs & Central Excise.

All Commissioners of Customs / Customs (Prev.).

All Commissioners of Customs (Appeals).

All Commissioners of Customs & Central Excise.

All Commissioners of Customs & Central Excise (Appeals).

Subject: Provision of single factory stuffing permission valid

for all Customs Houses — regarding.

Sir/ Madam,

I am directed to invite your attention to Board’s instructions

issued vide telex/letter F.No.434/47/95-Cus.IV, dated 9.10.95,

Circular No. 90/98-Cus dated 8/12/98 and Circular No. 60/2001-

CUS dated 1st November, 2001 regarding Permission for factory

stuffing.

2. The Task Force of the Department of Commerce to reduce

transaction cost involved in exports has recommended the grant

of a single factory stuffing permission valid for all the customs

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stations instead of customs station wise permission. This

recommendation has been accepted by the Government.

3. Accordingly, it has been decided by the Board to provide for

the grant of a single factory stuffing permission valid for all the

customs stations instead of customs station wise permission.

The facility will be subject to the following safeguards:

(i) The exporter may be asked to furnish to customs a list of

customs stations from where he intends to export his goods.

(ii) The customs house granting the factory stuffing permission

should maintain a proper register to keep a track-record of such

permissions, and also create a unique serial number for each of

such permissions.

(iii) The customs house granting the factory stuffing permission

should circulate the permission to all customs houses concerned.

The communication should clearly indicate the name and

contact details of the Preventive Officer/Inspector and

Superintendent concerned of the customs house granting

the permission as well as those of the Central Excise Range

concerned to facilitate real time verifications, if required.

(iv) In case, something adverse is noticed against the exporter,

the customs station concerned shall promptly intimate the customs

house which has granted the permission, which will, in turn,

withdraw the permission, and inform to all customs houses

concerned.

4. Board’s earlier instructions /circulars stand modified to the

extent mentioned above.

5. These instructions may be brought to the notice of all concerned

by way of issuance of suitable Public Notice / Standing Order.

6. Difficulties, if any, in implementation of the Circular may be

brought immediately to the notice of the Board.

Yours sincerely,

(Navraj Goyal)

Under Secretary (Customs)’’

27. In case we see the entire matter on merit, it is obvious that in

fact, the petitioner has filed the present petition for compliance of the

said order dated 27.04.2011 passed by the Commissioner of Customs

(Appeals). It is not denied by the respondent No.3 that on the date of

filing of the petition, the petitioner has incurred demurrage of Rs. 20 lac

and the amount of demurrage against the petitioner are continuing every

day. The petitioner’s case is that the notification dated 18.02.2011 was

issued without any intimation/notice whatsoever given by the respondents

to the petitioner or any concerned parties though many courts have time

and again held that legitimate expectations but a fact of the Rule of Law

and Administrative action must be in conformity with the Legitimate

Expectation of persons. The petitioner says that in view thereof, the

respondents have no power to take away any vested rights with

retrospective effect.

28. The respondent No.3 has not disputed the fact that the Excise

Officers examined the goods under four shipping bills (in seven containers)

on 16.02.2011, 16.02.2011, 16.02.2011 and 18.02.2011 and thereafter

the same were removed from the factory on the same very date and they

were handed over at ICD Tuglakabad on 17.02.2011 (at 06:07 am and

06:06 am in two containers); 18.02.2011 (at 04.26 am and 04.26 am in

two containers); 17.02.2011 (at 07:23 am and 11:49 am in two

containers);19.02.2011 (at 2.47 am in one container). The defendant

No.3 has also not denied that the containers of the goods arrived at ICD

Tughlakabad on various dates and the petitioner thereafter presented the

Shipping Bills to the adjudicating authority for formal ‘Let Export Order’.

There is a force in the submission of the petitioner that the petitioner

has completed all the formalities for exportable goods under the compliance

of notification dated 07.07.1997 which provides that all Superintendents

and Inspectors of Central Excise Department in any place of India have

been appointed as Officers of Customs.

29. In terms of para 9.12 of Handbook procedures 2009-14, which

provides that in case of change of policy provisions, the same shall not

be applicable to the consignment already handed over to Customs for

examination and subsequent exports up to Public Notice/Notification date.

The relevant provisions are as below:

‘‘However, wherever Procedural/Policy provisions have been

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Indian Law Reports (Delhi) ILR (2011) VI Delhi551 552 Bhole Baba Dairy Indus. Ltd. v. Union of India (Manmohan Singh, J.)

modified to disadvantage of exporters, same shall not be applicable

to consignments already handed over to Customs for examination

and subsequent exports upto Public Notice/Notification date.

Similarly, in such cases where goods are handed over to the

customs authorities before expiry of export obligation period but

actual Exports take place after expiry of the export obligation

period, such exports shall be considered within export obligation

period and taken towards fulfilment of export obligation.’’

The grievance of the petitioner is that the respondent No.3 has not

informed the concerned parties about the notification dated 18.02.2011

otherwise there was no occasion on the part of the petitioner not to

comply any other formality, if left and is required by the custom authorities.

30. After having considered the above, we feel that in case there

is any procedural delay, the petitioner cannot be blamed as the petitioner

has completed the formalities in terms of notification dated 07.07.1987.

Therefore, it is apparent on the face of it that the exports are not hit by

the provision imposed under the notification dated 18.02.2011.

31. It is not understood why the respondent No.3 has not challenged

the order dated 27.04.2011 promptly if respondents were serious about

the said order, rather the appeal was filed after filing the present writ

petition by that time the petitioner had to incur demurrages of Rs. 20 lac

on the date of filing.

32. In similar situations in the case of M/s VRS Foods (supra)

orders were passed by Additional Commissioner, ICD on 4th May, 2011

and in the said case the goods were examined by the Central Excise

Officer under their supervision for container No. SGCU 2458144 &

TGHU 0144617 and brought in the customs area on 18.02.2011 (but

after office hours) already had been examined by the Central Excise

Officer on 18.02.2011.

33. The respondents have banned the export casein which is made

from less than 0.25% of the total milk production in the country as per

the case of the petitioner while it is an admitted position that the respondents

have not banned the export of the other milk products like cheese, ghee,

butter etc.

34. In the present case, in case the export of Casein and Casein

products of the petitioner are not allowed, it will cause irreparable loss

and injury to the petitioner as the said goods cannot be re-used. It is also

a fact that there is no loss of custom duty as admitted by the respondent

No.3. Therefore, the balance of conveyance even otherwise lies in favour

of the petitioner and against the respondents. The Division Bench judgment

of Bombay High Court titled Parag Milk and Milk Products Ltd. v.

Union of India dated 16th August, 2007 has allowed the export in

similar situation. Para 10 of the judgment reads as under:-

‘‘10. The above principles, if applied to the present case, would

show that the doctrine of legitimate expectancy, and for limited

extent of constructive promissory estoppel, would have some

application. The petitioner has invested huge amount to establish

a plant and export facilities of international standards. The declared

policy was to operate during the period of 2004 to 2009.

Prospective application of the ban is not in question before us.

On various grounds the same could even be justified. However,if

the concluded contracts, which have been acted upon between

the parties partially prior to the cut off date are not fulfilled, it

would, to a great extent, amount to disturbing the settled things.

Such an approach would be greatly unacceptable in view of the

fact that the respondent themselves had reserved the right to

examine on case to case basis the existing export obligations.

Nowhere in the order, and for that matter even in the counter

affidavit, it is stated what would be the existing export obligation

and under what circumstances the benefit of the decision could

be given to the affected parties. Public interest is a term of wide

connotation and it has to be considered keeping in view the facts

and circumstances of each case. The Authorities concerned while

passing the order dated 30th April, 2007 had ignored these aspects

of the matter while it has taken into consideration what is not on

record. There is nothing even on the court file to show as to

what is intended by existing export obligation, simplicity except

obligation in relation to free trade items. We may also notice that

on 20th April, 2007 some discussion had taken place between

the Director General of Foreign Trade, Ministry of Commerce

and the petitioner. Vide their letter of the same date they had

stated that as per the discussions the petitioner may be allowed

to export 5000 M.T. Skimmed Milk Powder against existing

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contractual obligations. Thus the petitioner was even willing to

restrict its trade to export of 5000 M.T. The impugned order

does not even touch this aspect of the matter in its proper

perspective.’’

35. From the above discussion, we allow the interim application

filed by the petitioner. We direct the respondents to allow the petitioner

to export the goods in question in terms of the prayer made in the

application.

WP(C) 3839/2011

Notice has already been issued in the writ petition. The respondent

No.3 is granted four weeks time to file the counter affidavit with advance

copy to the learned counsel for the petitioner who may file the rejoinder

thereto within two weeks thereafter.

List the matter before the Roster Bench on 26.08.2011.

ILR (2011) VI DELHI 553

CRL. APPEAL

JAIPAL ....APPELLANT

VERSUS

STATE ....RESPONDENT

(S. RAVINDRA BHAT AND G.P. MITTAL, JJ.)

CRL. APPEAL NO. : 137/1998 DATE OF DECISION: 05.07.2011

& 181/1998

Indian Penal Code, 1860—Section 302, 201, 384, 34—

Indian Evidence Act, 1873—Section 73, Code of Criminal

Procedure, 1973—Section 311A, Constitution of India,

1950—Article 20—Appellants preferred appeals to

challenge their conviction under Section 302, 201, 384

read with Section 34 of Act—They urged, one of

circumstance i.e. delivery of ransom note in the

handwriting of the appellant Jaipal not proved—Also

police did not have power to take accused's

handwriting under Section 73 of Indian Evidence Act—

Moreover, Section 311 A of Cr.P.C. was incorporated

in the statute book only w.e.f. 23.06.2006 and was not

retrospective in its application—Held:- Obtaining the

handwriting of an accused during investigation is not

hit by Article 20 (3) of the Constitution of India as an

accused cannot be said to be a witness against himself,

if he is asked to give his handwriting for purpose of

verification of any document purported to be in his

handwriting—Some forms of testimonial acts lie

outside the scope of Article 20(3)—Obtaining appellant

Jaipal's handwriting during investigation not illegal.

Section 311-A allows the Court to order an accused to give

his handwriting during enquiry or investigation. These powers

were not available with the Court before Section 311-A was

brought to the statute book in the year 2006. An addition of

Section 311-A merely empowered the Court to order an

accused to give his handwriting/signatures for the purpose

of investigation of his questioned handwriting/signatures

which power was not available to the Court as according to

Section 73, the Court can order for comparison of signatures/

handwriting etc. of any person whose signatures / handwriting

is in dispute before the Court. (Para 45)

Important Issue Involved: Obtaining the handwriting of

an accused during investigation is not hit by Article 20 (3)

of the Constitution of India as an accused cannot be said

to be a witness against himself, if he is asked to give his

handwriting for purpose of verification of any document

purported to be in his handwriting—Some forms of

testimonial acts lie outside the scope of Article 20(30).

[Sh Ka]

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APPEARANCES:

FOR THE APPELLANT : Mr. Sameer Chandra, Amicus Curiae.

FOR THE RESPONDENT : Mr. Jaideep Malik, APP for the Sate.

CASES REFERRED TO:

1. Selvi vs. State of Karnataka, (2010) 7 SCC 263.

2. Ponnusamy vs. State of Tamil Nadu, (2008) 5 SCC 587.

3. State of Maharashtra vs. Suresh, (2000) 1 SCC 471.

4. Sharad Birdhichand Sarda vs. State of Maharashtra, (1984)

4 SCC 116).

5. Murarilal vs. State of M.P., AIR 1980 SC 531.

6. Lord President Cooper in Decie vs. Edinburgh Magistrate,

1953 SC 34.

7. Hanumant Govind Nargundkar & Anr. vs. State of Madhya

Pradesh, AIR 1952 SC 343.

RESULT: Appeals disposed of.

G.P. MITTAL, J.

1. These two Appeals preferred by the Appellants Jaipal and Rajender

arise out of a judgment dated 22.07.1997 and order on sentence dated

23.07.1997 passed by the learned Additional Sessions Judge (ASJ) in

Session Case No.86/1996 whereby the Appellants were held guilty and

convicted for the offence punishable under Section 302,201 and 384 IPC

read with Section 34 IPC. The Appellants were sentenced to undergo

rigorous imprisonment (RI) for life and to pay a fine of Rs. ˇ1000/-

each and in default of payment of fine to undergo RI for one month each

for the offence punishable under Section 302/34 IPC. The Appellants

were sentenced to undergo RI for 5 years each and to pay fine of Rs.

500/- each and in default of payment of fine to further undergo RI for

15 days for the offence punishable under Section 201/34 IPC. The

Appellants were further sentenced to undergo RI for 2 years and to pay

a fine of Rs. 250/- each and in default of payment of fine to further

undergo RI for 15 days each for the offence punishable under Section

384/34 IPC. The sentences were to run concurrently. By this very

judgment co-accused Om Prakash was acquitted giving him benefit of

doubt.

2. Feeling aggrieved, the Appellants have challenged the judgment

and order of conviction and sentence.

3. The Appellant Rajender was complainant Tota Ram’s brother-in-

law; The Appellant Jai Pal was his friend. The co-accused Om Prakash

(already acquitted) was also Tota Ram’s brother-in-law. The Appellant

Rajender took Rajesh (son of Tota Ram the complainant) for a ride on

his bicycle. Rajesh did not return home till 9:00 P.M. Worried by this,

the complainant went to Rajender to inquire about Rajesh. Rajender

informed Tota Ram that he had left Rajesh at Khadewali Masjid, Gautam

Vihar after handing him a one rupee note.

4. On the same day at about 11:00 p.m. Rajender reached Tota

Ram’s house and handed over a two pages letter (the ransom note

Ex.PW-12/A). Rajender informed Tota Ram that a man on a bicycle

dropped the letter on his cot asking him to deliver it to him (Tota Ram).

Tota Ram went through the contents of the letter, which contained a

demand of a ransom of Rs. 70,000/- for Rajesh’s return. Tota Ram

inquired about the description of the person who delivered the said letter.

Rajender could not give the description, citing darkness as the reason.

5. On hearing this, Tota Ram was frightened. Being a washer man

by profession he could not arrange for the money. He informed others

about the letter. He suspected Rajender as the kidnapper of his son. He

went to the Police Station Bhajanpura, handed over the ransom letter and

made a statement Ex.PW-3/A to SI Jai Kishan (first IO). SI Jai Kishan

made his endorsement, for registration of the ˇFIR. SI Jai Kishan made

search for Rajesh on 01.06.1990 but he could not be traced.

6. On 02.06.1990 Om Prakash is alleged to have made an extra

judicial confession to one Abid Ali about the kidnapping of Rajesh for

ransom by Rajender in collusion with Om Prakash and Jaipal. Abid Ali

(PW-1) went to Police Post Gamri Extension and informed SI Jai Kishan

about the same. SI Jai Kishan recorded his statement. He (the SI) along

with other Police Officials went to village Behta, Loni, Ghaziabad. After

interrogation, the Appellant Rajender was arrested. He made a disclosure

statement Ex. PW-1/G. The Appellant Jai Pal also reached Rajender’s

house; he too was arrested. He (Jai Pal) made a disclosure statement Ex.

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PW-11/D stating that he could get Rajesh’s dead body recovered from

the sugarcane fields in village Khanpur Ghari. SI Jai Kishan left for village

Khanpur Gari and reached PS Jhinjhana at about 11:30 P.M. and met SO

Brijesh Kumar. He took HC Omkar Singh and Constable Jaibir from PS

Jhinjhana and left for village Khanpur Ghari at about 12:00 midnight. The

Appellant Jai Pal led them to the sugarcane fields where the dead body

of Rajesh was lying, covered with sugarcane leaves. The dead body was

identified by Tota Ram and was seized by memo Ex. PW-3/C.

7. On 04.06.1990 autopsy on the dead body was performed by

PW-6 Dr. L. T. Ramani. PW-6 found no external injury mark on the

body. He opined the cause of death due to asphyxia on account of

suffocation.

8. After completion of the investigation a report under Section 173

Cr.P.C. was filed in the Court.

9. The Appellants’ pleaded not guilty to the charge for the offence

punishable under Section 302/201/384 read with Section 34 IPC. In

order to establish its case, the prosecution examined 15 witnesses.

10. PW-2 Nem Wati, PW-3 Tota Ram, PW-4 Ved Parkash, PW-

5 Suresh Kumar, PW-6 Dr. L.T. Ramani, PW-7 Rudra Prakash, PW-11

HC Om Pal Singe, PW-12 Inspector Jai Kishan and PW-14 Inspector

Ishwar Singh are material witnesses.

11. PW-2 Nem Wati is the mother of deceased Rajesh. She is a

witness to the deceased being last seen alive in the company of Appellant

Rajender. She ˇdeposed that five years ago at about 12:00 noon Appellant

Rajender took his son Rajesh for a ride on his bicycle. Rajesh did not

return home. They made enquiries from Rajender about Rajesh. Appellant

Rajender informed PW-2 that Rajesh was dropped near Khadewali Masjid

after giving him one rupee (note). In cross-examination, the witness

deposed that Rajender informed PW-2 that he was taking Rajesh with

him for a bicycle ride. She denied the suggestion that she had deposed

falsely.

12. PW-3 Tota Ram is Rajesh’s father. He deposed that about five

years ago at about 12:00 noon his son Rajesh was taken by Rajender (his

brother-in-law) for a ride on his bicycle. He was not present in the house

at that time. Rajesh did not return home till 9:00 P.M. He, therefore, went

to Rajender who informed him that he had left Rajesh at Khadewali

Masjid, Gautam Vihar, after handing him one rupee. This witness testified

that at about 11:00 P.M. Rajender went to his house and handed him over

a two page letter and represented that the said letter had been given to

him by a man on a cycle while he was sitting on a cot outside his house.

PW-3 inquired about the description of the man who delivered the letter.

The Appellant showed his ignorance saying that he could not notice the

description of that person due to darkness.

13. PW-3 stated that there was a demand of ransom of ` 70,000/

- with a threat to kill Rajesh, if the demand were not met. He testified

that the place of making the payment was also described in the ransom

letter. He deposed that he was a poor person engaged in ironing the

clothes and, therefore, could not arrange for the money. He showed this

letter to other persons and suspected Rajesh to be behind the kidnapping.

He, therefore, approached the police and lodged a complaint Ex. PW-3/

A. He handed over the ransom note Ex.PW-12/A to the IO which was

seized by memo Ex.PW-3/B. He deposed about the arrest of Appellants

Rajender and Jaipal and recovery of Rajesh’s dead body at the instance

of Appellant Jaipal.

14. PW-4 Ved Prakash stated that the specimen handwriting of

Appellant Jaipal on four sheets Ex.PW-4/A to PW-4/D was taken in his

presence. PW-5 Suresh Kumar was also a witness to the taking of

Appellant Jaipal’s sample handwriting. He did not support the prosecution

version and denied the suggestion that he was won over by Appellant Jai

Pal.

15. PW-7 Rudra Prakash is a witness to the recovery of Rajesh’s

dead body from his sugarcane fields. He deposed that in June, 1990 the

dead body of a child aged about 8/10 years was recovered from his

fields. He signed the seizure memo (of dead body) Ex.PW-3/C. He testified

that the memo was also signed by the father of the deceased child.

Subsequently, the Delhi Police visited the spot in his absence and prepared

a site plan. Since the witness did not support his statement recorded

under Section 161 Cr.P.C., the prosecution was permitted to cross-

examine him. In cross-examination, the witness deposed that his village’s

population was about four thousand and the distance between his house

and the village abadi was about 300 metres. He deposed that he had about

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3,000 bighas of land. He showed his ignorance if Jaipal was one of the

residents of his village. He denied the suggestion that on 03.06.1990

Jaipal pointed out the place in his fields where the dead body was lying.

16. PW-11 HC Om Pal Singh is another witness to the arrest of

Appellants Rajender and Jaipal and recovery of the dead body pursuant

to the disclosure statement Ex.PW-11/D by the Appellant Jaipal from

village Ghari.

17. PW-12 Inspector Jai Kishan is the first IO. Complainant Tota

Ram met him in the Police Station on 01.06.1990 at 5:00 P.M. He

deposed that Tota Ram had produced a two page letter Ex.PW-12/A and

made a statement Ex.PW-3/A on the basis of which the FIR was registered.

He deposed about a statement by PW-1 Abid Ali that one Om Prakash

brother-in-law of Tota Ram had made an extra judicial confession regarding

his involvement and that of Rajender and Jaipal in Rajesh’s kidnapping.

He deposed about the arrest of the Appellant and the police party reaching

village Jhinjana and subsequent recovery of Rajesh’s dead body in

pursuance of the disclosure statement Ex.PW-11/D made by Appellant

Jaipal.

18. PW-14 Inspector Ishwar Singh is the second IO. He deposed

about collecting the Handwriting Expert’s report Ex.PW-14/A and filing

of the challan in the Court.

19. On closure of the prosecution evidence, the Appellants were

examined under Section 313 Cr.P.C. to afford them an opportunity to

explain the incriminating evidence. The Appellants denied the prosecution’s

allegations regarding Rajesh’s kidnapping, delivery of the ransom note by

Appellant Rajender to PW-3 Tota Ram, kidnapping of Rajesh by Appellant

Rajender, and making of any disclosure statement by them and recovery

of Rajesh’s dead body by Jaipal in pursuance of the disclosure statement

Ex.PW-11/D. They pleaded false implication.

20. By the impugned judgment, the Trial Court believed the last

seen evidence, delivery of the ransom note Ex.PW-12/A by Appellant

Rajender (in the handwriting to Appellant Jaipal) to PW-3 and recovery

of Rajesh’s dead body at the Appellant Jaipal’s instance. Thus, the Trial

Court convicted and sentenced the Appellants for the offence punishable

under Sections 384/302/201 read with Section 34 IPC as stated earlier.

21. We have heard Mr. Sameer Chandra, learned Amicus Curiae for

the Appellants, Mr. Jaideep Malik, learned Additional Public Prosecution

(APP) for the State and have perused the record.

22. The prosecution case squarely rests on circumstantial evidence.

The circumstances relied upon by the prosecution are:-

(A) Deceased being last seen alive in the company of the

Appellant Rajender;

(B) Delivery of ransom note Ex.PW-12/A in the handwriting

of Appellant Jaipal to PW-3 Tota Ram on 31.05.1990 at

11:00 P.M. by Rajender; and

(C) Disclosure statement Ex.PW-11/D made by Appellant Jaipal

and recovery of Rajesh’s dead body at Jaipal’s behest.

23. The law is well settled that where the prosecution case rests on

circumstantial evidence, the circumstances from which the conclusion of

guilt are to be drawn must, in the first instance be fully established; the

circumstances should be of conclusive nature; the circumstances taken

together must unerringly point to the guilt of an accused; the circumstances

proved on record must be incompatible with the innocence of an accused

and form the complete chain of circumstances and it must be proved that

in all probabilities the offence was committed by an accused. (Hanumant

Govind Nargundkar & Anr. v. State of Madhya Pradesh, AIR 1952

SC 343 and Sharad Birdhichand Sarda v. State of Maharashtra,

(1984)4 SCC116).

24. We shall take up the circumstances relied on by the prosecution

one by one.

CIRCUMSTANCE (A) : DECEASED BEING LAST SEEN ALIVE IN

THE COMPANY OF APPELLANT RAJENDER

25. As stated earlier, PW-2 Nem Wati is the solitary witness to

prove this circumstance. PW-2 was categorical that Rajender took Rajesh

at about 12:00 noon for a ride on his bicycle. The child did not return

and on enquiry by PW-3 Tota Ram, Rajender disclosed that Rajesh was

left at Khadewali Masjid after handing him over one rupee.

26. It is urged by the learned Amicus Curiae for the Appellants that

the testimony of this witness is unreliable in view of the fact that there

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was a delay of one day and six hours in lodging the FIR. The testimonies

of PW-1 Abid Ali and PW-2 Nem Wati are contradictory and that the

conduct of Appellant’s Rajender in helping PW-3 in Rajesh’s search

negatives the guilty mind.

27. Section 364 (A) IPC was not on the statute book on the date

of commission of the offence i.e. 31.05.1990. Thus, the FIR for an

offence under Section 384 IPC was recorded by the police. Though,

Rajesh was taken away by Rajender on 31.05.1990 at 12:00 noon, yet

there was no inkling to PW-2 Nem Wati that her child would not return.

It was only in the late evening when her husband PW-3 Tota Ram

returned from his work that she complained about Rajesh having been

taken away by Rajender. It was for this reason that PW-3 immediately

approached the Appellant Rajender, who informed PW-3 that the child

was dropped by him at Khadewali Masjid after giving him a one rupee

note. Thus, PW-2 Nem Wati may have gone to the police at about 5:00

P.M. as disclosed by PW-3 Tota Ram. No report to the police alleged

to have been made by PW-2 has been produced. As stated earlier, there

was no cause for concern till that time and it was possible that Nem Wati

might have been advised to wait for the return of Rajender along with

the child. It was only on the next day when Tota Ram was unable to

arrange the funds and at the same time was worried about the safety of

his child, finding no other option that he approached the police at about

5:00 P.M. Thus, non production of the report alleged to have been made

by PW-2 to the police at about 5:00 P.M. on 31.05.1990 is not material.

In the circumstances, it cannot be said that there was a delay of one day

and six hours in lodging the FIR. ˇOf course, there was a delay of about

17-18 hours from the time PW-3 came to know of Rajesh’s kidnapping

on 31.05.1990 at about 11:00 P.M. 28. The Court cannot be oblivious

of the fact that all parents whether rich or poor are more concerned

about the safety of their child than any action being taken against the

culprit. A perusal of PW-3’s testimony shows that he was in shock to

receive the ransom letter. PW-3 testified that he was a poor man and,

therefore, could not arrange for the sum of Rs. 70,000/-. He then brought

this fact to the notice of other persons and approached the police. In our

view, the delay of 17-18 hours has been adequately explained by PW-3

Tota Ram in approaching the police and making a report regarding the

kidnapping and receipt of a ransom note.

29. It is urged that PW-1 Abid Ali before whom co-accused Om

Prakash (already acquitted) allegedly made an extra judicial confession

deposed that Om Prakash told him that he (Om Prakash) had handed

over Rajesh to the co-accused (the Appellants herein). The extra judicial

confession has been disbelieved by the Trial Court. We do not know the

exact manner of kidnapping and the conspiracy, if any, hatched amongst

the accused persons. Since the confession made by co-accused Om

Prakash to PW-1 Abid Ali was disbelieved, it cannot be said that there

is a contradiction in the manner of kidnapping. The prosecution has not

been able to produce any evidence of actual kidnapping and relies upon

last seen evidence from which an appropriate inference may be drawn

against the Appellants.

30. It is argued by the learned Amicus Curiae that Rajender’s

conduct was compatible with his innocence. Had he kidnapped the child,

he would not have accompanied PW-3 in Rajesh’s search upto 11:00

P.M. We do not find any substance in the contention. Since the Appellant

Rajender took the child at 12:00 noon, perhaps he wanted to remove the

needle of suspicion away from him. Thus, Rajender’s conduct in joining

PW-3 in Rajesh’s search does not absolve him to render an explanation

as to where he left Rajesh after he took the child for a ride on his bicycle.

31. It is argued by the learned Amicus Curiae that Appellant Rajender

knew PW-3’s means and, therefore, it was highly improbable that he in

collusion with any other ˇperson would ask for a ransom of Rs. 70,000/

- . It is submitted that if Rajender had any intention to commit the crime,

he would not have taken away the deceased in presence of his mother

PW-2 Nem Wati. This contention also does not hold much water.

Sometimes a kidnapper asks for more than what a victim’s relatives can

afford to pay for release of their kith and kin. There may have been some

miscalculation on the part of the culprits. The contention that Rajender

knew the complainant’s financial capacity and could not have asked for

a ransom of Rs. 70,000/-, in our view, therefore, has to be rejected.

Similarly, the contention that Rajender would not have taken the child in

her presence is also without any merit as he might have thought that his

explanation that he dropped Rajesh near the Masjid would be believed.

32. It is urged by the Appellants’ counsel that the explanation of

parting company with Rajesh had come in the prosecution version itself

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and thus, no value can be attached to Rajesh being last seen in the

Appellant Rajender’s company.

33. It is true that according to the prosecution allegation of the

Appellant Rajender held out to PW-3 Tota Ram that he left Rajesh near

Khadewali Masjid after handing him a one rupee note. No suggestion to

the contrary was given to PW-3 in his cross-examination. However,

when examined under Section 313 Cr.P.C. the Appellant denied that he

took Rajesh from PW-2 on 31.05.1990 at 12:00 noon on the pretext of

giving him a bicycle ride.

34. PW-2 Nem Wati is the deceased’s mother. There is no reason

for her to lie about the fact of Rajender taking Rajesh for a ride. It is true

that there is no corroboration of PW-2’s testimony; perhaps none was

possible in the circumstances under which Appellant Rajender took the

child away. We find PW-2’s testimony to be credible and reliable and

hold that on 31.05.1990 at about 12:00 noon Rajender took away Rajesh

on the pretext of a bicycle ride and thereafter the child did not return.

The Appellant has not offered any explanation as to how he parted

Rajesh’s company. This circumstance is established against the Appellant

Rajender.

CIRCUMSTANCE (B) : DELIVERY OF RANSOM NOTE EX.PW-12/

A IN THE HANDWRITING OF APPELLANT JAIPAL TO PW-3

TOTA RAM ON 31.05.1990 AT 11:00 P.M.

35. This circumstance can be divided into two parts. (a) Allegation

of delivery of a ransom note Ex.PW-12/A by Appellant Rajender to PW-

3 in the late night of 31.05.1990, and (b) the ransom note Ex.PW-12/A

in the handwriting of Appellant Jaipal.

36. As stated earlier, PW-3 testified about the delivery of a ransom

note Ex.PW-12/A by Rajender to him. PW-3 asked for description of the

person who delivered the ransom note. The Appellant was evasive about

it and stated that he could not notice the description as it was dark at

that time.

37. It is argued by learned counsel for the Appellants that PW-2

Nem Wati is silent about the delivery of any ransom letter, although PW-

3 mentioned in the FIR that he told about this letter to his wife. It is

pointed out that the statement of PW-3 on the delivery of ransom letter

is contrary. It is argued that initially PW-3 deposed that “the accused

Rajinder gave me a letter of two pages and told me that he had been

given the said letter by a man on cycle when he was sitting outside the

house on a cot. He had further told me that the said man had told him

to give the above letter to me.” Later on, during his deposition PW-3

deposed that “the letter of ransom was received by us at our house and

was delivered by Rajinder to me saying that some person had thrown this

ransom letter in our house.

38. The Appellants highlighted the words “giving the letter” or

“throwing the letter” by PW-3 allegedly narrated to him by Appellant

Rajender. In our view, the power of observation and narration of

individuals diminishes with the passage of time. Some people do not take

note of minute details. The crux of the matter is the delivery of the

ransom letter by Appellant Rajender to PW-3 and the Appellant’s claim

that it was given to him by an unknown person. The statement of PW-

3 was recorded in the year 1996 whereas the incident took place in 1990.

The power of recapitulation/reproduction diminishes with the passage of

time, particularly, when a witness is a rustic washer man like PW-3. In

these circumstances, we do not attach any importance to this so called

discrepancy. Moreover, this argument loses significance as the Appellant

Rajender did not admit the delivery of this letter by him to PW-3.

39. It is argued that PW-3 did not identify the ransom note when

he was examined in the Court. This is also not material as there was a

lapse on the part of the APP who examined an illiterate witness in the

Court. This is not a case where the witness was unable to identify the

letter after having been shown it. On the other hand, the letter was not

put to PW-3 at all. Similarly, the argument that there is no mention in the

seizure memo Ex.PW-3/B that the letter was handed over by PW-3 Tota

Ram is not material as the fact is mentioned in the FIR which was

recorded contemporaneously.

40. Now the question for consideration is whether the Appellant

Jaipal is the scribe of this ransom note Ex.PW-12/A. It is argued by

learned counsel for the Appellants that the handwriting expert’s report

Ex.PW-14/A is not admissible in evidence as Shri T.R. Nehra was only

a Senior Scientific Officer as far as his qualification as a handwriting

expert is concerned. As per Section 293 any document purported to be

a report under the hand of a Government Scientific Expert is per se

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admissible in evidence, provided he (Scientific Expert) falls under any of

the categories A to G given in sub-Section 4 to Section 293. A Chemical

Examiner or an Assistant Chemical Examiner is one such designated

Govt. Scientific Expert. Shri T.R. Nehra who is a Scientific Expert in

this case is also designated as Assistant Chemical Examiner to the

Government of India and, therefore, his report is per se admissible in

evidence. Of course, the Appellants had a right to summon such an

expert but they did not prefer to avail it. The Appellants, therefore,

cannot be permitted now to say that the report of a handwriting expert

required a specific proof and inadmissible in evidence. The value to be

attached to this report shall be dealt with by us a little later.

41. It is argued on behalf of the Appellants that there is no

corroboration to the handwriting expert’s opinion Ex.PW-14/A. The opinion

of an expert is fallible as anyone else and, therefore, unless there was

some corroboration to show that the Appellant Jaipal was the scribe of

the ransom note, the Court, on the basis of the expert opinion could not

conclude that Jaipal was the author thereof. It is urged that PW-5, in

whose presence Jaipal’s handwriting is alleged to have been taken, turned

hostile and thus, even this is doubtful whether Ex.PW-4/A was Jaipal’s

specimen handwriting.

42. The prosecution examined PWs 4 and 5 to prove the specimen

handwriting of Jaipal. PW-5 turned hostile. PW-4 Ved Prakash testified

that the Jaipal’s handwriting Ex.PW-4/A to PW-4/D on four sheets was

taken in his presence. Nothing was elicited in the cross-examination of

PW-4 to show that Jaipal’s handwriting was not taken in his presence

and, therefore, irrespective of PW-5’s turning hostile, we are inclined to

believe PW-4 and hold that the Appellant Jaipal gave his specimen

handwriting Ex.PW-4/A to Ex.PW-4/D.

43. It is urged that the police did not have any power to take an

accused’s handwriting under Section 73 of the Evidence Act; the Appellants

rely on Section 311-A Criminal Procedure Code (Cr.P.C.) which empowers

a Magistrate of the First Class to order an accused person to give his

specimen signatures or handwriting. It is argued that Section 311-A was

incorporated in the statute book only w.e.f. 23.06.2006 and is not

retrospective in its application. It will not relate back to an offence

alleged to have been committed in the year 1990 and since Section 73

of the Evidence Act is not applicable, the police did not have any authority

to taken Appellant’s handwriting during investigation.

44. We do not agree with this submission. This is true that under

Section 73 of the Evidence Act, the Court can direct a handwriting

sample of any person only during inquiry or trial to be taken. The law

is well settled that obtaining the handwriting of an accused during

investigation is not hit by Article 20 (3) of the Constitution of India as

an accused cannot be said to be a witness against himself, if he is asked

to give his handwriting for the purpose of verification of any document

purported to be in his handwriting. In Selvi v. State of Karnataka,

(2010) 7 SCC 263, a Five Judges Bench of the Supreme Court held that

some forms of testimonial acts lie outside the scope of Article 20 (3).

Certain acts like compulsorily obtaining specimen signatures and

handwriting samples are testimonial in nature, they are not incriminatory

by themselves if they are used for the purpose of identification or

corroboration of the facts that are already in prosecuting agency’s

knowledge. It was held that obtaining handwriting of an accused for

corroboration of the facts already known is thus not barred under Article

20 (3).

45. Section 311-A allows the Court to order an accused to give his

handwriting during enquiry or investigation. These powers were not

available with the Court before Section 311-A was brought to the statute

book in the year 2006. An addition of Section 311-A merely empowered

the Court to order an accused to give his handwriting/signatures for the

purpose of investigation of his questioned handwriting/signatures which

power was not available to the Court as according to Section 73, the

Court can order for comparison of signatures/handwriting etc. of any

person whose signatures / handwriting is in dispute before the Court. In

this circumstances, it cannot be said that obtaining Appellant Jaipal’s

handwriting during investigation was illegal.

46. It is true that except the handwriting Expert’s report Ex.PW-

4/A there is no corroboration that the ransom letter Ex.PW-12/A was in

the handwriting of Appellant Jaipal. The question was dealt in detail by

the Supreme Court in Murarilal v. State of M.P., AIR 1980 SC 531.

The Court observed that handwriting expert is not an accomplice and

there is no justification for condemning his opinion evidence. It was held

that if the Court is convinced from the report of an expert that the

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questioned handwriting was of the accused, there is no difficulty in

relying upon the expert’s opinion without any corroboration. We would

like to extract relevant para of the report in Murarilal (supra) hereunder:-

“4. We will first consider the argument, a State arguments often

heard particularly in criminal courts, that the opinion-evidence of

a handwriting expert should not be acted upon without substantial

corroboration. We shall presently point out how the argument

cannot be justified on principle or precedent. We begin with the

observation that the expert is no accomplice. There is no

justification for condemning his opinion-evidence to the same

class of evidence as that of an accomplice and insist upon

corroboration. True, it has occasionally been said on very high

authority that it would be hazardous to base a conviction solely

on the opinion of a handwriting expert. But, the hazard in accepting

the opinion of any expert, handwriting expert or any other kind

of expert, is not because experts, in general, are unreliable

witnesses- the equality of credibility or incredibility being one

which an expert shares with all other witnesses-but because all

human judgment is fallible and an expert may go wrong because

of some defect of observation, some error of premises or honest

mistake of ˇconclusion. The more developed and the more

perfect a science, the less the chance of an incorrect opinion and

the converse if the science is less developed and imperfect. The

science of identification of finger-prints has attained near

perfection and the risk of an incorrect opinion is practically non-

existent. On the other hand, the science of identification of

handwriting is not nearly so perfect and the risk is, therefore,

higher. But that is far cry from doubting the opinion of a

handwriting expert as an invariable rule and insisting upon

substantial corroboration in every case, howsoever the opinion

may be backed by the soundest of reasons. It is hardly fair to

an expert to view his opinion with an initial suspicion and to treat

him as an inferior sort of witness. His opinion has to be tested

by the acceptability of the reasons given by him. An expert

deposes and not decides. His duty ‘is to furnish the judge with

the necessary scientific criteria for testing the accuracy of his

conclusion, so as to enable the judge to form his own independent

judgment by the application of these criteria to the facts proved

in evidence’. (Vide Lord President Cooper in Decie v.

Edinburgh Magistrate, 1953 SC 34 quoted by Professor Cross

in his Evidence).

6. Expert testimony is made relevant by S.45 of the Evidence

Act and where the court has to form an opinion upon a point as

to identity of handwriting, the opinion of a person ‘specially

skilled’ ‘in questions as to identity of handwriting’ is expressly

made a relevant fact. There is nothing in the Evidence Act, as

for example like Illustration (b) to Section 114 which entitles the

Court to presume that an accomplice is unworthy of credit,

unless he is corroborated in material particulars, which justifies

the court in assuming that a handwriting expert’s opinion is

unworthy of credit unless corroborated. The Evidence Act itself

(S.3) tells us that ‘a fact is said to be proved when, after

considering the matters before it, the Court either believes it to

exist or considers its existence so probable that a prudent man

ought, under the circumstances of the particular case, to act

upon the supposition that it exists’. It is necessary to occasionally

remind ourselves of this interpretation clause in the Evidence Act

lest we act on artificial standard of proof not warranted by the

provisions of the Act. Further, under S.114 of the Evidence Act,

the Court may presume the existence of any fact which it thinks

likely to have happened, regard being had to the common course

of natural events, human conduct, and public and private business,

in their relation to facts of the particular case. It is also to be

noticed that S.46 of the Evidence ˇAct makes facts, not otherwise

relevant, relevant if they support or are inconsistent with the

opinion of experts, when such opinions are relevant. So,

corroboration may not invariably be insisted upon before acting

on the opinion of an handwriting expert and there need be no

initial suspicion. But, on the facts of a particular case, a court

may require corroboration of a varying degree. There can be no

hard and fast rule, but nothing will justify the rejection of the

opinion of an expert supported by unchallenged reasons on the

sole ground that it is not corroborated. The approach of a court

while dealing with the opinion of a handwriting expert, should be

to proceed cautiously, probe the reasons for the opinion, consider

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all other relevant evidence and decide finally to accept or reject

it.

11. We are firmly of the opinion that there is no rule of law, nor

any rule of prudence which has crystallized into a rule of law,

that opinion evidence of a handwriting expert must never be

acted upon, unless substantially corroborated. But, having due

regard to the imperfect nature of the science of identification of

handwriting, the approach, as we indicated earlier, should be one

of caution. Reasons for the opinion must be carefully proved and

examined. All other relevant evidence must be considered. In

appropriate cases, corroboration may be sought. In cases where

the reasons for the opinion are convincing and there is no reliable

evidence throwing a doubt, the uncorroborated testimony of an

handwriting expert may be accepted. There cannot be any

inflexible rule on a matter which, in the ultimate analysis, is no

more than a question of testimonial weight. We have said so

much because this is an argument frequently met with in

subordinate courts and sentences torn out of context from the

judgments of this Court are often flaunted.

12. The argument that the Court should not venture to compare

writings itself, as it would thereby assume to itself the role of

an expert is entirely without force. Section 73 of the Evidence

Act expressly enables the Court to compare disputed writings

with admitted or proved writings to ascertain whether a writing

is that of the person by whom it purports to have been written.

If it is hazardous to do so, as sometimes said, we are afraid it

is one of the hazards to which judge and litigant must expose

themselves whenever it becomes necessary. There may be cases

where both sides call experts and the voices of science are heard

there may be cases where neither side calls an expert, being ill

able to afford ˇhim. In all such cases it becomes the plain duty

of the Court to compare the writings and come to its own

conclusion. The duty cannot be avoided by recourse to the

statement that the court is no expert. Where there are expert

opinions, they will aid the Court. Where there is none, the Court

will have to seek guidance from some authoritative textbook and

the Court’s own experience and knowledge. But discharge it

must, its plain duty, with or without expert, with or without

other evidence. We may mention that Shashi Kumar v. Subodh

Kumar and Fakruddin v. State of Madhya Pradesh were

cases where the Court itself compared the writings.”

47. The report in Murarilal (supra) was relied upon in a latest

judgment of the Supreme Court in Ravichandran v. State (2010) 11 SCC

120, wherein it was held that if the reasons given for the opinion by the

expert are convincing and there is no reliable evidence throwing a doubt,

the uncorroborated testimony of a handwriting expert may be accepted.

48. We have carefully gone though the ransom note Ex.PW-12/A

and the specimen handwriting given on four sheets Ex.PW-4/A to PW-

4/D and have also examined the report Ex.PW-14/A of the expert Shri

T.R. Nehra, the Senior Scientific Officer-cum-Assistant Chemical Examiner

to the Government of India. He has given detailed reasons why he

concluded that the questioned handwriting matched with the specimen

handwriting (of Appellant Jaipal). We have carefully perused the words

“SHUROO, BEES, BAZAR, RUPAIE, MAAR, GHAZIABAD, GHALE,

HOSHIARI, TAARIKH” in Ex.PW-12/A and Ex.PW-4/A to Ex.PW-4/D

and are convinced that it has the same style of handwriting. Thus, we

have no hesitation to conclude that the ransom note Ex.PW-12/A is in

Appellant Jaipal’s handwriting.

CIRCUMSTANCE (C) : DISCLOSURE STATEMENT EX.PW-11/D

MADE BY APPELLANT JAIPAL AND RECOVERY OF RAJESH’S

DEAD BODY AT JAIPAL’S BEHEST

49. PW-3 Tota Ram, PW-7 Rudra Prakash, PW-11 HC Om Pal

Singh and PW-12 Inspector Jai Kishan are the witnesses to the recovery

of Rajesh’s dead body. PWs 3, 11 and 12 have fully supported the

prosecution version that in pursuance of the disclosure statement Ex.PW-

11/D Rajesh’s dead body was got recovered by Appellant Jaipal from

PW-7’s sugarcane fields. The visit of Inspector Jai Kishan along with the

police party of Delhi Police to PS Jhinjhana is corroborated by the

testimony of PW-13 HC C.V. Singh of U.P. Police and the DD entry in

the Police Station regarding arrival and departure Ex.PX and Ex.PX/2

respectively. PW-7 who did not support the prosecution version fully but

corroborated PWs 3, 11 and 12 regarding recovery of dead body of a

child from his sugarcane fields in the month of June, 1990. PW-7 also

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deposed about presence of Delhi Police personnel and the seizure of the

dead body by memo Ex.PW-3/C which was signed by him at Point X.

PW-3 clearly deposed that the dead body was recovered from Rudra

Prakash’s fields at the instance of Appellant Jaipal. It is, therefore, apparent

that PW-7 did not support the prosecution version regarding presence of

Jaipal as he was won over by the Appellants.

50. In view of the testimony of PW-3 which is fully corroborated

by PWs 11 and 12 and partially corroborated by PW-7, it is established

that the Rajesh’s dead body was recovered at the instance of Appellant

Jaipal. It is urged on Appellants’ behalf that the recovery of the dead

body should not be believed as there is discrepancy in PW-3’s testimony

vis-a-vis the official witness about the manner of Jaipal’s arrest. It is true

that PW-3 deposed that the Appellant Rajender took them to the house

of Jaipal, whereas PWs 11 and 12 have stated that Jaipal reached the

Appellant Rajender’s house on his own. As observed by us earlier, the

incident took place in the year 1990 whereas the testimony of PW-3 was

recorded in the year 1996. PW-3 is a villager, a washer man by profession

and could have mixed up certain things with the lapse of time. We,

therefore, believe the prosecution version that Appellant Jaipal was arrested

at Rajender’s house after his (Rajender’s) arrest. This part of the disclosure

statement Ex.PW-13/D regarding his knowledge as to the dead body

becomes relevant.

51. It is urged by the learned counsel for the Appellants that the

dead body was recovered from the sugarcane fields which was accessible

to the public at large and the Appellant Jaipal cannot be saddled with the

liability of exclusive knowledge. It is true that the dead body was recovered

from an open field. But, it has emerged from evidence that the dead body

was covered by sugarcane leaves. The cross-examination of PW-7

discloses that the sugarcane fields measured 3000 bighas and it was at

a distance of about 300 yards from the abadi. In view of these

circumstances, it cannot be said that the villagers were aware of the

ˇpresence of the dead body or that it was not a discovery in pursuance

of the Appellant Jaipal’s disclosure statement Ex.PW-11/D.

52. In State of Maharashtra v. Suresh, (2000) 1 SCC 471, it was

held that when a dead body is recovered at the instance of an accused

there can be three possibilities. Firstly, that it was concealed by the

accused himself. Second, that he would have seen somebody else

concealing it and, third, that he would have been told by another person

that it was concealed there. The Appellant has not given any explanation

how he came to know about the presence of the dead body in PW-7’s

sugarcane fields and, therefore, has to explain Rajesh’s death.

53. It is argued by the Appellants’ counsel that the prosecution

failed to produce any evidence that the death was homicidal. In the

circumstances, Appellant Jaipal cannot be held responsible for Rajesh’s

death. The learned counsel has taken us through the testimony of PW-

6 Dr. L.T. Ramani and the postmortem report Ex.PW-6/A to emphasis

that “hyoid bone and thyroid cartilage were intact”. Dr. L.T. Ramani

opined “the death in this case was due to asphyxia which apparently

looked due to suffocation”. Admittedly, there was no obvious external

injury mark on the deceased’s body. It has been urged on behalf of the

Appellants that since death is not proved to be homicidal, Appellant Jaipal

cannot be held guilty of the offence punishable under Section 302 IPC.

54. We have held earlier that the Appellant Jaipal was aware of the

presence of the dead body in the sugarcane fields and has to account for

Rajesh’s death unless he gives any explanation how he came to know of

the dead body. It is true that cause of death given by Dr. L.R. Ramani

to be asphyxia due to suffocation. There is no specific finding of

strangulation by the doctor because of absence of the fracture of hyoid

bone and thyroid cartilage. A similar question came up for consideration

before the Supreme Court in Ponnusamy v. State of Tamil Nadu,

(2008) 5 SCC 587, the Supreme Court referred to Taylor’s Principles

and Practice of Medical Jurisprudence, 13th Edition and Journal of Forensic

Sciences, Volume 41 and opined that fracture of hyoid bone is not

necessary in the case of strangulation. An inference of strangulation was

drawn in the absence of any explanation from the accused even though

there was no apparent mark on the dead body. We would like to extract

paras 23 and 24 of the report hereunder:-

23. It is true that the autopsy surgeon, PW-17, did not find any

fracture on the hyoid bone. Existence of such a fracture leads

to a conclusive proof of strangulation but absence thereof does

not prove contra. In Taylor's Principles and Practice of Medical

Jurisprudence, 13th Edition, pp. 307-308, it is stated:

“The hyoid bone is 'U' shaped and composed of five

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parts: the body, two greater and two lesser horns. It is

relatively protected, lying at the root of the tongue where

the body is difficult to feel. The greater horn, which can

be felt more easily, lies behind the front part of the strip-

muscles (sternomastoid), 3 cm below the angle of the

lower jaw and1.5 cm from the midline. The bone ossifies

from six centres, a pair for the body and one for each

horn. The greater horns are, in early life, connected to the

body by cartilage but after middle life they are usually

united by bone. The lesser horns are situated close to the

junction of the greater horns in the body. They are

connected to the body of the bone by fibrous tissue and

occasionally to the greater horns by synovial joints which

usually persist throughout life but occasionally become

ankylosed”.

Our own findings suggest that although the hardening of the

bone is related to age there can be considerable variation and

elderly people sometimes show only slight ossification.

From the above consideration of the anatomy it will be appreciated

that while injuries to the body are unlikely, a grip high up on the

neck may readily produce fractures of the greater horns.

Sometimes it would appear that the local pressure from the

thumb causes a fracture on one side only.

While the amount of force in manual strangulation would often

appear to be greatly in excess of that required to cause death, the

application of such force, as evidenced by extensive external and

soft tissue injuries, make it unusual to find fractures of the hyoid

bone in a person under the age of 40 years.

As stated, even in older people in which ossification is incomplete,

considerable violence may leave this bone intact. This view is

confirmed by Green. He gives interesting figures: in 34 cases of

manual strangulation the hyoid was fractured in 12 (35%) as

compared with the classic paper of Gonzales who reported four

fractures in 24 cases. The figures in strangulation by ligature

show ˇthat the percentage of hyoid fractures was 13. Our own

figures are similar to those of Green."

24. In 'Journal of Forensic Sciences' Vol.41 under the title -

Fracture of the HyoiJaipal v. State (G.P. Mittal, J.d Bone in

Strangulation: Comparison of Fractured and Unfractured Hyoids

from Victims of Strangulation, it is stated:

“The hyoid is the U-shaped bone of the neck that is

fractured in one-third of all homicides by strangulation.

On this basis, postmortem detection of hyoid fracture is

relevant to the diagnosis of strangulation. However, since

many cases lack a hyoid fracture, the absence of this

finding does not exclude strangulation as a cause of death.

The reasons why some hyoids fracture and others do not

may relate to the nature and magnitude of force applied

to the neck, age of the victim, nature of the instrument

(ligature or hands) used to strangle, and intrinsic anatomic

features of the hyoid bone. We compared the case profiles

and xeroradiographic appearance of the hyoids of 20 victims

of homicidal strangulation with and without hyoid fracture

(n = 10, each). The fractured hyoids occurred in older

victims of strangulation (39+14 years) when compared to

the victims with unfractured hyoids (30 +10 years). The

age dependency of hyoid fracture correlated with the degree

of ossification or fusion of the hyoid synchondroses. The

hyoid was fused in older victims of strangulation (41+12

years) whereas the unfused hyoids were found in the

younger victims (28+10 years). In addition, the hyoid

bone was ossified or fused in 70% of all fractured hyoids,

but, only 30% of the unfractured hyoids were fused. The

shape of the hyoid bone was also found to differentiate

fractured and unfractured hyoids. Fractured hyoids were

longer in the anterior-posterior plane and were more steeply

sloping when compared with unfractured hyoids. These

data indicate that hyoids of strangulation victims, with

and without fracture, are distinguished by various indices

of shape and rigidity. On this basis, it may be possible to

explain why some victims of strangulation do not have

fractured hyoid bones.”

55. In view of Ponnusamy (supra) we have no doubt that in the

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absence of any specific mark of injury on the dead body when the death

was found by Dr. L.T. ˇRamani due to asphyxia on account of suffocation

it was only on account of strangulation.

56. In view of the above said discussion, we are of the view that

an inference of common intention to kidnap Rajesh for ransom can be

drawn against both the Appellants. However, it would be difficult to say

that Appellant Rajender shared the common intention to commit Rajesh’s

murder.

57. Section 364 (A) IPC was not on the statute book at the time

of commission of the offence. Unfortunately, a charge under Section 363

was also not framed by the Trial Court. It would not be appropriate to

remand the case for framing fresh charge against the Appellants after a

lapse of more than 20 years.

58. The result is that the Appeal is partly allowed as against Appellant

Rajender. His conviction and sentence for the offence punishable under

Section 384 read with section 34 IPC is maintained, whereas his conviction

for the offence punishable under Section 302/201/34 IPC is set aside.

59. The Appellant Rajender was sentenced to undergo RI for two

years and to pay fine of Rs. 250/- or in default of payment of fine to

further undergo RI for 15 days for the offence punishable under Section

384/34 IPC which he has already undergone. His Personal Bond and

Surety Bond are therefore discharged.

60. As far as the Appellant Jaipal is concerned, no interference is

required in the Trial Court order. His conviction and sentence is altered

from section 302/34 to one under Section 302 IPC. The conviction and

sentence under Section 201/34 is altered to under Section 201 IPC. His

conviction under Section 384/34 IPC is affirmed. The Appellant Jaipal

shall surrender to serve the remainder of sentence on or before 31.07.2011

before the Trial Court. The Trial Court records shall be sent back forthwith

by the Registry to ensure compliance with the directions.

61. The Appeals are disposed of in above terms.

ILR (2011) VI DELHI 576

W.P. (C)

BRAHAM PRAKASH DUTTA AND ANR. ....PETITIONERS

VERSUS

RAILWAY PROTECTION FORCE AND ORS. ....RESPONDENTS

(PRADEEP NANDRAJOG & SUNIL GAUR, JJ.)

W.P. (C) NO. : 1533/1998 DATE OF DECISION: 06.07.2011

Service Law—Pay Parity between Inspector Grade-I

(Prosecution) RPF and Senior Public Prosecutor with

CBI and Delhi Police—Petitioner working as Inspector

Grade-I (Prosecution) under RPF sought parity of pay

with Senior Public Prosecutor, CBI and Delhi Police on

the principle of equal work equal pay. Held—

Determination of pay scale-domain of executive—Court

intervention has to be slow-cannot assign itself role

of an expert-only where it is apparently manifest that

posts are identical-denial of Article 14 to those placed

in lower pay scales within the domain of writ court—

Instant case-difference in source of recruitment-

prosecution conducted by Senior Public Prosecutor

Grade I with RPF relate to petty offences unlike Public

Prosecutors with CBI and Delhi Police—Qualitative

difference in duties—Recommendation of RPF to

Finance Wing—No justification.

Suffice would it be to state that the law pertaining to

placement of posts in pay scales is: It is with the domain of

the executive to determine as to in what scale of pay a post

has to be placed and since it is a matter of expert opinion,

courts intervention has to be slow and that the court cannot

assign to itself the role of an expert. But, where it is

apparently manifest that two posts are identical, it would be

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a denial of Article 14 to those who are placed in the lower

pay scale. In said eventuality, it would be within the domain

of a writ court to issue appropriate directions. (Para 4)

Thus, it is apparent that with respect to the source of

recruitment, there is difference in the appointment of Public

Prosecutor Grade I in RPF and Senior Public Prosecutor

employed by CBI and Delhi Police. (Para 8)

It is apparent that the prosecution conducted by the Senior

Public Prosecutor Grade I with RPF relate to petty offences.

(Para 11)

We find considerable qualitative difference in the duties

performed and further note that the nature of litigation

prosecuted by the Senior Public Prosecutor Grade I is much

lower in qualitative character. (Para 13)

Law requiring complete and wholesale identity before the

principle of equal pay for equal work can be applied; this

being missing in the instant case, we are of the opinion that

the claim of the petitioner No.1 cannot be sustained.

(Para 14)

It does happen, to keep the employee happy, when money

has not flown from his pocket the employer makes a

recommendation to Finance Wing and supports the claim of

the employee. It is the Finance Wing which considers

whether the purse should be loosened or not. For the

purpose of court jurisdiction, it would be the reasoning of

the Finance Department which would matter. Similarly, it is

the reasoning of an expert body which would be considered

by the court and not of a by-standing body. That apart,

while recommending parity, Railway Protection Force simply

stated that its Prosecution Wing be brought at par with that

of Delhi Police and CBI, but gave no justification for the

same. (Para 16)

Important Issue Involved: Law requires complete and

wholesale identity before the principle of equal pay for equal

work can be applied.

[Sa Gh]

APPEARANCES:

FOR THE PETITIONERS : Mr. S.K. Dubey, Mr. Nitin Kumar

Sharma and Mr. Rahul Trivedi,

Advocates.

FOR THE RESPONDENTS : None.

CASES REFERRED TO:

1. Union of India & Ors. vs. Dinesh K.K., JT 2008 (1) SC

231.

2. State of Haryana & Anr. vs. Tilak Raj & Ors.; 2003 (6)

SCC 123.

3. State Bank of India & Anr. vs. M.R. Ganesh Babu &

Ors., 2002 (4) SCC 556.

RESULT: Writ Petition dismissed.

PRADEEP NANDRAJOG, J (Oral)

1. At the outset, it may be noted that the petitioner No.2 has died

during the pendency of the writ petition, as told to us by the learned

counsel for the petitioners, and his legal heirs have not sought substitution

by moving any application. Thus, qua petitioner No.2, the writ petition

stands dismissed as having abated.

2. We proceed to consider the matter pertaining to the claim of

petitioner No.1.

3. Working as an Inspector Grade-I (Prosecution) under RPF, the

first petitioner claims parity with the Senior Public Prosecutor working

with CBI and Delhi Police. The grievance is that Inspector Grade-I

(Prosecution) with RPF are placed in the pay scale of Rs.2000-3200, and

Senior Public Prosecutor with CBI and Delhi Police are in the pay scale

of Rs.3000-4500. Seeking parity with the Senior Public Prosecutor and

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Indian Law Reports (Delhi) ILR (2011) VI Delhi579 580 Braham Prakash Dutta v. Railway Protection Force (Pradeep Nandrajog, J.)

alleging discrimination, and stated that the principle of ‘equal work : equal

pay’, stands attracted; petitioner No.1 seeks a mandamus to be issued

that he be placed in the pay scale of Rs. 3000-4500.

4. Suffice would it be to state that the law pertaining to placement

of posts in pay scales is: It is with the domain of the executive to

determine as to in what scale of pay a post has to be placed and since

it is a matter of expert opinion, courts intervention has to be slow and

that the court cannot assign to itself the role of an expert. But, where

it is apparently manifest that two posts are identical, it would be a denial

of Article 14 to those who are placed in the lower pay scale. In said

eventuality, it would be within the domain of a writ court to issue

appropriate directions.

5. As observed by the Supreme Court, in the decision reported in

2003 (6) SCC 123, State of Haryana & Anr. vs. Tilak Raj & Ors.;

it is only where there is complete and wholesale identity between a group

of employees claiming identical pay scales, only then it can be said that

the principle of ‘equal pay for equal work’ would be attracted.

6. As held in the decision reported as 2002 (4) SCC 556, State

Bank of India & Anr. vs. M.R. Ganesh Babu & Ors., equivalence of

posts has not to be judged merely with reference to mere volume of

work. The touch stone on which equivalence has to be determined would

be to consider the source of recruitment, educational and other qualifications

required, as also the qualitative as also the quantitative nature of jobs.

7. Proceeding on the facts, it would be relevant to note that as per

the writ petitioner, Public Prosecutor Grade-II are appointed under RPF

having LL.B. degree with 5 years work experience as an advocate and

their counter parts under CBI and Delhi Police required, apart from a

LL.B degree with 7 years work experience as an advocate. Appointment

of Public Prosecutor Grade I in RPF is by promotion from Public

Prosecutor Grade II. Appointment as Senior Public Prosecutor under

CBI and Delhi Police is from amongst those advocates who, apart from

having a bachelor degree in law have 7 years work experience.

8. Thus, it is apparent that with respect to the source of recruitment,

there is difference in the appointment of Public Prosecutor Grade I in

RPF and Senior Public Prosecutor employed by CBI and Delhi Police.

9. With respect to the nature of the job to be performed, as pleaded

by the writ petitioner, Public Prosecutor Grade I with RPF deal with

prosecution only with respect to 26 offences as under:-

S. Section Description of Offences Maximum

N. imposition

of imprison-

ment and

fine (Rs.)

1. 137 Fraudulently travelling or 6 months 1,000

attempting to travel without

proper pass or ticket.

2. 141 Needless interference with means 1 year 1,0000

of communication.

3. 142 Penalty for transfer of tickets 3 months 500

4. 143 Penalty for unauthorized carrying 3 years 10,000

on business of procuring and

supplying of Railway tickets.

5. 144 Prohibition on hawking and 1 year 2,000

begging

6. 145 Drunkenness or nuisance 6 months 500

7. 146 Obstructing Railway Servant in 6 months 1,000

his duties

8. 147 Trespass and refusal to desist 6 months 1,000

from trespass.

9. 150 Maliciously wrecking or 2 years

attempting to wreck a train. for first

offence. 7

years for

second

offence.

Death or

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imprisonment

for life.

10. 151 Damage to or destruction of 5 years or

certain Railway Property. fine or both

11. 152 Maliciously hurting or attempting 10 years.

to hurt persons travelling by

Railway.

12. 153 Endangering safety of persons 5 years

travelling by Railway by willful

act or omission.

13. 154 Endangering safety of persons 1 year or

travelling by Railway by rash or fine or both.

negligent act or omission.

14. 155 Entering into a compartment 500

reserved or resisting entry into a

compartment not reserved.

15. 156 Travelling on roof steps or engine 3 months 500

of train.

16. 157 Altering of defacing pass or ticket. 3 months 500

17. 160 Opening or breaking a level 3 years or

crossing gate 5 years

18. 161 Negligently crossing unmanned 1 year

level crossing.

19. 162 Entering carriage or other places 500

reserved for female.

20. 164 Unlawfully bringing dangerous 3 years 1,000

goods on a Railway

21. 166 Defacing public notices 1 month 500

22. 168 Commission of offence by the 500

children endangering safety of

person travelling on Railway

23. 172 Railway servant being in a state 1 year or

of intoxication fine or both

24. 173 Abandoning train etc. without 2 years 1,000

authority

25. 174 Obstructing running of train etc. 2 years 2,000

26. 175 Endangering the safety of persons 2 years 1,000

10. It be highlighted that 15 out of 26 offences are punishable up

to 1 year or with fine. 7 out of 26 offences are punishable with

imprisonment above 1 year and up to 3 years and only 4 are punishable

with imprisonment beyond 3 years.

11. It is apparent that the prosecution conducted by the Senior

Public Prosecutor Grade I with RPF relate to petty offences.

12. We need not highlight the offences under the Indian Penal Code

which are dealt by Senior Public Prosecutors with CBI and Delhi Police.

To a person having elementary knowledge of the Indian Penal Code it

would be apparent that serious offences punishable up to death or with

life imprisonment, which are quite a few in numbers, require to be dealt

with by the Senior Public Prosecutor employed by CBI or Delhi Police.

13. We find considerable qualitative difference in the duties performed

and further note that the nature of litigation prosecuted by the Senior

Public Prosecutor Grade I is much lower in qualitative character.

14. Law requiring complete and wholesale identity before the principle

of equal pay for equal work can be applied; this being missing in the

instant case, we are of the opinion that the claim of the petitioner No.1

cannot be sustained.

15. We note the argument of learned counsel for the petitioner that

the Railway Protection Force has itself recommended to the 5th Pay

Commission that the prosecution branch be brought at par with that of

Delhi Police and Central Bureau Investigation and thus, cannot take a

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ILR (2011) VI DELHI 584

CRL. REV. P.

NORTH DELHI POWER LTD. ....PETITIONER

VERSUS

SURENDER KUMAR .....RESPONDENT

(MUKTA GUPTA, J.)

CRL. REV. P. NO. : 685/2007, DATE OF DECISION: 07.07.2011

563/2007, 564/2007 & 306/2007

Electricity Act, 2003—Section 135—Petitioner filed

complaint against Respondents for committing offence

under Section 135 of Act on basis of raids conducted

by inspection team—All inspections carried out prior

to notification of Government of NCT empowering

technical officers, Managers/Executive Engineers and

above rank officers as authorized officers—Trial Court

discharged Respondents holding inspection in

premises not made by authorized officers; so all

consequential proceedings initiated under Section 135

of Act illegal—Respondent urged any action taken on

basis of invalid raid is nullity—Held:- An evidence

even if illegally collected is admissible in evidence,

though the reliability thereof has to be tested at time

of trial—Trial Court to rehear the matter on order of

charge on basis of evidence on record and other

contentions raised by parties.

In Pooran Mal v. The Director of Inspection

(Investigation), New Delhi and others, (1974) 1 SCC

345 their Lordships laid down that the Courts of India and

England have consistently refused to exclude relevant

evidence merely because it is obtained by illegal search or

seizure. Even in the State and others v. N.M.T. Joy

Immaculate, 2004(5) SCC 729 this principle was reiterated.

stand to the contrary. It is pleaded that the department would be bound

of estoppel.

16. It does happen, to keep the employee happy, when money has

not flown from his pocket the employer makes a recommendation to

Finance Wing and supports the claim of the employee. It is the Finance

Wing which considers whether the purse should be loosened or not. For

the purpose of court jurisdiction, it would be the reasoning of the Finance

Department which would matter. Similarly, it is the reasoning of an

expert body which would be considered by the court and not of a by-

standing body. That apart, while recommending parity, Railway Protection

Force simply stated that its Prosecution Wing be brought at par with that

of Delhi Police and CBI, but gave no justification for the same.

17. Decision relied upon, being the judgment reported as JT 2008

(1) SC 231, Union of India & Ors. vs. Dinesh K.K., is not applicable

in the present case. Observations herein that the department having

accepted the principle of equal pay for equal work could not retract said

stand in the pleadings before the court, has to be understood with respect

to the fact that the department therein i.e. Assam Rifles, concurrence to

which was accorded by the Ministry of Home Affairs, had with respect

to the work of a Radio Mechanic brought out that Radio Mechanic

employed with Assam Rifles perform qualitatively and quantitatively

identical work as is performed by the Radio Mechanics in the Central

Paramilitary Forces. A complete and wholesale identity was brought out

in the recommendations made by the Assam Rifles as also the Ministry

of Home Affairs. It was under said circumstances that the Supreme

Court held that having given good reason to support the claim before the

Central Pay Commission, merely pleading to the contrary would not be

a justified ground to be taken by the department.

18. We dismiss the writ petition but refrain from imposing any

costs.

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585 586North Delhi Power Ltd. v. Surender Kumar (Mukta Gupta, J.)

This principle was distinguished in Ali Mustaffa Abdul

Rahman Moosa v. State of Kerala, (1994) 6 SCC 569

which was a case under the NDPS Act, for the reason that

under the NDPS Act the possession of the contraband itself

is an offence. It was thus held that the result of illegal

seizure could not be treated as evidence of possession of

the contraband. (Para 8)

Important Issue Involved: An evidence even if illegally

collectal is admissible in evidence, though the reliability

thereof has to be tested at time of trial.

[Sh Ka]

APPEARANCES:

FOR THE PETITIONER : Mr. Vikram Nandrajog and Mr.

Sushil Jaswal, Advocates.

FOR THE RESPONDENT : Mr. Ankur Sharma, Advocate.

CASES REFERRED TO:

1. Mukesh Rastogi vs. North Delhi Power Limited, 2007

(99) DRJ 108.

2. State and others vs. N.M.T. Joy Immaculate, 2004(5) SCC

729.

3. Roy V.D. vs. State of Kerala, AIR 2001 SC 137.

4. Rajeev Anand and others vs. Union of India and others,

(1998) 72 DLT 355.

5. Ali Mustaffa Abdul Rahman Moosa vs. State of Kerala,

(1994) 6 SCC 569.

6. Pooran Mal vs. The Director of Inspection (Investigation),

New Delhi and others, (1974) 1 SCC 345.

7. Herman King vs. The Queen [1969] (1) A.C. 304.

8. Kuruma vs. The Queen [1955] A.C. 197.

9. Olmstead vs. United State (1828) 277 U.S. 438.

10. Barindra Kumar Ghose and Ors. vs. Emperor I.L.R. 37

Cal 467.

RESULT: Revision petition allowed.

MUKTA GUPTA, J.

1. The short issue which arises in the present petition is whether

a prosecution case can be thrown out at the stage of charge itself on the

ground that there was no notification authorizing the concerned officer

to carry out the inspection on the date when the inspection was carried

out.

2. In these petitions complaints were filed against the Respondents

for committing the offence under Section 135 of the Electricity Act,

2003(in short ‘the Act’) on the basis of raids allegedly conducted by the

inspection teams in the premises of the Respondents on 25th September,

2003, 26th February, 2004, 12th March, 2004 and 8th January 2004

respectively. All these inspections were carried out prior to 31st March,

2004 when the notification of the Government of NCT of Delhi

(Department of Power) was issued empowering the technical officers of

the rank of managers/executive engineers and above in the departments

dealing with distribution, commercial and enforcement functions as

authorized officers for the purpose of Section 135 of the Act. The

learned trial court came to the conclusion that the officers of the

complainant could not derive any power under Regulation 25(i) to conduct

a raid on the premises in question on the relevant date under Section 135

of the Act. Since it was held that the inspection in the premises was not

made by the authorized officers so all consequential proceedings initiated

against the accused persons for the offence punishable under Section

135 of the Act were illegal and the Respondents were discharged.

3. Learned counsel on behalf of the Petitioner contends that theft

of electricity is an offence. The power to inspect a premises is inherent

in the distribution licensee that is the Petitioner. Prior to the notification

dated 31st March, 2004 there was no requirement for a statutory

notification regarding designation of officers authorized to inspect

premises. The procedure was that the inspection teams authorized by the

department used to conduct inspections and office orders dated 11th

July, 1996 and 24th December, 1996 have been placed on record in this

regard. It is contended that under Section 135(2) of the Act, the power

of inspection and prosecution is with the licensee/supplier of the electricity

that is the Petitioner. It is stated that though the notification authorizing

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a person of the rank of manager and above to conduct inspection in the

present case had been issued on 25th September, 2003, 26th February,

2004, 12th March, 2004 and 8th January, 2009 respectively and till such

time the requisite notification was issued by the State Government on

31st March, 2004 it cannot be said that no inspection to detect theft of

electricity or pilferage of energy could be carried out by the distribution

licensee. According to learned counsel for the Petitioner the learned trial

court failed to appreciate that there cannot be any vacuum in law. Reliance

is placed on Rajeev Anand and others v. Union of India and others,

(1998) 72 DLT 355 to contend that the statutory provision cannot be

held to remain a dead letter till such time the procedure is prescribed and

in the absence of procedure being prescribed the authority would be

required to follow and apply such procedure which is just, fair and

reasonable and in consonance with the principles of natural justice.

4. It is further contended that the Respondents cannot be discharged

on the ground that the inspection was invalid. This finding has to be

arrived at after the evidence is adduced in the trial and after consideration

of the entire evidence on record by the learned trial court. Reliance is

placed on Mukesh Rastogi v. North Delhi Power Limited, 2007 (99)

DRJ 108. This Court in the said decision held that even if the inspection

was not a valid inspection, the complainant has a right to prove the theft

irrespective of the said status of inspection. There is no provision under

the DERC (Metering and Billing) Regulations, 2002 stipulating that

inspections have to be carried out by officials authorized by the State

Government. The power to inspect was vested with the licensee that is

the Petitioner. It is next contended that it is well settled law of legal

jurisprudence that even an illegal inspection will not detract from the

relevancy of the evidence and the material collected during such inspection

and search. Illegality of search does not vitiate the evidence collected

during such search. The Petitioner have every right to prove the theft of

electricity by independent testimony of complainant’s witnesses dehors

the inspection report which ought to be considered by the Court and no

case for discharge of the accused is made out.

5. Learned counsel for the Respondent, on the other hand, contends

that unless the officers are authorized by a notification of the State

Government in this behalf an inspection under the Act is invalid and any

action taken on the basis of such an invalid raid is a nullity. The alleged

inspections were carried out unauthorizedly by officials of the Petitioner

and they were not carrying the authorization, identification or any other

proof that they were the authorized officers. It is contended that earlier

under the Indian Electricity Act, 1910 on the theft being detected a

complaint was lodged to the police under Section 39 as the same was

a cognizable offence and the case proceeded as a State case. However,

now as per Section 135(2) of the Act, powers have been given to the

authorized officer to conduct search and seizure as per the procedure

prescribed under sub section (3) and (4) and a complaint case procedure

has to be followed. Since these are special powers addressed to particular

persons the same cannot be delegated. It is contended that the judgments

sought to be relied upon by learned counsel for the Petitioner are not

applicable to the facts of the present case. The offence of theft is

required to be proved by the prosecution through cogent evidence. The

concept of vacuum in law is misconceived. The authorities could have

acted fast immediately on coming into force of the Act and the officers

authorized in this regard. Reliance is placed on Roy V.D. v. State of

Kerala, AIR 2001 SC 137 to contend that as under the NDPS Act a

search which is inherently illegal and lacks sanction of law cannot be the

basis of proceedings in relation to the offence similarly in the present

case of illegal search cannot be the basis of a conviction.

6. I have given my anxious consideration to the various provisions

involved. Before starting with a discussion thereon it would be relevant

to reproduce certain provisions of the Electricity Act, 2003 which are as

under:-

“OFFENCES AND PENALTIES

135. Theft of electricity.—(1) Whoever, dishonestly,—

(a) taps, makes or causes to be made any connection with

overhead, underground or underwater lines or cables, or

service wires, or service facilities of a licensee; or

(b) tampers a meter, installs or uses a tampered meter, current

reversing transformer, loop connection or any other device

or method which interferes with accurate or proper

registration, calibration or metering of electric current or

otherwise results in a manner whereby electricity is stolen

or wasted; or

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(c) damages or destroys an electric meter, apparatus,

equipment, or wire or causes or allows any of them to be

so damaged or destroyed as to interfere with the proper

or accurate metering of electricity; or

so as to abstract or consume or use electricity shall be punishable

with imprisonment for a term which may extend to three years

or with fine or with both:

Provided that in a case where the load abstracted,

consumed, or used or attempted abstraction or attempted

consumption or attempted use -

(i) does not exceed 10 kilowatt, the fine imposed on first

conviction shall not be less than three times the financial

gain on account of such theft of electricity and in the

event of second or subsequent conviction the fine imposed

shall not be less than six times the financial gain on account

of such theft of electricity;

(ii) exceeds 10 kilowatt, the fine imposed on first conviction

shall not be less than three time the financial gain on

account of such theft of electricity and in the event of

second or subsequent conviction, the sentence shall be

imprisonment for a term not less than six months, but

which may extend to five years and with fine not less

than six times the financial gain on account of such theft

of electricity:

Provided further that if it is proved that any artificial

means or means not authorised by the Board or licensee

exist for the abstraction, consumption or use of electricity

by the consumer, it shall be presumed, until the contrary

is proved, that any abstraction, consumption or use of

electricity has been dishonestly caused by such consumer.

(2) Any officer authorised in this behalf by the State

Government may —

(a) enter, inspect, break open and search any place or premises

in which he has reason to believe that electricity (has been

or is being), used unauthorisedly;

(b) search, seize and remove all such devices, instruments,

wires and any other facilitator or article which has been,

is being used for unauthorised use of electricity;

(c) examine or seize any books of account or documents

which in his opinion shall be useful for or relevant to, any

proceedings in respect of the offence under sub-section

(1) and allow the person from whose custody such books

of account or documents are seized to make copies thereof

or take extracts therefrom in his presence.

(3) The occupant of the place of search or any person on his

behalf shall remain present during the search and a list of

all things seized in the course of such search shall be

prepared and delivered to such occupant or person who

shall sign the list:

Provided that no inspection, search and seizure of

any domestic places or domestic premises shall be carried

out between sunset and sunrise except in the presence of

an adult male member occupying such premises.

(4) The provisions of the Code of Criminal Procedure, 1973,

relating to search and seizure shall apply, as far as may

be, to searches and seizure under this Act.’’

185. Repeal and saving: —(1) Save as otherwise provided in this

Act, the Indian Electricity Act, 1910 (9 of 1910), the Electricity

(Supply) Act, 1948 (54 of 1948) and the Electricity Regulatory

Commissions Act, 1998 (14 of 1998) are hereby repealed.

(2) Notwithstanding such repeal, -

(e) all directives issued, before the commencement of this Act,

by a State Government under the enactments specified in the

Schedule shall continue to apply for the period for which such

directions were issued by the State Government.

(3) The provisions of the enactments specified in the Schedule,

not inconsistent with the provisions of this Act, shall apply to the

States in which such enactments are applicable.

(5) Save as otherwise provided in sub-section (2), the mention

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of particular matters in that section, shall not be held to prejudice

or affect the general application of section 6 of the General

Clauses Act, 1897 (10 of 1897), with regard to the effect of

repeals.’’

7. It would be thus seen that by Section 135 (1) of the Act inter

alia defines theft of electricity as dishonestly tapping or making any

connection with overhead, underground of cables or service facilities of

a licensee. The possession of the electricity vests with the licensee and

by virtue of sub-Section 2 this power of the licensee to search and seize

is required to be delegated to an officer authorized in this behalf by the

State Government. The power to delegate the authority to search and

seize in an officer does not take away the proprietary rights of the

licensee. Moreover, in terms of Section 185(2)(a) all earlier directives

and orders issued are saved till such time a new notification or office

orders come into force. In this regard it may be noted that even prior

to coming into force of the Act of 2003 there were office orders issued

from time to time for inspection of the premises. Reference is made to

the office order dated 11th July, 1996 whereby the authority was delegated

to the AE zone for checking and inspection.

8. There is yet another ground on which the impugned order needs

to be set aside. It is well settled law of criminal jurisprudence that an

evidence even if illegally collected is admissible in evidence, though the

reliability thereof has to be tested at the time of trial. In Pooran Mal v.

The Director of Inspection (Investigation), New Delhi and others,

(1974) 1 SCC 345 their Lordships laid down that the Courts of India and

England have consistently refused to exclude relevant evidence merely

because it is obtained by illegal search or seizure. Even in the State and

others v. N.M.T. Joy Immaculate, 2004(5) SCC 729 this principle was

reiterated. This principle was distinguished in Ali Mustaffa Abdul

Rahman Moosa v. State of Kerala, (1994) 6 SCC 569 which was a

case under the NDPS Act, for the reason that under the NDPS Act the

possession of the contraband itself is an offence. It was thus held that

the result of illegal seizure could not be treated as evidence of possession

of the contraband. The learned trial court failed to notice this distinction

and applied the principle of law laid down in Roy V.D. v. State of

Kerala (supra) which was a case of under the NDPS Act. It would be

relevant to reproduce the relevant portion of Pooran Mal (supra) which

is as under:-

‘‘24. So far as India is concerned its law of evidence is modelled

on the rules of evidence which prevailed in English law, and

courts in India and in England have consistently refused to exclude

relevant evidence merely on the ground that it is obtained by

illegal search or seizure. In Barindra Kumar Ghose and Ors.

v. Emperor I.L.R. 37 Cal 467 the learned Chief Justice Sir

Lawrence Jenkins says at page 500 : “Mr. Das has attacked the

searches and has urged that, even if there was jurisdiction to

direct the issue of search warrants, as I hold there was, still the

provisions of the Criminal Procedure Code have been completely

disregarded. On this assumption he has contended that the

evidence discovered by the searches is not admissible, but to this

view I cannot accede. For without in any way countenancing

disregard of the provisions prescribed by the Code, I hold that

what would otherwise be relevant does not become irrelevant

because it was discovered in the course of a search in which

those provisions were disregarded. As Jimutayahana with his

shrewd commonsense observes- “a tact cannot be altered by

100 texts,” and as his commentator quaintly remarks : “If a

Brahmana be slain, the precept ‘slay not a Brahmana’ does not

annul the murder.” But the absence of the precautions designed

by the legislature lends support to the argument that the alleged

discovery should be carefully scrutinized.” In Emperor v.

Allahdad Khan 35 Allahabad, 358 the Superintendent of Police

and a Sub-Inspector searched the house of a person suspected

of being in illicit possession of excisable articles and such articles

were found in the house searched. It was held that the conviction

of the owner of the house under Section 63 of the United

Provinces Excise Act, 1910, was not rendered invalid by the fact

that no warrant had been issued for the search, although it was

presumably the intention of the legislature that in a case under

Section 63, where it was necessary to search a house, a search

warrant should be obtained beforehand. In Kuruma v. The

Queen [1955] A.C. 197 where the Privy Council had to consider

the English Law of Evidence in its application to Eastern Africa,

their Lordships propounded the rule thus : “The test to be applied,

both in civil and in criminal cases, in considering whether evidence

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guarantee against search and seizure. It was held in that case

that the search of the appellant by a Police Officer was not

justified by the warrant nor was it open to the Officer to search

the person of the appellant without taking him before a Justice

of the Peace. Nevertheless it was held that the Court had a

discretion to admit the evidence obtained as a result of the illegal

search and the Constitutional protection against search of person

or property without consent did not take away the discretion of

the court. Following Kuruma v. The Queen the court held that

it was open to the court not to admit the evidence against the

accused if the court was of the view that the evidence had been

obtained by conduct of which the prosecution ought not to take

advantage. But that was not a rule of evidence but a rule of

prudence and fair play. It would thus be seen that in India, as

in England, where the test of admissibility of evidence lies in

relevancy, unless there is an express Or necessarily implied

prohibition in the Constitution or other law evidence obtained as

a result of illegal search or seizure is not liable to be shut out.’’

9. Learned counsel for the Respondent has pressed two more pleas.

Firstly, that the show cause notices have been issued as per the provisions

under Section 39 and 44 of the Indian Electricity Act, 1910 whereas the

complaint has been filed under the Electricity Act, 2003 and thus such

a complaint cannot be entertained, secondly, that even the old Regulation

25(i) which came into effect on 19th August, 2002 under the old enactment

has not been followed. The said Regulation mandates the inspecting

authority to carry alongwith it the written authority duly signed by a

designated officer of the licensee at the time of inspection. No such

averment has been made in the complaint, neither the said authorization

has been proved nor it is a part of the record. I am not dealing with these

two issues as the same were not dealt by the learned trial court which

found fit to discharge the Respondents in view of the issue raised above

in the preceeding paragraphs. The parties will be at liberty to raise these

pleas or any other pleas which they deem fit during the trial as all these

issues can be can be determined while appreciating the evidence brought

on record during the trial by the parties.

10. In view of the reasons stated above the impugned orders are

set aside. The learned trial court will now rehear the matter on the order

is admissible is whether it is relevant to the matters in issue. If

it is, it is admissible and the court is not concerned with how it

was obtained.” Some American cases were also cited before the

Privy Council. Their Lordships observed at p. 204 thus : “Certain

decisions of the Supreme Court of the United States of America

were also cited in argument. Their Lordships do not think it

necessary to examine them in detail. Suffice it to say that there

appears to be considerable difference of opinion among the judges

both in the State and Federal courts as to whether or not the

rejection of evidence obtained by illegal means depends on certain

articles in the American Constitution. At any rate, in Olmstead

v. United State (1828) 277 U.S. 438, the majority of the Supreme

Court were clearly of opinion that the common law did not reject

relevant evidence on that ground.” In Kuruma’s case, Kuruma

was searched by two Police Officers who were not authorised

under the law to carry out a search and, in the search, some

ammunition was found in the unlawful possession of Kuruma.

The question was whether the evidence with regard to the finding

of the ammunition on the person of Kuruma could be shut out

on the ground that the evidence had been obtained by an unlawful

search. It was held it could not be so shut out because the

finding of ammunition was a relevant piece of evidence on a

charge for unlawful possession. In a later case before the Privy

Council in Herman King v. The Queen [1969] (1) A.C. 304

which came on appeal from a Court of Appeal of Jamaica, the

law as laid down in Kuruma’s case was applied although the

Jamaican Constitution guaranteed the Constitutional right against

search and seizure in the following provision of the Jamaica

(Constitution) Order in Council 1962, Schedule 2, Section 19

“(1) Except with his own consent, no person shall be subjected

to the search of his person or his property or the entry by others

on his premises. “(2) Nothing contained in or done under the

authority of any law shall be held to be inconsistent with or in

contravention of this section to the extent that the law in question

makes provision which is reasonably required...for the purpose

of preventing or detecting crime....” In other words, search and

seizure for the purposes of preventing or detecting crime

reasonably enforced was not inconsistent with the Constitutional

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of charge on the basis of the evidence on record and other contentions

raised by the parties and pass orders thereon.

11. The revision petitions are accordingly allowed.

ILR (2011) VI DELHI 595

CM (M)

DELHI METRO RAIL CORPORATION LTD. ....PETITIONER

VERSUS

SAMRAT RANGA AND ORS. ....RESPONDENTS

(REVA KHETRAPAL, J.)

CM(M) NO. : 285/2011 DATE OF DECISION: 07.07.2011

Code of Civil Procedure, 1908—Order 1 Rule 10—

Motor Vehicles Act, 1988—Section 2(30)-165—Order of

Motor Accident Claims Tribunal rejecting Petitioner’s

application seeking impleading of licensee who had

been granted permission for operation of Feeder

Buses for Metro Link Feeder Bus Project of DMRC

Ltd. challenged before HC—Plea taken, petitioner had

entered into agreement whereunder licensee was

granted permission for operation of feeder buses for

Metro Feeder Bus Project—Licensee had undertaken

to indemnify petitioner against accident/claims/liability

arising out of operation of buses—There was no privity

of contract between petitioner and injured victim—

Rejection of application tantamounted to pre-judging

issue of liability even without a trial—Held—Provisions

of M.V. Act envisage that claims Tribunal should hold

enquiry to ascertain liabilities of persons who are

involved in use of vehicle or persons who are

vicariously liable—Issue of possession or control of

vehicle assumes importance and may be determining

factor in fixing liabilities of parties to claim petition—

Order rejecting petitioner’s application for impleadment

of licensee set aside.

Important Issue Involved: The issue of possession or

control of the vehicle assumes importance and may be the

determining factor in fixing the liabilities of the parties to

the claim petition.

[Ar Bh]

APPEARANCES:

FOR THE PETITIONER : Mr. Chandan Kumar, Advocate.

FOR THE RESPONDENTS : Ms. Shantha Devi Raman, Advocate

for the Respondent No. 3.

CASES REFERRED TO:

1. National Insurance Co. Ltd. vs. Deepa Devi and Ors.,

AIR 2008 SC 735.

2. Godavari Finance Co. vs. Degala Satyanarayanamma and

Ors., (2008) 5 SCC 107.

3. Rajasthan State Road Transport Corporation vs. Kailash

Nath Kothari and Ors., AIR 1997 SC 3444.

RESULT: Allowed.

REVA KHETRAPAL, J.

1. This petition is directed against the order dated 15.12.2010 passed

by the Motor Accidents Claims Tribunal, Dwarka Courts, New Delhi in

MAC. P. No.24/10 rejecting the petitioner’s miscellaneous application

seeking impleadment of M/s. Rajasthan Bombay Transport Pvt. Ltd.

2. The facts relevant for the disposal of the present petition briefly

delineated are as follows.

3. The respondent No.1 had sustained injuries in an accident which

occurred on 05.12.2009 involving RTV (Mini Bus) bearing No.DL-IVA-

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6400 driven by the respondent No.2 and insured with the respondent

No.3. The petitioner, who was arrayed as the respondent No.2 in the

claim petition, in the written statement filed by it put forth the plea that

it had entered into an agreement dated 24.10.2007 with M/s. Rajasthan

Bombay Transport Pvt. Ltd. whereunder the licensee, i.e., M/s. Rajasthan

Bombay Transport Pvt. Ltd., had been granted the permission for operation

of Feeder Buses on routes of Lot-4 for Metro Link Feeder Bus Project

of Delhi Metro Rail Corporation Limited. The petitioner further pleaded

that in consideration of the aforesaid licence granted by it to M/s. Rajasthan

Bombay Transport Pvt. Ltd., the said licensee had expressly agreed and

undertaken to indemnify and keep the petitioner indemnified against (i)

any accident/claims/liabilities or any criminal proceedings or statutory

requirements at any time arising out of the operation of the buses on

account of any act/omission/default/ on the part of the Licensee/its

employees, (ii) any criminal and/or civil liability arising out of any accident

or action of tort on part of the driver, conductor or any other employee

of the Licensee during the course of operating the buses ........... (iv) all

consequential claims/liabilities arising out of any accident/incident or legal

or statutory issue involving the vehicles or the running of the vehicles

towards any third party.

4. In its said written statement, the petitioner further stated that an

Indemnity Bond dated 20.09.2007 had been executed by M/s. Rajasthan

Bombay Transport Pvt. Ltd. in favour of the petitioner, apart from the

Lease Agreement and the delivery receipt dated 18.02.2008 in respect of

the vehicle in question. It was also contended that there was no privity

of contract between the petitioner and the injured victim, the respondent

No.1 herein. It was submitted that as per the law laid down by the

Hon’ble Supreme Court in the case of Godavari Finance Co. vs. Degala

Satyanarayanamma and Ors., (2008) 5 SCC 107, the person who is

in possession of the vehicle would be the person liable to pay the damages

for a motor accident caused by the said vehicle.

5. Simultaneously with the filing of the written statement, the

petitioner filed an application under Order I Rule 10 read with Section

151 of the Code of Civil Procedure praying for impleadment of M/s.

Rajasthan Bombay Transport Pvt. Ltd. as a party to the proceedings on

the ground that it would be just and necessary for the proper adjudication

of the claim petition. The indemnity bond dated 20.09.2007 and copy

each of the registration certificate and vehicle lease agreement alongwith

the delivery receipt dated 18.02.2008 of the vehicle in question were

placed on record alongwith the said impleadment application filed by the

petitioner as Annexure-R-1 & R-2’. The said application was dismissed

by the impugned order dated 15.12.2010.

6. Aggrieved by the aforesaid order, the present petition has been

filed on the ground that the rejection of the application in fact tantamounted

to pre-judging the issue of liability even without a trial. It is also submitted

that the adjudication of the issue of possession of the alleged offending

vehicle was of vital importance, as admittedly the RTV was in the

possession of respondent No.2, who was an employee of M/s. Rajasthan

Bombay Transport Pvt. Ltd. and the latter was in possession and operation

of the vehicle due to the Lease Agreement dated 18.02.2008.

7. In the course of arguments, Mr. Chandan Kumar, the learned

counsel for the petitioner has taken me through the Vehicle Lease

Agreement entered into between the petitioner and M/s. Rajasthan Bombay

Transport Pvt. Ltd. on 18th February, 2008. Emphasis has been laid by

the learned counsel upon certain clauses of the said Agreement, which

are reproduced hereunder:

“Clause 5.

5. The LESSEE shall keep the vehicle at all times in its possession

and control.

Clause 7.

7. The LESSEE acknowledges that it holds the vehicle as a mere

bailee of the LESSOR and shall not have any proprietary right,

title or interest in the vehicle or any part thereof. The LESSEE

shall at no time contest or challenge the LESSOR’S sole and

exclusive right title and interest in the vehicle.

Clause 11.

11. The LESSEE shall:

(a) Forthwith upon the signing of this agreement at its own

cost and have and keep the vehicle comprehensively insured

in the name of LESSOR during the continuance of the

Lease Agreement against loss or damage or destruction

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by fire accident, theft, riots, civil commotion, third party

claims, and such other risk including terrorist, earth quake,

natural calamity risk and on such terms as the LESSOR

may require with an insurer approved by the LESSOR for

an amount equal to the full insurable value of the vehicle.

In the event of the LESSEE failing to insure as per this

clause the LESSOR may do so and recover the cost

thereof from the LESSEE forth with. The LESSEE shall

be liable for all the loss or damage that may occur by or

as a consequence of its failure to insure the vehicle as per

this clause.’’

8. On the basis of the aforesaid clauses, reproduced hereinabove,

it is contended that though the petitioner was the registered owner of the

alleged offending vehicle, by virtue of the Lease Agreement dated

18.02.2008 M/s. Rajasthan Bombay Transport Pvt. Ltd. was the lessee

of the said vehicle and the petitioner was the lessor. The lessee had

agreed to pay charges as per the Schedule to the lessor for the vehicles

leased to it and the first payment was to be made on 18.02.2008. In para

7 of the Agreement, it has been specifically stipulated that the lessee shall

hold the vehicle as a mere bailee of the lessor and shall not have any

proprietary right, title or interest in the vehicle or any part thereof. It is

further clarified that the lessee shall at no time contest or challenge the

sole and exclusive right, title and interest in the vehicle of the petitioner.

In paragraph 11 of the Agreement, it is laid down that the lessee shall

keep the vehicle comprehensively insured in the name of the petitioner

during the continuance of the Agreement against loss or damage or

destruction or third party claims, etc., and the policies of insurance are

required to be handed over to the lessor by the lessee.

9. The learned counsel for the petitioner contended that the

respondent No.2, who was driving the alleged offending vehicle at the

time of the accident, though, originally an employee of the petitioner, on

the date of the accident was working as an employee of M/s. Rajasthan

Bombay Transport Pvt. Ltd., which Company had effective control over

him. In such a situation, he further contended, the petitioner could not

be held vicariously liable for the tort committed by the respondent No.2.

Reliance in this context was placed upon a judgment of the Hon’ble

Supreme Court in the case of Rajasthan State Road Transport

Corporation vs. Kailash Nath Kothari and Ors., AIR 1997 SC 3444.

Reliance was also placed upon the judgment of the Supreme Court in the

case of National Insurance Co. Ltd. vs. Deepa Devi and Ors., AIR

2008 SC 735. It may be noted that both the said decisions have been

cited with approval by the Hon’ble Supreme Court in its subsequent

decision in the case of Godavari Finance Co. (supra), which, as noticed

above, has also been relied upon by the learned counsel for the petitioner.

10. It may be mentioned at this juncture that the respondents No.1

and 2, though they initially appeared on service of notice of the filing of

the present petition upon them, subsequently chose not to appear before

this Court. The respondent No.3-Insurance Company was, however,

represented by Ms. Shantha Devi Raman, Advocate, who in principle,

supported the prayer of the petitioner for impleadment of M/s. Rajasthan

Bombay Transport Pvt. Ltd. as a party respondent to the claim petition.

11. Having heard the learned counsel for the petitioner and Ms.

Shantha Devi Raman for the Insurance Company and gone through the

order of the learned Claims Tribunal, in my opinion, the prayer of the

petitioner for impleadment of the lessee of the vehicle, namely, M/s.

Rajasthan Bombay Transport Pvt. Ltd. deserves to be allowed. The relevant

provisions of the Motor Vehicles Act, including Section 165 of the Act,

envisage that the Claims Tribunal should hold an enquiry to ascertain the

liabilities of the persons who are involved in the use of the vehicle or the

persons who are vicariously liable. Thus, the issue of possession or

control of the vehicle assumes importance and may be the determining

factor in fixing the liabilities of the parties to the claim petition.

12. I am fortified in coming to the aforesaid conclusion from the

findings rendered by the Hon’ble Supreme Court in the case of Godavari

Finance Co. (supra). In the said case, the question before the Supreme

Court was whether a financier would be an owner of a motor vehicle

financed by it within the meaning of Section 2(30) of the Motor Vehicles

Act, 1988. The appellant, M/s Godavari Finance Co. was impleaded in

the proceedings on the premise that it was the financier of the vehicle

which caused the accident. As the vehicle was the subject matter of a

hire-purchase agreement, the appellant’s name was mentioned in the

registration book. Notwithstanding, the Supreme Court, setting aside the

judgments of the learned Tribunal and of the High Court holding that the

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appellant as a registered owner was liable for payment of compensation,

held that in the case of a motor vehicle which is subjected to a hire-

purchase agreement, the financier cannot ordinarily be treated to be the

owner. The Supreme Court further held that the person who is in

possession of the vehicle, and not the financier, being the owner, would

be liable to pay damages for the motor accident. Referring to the provisions

of Section 168 of the Motor Vehicles Act and to its earlier decisions

rendered in Kailash Nath Kothari and Deepa Devi (supra), the Supreme

Court observed as under:

‘‘16. An application for payment of compensation is filed before

the Tribunal constituted under Section 165 of the Act for

adjudicating upon the claim for compensation in respect of

accident involving the death of, or bodily injury to, persons

arising out of the use of motor vehicles, or damages to any

property of a third party so arising, or both. Use of the motor

vehicle is a sine qua non for entertaining a claim for compensation.

Ordinarily if driver of the vehicle would use the same, he remains

in possession or control thereof. Owner of the vehicle, although

may not have anything to do with the use of vehicle at the time

of the accident, actually he may be held to be constructively

liable as the employer of the driver. What is, therefore, essential

for passing an award is to find out the liabilities of the persons

who are involved in the use of the vehicle or the persons who

are vicariously liable. The insurance company becomes a necessary

party to such claims as in the event the owner of the vehicle is

found to be liable, it would have to reimburse the owner inasmuch

as a vehicle is compulsorably insurable so far as a third party is

concerned, as contemplated under Section 147 thereof. Therefore,

there cannot be any doubt whatsoever that the possession

or control of a vehicle plays a vital role.

17. The question came up for consideration before this Court in

Rajasthan State Road Transport Corporation v. Kailash Nath

Kothari and Ors., AIR 1997 SC 3444 where the owner of a

vehicle rented the bus to Rajasthan State Road Transport

Corporation. It met with an accident. Despite the fact that the

driver of the bus was an employee of the registered owner of the

vehicle, it was held:

Driver of the bus, even though an employee of the owner,

was at the relevant time performing his duties under the

order and command of the conductor of RSRTC for

operation of the bus. So far as the passengers of the ill-

fated bus are concerned, their privity of contract was

only with the RSRTC to whom they had paid the fare for

travelling in that bus and their safety therefore became the

responsibility of the RSRTC while travelling in the bus.

They had no privity of contract with Shri Sanjay Kumar,

the owner of the bus at all. Had it been a case only of

transfer of services of the driver and not of transfer of

control of the driver from the owner to RSRTC, the

matter may have been somewhat different. But on facts

in this case and in view of Conditions 4 to 7 of the

agreement (supra), the RSRTC must be held to be

vicariously liable for the tort committed by the driver

while plying the bus under contract of the RSRTC. The

general proposition of law and the presumption arising

therefrom that an employer, that is the person who has

the right to hire and fire the employee, is generally

responsible vicariously for the tort committed by the

employee concerned during the course of his employment

and within the scope of his authority, is a rebuttable

presumption. If the original employer is able to establish

that when the servant was lent, the effective control over

him was also transferred to the hirer, the original owner

can avoid his liability and the temporary employer or the

hirer, as the case may be, must be held vicariously liable

for the tort committed by the employee concerned in the

course of his employment while under the command and

control of the hirer notwithstanding the fact that the driver

would continue to be on the payroll of the original owner.

The proposition based on the general principle as noticed

above is adequately rebutted in this case not only on the

basis of the evidence led by the parties but also on the

basis of Conditions 6 and 7 (supra), which go to show

that the owner had not merely transferred the services of

the driver to the RSRTC but actual control and the driver

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was to act under the instructions, control and command

of the conductor and other officers of the RSRTC.

18. The question again came up for consideration recently before

this Court in National Insurance Co. Ltd. v. Deepa Devi and

Ors., AIR 2008 SC 735. This Court in that case was dealing

with a matter where the vehicle in question was requisitioned by

the State Government while holding that the owner of the vehicle

would not be liable it was opined:

10. Parliament either under the 1939 Act or the 1988 Act

did not take into consideration a situation of this nature.

No doubt, Respondent Nos. 3 and 4continued to be the

registered owner of the vehicle despite the fact that the

same was requisitioned by the District Magistrate in

exercise of its power conferred upon it under the

Representation of People Act. A vehicle is requisitioned

by a statutory authority, pursuant to the provisions

contained in a statute. The owner of the vehicle cannot

refuse to abide by the order of requisition of the vehicle

by the Deputy Commissioner. While the vehicle remains

under requisition, the owner does not exercise any control

thereover. The driver may still be the employee of the

owner of the vehicle but he has to drive it as per the

direction of the officer of the State, who is put in-charge

thereof. Save and except for legal ownership, for all intent

and purport, the registered owner of the vehicle loses

entire control thereover. He has no say as to whether the

vehicle should be driven at a given point of time or not.

He cannot ask the driver not to drive a vehicle on a bad

road. He or the driver could not possibly say that the

vehicle would not be driven in the night. The purpose of

requisition is to use the vehicle. For the period the vehicle

remains under the control of the State and/ or its officers,

the owner is only entitled to payment of compensation

therefore in terms of the Act but he cannot not exercise

any control thereupon. In a situation of this nature, this

Court must proceed on the presumption that the Parliament

while enacting the 1988 Act did not envisage such a

situation. If in a given situation, the statutory definitions

contained in the 1988 Act cannot be given effect to in

letter and spirit, the same should be understood from the

common sense point of view.

In so opining the Court followed Kailash Nath Kothari (supra).

The legal principles as noticed hereinbefore, clearly show that

the appellant was not liable to pay any compensation to the

claimants.’’

13. In view of the aforesaid law laid down by the Supreme Court,

I have not the least bit of hesitation in setting aside the order dated

15.12.2010 rejecting the petitioner’s application for impleadment of M/

s. Rajasthan Bombay Transport Pvt. Ltd.

14. The appeal is accordingly allowed. Amended memo of parties

shall be filed by the petitioner impleading M/s. Rajasthan Bombay Transport

Pvt. Ltd. as party respondent. The learned Tribunal shall issue directions

for the service of the newly added party.

A copy of this order be given dasti to the counsel for the petitioner,

as prayed.

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ILR (2011) VI DELHI 605

CRL. M.C.

M. ARUN AHLUWALIA ....PETITIONER

VERSUS

ARUN OBEROI & ANR. ....RESPONDENTS

(MUKTA GUPTA, J.)

CRL. M.C. NO. : 239/2010 DATE OF DECISION: 08.07.2011

Negotiable Instrument Act, 1881—Section 138—

Respondent no.1 filed complaint under Section 138 of

Act—Aggrieved by summoning order passed by Senior

Civil Judge, petitioner preferred petition for quashing

of said order—Petitioner urged, cheque not

dishonoured for reason of insufficient funds or amount

due thereon exceeded amount arranged to be paid

from account—However, there was no discharge of

legal liability of petitioner towards complainant—Thus,

case for dishonour of cheque not made out—Per

contra, Respondents urged, petitioner issued two

cheques out of which one cheque dishonoured and a

legal liability on part of petitioner existed as he had

purchased shares from Respondent and his wife—

Held:- Where a cheque is dishonoured for any reason,

it has to be co-related to the insufficiency of funds in

account—Legislative intent is to stop dishonoring of

cheque and adopt a no-nonsense situation and punish

the unscrupulous person who purport to discharge

this liability by issuing cheques, not intending to honour

it on account of insufficiency of funds in their

accounts—Petitioner’s contention that he had no

liability to pay, is a question of fact and can be

determined only through Trial—Petition dismissed.

The Hon'ble Supreme Court in case of Rangappa (Supra)

has at length discussed the scope and legislative intent of

the sections 118, 138 & 139 of the NI Act as follows:

“8. In the course of the proceedings before this Court,

the contentions related to the proper interpretation of

Sections 118(a), 138 and 139 of the Act. Before

addressing them, it would be useful to quote the

language of the relevant provisions:

118. Presumptions as to negotiable instruments. -

Until the contrary is proved, the following presumptions

shall be made: (a) of consideration: that every

negotiable instrument was made or drawn for

consideration, and that every such instrument when it

has been accepted, endorsed, negotiated or

transferred, was accepted, endorsed, negotiated or

transferred for consideration;

138. Dishonour of cheque for insufficiency, etc., of

funds in the account. - Where any cheque drawn by

a person on an account maintained by him with a

banker for payment of any amount of money to

another person from out of that account for the

discharge, in whole or in part, of any debt or other

liability, is returned by the bank unpaid, either because

of the amount of money standing to the credit of that

account is insufficient to honour the cheque or that it

exceeds the amount arranged to be paid from that

account by an agreement made with that bank, such

person shall be deemed to have committed an offence

and shall, without prejudice to any other provision of

this Act, be punished with imprisonment for a term

which may extend to two years, or with fine which may

extend to twice the amount of the cheque, or with

both:

Provided that nothing contained in this section shall

apply unless-

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(a) the cheque has been presented to the bank within

a period of six months from the date on which it is

drawn or within the period of its validity, whichever is

earlier.

(b) the payee or the holder in due course of the

cheque, as the case may be, makes a demand for the

payment of the said amount of money by giving a

notice, in writing, to the drawer of the cheque, within

thirty days of the receipt of information by him from

the bank regarding the return of the cheque as

unpaid; and

(c) the drawer of such cheque fails to make the

payment of the said amount of money to the payee

or, as the case may be, to the holder in due course

of the cheque, within fifteen days of the receipt of the

said notice.

Explanation. - For the purposes of this section, `debt

or other liability' means a legally enforceable debt or

other liability.

139. Presumption in favour of holder.- It shall be

presumed, unless the contrary is proved, that the

holder of a cheque received the cheque, of the

nature referred to in Section 138 for the discharge, in

whole or in part, of any debt, or other liability.

9. Ordinarily in cheque bouncing cases, what the

courts have to consider is whether the ingredients of

the offence enumerated in Section 138 of the Act

have been met and if so, whether the accused was

able to rebut the statutory presumption contemplated

by Section 139 of the Act. With respect to the facts of

the present case, it must be clarified that contrary to

the trial court's finding, Section 138 of the Act can

indeed be attracted when a cheque is dishonoured on

account of ‘stop payment’ instructions sent by the

accused to his bank in respect of a post-dated cheque,

irrespective of insufficiency of funds in the account.

This position was clarified by this Court in Goa Plast

(Pvt.) Ltd. v. Chico Ursula D'Souza, (2003) 3 SCC

232, wherein it was held:

“Chapter XVII containing Sections 138 to 142 was

introduced in the Act by Act 66 of 1988 with the object

of inculcating faith in the efficacy of banking operations

and giving credibility to negotiable instruments in

business transactions. These provisions were intended

to discourage people from not honouring their

commitments by way of payment through cheques.

The court should lean in favour of an interpretation

which serves the object of the statute. A post-dated

cheque will lose its credibility and acceptability if its

payment can be stopped routinely. The purpose of a

post-dated cheque is to provide some accommodation

to the drawer of the cheque. Therefore, it is all the

more necessary that the drawer of the cheque should

not be allowed to abuse the accommodation given to

him by a creditor by way of acceptance of a post-

dated cheque. In view of Section 139, it has to be

presumed that a cheque is issued in discharge of any

debt or other liability. The presumption can be rebutted

by adducing evidence and the burden of proof is on

the person who wants to rebut the presumption. This

presumption coupled with the object of Chapter XVII of

the Act leads to the conclusion that by countermanding

payment of a post-dated cheque, a party should not

be allowed to get away from the penal provision of

Section 138. A contrary view would render S. 138 a

dead letter and will provide a handle to persons trying

to avoid payment under legal obligations undertaken

by them through their own acts which in other words

can be said to be taking advantage of one's own

wrong....”

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in regard to the second aspect of the matter. Existence

of legally recoverable debt is not a matter of

presumption under Section 139 of the Act. It merely

raises a presumption in favour of a holder of the

cheque that the same has been issued for discharge

of any debt or other liability.

31. The courts below, as noticed hereinbefore,

proceeded on the basis that Section 139 raises a

presumption in regard to existence of a debt also.

The courts below, in our opinion, committed a serious

error in proceeding on the basis that for proving the

defence the accused is required to step into the

witness box and unless he does so he would not be

discharging his burden. Such an approach on the

part of the courts, we feel, is not correct.

32. An accused for discharging the burden of proof

placed upon him under a statute need not examine

himself. He may discharge his burden on the basis of

the materials already brought on record. An accused

has a constitutional right to maintain silence. Standard

of proof on the part of the accused and that of the

prosecution in a criminal case is different….

34. Furthermore, whereas prosecution must prove the

guilt of an accused beyond all reasonable doubt, the

standard of proof so as to prove a defence on the

part of the accused is `preponderance of probabilities'.

Inference of preponderance of probabilities can be

drawn not only from the materials brought on record

by the parties but also by reference to the

circumstances upon which he relies.”

(Emphasis supplied)

Specifically in relation to the nature of the presumption

contemplated by Section 139 of the Act, it was

observed;

10. It has been contended on behalf of the appellant-

accused that the presumption mandated by Section

139 of the Act does not extend to the existence of a

legally enforceable debt or liability and that the same

stood rebutted in this case, keeping in mind the

discrepancies in the complainant's version. It was

reasoned that it is open to the accused to rely on the

materials produced by the complainant for disproving

the existence of a legally enforceable debt or liability.

It has been contended that since the complainant did

not conclusively show whether a debt was owed to

him in respect of a hand loan or in relation to

expenditure incurred during the construction of the

accused's house, the existence of a legally enforceable

debt or liability had not been shown, thereby creating

a probable defence for the accused. Counsel

appearing for the appellant-accused has relied on a

decision given by a division bench of this Court in

Krishna Janardhan Bhat v. Dattatraya G. Hegde,

(2008) 4 SCC 54, the operative observations from

which are reproduced below (S.B. Sinha, J. at Paras.

29-32, 34 and 45):

“29. Section 138 of the Act has three ingredients viz:

(i) that there is a legally enforceable debt

(ii) that the cheque was drawn from the account of

bank for discharge in whole or in part of any debt or

other liability which presupposes a legally enforceable

debt; and

(iii) that the cheque so issued had been returned due

to insufficiency of funds.

30. The proviso appended to the said section provides

for compliance with legal requirements before a

complaint petition can be acted upon by a court of

law. Section 139 of the Act merely raises a presumption

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“45. We are not oblivious of the fact that the said

provision has been inserted to regulate the growing

business, trade, commerce and industrial activities of

the country and the strict liability to promote greater

vigilance in financial matters and to safeguard the

faith of the creditor in the drawer of the cheque which

is essential to the economic life of a developing

country like India. This however, shall not mean that

the courts shall put a blind eye to the ground realities.

Statute mandates raising of presumption but it stops

at that. It does not say how presumption drawn should

be held to have been rebutted. Other important

principles of legal jurisprudence, namely, presumption

of innocence as a human right and the doctrine of

reverse burden introduced by Section 139 should be

delicately balanced. Such balancing acts, indisputably

would largely depend upon the factual matrix of each

case, the materials brought on record and having

regard to legal principles governing the same.”

(Emphasis supplied)

11. With respect to the decision cited above, counsel

appearing for the respondent-claimant has submitted

that the observations to the effect that the `existence

of legally recoverable debt is not a matter of

presumption under Section 139 of the Act' and that `it

merely raises a presumption in favour of a holder of

the cheque that the same has been issued for

discharge of any debt or other liability' [See Para. 30

in Krishna Janardhan Bhat (supra)] are in conflict

with the statutory provisions as well as an established

line of precedents of this Court. It will thus be necessary

to examine some of the extracts cited by the

respondent-claimant. For instance, in Hiten P. Dalal

v. Bratindranath Banerjee (2001) 6 SCC 16, it was

held (Ruma Pal, J. at Paras. 22-23):

“22. Because both Sections 138 and 139 require that the

Court `shall presume' the liability of the drawer of the

cheques for the amounts for which the cheques are drawn,

..., it is obligatory on the Court to raise this presumption in

every case where the factual basis for the raising of the

presumption has been established. It introduces an exception

to the general rule as to the burden of proof in criminal

cases and shifts the onus on to the accused (...). Such a

presumption is a presumption of law, as distinguished from

a presumption of fact which describes provisions by which

the court may presume a certain state of affairs. Presumptions

are rules of evidence and do not conflict with the presumption

of innocence, because by the latter all that is meant is that

the prosecution is obliged to prove the case against the

accused beyond reasonable doubt. The obligation on the

prosecution may be discharged with the help of presumptions

of law or fact unless the accused adduces evidence showing

the reasonable probability of the non-existence of the

presumed fact.

23. In other words, provided the facts required to form the

basis of a presumption of law exists, the discretion is left with

the Court to draw the statutory conclusion, but this does not

preclude the person against whom the presumption is drawn

from rebutting it and proving the contrary. A fact is said to

be proved when, after considering the matters before it, the

Court either believes it to exist, or considers its existence so

probable that a prudent man ought, under the circumstances

of the particular case, to act upon the supposition that it

exists. Therefore, the rebuttal does not have to be

conclusively established but such evidence must be adduced

before the Court in support of the defence that the Court

must either believe the defence to exist or consider its

existence to be reasonably probable, the standard of

reasonability being that of the prudent man.”

(Emphasis supplied)

12. The respondent-claimant has also referred to the decision

reported as Mallavarapu Kasivisweswara Rao v.

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Thadikonda Ramulu Firm and Ors. 2008 (8) SCALE 680,

wherein it was observed:

“Under Section 118(a) of the Negotiable Instruments Act, the

court is obliged to presume, until the contrary is proved, that

the promissory note was made for consideration. It is also a

settled position that the initial burden in this regard lies on

the defendant to prove the non-existence of consideration

by bringing on record such facts and circumstances which

would lead the Court to believe the non-existence of the

consideration either by direct evidence or by preponderance

of probabilities showing that the existence of consideration

was improbable, doubtful or illegal....

This decision then proceeded to cite an extract from the

earlier decision in Bharat Barrel & Drum Manufacturing

Company v. Amin Chand Pyarelal, (1999) 3 SCC 35: (AIR

1999 SC 1008) (Para.12):

“Upon consideration of various judgments as noted

hereinabove, the position of law which emerges is that once

execution of the promissory note is admitted, the presumption

under Section 118(a) would arise that it is supported by a

consideration. Such a presumption is rebuttable. The

defendant can prove the non-existence of a consideration

by raising a probable defence. If the defendant is proved to

have discharged the initial onus of proof showing that the

existence of consideration was improbably or doubtful or the

same was illegal, the onus would shift to the plaintiff who will

be obliged to prove it as a matter of fact and upon its failure

to prove would disentitle him to the grant of relief on the

basis of the negotiable instrument. The burden upon the

defendant of proving the non-existence of the consideration

can be either direct or by bringing on record the

preponderance of probabilities by reference to the

circumstances upon which he relies. In such an event, the

plaintiff is entitled under law to rely upon all the evidence led

in the case including that of the plaintiff as well. In case,

where the defendant fails to discharge the initial onus of

proof by showing the non-existence of the consideration, the

plaintiff would invariably be held entitled to the benefit of

presumption arising under Section 118(a) in his favour. The

court may not insist upon the defendant to disprove the

existence of consideration by leading direct evidence as the

existence of negative evidence is neither possible nor

contemplated and even if led, is to be seen with a doubt.

The bare denial of the passing of the consideration apparently

does not appear to be any defence. Something which is

probable has to be brought on record for getting the benefit

of shifting the onus of proving to the plaintiff. To disprove

the presumption, the defendant has to bring on record such

facts and circumstances upon consideration of which the

court may either believe that the consideration did not exist

or its non-existence was so probable that a prudent man

would, under the circumstances of the case, act upon the

plea that it did not exist.”

(Emphasis supplied)

Interestingly, the very same extract has also been

approvingly cited in Krishna Janardhan Bhat

(supra).

13. With regard to the facts in the present case, we

can also refer to the following observations in M.M.T.C.

Ltd. and Anr. v. Medchl Chemicals & Pharma (P)

Ltd. (2002) 1 SCC 234 (Para. 19):

“...The authority shows that even when the cheque is

dishonoured by reason of stop payment instruction,

by virtue of Section 139 the Court has to presume

that the cheque was received by the holder for the

discharge in whole or in part, of any debt or liability.

Of course this is a rebuttable presumption. The

accused can thus show that the `stop payment'

instructions were not issued because of insufficiency

or paucity of funds. If the accused shows that in his

account there was sufficient funds to clear the amount

of the cheque at the time of presentation of the

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cheque for encashment at the drawer bank and that

the stop payment notice had been issued because of

other valid causes including that there was no existing

debt or liability at the time of presentation of cheque

for encashment, then offence under Section 138

would not be made out. The important thing is that the

burden of so proving would be on the accused....”

(Emphasis supplied)

14. In light of these extracts, we are in agreement with

the respondent-claimant that the presumption

mandated by Section 139 of the Act does indeed

include the existence of a legally enforceable debt or

liability. To that extent, the impugned observations in

Krishna Janardhan Bhat (supra) may not be correct.

However, this does not in any way cast doubt on the

correctness of the decision in that case since it was

based on the specific facts and circumstances therein.

As noted in the citations, this is of course in the

nature of a rebuttable presumption and it is open to

the accused to raise a defence wherein the existence

of a legally enforceable debt or liability can be

contested. However, there can be no doubt that there

is an initial presumption which favours the complainant.

Section 139 of the Act is an example of a reverse

onus clause that has been included in furtherance of

the legislative objective of improving the credibility of

negotiable instruments. While Section 138 of the Act

specifies a strong criminal remedy in relation to the

dishonour of cheques, the rebuttable presumption

under Section 139 is a device to prevent undue delay

in the course of litigation. However, it must be

remembered that the offence made punishable by

Section 138 can be better described as a regulatory

offence since the bouncing of a cheque is largely in

the nature of a civil wrong whose impact is usually

confined to the private parties involved in commercial

transactions. In such a scenario, the test of

proportionality should guide the construction and

interpretation of reverse onus clauses and the

accused/defendant cannot be expected to discharge

an unduly high standard or proof. In the absence of

compelling justifications, reverse onus clauses usually

impose an evidentiary burden and not a persuasive

burden. Keeping this in view, it is a settled position

that when an accused has to rebut the presumption

under Section 139, the standard of proof for doing so

is that of `preponderance of probabilities'. Therefore,

if the accused is able to raise a probable defence

which creates doubts about the existence of a legally

enforceable debt or liability, the prosecution can fail.

As clarified in the citations, the accused can rely on

the materials submitted by the complainant in order to

raise such a defence and it is conceivable that in

some cases the accused may not need to adduce

evidence of his/her own.” (Para 8)

In R. Vinod Shivappa (Supra) their Lordship’s have

interpreted Section 138 of NI Act as under:

“12. It is well settled that in interpreting a statute the

court must adopt that construction which suppresses

the mischief and advances the remedy. This is a rule

laid down in Heydon's case (76 ER 637) also known

as the rule of purposive construction or mischief rule.

13. Section 138 of the Act was enacted to punish

those unscrupulous persons who purported to

discharge their liability by issuing cheques without

really intending to do so, which was demonstrated by

the fact that there was no sufficient balance in the

account to discharge the liability. Apart from civil

liability, a criminal liability was imposed on such

unscrupulous drawers of cheques. The prosecution,

however, was made subject to certain conditions. With

a view to avoid unnecessary prosecution of an honest

drawer of a cheque, or to give an opportunity to the

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drawer to make amends, the proviso to Section 138

provides that after dishonour of the cheque, the

payee or the holder of the cheque in due course must

give a written notice to the drawer to make good the

payment. The drawer is given 15 days time from date

of receipt of notice to make the payment, and only if

he fails to make the payment he may be prosecuted.

The object which the proviso seeks to achieve is quite

obvious. It may be that on account of mistake of the

bank, a cheque may be returned despite the fact that

there is sufficient balance in the account from which

the amount is to be paid. In such a case if the drawer

of the cheque is prosecuted without notice, it would

result in great in-justice and hardship to an honest

drawer. One can also conceive of cases where a well

intentioned drawer may have inadvertently missed to

make necessary arrangements for reasons beyond

his control, even though he genuinely intended to

honour the cheque drawn by him. The law treats such

lapses induced by inadvertence or negligence to be

pardonable, provided the drawer after notice makes

amends and pays the amount within the prescribed

period. It is for this reason that Clause (c) of proviso

to Section 138 provides that the section shall not

apply unless the drawer of the cheque fails to make

the payment within 15 days of the receipt of the said

notice. To repeat, the proviso is meant to protect

honest drawers whose cheques may have been

dishonoured for the fault of others, or who may have

genuinely wanted to fulfill their promise but on account

of inadvertence or negligence failed to make necessary

arrangements for the payment of the cheque. The

proviso is not meant to protect unscrupulous drawers

who never intended to honour the cheques issued by

them, it being a part of their modus operandi to cheat

unsuspecting persons.” (Para 9)

Important Issue Involved: Where a cheque is dishonoured

for any reason it has to be co-related to the insufficiency

of funds in account—Legislative intent is to stop dishonoring

of cheque and adopt a no-nonsense situation and punish the

unscrupulous person who purport to discharge this liability

by issuing cheques, not intending to honour it on account

of insufficiency of funds in their accounts.

[Sh Ka]

APPEARANCES:

FOR THE PETITIONER : Mr. D.S. Narula, Senior Advocate

with Ms. Vandana & Mr. A.S.

Narula, Advocates.

FOR THE RESPONDENT : Mr. Avi Singh & Mr. Anya Singh,

Advocates.

CASES REFERRED TO:

1. Rangappa vs. Sri Mohan, AIR 2010 SC 1898.

2. Raj Kumar Khanna vs. State, (2009) 6 SCC 72.

3. Mustafa Surka vs. State of Gujarat, Special Criminal

Application Nos. 2118 to 2143 of 2009.

4. Vijay Chaudhary vs. Gyan Chand Jain, 2008(2) DCR

685.

5. Mallavarapu Kasivisweswara Rao vs. Thadikonda Ramulu

Firm and Ors. 2008 (8) SCALE 680.

6. Krishna Janardhan Bhat vs. Dattatraya G. Hegde, (2008)

4 SCC 54.

7. R.Vinod Shivappa vs. Nanda Belliappa, 130 (2006) DLT

534 (SC).

8. Goa Plast (Pvt.) Ltd. vs. Chico Ursula D'Souza, (2003)

3 SCC 232.

9. Gopalast Pvt. Ltd. vs. Chico Ursula D'Souza, AIR 2003

SC 2035.

10. Vinod Tanna vs. Zaher Siddiqui, (2002) 7 SCC 541.

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11. Veera Exports vs. Kalavathy, (2002)1 SCC 97.

12. M.M.T.C. Ltd. and Anr. vs. Medchl Chemicals & Pharma

(P) Ltd. (2002) 1 SCC 234 (Para. 19).

13. Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC

16.

14. Kusum Ingots & Alloys Ltd. vs. Pennar Peterson Securities

Ltd. & Ors., (2000) 2 SCC 745.

15. Bharat Barrel & Drum Manufacturing Company vs. Amin

Chand Pyarelal, (1999) 3 SCC 35: (AIR 1999 SC 1008)

(Para.12).

16. Om Prakash Bhojraj Maniyar vs. Swati Girish Bhido and

others, (78) 1993 Company Cases 797 Bombay High Court.

RESULT: Petition Dismissed.

MUKTA GUPTA, J.

1. This is a petition for quashing of order dated 19th March, 2009

summoning the petitioner in criminal complaint No. 92/5/08 under Section

138 Negotiable Instrument Act (hereinafter referred as NI Act) and the

said complaint.

2. Before proceeding further, it would be relevant to note the brief

facts of the case. The Respondent No. 1and his wife along with M/s

May Co. Freight & Travels Pvt. Ltd. were shareholders of M/s Kausauli

Resorts Pvt. Ltd. Co. registered at Jalandar City. They were holding

35,000 shares of M/s Kausauli Resort in totality and were Promoter/

Directors of the said company. On 25th August, 2003 the Respondent

No.1 along with his wife & M/s May Co. Freight & Travels Pvt. Ltd.

sold their shareholding to Captain NP Ahluwalia i.e. Brother of the petitioner

& Captain P.S. Chimni for Rs.1,49,79,000 as per MOU dated 25th August,

2003. It is alleged that the petitioner had discharged this liability in part

for purchasing the share holding of M/s Kasauli Resort Pvt. Ltd. of the

Respondent. The petitioner had issued 2 post dated cheques bearing No.

624695 dated 31st January, 2004 for a sum of Rs.3,50,000/- drawn on

State Bank of India and other bearing No. 624696 dated 31st December,

2004 for a sum of Rs.20,00,000/- drawn on State Bank of India, Malviya

Nagar, New Delhi. The 1st cheque bearing No. 624695 was duly encashed

but the 2nd cheque became the bone of contention between the parties

and for the dishonour of the said cheque Respondent No.1filed the

complaint case under Section 138 of NI Act. On 19th March, 2009 Ld.

Senior Civil Judge in Complaint Case No. 92/5/08 issued summons to the

petitioner which is the order impugned in the present petition.

3. Learned counsel for the petitioner contends that on the averments

contained in the complaint and the documents filed therein, no offence

under Section 138 NI Act is made out as the cheque issued by the

petitioner had not been dishonoured for the reason of insufficient funds

or that the amount due thereon exceeds the amount arranged to be paid

from that account. It is contended that for an offence to be made out

under Section 138 NI Act the dishonoured cheque must be in discharge

of a legal liability whereas in the present case there are no particulars

contained in the complaint which disclose the alleged liability of the

petitioner towards the complainant for which the cheque is said to have

been issued. It is urged that the petitioner is nowhere involved in the

transaction which took place between the respondent and the brother of

the petitioner. The petitioner is not even a signatory to the MOU signed

by the respondent and petitioner's brother Captain NP Ahluwalia and

Captain PS Chimni. Therefore, there is no legal liability of the petitioner

to pay any amount to the Respondent No.1. Reliance is placed on Kusum

Ingots & Alloys Ltd. Vs. Pennar Peterson Securities Ltd. & Ors.,

(2000) 2 SCC 745. It is further contended that the date mentioned on the

cheque issued was 31st December, 2004 which was a loan to the

respondent and the same was to be first declared and then presented for

encashment. Respondent did not raise the said loan amount till the year

2005 and out of nowhere in the year 2008 issued a notice u/s 138 N.I.

Act to the Petitioner. No legal liability of the petitioner existed for which

he ought to have paid the money. The said date of 31st December, 2004

has been altered to 30th September, 2008 to defraud and blackmail the

petitioner. There arises no question of revalidation of the said cheque.

Also this aspect has been categorically denied by petitioner in his response

to the notice dated 3rd November, 2008 sent to him by the Respondent

No.1 under Section 138 of NI Act. Reliance is placed on Vinod Tanna

vs. Zaher Siddiqui, (2002) 7 SCC 541 to contend that where the cheque

was dishonoured only due to incomplete signature of drawer the same

would not attract the provision of Section 138 NI Act. Reliance has been

placed upon Om Prakash Bhojraj Maniyar vs. Swati Girish Bhido

and others, (78) 1993 Company Cases 797 Bombay High Court; Mustafa

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Surka vs. State of Gujarat, Special Criminal Application Nos. 2118 to

2143 of 2009 decided by the Gujarat High Court to contend that for an

offence contemplated under Section 138 of NI Act exists only in two

contingencies and therefore if the cheque is dishonoured for any third

contingency or eventuality the same would not be covered under the

provisions of Section 138 of NI Act. Thus, where the cheque is

dishonoured due to incomplete signature/illegible or no image found

signature or closure of account it would not attract the provision of

Section 138 of the Act and hence cannot afford a ground for taking penal

action under the said section. Reliance is placed on Raj Kumar Khanna

vs. State, (2009) 6 SCC 72 to contend that the parameters for invoking

Section 138 of the Act are limited and a penal provisions created by

reason of a legal fiction must receive strict construction. Such a penal

provision enacted in terms of the legal fiction drawn would be attracted

when a cheque is returned by the Bank unpaid and such non-payment

should be for either of the two reasons embodied therein.

4. Per contra learned Counsel for the Respondent vehemently

opposing the present petition contends that the petitioner had issued 2

cheques out of which the 2nd cheque bearing No. 624696 dated 31st

December, 2004, which was dishonoured, is the subject matter of the

present petition. It is contended that there existed a legal liability on the

part of the petitioner as he had in part purchased the shares of M/s

Kausauli Resort Pvt. Ltd. from the respondent and his wife. Further, the

said cheque was revalidated by the petitioner in the month of April, 2008

when the respondent visited Singapore and discussed the matter about

the payment of said cheque. Thereafter the date of the said cheque was

changed from 31st December, 2004 to 30th September, 2008 and duly

signed by the petitioner. On presentation of the said cheque on 1st

October, 2008 the cheque was dishonoured and was returned vide Memo

dated 3rd October, 2008 by the Bank. Though the reason assigned in the

said Memo was the alteration in cheque, however, the said cheque was

dishonoured not only due to alternation in signatures but also due to the

fact that the account balance of the petitioner on the said date was nil

and due to insufficiency of funds the cheque was dishonoured. CW1

Prabhat Kumar, the Branch Manager of State Bank of India, Malviya

Nagar has been examined and has deposed in this regard. Since it is a

case of dishonour of cheque due to insufficiency of funds, therefore,

provisions of Section 138 are clearly attracted. Learned counsel places

reliance on Rangappa vs. Sri Mohan, AIR 2010 SC 1898 to contend

that in view of Section 139 it has to be presumed that a cheque is issued

in discharge of any debt or liability and the presumption can be rebutted

by way of evidence but burden is on the person who wants to rebut it.

Reliance is also placed on R.Vinod Shivappa vs. Nanda Belliappa, 130

(2006) DLT 534 (SC) to contend that the proviso to Section 138 is not

meant to protect the unscrupulous drawers who do not intend to honour

the cheques issued by them. Learned counsel further relies on Veera

Exports Vs. Kalavathy, (2002)1 SCC 97 to contend that revalidation of

the Negotiable Instrument is a material alteration which fact has to be

established by the way of evidence at the trial and the same cannot be

determined on the mere assertion of the accused. Hence no case for

quashing of the summoning order is made out in the present case. It is

only the assertion made by the petitioner that he did not revalidate the

cheque as he owed no legal liability towards Petitioner. This fact needs

to be ascertained by way of evidence and the same can be done at the

trial and not in a petition under Section 482 Cr.P.C. Reliance is also

placed on Gopalast Pvt. Ltd. Vs. Chico Ursula D'Souza, AIR 2003 SC

2035 to contend the though Sec 138 is a penal provision still it is a duty

of the court to interpret it consistent with the legislative intent, purpose

of which is to suppress the mischief and advance the remedy which in

such cases is to stop the menance of not honouring the issued cheques.

Therefore, the present petition is meritless and liable to be dismissed.

5. I have heard the learned counsel for the parties and perused the

records. The questions to be determined in the present petition are two

fold. Firstly, whether the provisions of Section 138 N.I. Act would be

attracted in a case where there are no sufficient funds in the account on

the date of dishonour of the cheque though the cheque has been returned

with a return memo “due to alteration”. Secondly, that where there is an

alteration in the cheque and the same is not admitted to by the petitioner

whether the court hearing a petition under Section 482 Cr.P.C. can

ascertain the veracity of the same without a trial.

6. The contention of the learned counsel for the Petitioner that there

existed no legal liability for him to honour the cheque as there was no

privity of contract between the Petitioner and Respondent No. 1 and that

the Respondent’s group had received the entire sale consideration for the

shares of Captain N.P. Ahluwalia and Captain P.S. Chinni in terms of the

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M.O.U. and that the cheque issued was a loan to the Petitioner as he was

running into losses, are disputed questions of fact which need

determination at the stage of trial because in the complaint it is alleged

by the Respondent that the Petitioner had issued the said cheque for Rs.

20,00,000/- in order to discharge its liability in part for purchasing the

ˇshare holding of M/s Kausauli Resort Pvt. Ltd. of the Respondent and

his Company.

7. The reliance of the learned counsel for the petitioner on Vinod

Tanna's Case (Supra) is misconceived as the Hon'ble Supreme Court

was considering a \case where there was only alteration in the cheque

and there was no allegation of insufficiency of funds. However in the

present case the Complainant/Respondent has led evidence and CWI

Prabhat Kumar, the Branch Manager of State Bank of India has deposed

that as per the Bank Statement of the petitioner there was no balance to

honour the cheque on the day it was presented. Thus there was a ground

available with the Respondent that an offence under Section 138 N.I. Act

has been committed as there was also insufficient funds due to which

the said cheque could not be honoured.

8. The Hon'ble Supreme Court in case of Rangappa (Supra) has

at length discussed the scope and legislative intent of the sections 118,

138 & 139 of the NI Act as follows:

“8. In the course of the proceedings before this Court, the

contentions related to the proper interpretation of Sections 118(a),

138 and 139 of the Act. Before addressing them, it would be

useful to quote the language of the relevant provisions:

118. Presumptions as to negotiable instruments. - Until the

contrary is proved, the following presumptions shall be made:

(a) of consideration: that every negotiable instrument was made

or drawn for consideration, and that ˇevery such instrument

when it has been accepted, endorsed, negotiated or transferred,

was accepted, endorsed, negotiated or transferred for

consideration;

138. Dishonour of cheque for insufficiency, etc., of funds in

the account. - Where any cheque drawn by a person on an

account maintained by him with a banker for payment of any

amount of money to another person from out of that account for

the discharge, in whole or in part, of any debt or other liability,

is returned by the bank unpaid, either because of the amount of

money standing to the credit of that account is insufficient to

honour the cheque or that it exceeds the amount arranged to be

paid from that account by an agreement made with that bank,

such person shall be deemed to have committed an offence and

shall, without prejudice to any other provision of this Act, be

punished with imprisonment for a term which may extend to

two years, or with fine which may extend to twice the amount

of the cheque, or with both:

Provided that nothing contained in this section shall apply

unless-

(a) the cheque has been presented to the bank within a period of

six months from the date on which it is drawn or within the

period of its validity, whichever is earlier.

(b) the payee or the holder in due course of the cheque, as the

case may be, makes a demand for the payment of the said

amount of money by giving a notice, in writing, to the drawer

of the cheque, within thirty days of the receipt of information by

him from the bank regarding the return of the cheque as unpaid;

and

(c) the drawer of such cheque fails to make the payment of the

said amount of money to the payee or, as the case may be, to

the holder in due course of the cheque, within fifteen days of the

receipt of the said notice.

Explanation. - For the purposes of this section, `debt or other

liability' means a legally enforceable debt or other liability.

139. Presumption in favour of holder.- It shall be presumed,

unless the contrary is proved, that the holder of a ˇcheque

received the cheque, of the nature referred to in Section 138 for

the discharge, in whole or in part, of any debt, or other liability.

9. Ordinarily in cheque bouncing cases, what the courts have to

consider is whether the ingredients of the offence enumerated in

Section 138 of the Act have been met and if so, whether the

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accused was able to rebut the statutory presumption contemplated

by Section 139 of the Act. With respect to the facts of the

present case, it must be clarified that contrary to the trial court's

finding, Section 138 of the Act can indeed be attracted when a

cheque is dishonoured on account of `stop payment' instructions

sent by the accused to his bank in respect of a post-dated

cheque, irrespective of insufficiency of funds in the account.

This position was clarified by this Court in Goa Plast (Pvt.)

Ltd. v. Chico Ursula D'Souza, (2003) 3 SCC 232, wherein it

was held:

“Chapter XVII containing Sections 138 to 142 was introduced

in the Act by Act 66 of 1988 with the object of inculcating faith

in the efficacy of banking operations and giving credibility to

negotiable instruments in business transactions. These provisions

were intended to discourage people from not honouring their

commitments by way of payment through cheques. The court

should lean in favour of an interpretation which serves the object

of the statute. A post-dated cheque will lose its credibility and

acceptability if its payment can be stopped routinely. The purpose

of a post-dated cheque is to provide some accommodation to the

drawer of the cheque. Therefore, it is all the more necessary that

the drawer of the cheque should not be allowed to abuse the

accommodation given to him by a creditor by way of acceptance

of a post-dated cheque. In view of Section 139, it has to be

presumed that a cheque is issued in discharge of any debt or

other liability. The presumption can be rebutted by adducing

evidence and the burden of proof is on the person who wants

to rebut the presumption. This presumption coupled with the

object of Chapter XVII of the Act leads to the conclusion that

by countermanding payment of a post-dated cheque, a party

should not be allowed to get away from the penal provision of

Section 138. A contrary view would render S. 138 a dead letter

and will provide a handle to persons trying to avoid payment

under legal obligations undertaken by them through their own

acts which in other words can be said to be taking advantage of

one's own wrong....”

10. It has been contended on behalf of the appellant-accused that

the presumption mandated by Section 139 of the Act does not

extend to the existence of a legally enforceable debt or liability

and that the same stood rebutted in this case, keeping in mind

the discrepancies in the complainant's version. It was reasoned

that it is open to the accused to rely on the materials produced

by the complainant for disproving the existence of a legally

enforceable debt or liability. It has been contended that since the

complainant did not conclusively show whether a debt was owed

to him in respect of a hand loan or in relation to expenditure

incurred during the construction of the accused's house, the

existence of a legally enforceable debt or liability had not been

shown, thereby creating a probable defence for the accused.

Counsel appearing for the appellant-accused has relied on a

decision given by a division bench of this Court in Krishna

Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54,

the operative observations from which are reproduced below

(S.B. Sinha, J. at Paras. 29-32, 34 and 45):

“29. Section 138 of the Act has three ingredients viz:

(i) that there is a legally enforceable debt

(ii) that the cheque was drawn from the account of bank for

discharge in whole or in part of any debt or other liability which

presupposes a legally enforceable debt; and

(iii) that the cheque so issued had been returned due to

insufficiency of funds.

30. The proviso appended to the said section provides for

compliance with legal requirements before a complaint petition

can be acted upon by a court of law. Section 139 of the Act

merely raises a presumption in regard to the second aspect of

the matter. Existence of legally recoverable debt is not a matter

of presumption under Section 139 of the Act. It merely raises a

presumption in favour of a holder of the cheque that the same

has been issued for discharge of any debt or other liability.

31. The courts below, as noticed hereinbefore, proceeded on

the basis that Section 139 raises a presumption in regard to

existence of a debt also. The courts below, in our opinion,

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committed a serious error in proceeding on the basis that for

proving the defence the accused is required to step into the

witness box and unless he does so he would not be discharging

his burden. Such an approach on the part of the courts, we feel,

is not correct.

32. An accused for discharging the burden of proof placed

upon him under a statute need not examine himself. He may

discharge his burden on the basis of the materials already brought

on record. An accused has a constitutional right to maintain

silence. Standard of proof on the part of the accused and that

of the prosecution in a criminal case is different….

34. Furthermore, whereas prosecution must prove the guilt of

an accused beyond all reasonable doubt, the standard of proof so

as to prove a defence on the part of the accused is `preponderance

of probabilities'. Inference of preponderance of probabilities can

be drawn not only from the materials brought on record by the

parties but also by reference to the circumstances upon which

he relies.”

(Emphasis supplied)

Specifically in relation to the nature of the presumption

contemplated by Section 139 of the Act, it was observed;

“45. We are not oblivious of the fact that the said provision

has been inserted to regulate the growing business, trade,

commerce and industrial activities of the country and the strict

liability to promote greater vigilance in financial matters and to

safeguard the faith of the creditor in the drawer of the cheque

which is essential to the economic life of a developing country

like India. This however, shall not mean that the courts shall put

a blind eye to the ground realities. Statute mandates raising of

presumption but it stops at that. It does not say how presumption

drawn should be held to have been rebutted. Other important

principles of legal jurisprudence, namely, presumption of

innocence as a human right and the doctrine of reverse burden

introduced by Section 139 should be delicately balanced. Such

balancing acts, indisputably would largely depend upon the factual

matrix of each case, the materials brought on record and having

regard to legal principles governing the same.”

(Emphasis supplied)

11. With respect to the decision cited above, counsel appearing

for the respondent-claimant has submitted that the observations

to the effect that the `existence of legally recoverable debt is not

a matter of presumption under Section 139 of the Act' and that

`it merely raises a presumption in favour of a holder of the

cheque that the same has been issued for discharge of any debt

or other liability' [See Para. 30 in Krishna Janardhan Bhat

(supra)] are in conflict with the statutory provisions as well as

an established line of precedents of this Court. It will thus be

necessary to examine some of the extracts cited by the

respondent-claimant. For instance, in Hiten P. Dalal v.

Bratindranath Banerjee (2001) 6 SCC 16, it was held (Ruma

Pal, J. at Paras. 22-23):

“22. Because both Sections 138 and 139 require that the

Court `shall presume' the liability of the drawer of the cheques

for the amounts for which the cheques are drawn, ..., it is

obligatory on the Court to raise this presumption in every case

where the factual basis for the raising of the presumption has

been established. It introduces an exception to the general rule

as to the burden of proof in criminal cases and shifts the onus

on to the accused (...). Such a presumption is a presumption of

law, as distinguished from a presumption of fact which describes

provisions by which the court may presume a certain state of

affairs. Presumptions are rules of evidence and do not conflict

with the presumption of innocence, because by the latter all that

is meant is that the prosecution is obliged to prove the case

against the accused beyond reasonable doubt. The obligation on

the prosecution may be discharged with the help of presumptions

of law or fact unless the accused adduces evidence showing the

reasonable probability of the non-existence of the presumed fact.

23. In other words, provided the facts required to form the

basis of a presumption of law exists, the discretion is left with

the Court to draw the statutory conclusion, but this does not

preclude the person against whom the presumption is drawn

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from rebutting it and proving the contrary. A fact is said to be

proved when, after considering the matters before it, the Court

either believes it to exist, or considers its existence so probable

that a prudent man ought, under the circumstances of the

particular case, to act upon the supposition that it exists.

Therefore, the rebuttal does not have to be conclusively established

but such evidence must be adduced before the Court in support

of the defence that the Court must either believe the defence to

exist or consider its existence to be reasonably probable, the

standard of reasonability being that of the prudent man.”

(Emphasis supplied)

12. The respondent-claimant has also referred to the decision

reported as Mallavarapu Kasivisweswara Rao v. Thadikonda

Ramulu Firm and Ors. 2008 (8) SCALE 680, wherein it was

observed:

“Under Section 118(a) of the Negotiable Instruments Act, the

court is obliged to presume, until the contrary is proved, that the

promissory note was made for consideration. It is also a settled

position that the initial burden in this regard lies on the defendant

to prove the non-existence of consideration by bringing on record

such facts and circumstances which would lead the Court to

believe the non-existence of the consideration either by direct

evidence or by preponderance of probabilities showing that the

existence of consideration was improbable, doubtful or illegal....

This decision then proceeded to cite an extract from the earlier

decision in Bharat Barrel & Drum Manufacturing Company

v. Amin Chand Pyarelal, (1999) 3 SCC 35: (AIR 1999 SC

1008) (Para.12):

“Upon consideration of various judgments as noted hereinabove,

the position of law which emerges is that once execution of the

promissory note is admitted, the presumption under Section 118(a)

would arise that it is supported by a consideration. Such a

presumption is rebuttable. The defendant can prove the non-

existence of a consideration by raising a probable defence. If the

defendant is proved to have discharged the initial onus of proof

ˇshowing that the existence of consideration was improbably or

doubtful or the same was illegal, the onus would shift to the

plaintiff who will be obliged to prove it as a matter of fact and

upon its failure to prove would disentitle him to the grant of

relief on the basis of the negotiable instrument. The burden upon

the defendant of proving the non-existence of the consideration

can be either direct or by bringing on record the preponderance

of probabilities by reference to the circumstances upon which he

relies. In such an event, the plaintiff is entitled under law to rely

upon all the evidence led in the case including that of the plaintiff

as well. In case, where the defendant fails to discharge the initial

onus of proof by showing the non-existence of the consideration,

the plaintiff would invariably be held entitled to the benefit of

presumption arising under Section 118(a) in his favour. The

court may not insist upon the defendant to disprove the existence

of consideration by leading direct evidence as the existence of

negative evidence is neither possible nor contemplated and even

if led, is to be seen with a doubt. The bare denial of the passing

of the consideration apparently does not appear to be any defence.

Something which is probable has to be brought on record for

getting the benefit of shifting the onus of proving to the plaintiff.

To disprove the presumption, the defendant has to bring on

record such facts and circumstances upon consideration of which

the court may either believe that the consideration did not exist

or its non-existence was so probable that a prudent man would,

under the circumstances of the case, act upon the plea that it did

not exist.”

(Emphasis supplied)

Interestingly, the very same extract has also been approvingly

cited in Krishna Janardhan Bhat (supra).

13. With regard to the facts in the present case, we can also

refer to the following observations in M.M.T.C. Ltd. and Anr.

v. Medchl Chemicals & Pharma (P) Ltd. (2002) 1 SCC 234

(Para. 19):

“...The authority shows that even when the cheque is

dishonoured by reason of stop payment instruction, by virtue of

Section 139 the Court has to presume that the cheque was

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received by the holder for the discharge in whole or in part, of

any debt or liability. Of course this is a rebuttable presumption.

The accused can thus show that the `stop payment' instructions

were not issued because of insufficiency or paucity of funds. If

the accused shows that in his account there was sufficient funds

to clear the amount of the cheque at the time of presentation of

the cheque for encashment at the drawer bank and that the stop

payment notice had been issued because of other valid causes

including that there was no existing debt or liability at the time

of presentation of cheque for encashment, then offence under

Section 138 would not be made out. The important thing is that

the burden of so proving would be on the accused....” (Emphasis

supplied)

14. In light of these extracts, we are in agreement with the

respondent-claimant that the presumption mandated by Section

139 of the Act does indeed include the existence of a legally

enforceable debt or liability. To that extent, the impugned

observations in Krishna Janardhan Bhat (supra) may not be

correct. However, this does not in any way cast doubt on the

correctness of the decision in that case since it was based on the

specific facts and circumstances therein. As noted in the citations,

this is of course in the nature of a rebuttable presumption and

it is open to the accused to raise a defence wherein the existence

of a legally enforceable debt or liability can be contested.

However, there can be no doubt that there is an initial presumption

which favours the complainant. Section 139 of the Act is an

example of a reverse onus clause that has been included in

furtherance of the legislative objective of improving the credibility

of negotiable instruments. While Section 138 of the Act specifies

a strong criminal remedy in relation to the dishonour of cheques,

the rebuttable presumption under Section 139 is a device to

prevent undue delay in the course of litigation. However, it must

be remembered that the offence made punishable by Section 138

can be better described as a regulatory offence since the bouncing

of a cheque is largely in the nature of a civil wrong whose

impact is usually confined to the private parties involved in

commercial transactions. In such a scenario, the test of

proportionality should guide the construction and interpretation

of reverse onus clauses and the accused/defendant cannot be

expected to discharge an unduly high standard or proof. In the

absence of compelling justifications, reverse onus clauses usually

impose an evidentiary burden and not a persuasive burden. Keeping

this in view, it is a settled position that when an accused has to

rebut the presumption under Section 139, the standard of proof

for doing so is that of ‘preponderance of probabilities’. Therefore,

if the accused is able to raise a probable defence which creates

doubts about the existence of a legally enforceable debt or liability,

the prosecution can fail. As clarified in the citations, the accused

can rely on the materials submitted by the complainant in order

to raise such a defence and it is conceivable that in some cases

the accused may not need to adduce evidence of his/her own.”

9. In R. Vinod Shivappa (Supra) their Lordship’s have interpreted

Section 138 of NI Act as under:

“12. It is well settled that in interpreting a statute the court must

adopt that construction which suppresses the mischief and

advances the remedy. This is a rule laid down in Heydon's case

(76 ER 637) also known as the rule of purposive construction

or mischief rule.

13. Section 138 of the Act was enacted to punish those

unscrupulous persons who purported to discharge their liability

by issuing cheques without really intending to do so, which was

demonstrated by the fact that there was no sufficient balance in

the account to discharge the liability. Apart from civil liability, a

criminal liability was imposed on such unscrupulous drawers of

cheques. The prosecution, however, was made subject to certain

conditions. With a view to avoid unnecessary prosecution of an

honest drawer of a cheque, or to give an opportunity to the

drawer to make amends, the proviso to Section 138 provides

that after dishonour of the cheque, the payee or the holder of the

cheque in due course must give a written notice to the drawer

to make good the payment. The drawer is given 15 days time

from date of receipt of notice to make the payment, and only if

he fails to make the payment he may be prosecuted. The object

which the proviso seeks to achieve is quite obvious. It may be

that on account of mistake of the bank, a cheque may be returned

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despite the fact that there is sufficient balance in the account

from which the amount is to be paid. In such a case if the

drawer of the cheque is prosecuted without notice, it would

result in great in-justice and hardship to an honest drawer. One

can also conceive of cases where a well intentioned drawer may

have inadvertently missed to make necessary arrangements for

reasons beyond his control, even though he genuinely intended

to honour the cheque drawn by him. The law treats such lapses

induced by inadvertence or negligence to be pardonable, provided

the drawer after notice makes amends and pays the amount

within the prescribed period. It is for this reason that Clause (c)

of proviso to Section 138 provides that the section shall not

apply unless the drawer of the cheque fails to make the payment

within 15 days of the receipt of the said notice. To repeat, the

proviso is meant to protect honest drawers whose cheques may

have been dishonoured for the fault of others, or who may have

genuinely wanted to fulfill their promise but on account of

inadvertence or negligence failed to make necessary arrangements

for the payment of the cheque. The proviso is not meant to

protect unscrupulous drawers who never intended to honour the

cheques issued by them, it being a part of their modus operandi

to cheat unsuspecting persons.”

10. This court in Vijay Chaudhary vs. Gyan Chand Jain, 2008(2)

DCR 685 dealt with a similar situation and held that where a cheque is

dishonored for any reason it has to be co-related to the insufficiency of

funds in the account. I agree with the same as the legislative intent is to

stop the dishonoring of cheque and adopt a no-nonsense situation and

punish the unscrupulous person who purport to discharge this liability by

issuing cheques, not intending to do honour it by insufficiency of funds

in their accounts. I find force in the contention of learned counsel for

the respondent that the summoning order of the trial court cannot be

quashed merely on the assertion of the Petitioner that he did not revalidate

the cheque. It is a matter which needs to be proved at trial and hence

this court cannot go into the said issue. Reliance in this regard on the

case of Veera Exports (Supra) is well placed, wherein their Lordship’s

held:

9. The High Court has also placed reliance on Section 87 of the

Negotiable Instruments Act, which reads as follows:

"87. Effect of material alteration - Any material alteration of a

negotiable instrument renders the same void as against any one

who is a party thereto at the time of making such alteration and

does not consent thereto, unless it was made in order to carry

out the common intention of the original parties;

Alteration by indorsee - Any such alteration, if made by an

indorsee, discharges his indorse from all liability to him in respect

of the consideration thereof.

The provisions of this section are subject to those of sections

20, 49, 86 and 125."

The first paragraph of Section 87 makes it clear that the party

who consents to the alteration as well as the party who made the

alteration are disentitled to complain against such alteration, e.g.

if the drawer of the cheque himself altered the cheque for

validating or revalidating the same instrument he cannot take

advantage of it later by saying that the cheque became void as

there is material alteration thereto. Further, even if the payee or

the holder of the cheque made the alteration with the consent of

the drawer thereof, such alteration also cannot be used as a

ground to resist the right of the payee or the holder thereof. It

is always a question of fact whether the alteration was made by

the drawer himself or whether it was made with the consent of

the drawer. It requires evidence to prove the aforesaid question

whenever it is disputed.

10. It is held by the High Court that a change of date is a

material alteration which affected the interests of the Respondent.

It is held that the Respondent not being a willing party to the said

alteration, the cheques were void as contemplated by Section 87

of the Negotiable Instruments Act. At this stage there is no basis

for arriving at such a conclusion. In the earlier part of the

impugned Judgment it has been correctly held that this is a

question of fact. This is a fact which will have to be established

on evidence during trial. At this stage the High Court could not

have quashed the complaint merely on the basis of an assertion

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in the reply.

11. Under the circumstances the impugned order is set aside.

The Petition filed by the Respondent stands dismissed. The Judicial

Magistrate II, Karur shall now proceed with the complaint in

accordance with law.”

11. Thus, in view of the decisions noted above and the fact that

petitioner’s contention that he did not revalidate any cheque and had no

legal liability to pay is a question of fact which needs to be proved and

determined at trial by way of evidence, the petition is dismissed.

ILR (2011) VI DELHI 635

CRL.APPEAL

R.K.P. NISHAD ....APPELLANT

VERSUS

C.B.I. ...RESPONDENT

(M.L. MEHTA, J.)

CRL. APPEAL NO. : 602/2002 DATE OF DECISION: 08.07.2011

CRL.M.A. NO. : 2010/2002

Prevention of Corruption Act, 1988—Sections 7 & 13—

Appellant aggrieved by his conviction under Section 7

& 13(1)(d) of Act, had preferred appeal and urged no

evidence against him with regard to demand or

acceptance of any bribe money from complainant—

Thus, his conviction not proper—On behalf of State

argument raised, from testimony of independent

witness proved that appellant demanded as well as

accepted bribe money for doing favour to complainant;

therefore, conviction legal—Held:- Under Section

13(1)(d), it is required to be proved that accused, as

a public servant, obtained for himself or any other

person any valuable thing or pecuniary advantage by

corrupt or illegal means or that the misused his

position in obtaining for himself or any other person

any valuable thing or pecuniary advantage—Statutory

presumption under Section 20 of Act is available for

offence punishable under Section 7 or Section 11 or

Clause (a) and Clause (b) of Section 13 (1) and not for

Clause (d) of Section 13 (1)—For offence under Section

13(1)(d), it will be required to be proved that some

initiative was taken by a person who receives and in

that context demand or request from him will be a pre-

requisite—Appellant rightly held guilty for offences.

After the recovery of tainted money from an accused is

proved, a presumption under Section 20 of the Act is

available to be drawn against him that he accepted

gratification as a motive or reward as mentioned in Section

7 or, as the case may be, without consideration or for a

consideration which he knows to be inadequate. The

requirement of this Section is only that it must be proved

that the accused has accepted or obtained or agreed to

accept or attempted to obtain gratification. At the same time

it is settled proposition of law that the said presumption is

rebuttable and the same could be rebutted by the accused

either from the cross examination of prosecution witnesses

or by leading defence evidence. (Para 9)

Important Issue Involved: Statutory presumption under

Section 20 of Act is available for offence punishable under

Section 7 or Section 11 or Clause (a) and Clause (b) of

Section 13 (1) and not for Clause (d) of Section 13(1)—

For offence under Section 13(1)(d), it will be required to be

proved that some initiative was taken by a person who

receives and in that context demand or request from him

will be a pre-requisite.

[Sh Ka]

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APPEARANCES:

FOR THE APPELLANT : Mr. K.B. Andley, Ar. Advocate with

Mr. M. Shamikh, Advocates for the

Appellant.

FOR THE RESPONDENT : Mr. Narender Maan, Special Public

Prosecutor for CBI.

CASES REFERRED TO:

1. C.M. Girish Babu vs. CBI, Cochin, High Court of Kerala

(2009) 3 SCC 779.

2. Subash Parbat Sonvane vs. State of Gujarat, AIR 2003

SC 2169.

3. State of A.P. vs. V. Vasudeva Rao, (2004) 9 SCC 319.

4. C.K. Damodaran Nair vs. Govt. of India 1997 Crl.L.J.

739.

5. M.W. Mohiuddin vs. State of Maharashtra 1995 (2) SCR

864.

6. State of Madras vs. A. Vidyanatha Iyer, AIR 1958 SC

61.

7. Ram Krishan and another vs. State of Delhi (1956) SCR

183.

8. Rao Shiv Bahadur vs. State of Vindhya Pradesh, AIR

1954 SC 322.

RESULT: Appeal dismissed.

M.L. MEHTA, J.

1. The Appellant has been convicted by learned Special Judge in a

corruption case number 52/94 vide judgment dated 18th July, 2002 and

sentenced vide order dated 22nd July, 2002 as under:

“Sentenced to undergo imprisonment for a period of three years

R.I. under Section 7 as well as under Section 13(1)(d) of

Prevention of Corruption Act and also to pay a fine of Rs. 1,000/

- each for both these offences and in default of payment of fine

to undergo imprisonment for a period of three months each.

2. By virtue of present appeal, the Appellant/ convict has assailed

the judgment and order of conviction and sentence. The prosecution case

as set out in brief is that the Appellant was employed as Producer,

Grade-II, in Doordarshan Kendra, Directorate of Doordarshan. Neeraj

Kumar (PW1) had approached him for telecasting his drama “Dahej” in

Krishi Darshan programme of Doordarshan on TV. The drama was

approved by the Department, but the Appellant was allegedly shifting the

dates of rehearsal for some reason or the other. Since the Appellant was

demanding bribe money for doing favour for telecasting the said drama

and the complainant PW1 not being willing to pay, filed a complaint

Ex.PW1/A against the Appellant with CBI mentioning these allegations. It

was specifically alleged in the complaint that on 21st September 1990

when the complainant met the accused for approval of his drama, the

latter told him that his drama would be approved only if he was paid Rs.

1800/- which the drama team were to get from Doordarshan, and another

sum of Rs. 6500/-. It was alleged by the complainant that a sum of

Rs.1900/- was lying with him and another sum of Rs. 5500/- with Ms.

Vimal Bhatnagar known as Mataji and in this way Rs.7400/- were supposed

to be paid to the Appellant on 22nd September 1999 for approval /

shooting of the drama and that the Appellant wanted that this money

should be paid to him at the residence of Mataji(PW5 Mrs. Vimal

Bhatnagar). Mataji was also one of the artists of the said drama “Dahej”.

As per the complaint, the complainant came to the office of CBI on 21st

September 1990 and talked to the Appellant on phone from there. A

meeting was fixed at the residence of PW5 where rehearsal of the drama

was to be watched by the Appellant and he was also to be paid the bribe

money as demanded. This telephonic conversation between the complainant

and the Appellant was recorded by CBI officials and transcript thereof

was also prepared. From the office of CBI, the complainant also talked

to Mataji on telephone and told her to keep the amount of Rs.5500/-

ready for paying the same to the Appellant as bribe as per the talks with

him. This conversation was also recorded by CBI officials and its transcript

prepared. CBI Inspector A.G.L Kaul (PW12) verified the reputation of

the Appellant and after confirming his reputation to be a corrupt official,

decided to lay a trap. A raiding party consisting of PW12, two independent

witnesses Ms.Poonam (PW3), Mr.S.D. Roy (PW10), complainant and

other officials of CBI was organized. The complainant, as directed,

produced 16 currency notes of denomination of Rs.100/- each and 6

currency notes of Rs.50/- each before Inspector A.G.L. Kaul who noted

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down the numbers of those notes in the handing over memo (Ex.PW3/

C). The usual pre-trap proceedings comprised of treating these currency

notes with phenolphthalein powder, giving of demonstration to the

complainant and the witnesses as to how this powder will react with the

solution of sodium carbonate, giving of directions to the complainant to

give money to the Appellant on a specific demand and advising of the

shadow witness Poonam to give a predetermined signal etc. PW3 Poonam

was also instructed to remain close to the complainant to hear the

conversation and watch the transaction. PW3 Poonam was also carrying

a cassette tape recorder in her purse for recording the conversation. As

per pre-decided programme, the complainant and PW3 Poonam went to

the house of PW5 Mataji where other members of the raiding party also

arrived and took their positions. The Appellant came to the house of PW5

and on his demand, he was paid Rs.7400/- by the complainant which

included 22 phenolphthalein power treated currency notes in possession

of the complainant and Rs.5500/- lying with PW5 Mataji. PW3 gave pre-

arranged signal to the CBI officials, whereupon they came in and

challenged the Appellant. The Appellant became perplexed and confused

and on the pointing out of PW3 Poonam, the amount of Rs. 7400/-,

taken as bribe by the Appellant, was recovered from the briefcase of the

Appellant. The numbers of treated currency notes Ex.P1 to P22 totaling

Rs. 1900/- tallied with the numbers of already noted down currency

notes vide pre-raid memo Ex.PW3/C. Both the hands of the Appellant

and the polythene bag from which the notes were recovered were dipped

separately in the sodium carbonate solution. The solutions turned pink

which confirmed that the Appellant had handled the tainted money. Later

two washes of the hands and one wash of the pocket pant were got

analyzed from CFSL vide report Ex.PW6/A. All the three solutions gave

positive tests for presence of phenolphthalein in the solution of sodium

carbonate thereby further confirming the handling of currency notes by

the Appellant. After obtaining sanction under Section 19 of the Act for

the prosecution of the Appellant, he was charge-sheeted. In the Court,

charges were framed against the Appellant under Section 7 and 13(1)(d)

of the Act, to which he pleaded not guilty and claimed trial.

3. The prosecution examined 13 witnesses which included

complainant (PW1), panch witnesses Poonam (PW3) and Mr.Roy (PW10)

and the raiding officer AGL Kaul (PW12).

4. The statement of accused was recorded under Section 313 Cr.P.C

wherein the incriminating evidence was put to him. The Appellant denied

the prosecution allegations and pleaded innocence. He denied having

demanded and accepted bribe from the complainant. He also filed his

written statement stating therein that he was working as a Producer,

Grade-II in Doordarshan and knew the complainant Neeraj Kumar(PW1)

as he was an actor and organizer of T.V short plays for Krishi Darshan

programme and that earlier also his plays were supervised and approved

by the Appellant for telecasting the same on television. He admitted that

he was supervising the complainant’s play “Dahej”. He pleaded that the

play had already been approved and sanctioned by Doordarshan on 20th

September 1990 vide letter Ex.PW7/DA. He also pleaded that the

complainant was carrying a grudge against him since he (complainant)

had earlier teased one lady artist Kiran and on the matter being reported

to him (Appellant), he reprimanded the complainant in presence of PW5

Mataji, and other artists. He also alleged that final rehearsal of the play

“Dahej” was fixed for 22nd September 1990 and on that day, decision

was to be taken regarding place, time and date for holding a Bhagwati

Jagran. He pleaded that it was for Bhagwati Jagran that the artists had

collected some money which was kept with PW5 and the complainant

and that they all agreed to keep that money with him and requested him

that he should organize the Jagran, to which he had agreed being a

religious minded person. He pleaded that on 22nd September 1990 he had

gone at the residence of PW5 Mataji where he was given the money

collected by the artists for Jagran. It was this money which he had kept

in the briefcase and was later recovered by the raiding team.

5. Learned Senior Counsel Mr. K.B. Andley contends for the

Appellant that when the drama “Dahej” had already been approved on

20th September 1990 by the Department, there was neither any occasion

nor any reason for the Appellant to have demanded or the complainant

to give any bribe to the Appellant. Learned Senior Counsel submits that

both the complainant (PW1) as well as PW5 Mataji have admitted that

the said payment of Rs.7400/- to the Appellant was the money collected

for organizing Jagran by him and that there is no evidence against the

Appellant with regard to the demand or acceptance of any bribe money

from the complainant. Learned Senior Counsel further submits that the

complainant was carrying a grudge against the Appellant for the reason

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that the Appellant had reprimanded him because of his misbehavior with

a lady artist Kiran on an earlier occasion and because of the Appellant

having changed her role from heroine to that of sister.

6. Learned Prosecutor Mr. Narender Maan submits that the initial

statement of complainant (PW1) recorded on 5th February 1998 supports

the allegations made in the complaint, but later in his cross examination

recorded after three years on 1st March, 2001, he resiled therefrom and

came out with the version that the money was given to the Appellant for

organizing Bhagwati Jagran. He submits that PW5 also resiled from her

statement (Ex.PW5/A) made during investigation, wherein she had

confirmed the demand of bribe by the Appellant from the complainant

and that a sum of Rs.1900/- was kept with the complainant for giving

the same to the Appellant. He submits that both the complainant as well

as PW5 Mataji have resiled from their statements because of having been

won over by the Appellant during the long period of the incident and their

deposition made in the Court. He also submits that though the drama

“Dahej” had already been approved and confirmed, but the telecasting

of the same was subject to approval and rehearsal by the Appellant. He

further submits that from the admissible part of evidence of PW1, PW5

and testimony of independent witnesses PW3 Poonam, it stood proved

that the Appellant demanded as well as accepted Rs.7400/- as bribe for

doing favour to complainant for telecasting their serial.

7. It is an undisputed fact that the Appellant was employed in

Doordarshan Kendra, New Delhi at the relevant time and being a Producer

Grade-II was in-charge and responsible for approving the serials for

telecasting the same on Doordarshan. It is also not disputed that the

complainant and the Appellant were known to each other as the Appellant

had already supervised and approved the earlier serials of the complainant.

The Appellant also admits that as a producer, he had the authority to

approve telecasting of the plays at Doordarshan Channel on Television.

He admits that he was present at the house of PW5 Mataji on 22nd

September 1990 and that a sum of Rs.7400/- including Rs. 1900/- treated

with phenolphthalein power were recovered from his briefcase. The

defence of the Appellant that he received this money as collection from

artists for organizing Bhagwati Jagran, will be dealt with later.

8. It is settled law that for establishing an offence under Section

13(1) (d), it is required to be proved that the accused, as a public

servant, obtained for himself or any other person any valuable thing or

pecuniary advantage by corrupt or illegal means or that he misused his

position in obtaining for himself or any other person any valuable thing

or pecuniary advantage. In the case of Subash Parbat Sonvane v State

of Gujarat, AIR 2003 SC 2169, the Supreme Court held as under:

“7. In Sections 7 and 13(1)(a) and (b) of the Act, the Legislature

has specifically used the words 'accepts' or 'obtains'. As against

this, there is departure in the language used in clause (1) (d) of

Section 13 and it has omitted the word 'accepts' and ˇhas

emphasized the word 'obtains'. Further, the ingredient of sub-

clause (i) is that by corrupt or illegal means, a public servant

obtains any valuable thing or pecuniary advantage; under clause

(ii), he obtains such thing by abusing his position as public

servant; and sub-clause (iii) contemplates that while holding office

as the public servant, he obtains for any person any valuable

thing or pecuniary advantage without any public interest.

Therefore, for convicting the person under Section 13(1)(d),

there must be evidence on record that accused 'obtained' for

himself or for any other person any valuable thing or pecuniary

advantage by either corrupt or illegal means or by abusing his

position as a public servant or he obtained for any person any

valuable thing or pecuniary advantage without any public interest.”

9. After the recovery of tainted money from an accused is proved,

a presumption under Section 20 of the Act is available to be drawn

against him that he accepted gratification as a motive or reward as

mentioned in Section 7 or, as the case may be, without consideration or

for a consideration which he knows to be inadequate. The requirement

of this Section is only that it must be proved that the accused has

accepted or obtained or agreed to accept or attempted to obtain gratification.

At the same time it is settled proposition of law that the said presumption

is rebuttable and the same could be rebutted by the accused either from

the cross examination of prosecution witnesses or by leading defence

evidence. In this regard, reference is made to the case of C.M. Girish

Babu v CBI, Cochin, High Court of Kerala (2009) 3 SCC 779, wherein

it is held:

“21. It is well settled that the presumption to be drawn under

Section 20 is not an inviolable one. The accused charged with

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the offence could rebut it either through the cross examination

of the witnesses cited against him or by adducing reliable evidence.

If the accused fails to disprove the presumption the same would

stick and then it can be held by the Court that the prosecution

has proved that the accused received the amount towards

gratification.”

10. In case of M.W. Mohiuddin v State of Maharashtra 1995 (2)

SCR 864, the Supreme Court referring to the case of Ram Krishan and

another v State of Delhi (1956) SCR 183 as well as dictionary meaning

of the word “obtains” observed as under:

“…whether there was an acceptance of what is given as a bribe

and whether there was an effort on the part of the receiver to

obtain the pecuniary advantage by way of acceptance of the

bribe depends on the facts and circumstances of each case. In

that case, the Court held that it was proved that accused made

a demand and also got the affirmation from the complainant that

he had brought the demanded money and at his instance, the

complainant wrapped the money in the handkerchief given by the

accused and placed the same in the bag which was brought by

the accused and as asked by him, these steps have been taken

into consideration in arriving at the conclusion that the accused

had in fact “obtained” the pecuniary advantage, namely, that he

received the illegal gratification. Therefore, the Court upheld the

conviction under Section 13(1)(d).

11. In the case of C.K. Damodaran Nair v. Govt. of India 1997

Crl.L.J. 739, the Supreme Court considered the word “obtain” used in

Section 5(1)(d) and held as under:

“12. The position will, however, be different so far as an offence

under Section 5(1)(d) read with Section 5(2) of the Act is

concerned. For such an offence, prosecution has to prove that

the accused “obtained the valuable thing or pecuniary advantage

by corrupt or illegal means or by otherwise abusing his position

as a public servant and that too without the aid of the statutory

presumption under Section 4(1) of the Act as it is available only

in respect of offences under Section 5(1)(a) and (b)—and not

under Section 5(1)(c), (d) or (e) of the Act, “Obtain” means to

secure or gain (something) as the result of request or effort

(Shorter Oxford Dictionary). In case of obtainment the initiative

vests in the person who receives and in that context a demand

or request from him will be a primary requisite for an offence

under Section 5(1)(d) of the Act unlike an offence under Section

161 IPC, which as noticed above can be, established by proof

of either “acceptance” or “obtainment”.

12. In view of above propositions of law, it is recapitulated that the

statutory presumption under Section 20 of the Act is available for the

offence punishable under Section 7 or Section 11 or Clause (a) and

Clause (b) of Section 13(1) and not for Clause (d) of Section 13(1). For

offence under Section 13(1)(d), it will be required to be proved that

some initiative was taken by a person who receives and in that context

demand or request from him will be a pre-requisite.

13. We may now proceed to see as to whether the prosecution is

able to establish this pre-requisite of demand or request emanating from

the Appellant in accepting the tainted money. For establishing this fact,

the prosecution has relied upon the testimony of the complainant (PW1),

panch witnesses Poonam (PW3), raiding officer Mr. A.G.L. Kaul (PW12),

recovery of tainted money from the Appellant, tape-recorded conversation

between the Complainant and the Appellant and CFSL report Ex.PW6/A.

Though PW1 was allowed to be cross examined by the learned Public

Prosecutor after cross examination by the learned defence counsel, but

reading his testimony as a whole it would be seen that he supported the

prosecution case throughout in his examination-in-chief as recorded on

5th February 1998, but later on in his cross examination recorded after

a lapse of three years, while again supporting the prosecution case, he

resiled to the extent by stating that he and other artists had collected

money for organizing the Jagran and that the Appellant had also told the

raiding officer that he had accepted the money and kept the same in his

briefcase as the same was given to him for organizing Bhagwati Jagran

before telecasting the drama “Dahej”. He deviated from his earlier

statement by stating that the Appellant had merely demanded the money

from him and he never used the word “bribe” in his talks with him. He

also stated that he felt sorry over the trap of the Appellant on coming to

know the truth that the money was collected for giving him for organizing

Bhagwati Jagran.

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14. In his examination-in-chief PW1 deposed that he knew the

Appellant as he had been meeting him in connection with telecast of his

plays on television. He approached the Appellant for telecasting his play

“Dahej”. Although the Appellant watched 3-4 rehearsals initially, but

then he started putting him under pressure and finally told him that he

will have to pay him an amount of two cheques of Rs. 900/- each which

would be received by him and PW5 from Doordarshan and another sum

of Rs. 6500/-. He stated that the Appellant told him that till the payment

is made, shooting of the play cannot be done and that he will arrange the

telecasting of play only when he is paid the aforesaid money. He stated

that there are no telecasting charges and in fact the money is paid to the

artists for performing such programmes. He went on to depose that he

was to get a cheque of Rs. 900/-from Doordarshan and the Appellant

wanted to take that amount plus Rs. 6500/- i.e. Rs. 7400/- from him and

cheque amount of `900/- from PW5 which she was also to get from

Doordarshan. This was all in conformity with the complaint made by him

with CBI vide Ex.PW1/A. He further deposed that he went to CBI office

on 21st September 1990 and lodged a complaint Ex.PW1/A against the

Appellant regarding his demand of bribe for telecasting the play “Dahej”.

He has further deposed with regard to association of two public witnesses,

his making telephone calls to the Appellant at the office of CBI and the

Appellant asking him to bring money on 22nd September 1990 at about

1-2 pm, his asking PW5 Mataji to keep Rs. 5500/- ready and the recording

of the said conversation. He also deposed about making of transcription

of the conversation with the Appellant and PW5 Mataji as Ex.PW1/B and

the other one as Ex.PW1/C. The cassette Ex.PW1/F in which the

conversations between the complainant and the accused and between

complainant and Mataji (PW-5) were recorded was played in the court

also during the examination-in-chief of PW1 and then he proved the

transcript Ex.PW1/B. He then deposed about association of panch witnesses

i.e. PW3 Ms. Poonam and PW10 Mr.Roy and his handing over 16

currency notes of Rs.100/- each and 6 currency notes of Rs. 50/- each

to CBI officials, the treatment of phenolphthalein powder on the currency

notes and noting down their numbers in handing over memo Ex.PW3/C.

He deposed about the demonstration by Mr. S.P. Peshin by getting the

fingers of PW3 Poonam dipped in the solution, the same turning pink,

he being instructed to hand over the treated currency notes to the Appellant

on specific demand and PW3 Ms. Poonam being directed to act as a

shadow witness by giving signal by scratching her head with her hand.

He also deposed about arrival of raiding party at the residence of PW5

and also arrival of Appellant there at about 2 pm. He specifically stated

about the Appellant having asked for the money after the rehearsal and

the amount of Rs. 7400/- being given to him, including Rs. 1900/-,

currency notes treated with phenolphthalein powder and the remaining

amount of Rs. 5500/- taken from PW5 Mataji. In his cross examination,

there is no challenge to this incriminating part of his evidence. Major part

of his cross examination centered around the questions relating to collection

of money for Bhagwati Jagran as noted above. This defence of the

Appellant shall be dealt with little later.

15. Now coming back to the cross examination of PW1, the

complainant, it is noted that he admitted that earlier also, he had come

in contact with the Appellant and that he was conversant with the procedure

as to how the telecast of the drama was to be approved by Doordarshan.

He admitted that this drama “Dahej” had been approved on or before

20th September, 1990 for telecasting on television and he had signed the

documents in token of acknowledgment that the drama has been approved

and he had also executed a pre-receipt of Rs. 900/-. Since he took the

plea that money was to be given to the Appellant for organizing Bhagwati

Jagran which is inconsistent with his complaint and previous statement,

the learned Public Prosecutor chose to cross examine him, wherein

significantly he admitted that he had not told to CBI in his statement

recorded earlier that the money was given to the Appellant for organizing

Bhagwati Jagran.

16. Also significantly, the Complainant also admitted that he did not

mention in his complaint that the money was demanded for Bhagwati

Jagran. It was specifically suggested to him by learned prosecutor that

the money was given to appellant for getting approval of his drama

“Dahej” and not for organizing Bhagwati Jagran. That being so, the

deviation made by complainant is apparently for some extraneous reasons.

Though, denied that on being challenged, the Appellant told that he did

not know anything and became perplexed. He was confronted with his

statement Ex.PW1/Y recorded by CBI after the raid, wherein it was

found to be so recorded. In his cross examination by the learned defence

counsel, he had also stated that he had given an affidavit to CBI stating

misunderstanding in lodging a complaint against the Appellant. However,

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in his cross examination by learned public prosecutor, though he denied

that he stated to the Deputy S.P Mr. J.C. Surari that the affidavit was

given by him to CBI at the instance of the Appellant, but when confronted

with his statement Ex.PW1/Z, it was found to be so recorded there. It

was specifically put to him that he had been won over by the Appellant

and was deposing falsely to help him.

17. Since PW5 Mataji also did not support the case, she was

declared hostile and was cross examined by learned Public Prosecutor.

It is to be noted that though the Appellant had himself admitted recovery

of Rs.7400/- from complainant, but PW5 denied that the recovery was

effected from the briefcase of the Appellant. She also denied that on

comparison the number of currency notes of Rs. 1900/- tallied with the

numbers already noted in handing over memo PW1/C. Then she admitted

that the recovery memo Ex.PW3/E bears her signatures and that the

currency notes Ex.P1 to P22 are the same which were recovered from

the Appellant. It was also put to her that she has been won over by the

Appellant and she wanted to help him.

18. PW3 Ms. Poonam confirmed the allegations made in the complaint

and also examination-in-chief of PW1. She specifically stated that the

complainant had reported that the Appellant was demanding bribe from

him and the money was to be given at the house of PW5. She also

deposed about her carrying micro cassette recorder and recording of

conversation between complainant and the Appellant. She proved the

handing over memo Ex.PW1/C containing pre-trap proceedings. She

specifically stated that the Appellant asked the complainant if he had

brought the money and how much it was, to which the complainant

replied in affirmative stating, Yes, Laya Hoon Rs.1900/- and that Rs.

5500/- was kept and available with Mataji. She stated that on the

Appellant’s demand, the complainant first gave him Rs.1900/- which he

counted with his both hands and simultaneously PW5 Mataji also gave

Rs. 5500/-. The said amount of Rs.5500/- was kept in a polythene bag.

The Appellant opened the same and then put Rs.1900/- inside the said

bag and then kept the polythene bag in the upper pocket of his briefcase.

She further stated that the Appellant had also demanded Rs.2,000/- from

her. She maintained in her cross examination what she stated in her

examination-in-chief. Nothing could be elicited in her cross-examination

to doubt her testimony. It is to be noted that the tape-recorded cassette

was played in the Court by learned Special Judge and she identified the

conversation that took place between her and the Appellant from the

transcript Ex.PW1/X which was prepared at the spot on 22nd September

1990. In her cross examination also she denied that the Appellant did not

demand Rs.2000/- from her or that she was deposing falsely on that

count.

19. Though PW1 diverted from his previous statement to some

extent as noted above and PW5 also turned hostile, the acceptance and

recovery of tainted money has been admitted by Appellant. The defence

of the Appellant that the said money was for the purpose of organizing

a Jagran, is highly improbable and an afterthought and admittedly it was

not stated by the complainant initially either in his complaint or in his

examination-in-chief. It was only after lapse of three years of his

examination-in-chief when he was cross examined that he came out with

this plea apparently after having been won over by the Appellant.

20. In the fact situation, it appears to be probable also since the

Appellant was producer of plays and the authority of approving the same

vested with him. Neither complainant nor PW5 could have taken any risk

of their career in future in not supporting the Appellant to come out of

the initial complaint. After discussion in detail the evidence and arguments

in this regard, the learned Special Judge recorded as under:

“It is undisputed fact that the accused was the authority

concerned for the telecast of plays on TV and so he could very

well be expected to put hurdles in the way of the complainant

in spite of his dram having been approved. If a person in authority

tells someone, like the accused in this case told to the complainant,

that a particular thing would not be done unless bribe is paid then

the persons in need, like the complainant in this case, will have

the options of either paying the bribe or to report the matter to

seniors of the persons demanding illegal gratification or to the

police. In this case the complainant chose to report the matter

to CBI and that action he must have decided to take only after

having felt frustrated because of the possibility of his play not

being telecast in spite of its having been approved for telecast.

There is nothing improbable in accused making a demand of

money for the telecast of complainant’s play in spite of it having

been approved by him and his seniors because that was only a

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paper approval and without accused’s actual green signal

complainant’s play would not have been telecast automatically.”

21. There appears to be no reason for them to have given the

money to the Appellant for organizing a Jagran which was neither the job

nor the specialization of Appellant. He was a government servant and

was not supposed to be involved in organizing Jagrans for others. The

defence taken by the Appellant is also inconsistent inasmuch as on the

one hand he stated that the complainant was carrying grudge against him

and on the other hand the complainant gave him money for organizing

Jagran. It seems that all this has been manipulated by the Appellant either

by extending some direct or indirect influence or threats to the complainant

and PW5 or on account of some extraneous ˇreasons. Assuming that

the artists had collected some money for organizing a Jagran, there is

nothing to show that the money accepted by the Appellant was meant for

organizing a Jagran. Nothing has been brought on record by him to show

that there was any prior understanding between him and Complainant or

PW5 Mataji or other artists regarding organization of Jagran. There is

also nothing to show that the Appellant had ever in the past organized any

such Jagran for telecast of dramas. It is also to be noted that PW11 is

also an artist and was present at the time of the trap. She deposed about

the presence of the Appellant in the house of PW5 on 22nd September

1990. In her cross examination, she stated that she did not contribute any

money for organizing a Jagran and that she did not know if any money

was collected for Jagran. This would show that no money was collected

for organizing a Jagran. Assuming for the sake of argument that the

money was collected from artists for the purpose of organizing the

Jagran, but that money was passed on to the Appellant as bribe money

for getting favour of telecasting the play “Dahej”.

22. With regard to the defence plea that the complainant was annoyed

with him because of his having reprimanded him on an earlier occasion

for having teased one artist Kiran, it may be noted that PW5 Mataji, who

turned hostile for the reasons as noted above, did admit about this fact

in her cross-examination. But, the fact of the matter is that since she had

turned hostile, therefore, no credence can be given to this part of her

statement. It is more so, because this was nowhere put to the complainant

in his cross-examination either by way of suggestion or otherwise. Even

no evidence much less of Kiran has been adduced by the appellant to

substantiate this defence. In any case, this fact alone was not enough to

discredit the prosecution case, which otherwise stands established for

the reasons as discussed above.

23. The accused when apprehended with the bribe money became

perplexed and confused. This could not be assumed to be normal behavior

of a person, if he was not guilty. The conduct itself was one of the

determinative factors pointing towards the guilt of the accused. In this

regard reference can be made to the case of Rao Shiv Bahadur v. State

of Vindhya Pradesh, AIR 1954 SC 322 and State of Madras v. A.

Vidyanatha Iyer, AIR 1958 SC 61, the Apex Court relied on the evidence

relating to the conduct of the accused when confronted by the police

officials with the allegation that he had received bribe. In the case of Rao

Shiv Bahadur (supra) the evidence relating to conduct on which reliance

was placed was to the effect that the accused was confused and could

not furnish any explanation when questioned by the officer. Likewise, in

the case of Vidyanatha (supra) also evidence to the effect that the

accused was seen trembling and that he silently produced the notes was

acted upon for recording conviction.

24. From the above discussion, it stands concluded that the Appellant

was rightly held guilty of offence under Section 7 as well as under

Section 13(1)(d) of PC Act and was convicted thereunder by the learned

Special Judge. There is no infirmity and illegality in the impugned judgment.

25. With regard to quantum of sentence, learned defence counsel

prayed for a lenient view stating the case to be above 20 years old and

the Appellant having undergone lot of hardships during trial. The Courts

are daily confronted with such arguments invariably in all cases. In this

regard, the Supreme Court in the case of State of A.P. v V. Vasudeva

Rao, (2004) 9 SCC 319, the Supreme Court observed thus:

“In the present case, how could the mere fact that this was

pending for such a long time be considered as a “special reason”?

That is a general feature in almost all convictions under the Act

and it is not a specialty of this particular case. It is a defect

inherent in implementation of the system that longevity of the

cases tried under the Act is too lengthy. If that is to be regarded

as sufficient for reducing the minimum sentence mandated for

reducing the minimum sentence mandated by Parliament the

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legislative exercise would stand defeated.” (para 31)

26. Keeping in view the entire factual matrix, as discussed above,

while maintaining the conviction of the Appellant under Section 7 and

13(1)(d) read with Section 13(2) of the Act, I am of the view that ends

of justice would be met in sentencing the Appellant to two years rigorous

imprisonment. Thus, to that extent, the impugned order of sentence

dated 22nd July, 2002 of the learned Special Judge is modified in that,

the Appellant shall undergo rigorous imprisonment for a period of two

years each under Section 7 as well as under Section 13(1)(d) read with

Section 13(2) of the Act.

27. With this modification in the impugned order of sentence, the

rest remain maintained. The substantive sentences awarded shall run

concurrently. The period of custody, if any, already undergone by the

Appellant, shall be set off. The Appellant shall surrender and be taken into

custody to undergo the awarded imprisonment. Appeal disposed of

accordingly.

ILR (2011) VI DELHI 652

CS (OS)

SHRI M. K. SHARMA AND ANR. ....PLAINTIFFS

VERSUS

SHRI SH TEK CHAND AND OTHERS ....DEFENDANTS

(J.R. MIDHA, J.)

CS (OS) NO. : 2354/2010 DATE OF DECISION: 15.07.2011

CS (OS) NO. : & 1671/2009

Code of Civil Procedure, 1908—Section 16, 20 and

22—Legal question framed as to whether Delhi court

has territorial jurisdiction to entertain and try a suit

for specific performance relating to a property situated

outside Delhi—On the basis of legal precedents, held

that Delhi Courts have no jurisdiction to entertain and

try a suit for specific performance relating to an

immovable property situated outside Delhi because

the relief cannot be entirely obtained through the

personal obedience of the defendant under the proviso

to Section 16 CPC as the defendant will have to go out

of Delhi to get the sale deed registered—Plaints of

both suits directed to be returned to the plaintiffs.

Findings

6.1 The principles laid down by the Supreme Court in the

cases of Babu Lal (supra) and Harshad Chiman Lal Modi

(supra) and three Division Bench judgments of this Court in

Vipul Infrastructure Developers Ltd. (supra); Pantaloon

Retail India case (supra) and Splendor Landbase Limited

(supra) are summarized as under:-

6.1.1 This Court has no jurisdiction to entertain and try a

suit for specific performance relating to an immovable property

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situated outside Delhi because the relief cannot be entirely

obtained through the personal obedience of the defendant

under the proviso to Section 16 of the Code of Civil

Procedure as the defendant will have to go out of the

jurisdiction of this Court to get the sale deed registered

outside Delhi.

6.1.2 The relief of possession is inherent in the relief of

specific performance under Section 22 of the Specific Relief

Act, 1963 read with Section 55(1) of the Transfer of Property

Act, 1882 and the plaintiffs can seek an amendment to claim

delivery of possession at any stage of the suit.

6.1.3 This Court has no jurisdiction to get the decree of

possession enforced for the property situated outside Delhi.

6.1.4 The proviso to Section 16 cannot be interpreted or

construed to enlarge the scope of the principal provision.

6.2 In CS(OS) No.2354/2010, the defendants are not even

residing within the jurisdiction of this Court.

6.3 For the reasons as aforesaid, the proviso to Section 16

of the Code of Civil Procedure is not applicable to the

present cases. (Para 6)

Important Issue Involved: Delhi Courts have no

jurisdiction to entertain and try a suit for specific performance

relating to an immovable property situated outside Delhi.

[Gi Ka]

APPEARANCES:

FOR THE PLAINTIFFS : Mr. N.S. Dalal, Advocate.

FOR THE DEFENDANTS : None.

CASES REFERRED TO:

1. Splendor Landbase Limited (M/S.) vs. M/s. Mirage Infra

Limited, 2010 V AD (Delhi) 19 (DB).

2. Pantaloon Retail India Ltd. vs. DLF Limited, 2009 (107)

DRJ 228 (DB).

3. Vipul Infrastructure Developers Ltd. and Anr. vs. Rohit

Kochhar, 2008 (102) DRJ 178 (DB).

4. Begum Sabiha Sultan vs. Nawab Mohd. Mansur Ali Khan

and Ors., AIR 2007 SC 1636.

5. Harshad Chiman Lal Modi vs. D.L.F. Universal Ltd.,

AIR 2006 SC 464.

6. Adcon Electronics Pvt. Ltd. vs. Daulat and Anr., AIR

2001 SC 3712.

7. Ewing vs. Ewing, (1883) 9 AC 34 : 53 LJ Ch 435.

8. Babu Lal vs. Hazari Lal Kishori Lal and Ors., [1982] 3

SCR 94.

9. Debendra Nath Chowdhury vs. Southern Bank Ltd., AIR

1960 Cal. 626.

10. Subodh Kumar Banerjee vs. Hiramoni Dasi and Ors.,

AIR 1955 Cal. 267.

RESULT: Plaints returned.

J.R. MIDHA, J.

1. The following common legal question arises for consideration in

CS (OS)Nos.2354/2010 and 1671/2009:-

‘‘Whether this Court has territorial jurisdiction to entertain and

try a suit for specific performance relating to a property situated

outside Delhi?

2. Facts in CS (OS)No.2354/2010

2.1 The plaintiffs are seeking specific performance of agreements

to sell, receipts and MOU dated 24th February, 2009 relating to the

property ad-measuring 511 sq. yrds. bearing No.541, comprised in Khasra

No.798, Old Abadi, Village Harola Makanpur, Sector-5, Noida, Gautam

Budh Nagar, U.P. 200301.

2.2 The agreements to sell, receipts and MOU dated 24th February,

2009 were executed at Delhi.

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2.3 The defendants are residents of Noida, Gautam Budh Nagar,

U.P.

2.4 The plaintiffs have, in para 22 of the plaint averred that this

Court has jurisdiction to entertain and try this suit as the agreements to

sell were executed at Delhi and the payments were also made to the

defendants at Delhi.

2.5 On 23rd May, 2011, the plaintiffs gave up prayer (b) relating

to the possession of the suit property. The plaintiffs are now seeking

specific performance, injunction and damages relating to the suit property.

3. Facts in CS(OS)No.1671/2009

3.1 The plaintiff is seeking specific performance of agreement to

sell dated 12th May, 2005 relating to the property bearing No.B-46,

Sector 5, Noida.

3.2 The agreement to sell dated 12th May, 2005 was executed at

Noida.

3.3 The defendants are the resident of Delhi.

3.4 The plaintiff initially instituted a suit for specific performance

before the Civil Judge (Senior Division), Gautam Budh Nagar being original

Suit No.1029/2007 which was withdrawn on 11th August, 2008 with

liberty to institute a fresh suit. The plaintiff thereafter instituted this suit.

4. Relevant Provisions of Law

4.1 Section 16 of the Code of Civil Procedure, 1908. Suits to

be instituted where subject-matter situate.- Subject to the pecuniary

or other limitations prescribed by any law, suits-

(a) for the recovery of immovable property with or without rent

or profits,

(b) for the partition of immovable property,

(c) for foreclosure, sale or redemption in the case of a mortgage

of or charge upon immovable property,

(d) for the determination of any other right to or interest in

immovable property,

(e) for compensation for wrong to immovable property,

(f) for the recovery of movable property actually under distraint

or attachment, shall be instituted in the Court within the local

limits of whose jurisdiction the property is situate :

Provided that a suit to obtain relief respecting, or compensation

for wrong to, immovable property held by or on behalf of the

defendant, may where the relief sought can be entirely obtained

through his personal obedience be instituted either in the Court

within the local limits of whose jurisdiction the property is situate,

or in the Court within the local limits of whose jurisdiction the

defendant actually and voluntarily resides, or carries on business,

or personally works for gain.

4.2 Section 20 of the Code of Civil Procedure, 1908. Other

suits to be instituted where defendants reside or cause of action

arises.- Subject to the limitations aforesaid, every suit shall be instituted

in Court within the local limits of whose jurisdiction-

(a) the defendant, or each of the defendants where there are

more than one, at the time of the commencement of the suit,

actually and voluntarily resides, or carries on business, or

personally works for gain; or

(b) any of the defendants, where there are more than one, at the

time of the commencement of the suit actually and voluntarily

resides, or carries on business, or personally works for gain,

provided that in such case either the leave of the Court is given,

or the defendants who do not reside, or carry on business, or

personally work for gain, as aforesaid, acquiesce in such

institution; or

(c) the cause of action, wholly or in part, arises.

4.3 Section 22 of the Specific Relief Act, 1963. Power to grant

relief for possession, partition, refund of earnest money, etc.-

(1) Notwithstanding anything to the contrary contained in the

Code of Civil Procedure, 1908 (5 of 1908 ), any person suing

for the specific performance of a contract for the transfer of

immovable property may, in an appropriate case, ask for-

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(a) possession, or partition and separate possession, of the

property, in addition to such performance; or

(b) any other relief to which he may be entitled, including the

refund of any earnest money or deposit paid or 1[ made by] him,

in case his claim for specific performance is refused.

(2) No relief under clause (a) or clause (b) of sub- section (1)

shall be granted by the court unless it has been specifically

claimed: Provided that where the plaintiff has not claimed any

such relief in the plaint, the court shall, at any stage of the

proceeding, allow him to amend the plaint on such terms as may

be just for including a claim for such relief.

(3) The power of the court to grant relief under clause (b) of

sub- section (1) shall be without prejudice to its powers to

award compensation under section 21.

4.4. Section 55(1) of the Transfer of Property Act, 1882. Rights

and liabilities of buyer and seller.- In the absence of a contract to the

contrary, the buyer and the seller of immoveable property respectively

are subject to the liabilities, and have the rights, mentioned in the rules

next following, or such of them as are applicable to the property sold:

(1) The seller is bound—

(a) to disclose to the buyer any material defect in the property

2[ or in the seller’ s title thereto] of which the seller is, and the

buyer is not, aware, and which the buyer could not with ordinary

care discover;

(b) to produce to the buyer on his request for examination all

documents of title relating to the property which are in the

seller’ s possession or power;

(c) to answer to the best of his information all relevant questions

put to him by the buyer in respect to the property or the title

thereto;

(d) on payment or tender of the amount due in respect of the

price, to execute a proper conveyance of the property when the

buyer tenders it to him for execution at a proper time and place;

(e) between the date of the contract of sale and the delivery of

the property, to take as much care of the property and all

documents of title relating thereto which are in his possession as

an owner of ordinary prudence would take of such property and

documents;

(f) to give, on being so required, the buyer, or such person as

he directs, such possession of the property as its nature admits;

(g) to pay all public charges and rent accrued due in respect of

the property up to the date of the sale, the interest on all

incumbrances on such property due on such date, and, except

where the property is sold subject to incumbrances, to discharge

all incumbrances on the property then existing.

5. Relevant judgments

5.1 Harshad Chiman Lal Modi v. D.L.F. Universal Ltd., AIR

2006 SC 464

A suit for specific performance relating to a property in Gurgaon

was filed in this Court on the ground that the defendants had their Head

Office in Delhi, the agreement was entered into at Delhi and partial

payments were also made at Delhi. The Supreme Court held that Delhi

Court does not have jurisdiction to entertain and try the suit as the

property was situated outside the jurisdiction of this Court. The relevant

findings of the Supreme Court are as under:-

‘‘14. Section 16 thus recognizes a well established principle that

actions against res or property should be brought in the forum

where such res is situate. A court within whose territorial

jurisdiction the property is not situate has no power to deal with

and decide the rights or interests in such property. In other

words, a court has no jurisdiction over a dispute in which it

cannot give an effective judgment. Proviso to Section 16, no

doubt, states that though the court cannot, in case of immovable

property situate beyond jurisdiction, grant a relief in rem still it

can entertain a suit where relief sought can be obtained through

the personal obedience of the defendant. The proviso is based on

well known maxim “equity acts in personam’’, recognized by

the Chancery Courts in England. The Equity Courts had

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jurisdiction to entertain suits respecting immovable properties

situated abroad through personal obedience of the defendant.

The principle on which the maxim was based was that courts

could grant reliefs in suits respecting immovable property situate

abroad by enforcing their judgments by process in personam,

i.e. by arrest of defendant or by attachment of his property.

15. In Ewing v. Ewing, (1883) 9 AC 34 : 53 LJ Ch 435, Lord

Selborne observed:

‘‘The Courts of Equity in England are, and always have

been, courts of conscience operating in personam and not

in rem; and in the exercise of this personal jurisdiction

they have always been accustomed to compel the

performance of contracts in trusts as to subjects which

were not either locally or ratione domicilli within their

jurisdiction. They have done so, as to land, in Scotland,

in Ireland, in the Colonies, in foreign countries.’’

16. The proviso is thus an exception to the main part of the

section which in our considered opinion, cannot be interpreted

or construed to enlarge the scope of the principal provision. It

would apply only if the suit falls within one of the categories

specified in the main part of the section and the relief sought

could entirely be obtained by personal obedience of the defendant.

17. In the instant case, the proviso has no application. The relief

sought by the plaintiff is for specific performance of agreement

respecting immovable property by directing the defendant No. 1

to execute the sale deed in favour of the plaintiff and to deliver

possession to him. The trial court was, therefore, right in holding

that the suit was covered by Clause (d) of Section 16 of the

Code and the proviso had no application.

18. In our opinion, the submission of the learned Counsel for the

appellant that the parties had agreed that Delhi Court alone had

jurisdiction in the matters arising out of the transaction has also

no force. Such a provision, in our opinion, would apply to those

cases where two or more courts have jurisdiction to entertain a

suit and the parties have agreed to submit to the jurisdiction of

one court.’’ (Emphasis supplied)

5.2 Vipul Infrastructure Developers Ltd. and Anr. v. Rohit

Kochhar, 2008 (102) DRJ 178 (DB)

A suit for specific performance relating to a property in Gurgaon

was filed in Delhi on the ground that the agreement was executed at

Delhi and the defendants also carried on business at Delhi. The learned

Single Judge held the suit to be maintainable on the ground that only a

declaration of right and title in the property was sought and not the

delivery of possession. The Division Bench overruled this judgment holding

that Delhi Court had no jurisdiction to entertain and try the suit. The

Division Bench was of the opinion that even when no prayer for declaration

or delivery of possession of the suit was made, the relief of possession

was inherent in the relief of specific performance. The Division Bench

further held that the execution and registration of the sale deed would

take place at Gurgaon for which the direction will have to be given to

the defendant to move out of Delhi to Gurgaon for registration of sale

deed and, therefore, the case would not fall within the purview of the

proviso to Section 16. This Court held as under:-

‘‘12. Section 22 of the Specific Relief Act, on the other hand,

provides that any person suing for specific performance of a

contract for transfer of immovable property may, in an appropriate

case sue, for possession, or partition and separate possession, of

the property, in addition to such performance. It is further provided

in the said provision that no relief under the said provision shall

be granted by the court unless it has been specifically claimed,

provided that where the plaintiff has not claimed any such relief

in the plaint, the court shall, at any stage of the proceeding,

allow him to amend the plaint on such terms as may be just for

including a claim for such relief.

13. The aforesaid provisions of Section 22 of the Specific Relief

Act came to be considered by the Supreme Court in the decision

of Babu Lal (supra). In the said decision it was held by the

Supreme Court that Section 22 of the Specific Relief Act provides

that a person in a suit for specific performance of a contract for

the transfer of immovable property, may ask for appropriate

relief, namely, he may ask for possession, or for partition, or for

separate possession including the relief for specific performance.

The Supreme Court also took note of Sub-section (2) of this

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section which specifically provides that these reliefs cannot be

granted by the Court, unless they have been expressly claimed

by the plaintiff in the suit. The Supreme Court further went on

to hold that the proviso to Sub-section (2), however, says that

where the plaintiff has not specifically claimed these reliefs in his

plaint at the initial stage of the suit, the court shall permit the

plaintiff, at any stage of the proceedings, to include one or more

of the reliefs mentioned above by means of an amendment of the

plaint on such terms as it may deem proper. The Supreme Court

examined the object and purpose of enacting the aforesaid

provision and thereafter held that the said provision has been

enacted to avoid multiplicity of suits and that the plaintiff may

get appropriate relief without being hampered by procedural

complications. In the said decision the Supreme Court also took

note of the expression “in appropriate cases” as appearing in

Section 22(1) which was found to be most significant. While

interpreting the said provision it was held by the Supreme Court

that the said expression only indicates that it is not always

incumbent on the plaintiff to claim possession or partition or

separate possession in a suit for specific performance of a contract

for the transfer of the immovable property. That has to be done

where the circumstances demanding the relief for specific

performance of the contract of sale embraced within its ambit

not only the execution of the sale deed but also possession over

the property conveyed under the sale deed. The aforesaid

proposition laid down by the Supreme Court was further

explained holding that it may not always be necessary for

the plaintiff to specifically claim possession over the property,

the relief of possession being inherent in the relief for

specific performance of the contract of sale. The Supreme

Court went on to hold that in a case where exclusive possession

is with the contracting party, a decree for specific performance

of the contract of sale simplicities without specifically providing

for delivery of possession, may give complete relief to the decree-

holder. In order to satisfy the decree against him completely the

judgment debtor is bound not only to execute the sale-deed but

also to put the property in possession of the decree-holder. This

is also in consonance with the provisions of Section 55(1) of the

Transfer of Property Act, 1882 which provides that the seller is

bound to give, on being so required, to the buyer or such person

as he directs, such possession of the property as its nature

admits.’’

‘‘18. In the present case, it is an admitted position that the

appellant had entered into the aforesaid alleged contract at its

Corporate office at Delhi. It is the specific stand of the appellant

that they were initially residents of Delhi and that they had moved

to Gurgaon and their corporate office is now also located at

Gurgaon. It is the contention of the counsel appearing for the

respondents that the proviso to Section 16 of Code of Civil

Procedure is applicable which is sought to be invoked, for, the

relief which is sought for could be entirely enforced through the

personal obedience of the defendants in Delhi. There is however

not only a prayer in the plaint for declaration of the right and

title, but also to transfer the right, title and interest in the suit

premises situate at Gurgaon. As, in our opinion, the suit can

be decreed in favour of the plaintiff only when the Court

can get the sale deed executed and registered in favour of

the plaintiff which would confer the title of the suit premises

on the plaintiff, and the execution and the registration of

the sale document would have to take place at Gurgaon

and, for this the Court will also have to pass a decree

directing the defendant to get the sale deed executed and

registered at Gurgaon, implication of the same will be that

a direction will have to be given to the defendant that he

shall have to move out of Delhi and go to Gurgaon and get

the same registered. No sale deed is sought to be registered

at Delhi and, therefore, in our considered opinion such a

relief cannot be entirely obtained through the personal

obedience of the defendant, who in this case has to go to the

jurisdiction of another court to get the decree executed and

the sale deed registered.

19. Accordingly, we are of the considered opinion that the

submissions of the learned Counsel for the respondent and the

findings recorded by the learned Single Judge that the present

case is covered by the proviso of Section 16 of the Code of Civil

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Procedure are misplaced. In the facts and circumstances of

the case as delineated, the relief in the present suit cannot

be entirely obtained through the personal obedience of the

defendants. The proviso to Section 16 of the Code of Civil

Procedure would be applicable to a case where the relief

sought for by the plaintiff was entirely obtainable through

the personal obedience of the defendant, i.e., the defendant

has not at all to go out of the jurisdiction of the Court for

the aforesaid purpose. The present case is not a case of the

aforesaid nature. In the present case for execution of the

sale deed the defendants will have to go out of the jurisdiction

of this Court and get the same executed and registered in

Gurgaon.

20. In the present case also it is an admitted position that

possession of the said property was with the seller and, therefore,

in terms of the provisions of Section 55(1) of the Transfer of

Property Act, 1882, the relief of possession is inherent in the

relief of specific performance of the contract. In our considered

opinion the ratio of the decision of the Supreme Court in Babu

Lal (supra) and the principles laid down in the case of Harshad

Chiman Lal Modi(supra) are applicable to the facts of the present

case. In Harshad Chiman Lal Modi (supra) it was found that

in addition to passing decree, the court was also required to

deliver possession of the property. It was held that such a relief

can be granted only by sending the concerned person responsible

for delivery of possession to Gurgaon and the court at Delhi

does not have the jurisdiction to get the aforesaid decree enforced

for the property situate outside territorial jurisdiction of Delhi

High Court. The Court while referring to the provisions of Section

16 of the CPC held that the location of institution of a suit would

be guided by the location of the property in respect of which and

for determination of any right or interest whereof the suit is

instituted. The proviso to Section 16 CPC is also not applicable

to the case, as the relief sought for cannot be entirely granted

or obtained through the personal obedience of the respondent.

21. The decision of the Supreme Court in the case of Adcon

Electronics Pvt. Ltd. v. Daulat and Anr., AIR 2001 SC 3712,

relied upon by the respondents, would also not be applicable to

the facts of the present case. The said decision was rendered in

the context of the expression “suit for land”. The Supreme Court

in the said decision held that suit for specific performance of an

agreement for sale of the suit property, without a claim for

delivery of possession, cannot be treated as a “suit for land” and

is, Therefore, triable under Clause 12 if the other conditions

there under are fulfilled. The facts of the said case are,

therefore, distinguishable and are not applicable to the case

in hand. The said decision was rendered due to specific

provision therein and it is also apparent from the fact that

the case of Babu Lal(supra) was not even referred to in that

case.

22. Another decision of the Supreme Court which needs reference

at this stage is the case of Begum Sabiha Sultan v. Nawab

Mohd. Mansur Ali Khan and Ors., AIR 2007 SC 1636. In para

12 of the said judgment it was held by the Supreme Court that

reading the plaint as a whole in this case, there cannot be much

doubt that the suit is essentially in relation to the relief of partition

and declaration in respect of the properties situate in Village

Pataudi, Gurgaon, outside the jurisdiction of court at Delhi. In

that view of the matter it was also held that the Delhi Court will

have no jurisdiction to try and decide the aforesaid suit. It was

also held in the said decision by following the decision of Harshad

Chiman Lal Modi(supra) that the relief of partition, accounting

and declaration of invalidity of the sale executed in respect of

immovable property situate in Village Pataudi, Gurgaon, could

not entirely be obtained by personal obedience to the decree by

the defendants in the suit. It was further held that applying the

test laid down therein, it is clear that the present suit could not

be brought within the purview of the proviso to Section 16 of

the Code or entertained relying on Section 20 of the Code on the

basis that three out of the five defendants are residing within the

jurisdiction of the court at Delhi.’’ (Emphasis supplied)

5.3 Pantaloon Retail India Ltd. v. DLF Limited, 2009 (107)

DRJ 228 (DB)

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A suit for mandatory injunction relating to a property in Gurgaon

was filed in this Court. The Division Bench of this Court following the

judgments of the Supreme Court in Babu Lal Vs. Hazari Lal Kishori

Lal & Ors. 1982 (3) SCR 94 and Harshad Chiman Lal Modi (supra),

held that this Court had no jurisdiction to entertain and try the suit. The

relevant portion of the said judgment is reproduced hereunder:-

‘‘7. It is clear from a plain reading of Section 16 that in any suit

where the relief claimed is of the nature described in Clauses (a)

to (f), such a suit in respect of immovable property is to be

instituted in the Court within the local limits of whose jurisdiction

the property is situate. In the present case, immovable property

is located in Gurgaon, Haryana, which is outside the local limits

of Delhi. Clause (a) deals with recovery of immovable property

and Clause (d) is about those suits where determination of any

other right to or interest the property is called for. We are not

concerned with other clauses in the present case. On the other

hand, proviso to Section 16 lays down certain circumstances in

which suit can be instituted even within the local limits of whose

jurisdiction the defendant actually and voluntarily resides or carries

on business or personally works for gain. Thus, normally a suit

in respect of immovable property is to be filed where the subject-

matter, i.e., the immovable property is situate. However, in the

proviso an exception is laid down by providing that relief respecting

or compensation for wrong to, immovable property can be

obtained through the personal obedience of the defendant, the

suit can also be instituted where the defendant resides etc. If the

proviso is applicable, the principles stipulated in Section 20 of

the Code would determine the territorial jurisdiction. In any case,

in so far as the Court within local limits of whose jurisdiction the

property is situate shall always have the jurisdiction even when

case is covered by the proviso.

8. The question, therefore, is as to whether present case is

covered by clause (a) or (d) of Section 16 of the Code on the

one hand or proviso thereof is applicable and therefore, provisions

of Section 20 of the Code can also be invoked.

9. To find answer to this question, we refer to certain precedents

of the Apex Court as well as this Court. First case which needs

mention is the judgment of the Supreme Court in Adcon

Electronics Pvt. Ltd. v. Daulat and Anr., AIR 2001 SC 3712.

In that case, vide agreement dated 12.7.1986 immovable property

situate in Indore, MP, was agreed to be sold by the defendant

to the plaintiffs. Suit for specific performance was filed in the

High Court of Judicature at Bombay (now Mumbai) praying,

inter alia, for a declaration that agreement dated 12.7.1986 and

Memorandum of Understanding dated 1.8.1987 was still subsisting

and binding on the defendant and a decree for specific performance

of the said agreement and the memorandum was sought. The

defendant took objection to the maintainability of that suit in

Mumbai on the ground that immovable property was situate in

Indore, MP. This plea was not accepted by either the Single

Judge or the Division Bench of the Bombay High Court. It is in

these circumstances the appeal came to be filed against the

judgment of the Bombay High Court, before the Supreme Court,

by the defendant. The Supreme Court held that a suit for specific

performance simplicitor, in the absence of an explicit prayer for

delivery of possession of the suit property, would not be treated

as a ‘‘suit for land.’’ After taking note of certain judgments of

the High Courts as well as that of Federal Court, the Supreme

Court summed up the legal position, with approval, in the

following words:-

‘‘14. In Debendra Nath Chowdhury v. Southern Bank

Ltd., AIR 1960 Cal. 626, a Division Bench of the Calcutta

High Court took the view that the suit for specific

performance of the contract to execute and register a

lease with alternative claims for damages is not a ‘‘suit

for land’’ within the meaning of Clause 12 of the Letters

Patent.

15. From the above discussion it follows that a ‘‘suit for

land’’ is a suit in which the relief claimed relates to title

to or delivery of possession of land or immovable property.

Whether a suit is a ‘‘suit for land’’ or not has to be

determined on the averments in the plaint with reference

to the reliefs claimed therein; where the relief relates to

adjudication of title to land or immovable property or

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delivery of possession of the land or immovable property,

it will be a ‘‘suit for land’’. We are in respectful agreement

with the view expressed by Mahajan, J. in Moolji Jaitha

case (supra).’’

10. The Court further observed that though in a suit for specific

performance of contract for sale of immovable property containing

a stipulation that on execution of the sale deed the possession of

the immovable property will be handed over to the purchaser and

because of that it is implied that delivery of possession of

immovable property is a part of the decree of specific performance

of the contract but having regard to the provisions of Section 22

of the Specific Relief Act, unless relief for possession is

specifically asked for, no court can grant that relief. Discussion

on this aspect is contained in para 17 of the judgment, which is

reproduced below:

‘‘17. It may be seen that Sub-section (1) is an enabling

provision. A plaintiff in a suit for specific performance

may ask for further reliefs mentioned in Clauses (a) and

(b) thereof. Clause (a) contains reliefs of possession and

partition and separate possession of the property, in addition

to specific performance. The mandate of Sub-section (2)

of Section 22 is that no relief under Clause (a) and (b) of

Sub-section (1) shall be granted by the court unless it has

been specifically claimed. Thus it follows that no court

can grant the relief or possession of land or other

immovable property, subject-matter of the agreement for

sale in regard to which specific performance is claimed,

unless the possession of the immovable property is

specifically prayed for.’’

11. On this basis, the Court held that as in the case before it

relief for possession was not specifically claimed, suit for specific

performance was not to be treated as ‘‘suit for land’’ and

therefore, Bombay High Court had the jurisdiction to entertain

the suit on the basis of ‘‘cause of action’’. Thus, the Court, in

essence, held that where the suit filed is one for specific

performance only without claim relief for possession, provision

like Section 16 will have no application and the principle contained

in Section 20 of the Code would be attracted for the purpose of

determination of the territorial jurisdiction of a court.

12. We may point out at this stage itself that earlier

judgment of the Supreme Court in the case of Babu Lal v.

Hazari Lal Kishori Lal and Ors., [1982] 3 SCR 94 was not

taken note of by the Supreme Court. In that case, the

decree for specific performance simplicitor was passed by

the Court. In the execution of the said decree, the decree holder

wanted possession as well. In view of Section 22 of the Specific

Relief Act, 1963 question arose before the Court as to whether

decree for possession had to be specifically sought for. Referring

to the provisions of Section 22 of the Specific Relief Act the

contention of the judgment debtor was that as the plaintiffs had

not claimed any relief for possession in the suit, they were

precluded from claiming that relief at a subsequent stage. This

contention of the judgment debtor was not accepted holding

that Section 22 was an enabling provision. The legislative

history behind enacting Section 22, Specific Relief Act, 1963,

was noted and the Court opined that even if such a relief

was not claimed at the initial stage of the suit, the Court

could permit the plaintiff to include this relief at the

subsequent stage. We may extract the following discussion in

this behalf from the said judgment:-

‘‘Section 22 enacts a rule of pleading. The Legislature

thought it will be useful to introduce a rule that in order

to avoid multiplicity of proceedings the plaintiff may claim

a decree for possession in a suit for specific performance,

even though strictly speaking, right to possession accrues

only when suit for specific performance is decreed. The

Legislature has now made a statutory provision enabling

the plaintiff to ask for possession in the suit for specific

performance and empowering the court to provide the

decree itself that upon payment by the plaintiff of the

consideration money within the given time, the defendant

should execute the deed and put the plaintiff in possession.

The section enacts that a person in a suit for specific

performance of a contract for the transfer of immovable

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property, may ask for appropriate reliefs, namely, he may

ask for possession, or for partition, or for separate

possession including the relief for specific performance.

These reliefs he can claim, notwithstanding anything

contained in the Code of Civil Procedure 1908, to the

contrary. Sub-section (2) of this section, however,

specifically provides that these reliefs cannot be granted

by the Court, unless they have been expressly claimed by

the plaintiff in the suit. Sub-section (2) of the section

recognized in clear terms the well-established rule of

procedure that the court should not entertain a claim of

the plaintiff unless it has been specifically pleaded by the

plaintiff and proved by him to be legally entitled to. The

proviso to this Sub-section (2), however, says that where

the plaintiff has not specifically claimed these reliefs in his

plaint, in the initial stage of the suit, the court shall permit

the plaintiff at any stage of the proceedings, to include

one or more of the reliefs, mentioned above by means of

an amendment of the plaint on such terms as it may deem

proper. The only purpose of this newly enacted provision

is to avoid multiplicity of suits and that the plaintiff may

get appropriate relief without being hampered by procedural

complications.’’

13. In first blush, one gets an impression that the judgment of

the Supreme Court in Adcon Electronics (supra) is in conflict

with Babu Lal (supra) in so far as the interpretation of Section

22 of the Specific Relief Act is concerned. Dr. Singhvi, learned

senior advocate appearing for the appellant (plaintiff), however,

made an endeavour to demonstrate that there was no such

contradiction and the two cases could be reconciled. His

submission was that though it was necessary to make a prayer

for decree of possession to claim that relief as held in Adcon

Electronics (supra), at the same time it was only an ‘‘enabling’’

provision and therefore, even if this relief is not claimed at the

initial stage, amendment at subsequent stage to include this relief

was permissible. Though this argument is contentious, we refrain

from expressing a final view since this aspect does not arise for

consideration. However, we would refer to the judgment in Babu

Lal (supra) for other purpose at the appropriate stage.’’

5.4 Splendor Landbase Limited (M/S.) v. M/s. Mirage Infra

Limited, 2010 V AD (Delhi) 19 (DB)

A suit for declaration and permanent injunction relating to a property

situated at Chandigarh was filed at Delhi on the ground that the agreement

was executed at New Delhi and payments were also made at New Delhi.

The Division Bench of this Court following the judgments of the Supreme

Court in Harshad Chiman Lal Modi (supra) and of Division Bench of

this Court in Vipul Infrastructure Developers Ltd. (supra) and

Pantaloon Retails India Ltd. (supra) held that this Court had no

jurisdiction to entertain and try the suit. The relevant findings of this

Court are as under:-

‘‘25. Having considered the decisions referred by the parties

and on a plain reading of the plaint as a whole, it is clear

as we have indicated above that the present suit is one

which comes within the purview of Section 16(d) of the CPC

and the proviso of Section 16 of CPC is not applicable under

the circumstances as the proviso of Section 16 of CPC is an

exception to the main part of the Section which cannot be

construed to enlarge the scope of the main provision. If the

suit comes within Section 16(d) of the CPC, it has been held by

the Apex Court in Harshad Chiman Lal Modi’s case (supra)

that Section 20 of the Code would have no application in view

of the opening words of Section 20 “subject to limitations

aforesaid”. The Apex Court has held that the proviso to Section

16 would apply only if the relief sought could entirely be obtained

by personal obedience of the defendant. The proviso we feel will

only apply if the suit falls within one of the categories specified

in the main part of the Section. In the present case, although

specifically the relief for possession of the property has not

been claimed by the Appellant in the prayer for the purpose

of development, however, it is settled law that by clever

drafting a party cannot be permitted to come within different

meaning of relief claimed. Hence, no benefit can be derived

by the Appellant either from the proviso of Section 16 or

Section 20 of the Code of Civil Procedure.’’

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(Emphasis supplied)

5.5 Adcon Electronics Pvt. Ltd. v. Daulat and Anr., AIR 2001

SC 3712

A suit for specific performance relating to a property at Indore was

instituted at Mumbai. The Supreme Court held the suit to be maintainable

on the ground that the suit for specific performance simplicitor in the

absence of an explicit prayer for delivery of possession of the suit

property would not be treated as a suit for land. However, the earlier

judgment of Babu Lal (supra) was not taken note of in Adcon’s case.

In Babu Lal’s case, the Supreme Court held that the relief of possession

is inherent in the relief of specific performance under Section 22 of the

Specific Relief Act, 1963 read with Section 55(1) of the Transfer of

Property Act, 1882 and the plaintiffs can seek an amendment to claim

delivery of possession at any stage of the suit. Adcon’s case was

distinguished by the Division Bench of this Court in the case of Vipul

Infrastructure Developers Ltd. (supra) and Pantaloon Retail India

case (supra). The findings of the Division Bench of this Court in Vipul

Infrastructure Ltd. (supra) are reproduced hereunder:-

‘‘16. In Babu Lal’s case (supra) it was also held that in

satisfaction of a decree for specific performance of a contract

for sale, the handing over of the possession of the property

is incidental. Thus the judgment debtor has to not only to

execute the sale deed, but also to deliver the property to decree

holder. Further reference was also made in the said case to a

Division Bench decision of the Calcutta High Court in a case

titled as Subodh Kumar Banerjee v. Hiramoni Dasi and Ors.,

AIR 1955 Cal. 267, wherein it was held that in view of Clause

(1) of Section 55 unless there is a contract to the contrary,

giving delivery of the possession to the buyer by the seller is an

incident of a contract for sale, and that right springs out of the

contract which is being specifically enforced and as a net result

of the execution and completion of conveyance. The aforesaid

provision has to be read harmoniously with the provisions of

Section 22 of the Specific Relief Act. The decisions which are

referred to in this judgment and relied upon by the counsel

appearing for the parties at different stages also throw light on

the aforesaid aspect. It is established from the ratio of the

aforesaid decisions that it could be possible by filing a suit

not only to seek a declaration of the right and title and to

enforce an agreement to sell, but an amendment thereto

could also be obtained seeking for decree of delivery of

possession at any stage of the suit, even at the execution

stage.’’

6. Findings

6.1 The principles laid down by the Supreme Court in the cases of

Babu Lal (supra) and Harshad Chiman Lal Modi (supra) and three

Division Bench judgments of this Court in Vipul Infrastructure

Developers Ltd. (supra); Pantaloon Retail India case (supra) and

Splendor Landbase Limited (supra) are summarized as under:-

6.1.1 This Court has no jurisdiction to entertain and try a suit for

specific performance relating to an immovable property situated outside

Delhi because the relief cannot be entirely obtained through the personal

obedience of the defendant under the proviso to Section 16 of the Code

of Civil Procedure as the defendant will have to go out of the jurisdiction

of this Court to get the sale deed registered outside Delhi.

6.1.2 The relief of possession is inherent in the relief of specific

performance under Section 22 of the Specific Relief Act, 1963 read with

Section 55(1) of the Transfer of Property Act, 1882 and the plaintiffs

can seek an amendment to claim delivery of possession at any stage of

the suit.

6.1.3 This Court has no jurisdiction to get the decree of possession

enforced for the property situated outside Delhi.

6.1.4 The proviso to Section 16 cannot be interpreted or construed

to enlarge the scope of the principal provision.

6.2 In CS(OS) No.2354/2010, the defendants are not even residing

within the jurisdiction of this Court.

6.3 For the reasons as aforesaid, the proviso to Section 16 of the

Code of Civil Procedure is not applicable to the present cases.

7. Conclusion

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673 674 Anita Devi v. United India Assurance Co. Ltd. (Indermeet Kaur, J.)

In the facts and circumstances of this case and following the

judgments of the Supreme Court in Babu Lal (supra) and Harshad

Chaman Lal Modi (supra) and three judgments of Division Bench of

this Court in Vipul Infrastructure Developers Ltd. (supra), Pantaloon

Retail India Ltd. (supra) and Splendor Landbase Limited (supra), it

is held that this Court has no territorial jurisdiction to entertain and try

the suits for specific performance relating to the properties situated outside

Delhi (Noida, Gautam Budh Nagar, U.P. in CS(OS) No.2354/2010 and

Noida in CS(OS) No.1671/2009). Consequently, both the suits are returned

to the plaintiffs under Order VII Rule 10 of the Code of Civil Procedure

for being presented to the proper Court.

ILR (2011) VI DELHI 673

MAC APPEAL

ANITA DEVI & OTHERS ....APPELLANTS

VERSUS

UNITED INDIA ASSURANCE ....RESPONDENTS

CO. LTD. & ORS.

(INDERMEET KAUR, J.)

MAC APPEAL NO. : 653/2010, DATE OF DECISION: 15.07.2011

654/2010 & 655/2010

Motor Vehicles Act, 1988—Section 166—Three

deceased, post retirement from Indian Navy, employed

with private company on different posts, travelling

together in a Maruti Wagon R when car collided with

Tata Truck—Tribunal awarded compensation in favour

of claimants of three deceased—Contention of

appellants that amount awarded under head of “Loss

of Dependency” inadequate—Held, future prospects

had wrongly not been considered—Tribunal wrongly

did not take allowances into consideration but only

annual salary after deducting 10% as income tax—All

three deceased below the age of 50 years, were

mechanical engineers, specially qualified professional

persons working in the field of their specialized

capacity in permanent posts with promotion prospects;

thus future prospects should have been taken into

account—Appellants entitled for “future prospects”

which would be double of the amount of salary after

deduction of tax—Award modified with regard to “Loss

of Dependency”—Appeal allowed.

Important Issue Involved: Future prospects for calculation

of the amount under head of “loss of dependency” would

have to been considered where deceased is below the age

of 50 years, specially qualified professional and working in

the field of his specialized capacity in a permanent post with

promotion prospects.

[Ad Ch]

APPEARANCES:

FOR THE APPELLANTS : Mr. Hameed S. Shaikh, Advocate.

FOR THE RESPONDENT : Mr. K.L. Nandwani, Advocate for

Respondent no.1.

CASES REFERRED TO:

1. National Insurance Co. Ltd. vs. Renu Devi 2009 ACJ

1921 (Delhi).

2. Kanwar Devi vs. Bansal Roadways, 2008 ACJ 2182

(Delhi).

3. Lekhraj vs. Suram Singh 2007 ACJ 2165 (Delhi).

4. Bijoy Kumar Dugar vs. Bidyadhar Dutta & Others AIR

2006 SC 1255.

RESULT: Appeal allowed.

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Indian Law Reports (Delhi) ILR (2011) VI Delhi Anita Devi v. United India Assurance Co. Ltd. (Indermeet Kaur, J.) 675 676

INDERMEET KAUR, J. (Oral)

1. These are three appeals preferred by the legal heirs of deceased

Pawan Kumar, Jitender Singh & Dev Karan. Their claim petition had

been decided by a common judgment and vide Award dated 18.05.2010

compensation had been awarded in favour of the claimants. There is no

dispute on the quantum granted under the head of non-pecuniary damages.

The only dispute is with regard to the amounts awarded under the head

of loss of dependency.

2. All the three deceased after their retirement from the Indian Navy

had been employed with M/s DEC Property Management Pvt. Ltd. on

different posts. On 08.11.2008 they were travelling together in a Maruti

Wagon (R) when their car collided with a Tata truck which was being

driven in a fast and negligent manner; as a result of this collision the

motor cycle in front of the offending vehicle being driven by one Sunny

Singh was hit; Sunny Singh sustained injuries; Pawan Kumar, Jitender

Singh & Dev Karan all died on the spot.

3. Four claim petitions had been preferred under Section 166 of the

Motor Vehicle Act (hereinafter referred to as the ‘MV Act’); three by

legal heirs/claimants of the deceased and the fourth claim petition had

been preferred by the injured Sunny Singh himself.

4. Fact as further emanating from the record are that Pawan Kumar

was working as a Engineer; he was 33 years of age on the date of the

accident; Jitender Singh was working as a Sr. Engineer; he was 35 years

of age on the date of the accident; Dev Karan was working as a Supervisor;

he was 49 years of age on the date of the accident;. Because of the

untimely death of the aforenoted three persons, future prospects which

had not been considered by the Tribunal have been claimed in these

appeals. The claimants of all the three deceased persons have sought an

enhancement of their compensation.

5. Record shows that oral and documentary evidence had been led.

To decide this controversy i.e. as to whether the legal heirs of the

claimants were entitled to future prospects, testimony of PW-5 is relevant.

PW-5 was P.S. Bhandari, Manager of M/s DEC Property Management

Pvt. Ltd.; appointment letter qua Dev Karan had been proved as Ex. PW-

5/D showing that Dev Karan was appointed with the company at a

monthly salary of Rs.16,041/-; the breakup of his salary had also been

given showing that a gross earning of Rs.6,500/- towards basic pay

besides dearness allowance; he was entitled to HRA, medical allowance

and City Compensatory Allowance. Appointment letter qua Jitender Singh

had been proved as Ex. PW-5/B showing that Jitender Singh was appointed

with the company at a monthly salary of Rs.36,875/-; the breakup of his

salary had also been given showing that a gross earning of Rs.10,500/

- towards basic pay besides dearness allowance; he was entitled to HRA,

medical allowance and City Compensatory Allowance. Appointment letter

qua Pawan Kumar had been proved as Ex.PW-5/C showing that Pawan

Kumar was appointed with the company at a monthly salary of Rs.26,666/

-; the breakup of his salary had also been given showing that a gross

earning of Rs.8,000/- towards basic pay besides dearness allowance; he

was entitled to HRA, medical allowance and City Compensatory Allowance.

The Tribunal had not taken the allowances into consideration but the

annual salary after deducting 10% as income tax had been computed as

the income. Admittedly future prospects had not been considered. The

pension being received by the deceased was also taken into consideration;

50% of the same was deducted; keeping in view the fact that the remaining

50% would have probably been spent by the deceased upon himself; this

calculation up to this point suffers from no infirmity.

6. However future prospects should have been taken into account

and the Tribunal has erred in not taking this into account. In the judgment

reported in AIR 2009 SC 3104 Sarla Verma & Others Vs. Delhi Transport

Corporation, the Apex Court has held that the future prospects should

not be considered of deceased who are above 50 years of age. This

legislation is a socially benevolent legislation engrafted with an intent to

allow compensation to be paid to the claimants of a deceased as early as

possible; it must be a ‘just compensation’. Admittedly in all the three

cases i.e. Pawan Kumar, Jitender Singh and Dev Karan they were all

aged below 50 years. Pawan Kumar was 33 years of age; Jitender Singh

was 35 years of age; Dev Karan was 49 years of age on the date of the

accident.

7. The Apex Court in Sarla Verma (Supra) had also noted that the

future prospects may not be considered if the deceased does not have

a permanent job. Learned counsel for the respondent has also placed

reliance upon the judgment of the Apex Court reported in AIR 2006 SC

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677 678 Anita Devi v. United India Assurance Co. Ltd. (Indermeet Kaur, J.)

1255 Bijoy Kumar Dugar VS. Bidyadhar Dutta & Others to support

his submission that to establish the claim of future prospects, there must

be cogent evidence.

8. In this context, the testimony of PW-5 as noted supra is relevant.

The appointment letters of each of three persons are on record; admittedly

all the three deceased persons were mechanical engineers; they were

highly qualified; being specialized in a special professional field; admittedly

all of them had served in the Indian Navy prior to their having been

appointed in the service of M/s DEC Property Management Pvt. Ltd.

Clause 4 of the appointment letter is also relevant. It states that their

period of probation will be for a period of one year which may be

extended at the discretion of the employer or this may be dispensed with

even earlier or thereafter till confirmation. Their appointment letters are

dated 25.08.2008. The accident had occurred on 08.11.2008 i.e. within

six months of the date of their appointment. It is nobody’s case that the

deceased had any adverse report against them. Bifurcation of salary of

each of the deceased had also been produced in the evidence of PW-5;

there also a promotion policy of the company. The promotion policy in

fact states that a permanent employee is one who is employed against a

permanent post and may also include a probationer; salary will be increased

annually in April ever year; the salary chart of the deceased placed on

record also shows that M/s DEC Property Management Pvt. Ltd. was a

large company having several employees on its work list.

9. From this record, it is apparent that the deceased were all special

qualified professional persons who were working in the field of their

specialized capacity; it is also a known fact that these persons after

having served in the Indian Navy had joined the service of M/s DEC

Property Management Pvt. Ltd. The evidence led before the Tribunal

establishes that their jobs were of a permanent nature and they should

have also been considered for future prospects; the promotion policy of

the company also substantiates enhancement. The rise in the price index

and inflation for which notice has been taken by our courts time and

again cannot be lost sight of; this has illegally been ignored by the

Tribunal. There was ample evidence to support this submission of the

appellants. The judgment of Bijoy Kumar Dugar (Supra) is inapplicable

in this factual scenario.

10. The appellants are entitled to future prospects which would be

double the amount of salary (in the case of Anita Devi and Rekha Yadav

and 30% in the case of Nirmala Devi) after deduction of tax. This is in

conformity with the ratio of the catena of judgments reported in 2008

ACJ 2182 (Delhi) Kanwar Devi Vs. Bansal Roadways, 2007 ACJ 2165

(Delhi) Lekhraj Vs. Suram Singh and 2009 ACJ 1921 (Delhi) National

Insurance Co. Ltd. Vs. Renu Devi.

11. The modified Award under the head of loss of dependency will

be read as following:-

(I) In the case of Anita wife of deceased Pawan

Salary of the deceased Rs.23,500/-

Adding future prospects Rs. 11,750/-

Rs. 35,250/-

Adding family pension Rs.2,057/-

Rs. 37,307/-

Deducting 10% tax liability Rs. 3730/-

Rs. 33,577/-

Deducting 1/4th personal expenses Rs. 8,394/-

Rs. 25,183/-X12X16 =

Total loss of dependency Rs. 48,35,136/-

(II) In the case of Rekha Yadav wife of Jitender

Salary of the deceased Rs. 32,500/-

Adding future prospects Rs. 16,250/-

Rs. 48,750/-

Adding family pension Rs.1,363/-

Rs. 50,113/-

Deducting 10% tax liability Rs. 5,011/-

Rs. 45,102/-

Deducting 1/4th personal expenses Rs. 11,275/-

Rs. 33,827/-X12X16 =

Total loss of dependency Rs. 64,94,784/-

(III) In the case of Nirmala Devi wife of deceased Dev

Karan Salary of the deceased Rs. 14,000/-

Adding future prospects Rs. 4,200/-

Rs. 18,200/-

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Indian Law Reports (Delhi) ILR (2011) VI Delhi679 680State v. Sunil Dutt (V.K. Shali, J.)

Adding family pension Rs. 1,715/-

Rs. 19,915/-

Deducting 10% tax liability Rs. 1,991/-

Rs. 17,924/-

Deducting 1/4th personal expenses Rs. 13,443/-

Rs. 13,443/-X12X13 =

Total loss of dependency s. 20,97,108/-

12. The non-pecuniary damages remained unmodified. The interest

amount also calls for no interference.

13. Appeals are disposed of in the above terms.

ILR (2011) VI DELHI 679

CRL. L.P.

STATE ....PETITIONER

VERSUS

SUNIL DUTT ....RESPONDENT

(V.K. SHALI, J.)

CRL. L.P. NO. : 260/2008 DATE OF DECISION: 26.07.2011

Prevention of Food Adulteration Act, 1954—Sections

7, 13, 16—Petitioner preferred appeal against

judgment, acquitting Respondent accused for offence

punishable under Section 7 of Act—Respondent was

convicted by learned Metroplitan Magistrate—On

appeal by Respondent, learned Additional Sessions

Judge observed, sample obtained by Food Inspector

not homogeneous and consequently not

representative in character—Also, variation in reports

of Director, CFL and Public Analyst about content of

adulteration as well as in values, thus acquitted

Respondent—Held:- Once accused exercises his right

under Section 13 (2) of Prevention of Food Adulteration

Act and voluntarily gets second sample examined

from Director, CFL, he does so at his own risk—Report

of Director, CFL, statutorily supersedes report of

Public, Analyst for all practical purposes but both still

have to be looked in to for the purpose of arriving of

the conclusion as to whether sample was

representative in character or not—Ld Sessions Judge

rightly concluded that sample was not homogeneous—

Leave to appeal declined.

I have gone through the judgment passed by the learned

Additional Sessions Judge, which is quite exhaustive and

has referred to a number of judgments of this High Court

and that of the Apex Court. They sum up the legal position

very succinctly. In all such cases, it has been held that once

the accused exercises his right under Section 13(2) of

Prevention of Food Adulteration Act and voluntarily gets the

second sample examined from Director, CFL, he does so at

his own risk. The report in this regard, statutorily supersedes

the report of the Public Analyst for all practical purposes.

However, there have been judgments including the Full

Bench decision in Bishan Sarup’s case (supra) where this

Court has observed that although the finality and

conclusiveness is attached to the report of the Central Food

Laboratory, however, the report will still be open to challenge

by the party and it may still have to be ascertained by the

Court as to whether the adulteration is established in the

report or not. It was also observed that it is open to the

accused to show that in the facts of the given case, the

sample which was sent for analysis to the Director, CFL,

could not be taken to be a representative sample of the

food articles that were sent for examination. Such a defence

has been taken by the respondent-accused in his statement

under Section 313, Cr.P.C. and he has also examined DW-

1 who has stated in his statement that at the time when the

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sample was taken, there was no electricity and consequently,

some of the ice candies were frozen whereas others were

semi-solid. Similar statement was given by the other defence

witness, though they were not as favourable to the

respondent-accused as DW-1. (Para 9)

Important Issue Involved: Once accused exercises his

right under Section 13 (2) of Prevention of Food Adulteration

Act and voluntarily gets second sample examined from

Director, CEL, he does so at his own risk—Report of

Director, CFSL, statutorily supersedes report of Public

Analyst for all practical purposes but it may still have to be

ascertained by Court as to whether adulteration is established

in report or not.

[Sh Ka]

APPEARANCES:

FOR THE PETITIONER : Mr. Naveen Sharma, Additional

Public Prosecutor for Mr. Pawan

Sharma, Standing Counsel for the

State.

FOR THE RESPONDENT : None.

CASE REFERRED TO:

1. MCD and R.N. Gujral vs. Bishan Sarup 1972 FAC 273

(Del) (FB).

RESULT: Appeal dismissed.

V.K. SHALI, J. (Oral)

1. This is a leave to appeal filed by the State against the judgment

dated 03.07.2008 passed by Shri S.K. Sarvaria, learned Additional Sessions

Judge, New Delhi, acquitting the respondent-accused of an offence under

Section 7 of the Prevention of Food Adulteration Act, in respect of

which he was held guilty by the learned Metropolitan Magistrate.

2. Briefly stated, the facts of the case are that the appellant Food

Inspector is alleged to have taken a sample of 18 sticks of ice candy

from the freezer of the respondent accused on 06.04.1989 at about 5 PM

with the help of Food Inspector Rajesh Kumar. The samples of ice

candies were taken with the help of clean and dry ‘patilas’ and spoons,

and thereafter divided in three equal parts. They were separately sealed

after adding 24 drops of formalin in each counterpart. Statutory documents

are alleged to have been prepared on the spot and one sample was sent

to the Public Analyst for the purpose of examination. The Public Analyst

after examination, opined that the sample contained dye content to the

extent of 0.27gms/Kg. which was beyond the permissible limit of 0.20

gms/Kg which was, the fixed standard under the Prevention of Food

Adulteration Act. Accordingly, after obtaining necessary sanction from

Director (PFA), a complaint under Section 7 read with Section 16 of the

Prevention of Food Adulteration Act was filed in the Court of Metropolitan

Magistrate on 07.06.1989.

3. The accused has put in his appearance and exercised his right

under Section 13(2) of the Prevention of Food Adulteration Act to get

the second sample of the article of food examined from the Director,

CFL, Mysore. Accordingly, a second sample of the ice candy was sent

to Director, CFL, Mysore who gave a certificate of examination dated

27.07.1989 and confirmed the finding that the sample was not conforming

to the standard so far as the total dye content is concerned. It was

opined that the total dye content was 0.310 gms/Kg. whereas the maximum

permissible limit was 0.20 gms/Kg. Accordingly, a notice under Section

251 of Cr.P.C. was given to the respondent-accused.

4. The prosecution in support of its case examined three material

witnesses, namely, PW1 Gopal Singh, complainant, PW-2 Food Inspector

Rajesh Kumar and PW3 R.K. Ahuja attesting witness.

5. The accused in his statement under Section 313 Cr.P.C. admitted

that he had sold the ice candy of which the sample was taken. However,

he took the plea that at the time when the sample of the ice candy was

taken, there was no electricity supply and, therefore, some of the ice

candy stock were in a solid state while as the other was melting. He also

took the plea that the sample which was taken was not representative in

character because of the lack of homogeneity in the food article that was

obtained.

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6. The respondent-accused in support of his case examined DW-

1 Harbhajan Singh and DW-2 Shri S. Mahendru. The learned Magistrate

vide judgment dated 10.08.1999 convicted the accused for an offence

under Section 7 of the Prevention of Food Adulteration Act and by order

dated 20.08.1999, sentenced him to undergo simple imprisonment for

one year along with a fine of Rs.2000/-.

7. The appellant, feeling aggrieved by the said conviction and

sentence, preferred an appeal bearing No. 54/1999 titled Sunil Dutt versus

State (Delhi Administration), which was disposed of on 03.07.2008.

thereby acquitting the appellant of all the charges. The reason for acquittal

handed down by the learned Additional Sessions Judge was that the

sample which was obtained by the Food Inspector PW-2 was not

homogeneous and consequently not representative in character. For arriving

at this conclusion, the learned Additional Sessions Judge relied upon the

values of the edible article given in the two reports i.e. of Public Analyst

and that of the Director, CFL, Mysore. It was observed by the learned

Additional Sessions Judge that the report of the Public Analyst showed

that the total sugar found in the sucrose in the sample was 21.2% and

the dye content was 0.27 gm/kg. In contrast to this, the certificate given

by the Director, CFL, Mysore showed that the total sugar was found to

be 19.95% by weight while as the total quantity of artificial colouring

was found to be 0.310 gms./Kg. It was observed by the learned Additional

Sessions Judge that though both the samples had failed so far as the dye

content is concerned, but the sugar content had also reduced from

21.2% to 19.95%, therefore, there was a variation in the values and the

benefit of the same has to be given to the accused, as he had taken the

plea that the sample was not representative in character. The learned

Additional Sessions Judge in arriving at such a finding has taken note of

the fact that although statutorily the report of the Director, CFL supersedes

the report of the Public Analyst, but at the same time, the learned Additional

Sessions Judge considered the Full Bench decision of the Delhi High

Court in MCD and R.N. Gujral versus Bishan Sarup 1972 FAC 273

(Del) (FB), and observed that the report of the Director, CFL, Mysore,

is obtained by the accused himself and it gets superimposed on the report

of the Public Analyst. But it has been observed that the report of the

Public Analyst and the Director, CFL can be looked into for the purpose

of arriving at a conclusion as to whether the sample was representative

in character or not. This will be evident from the variation not only in

the values of the two reports but also the content of the adulterant or the

offending article which has made such edible article adulterated.

8. The State, feeling aggrieved by the acquittal, has assailed the

judgment passed by the learned Additional Sessions Judge. However, it

must candidly be stated that the learned counsel for the State was not

able to show any authority contrary to the Full Bench decision in Bishan

Sarup’s case (supra), which has been referred to by the learned Additional

Sessions Judge in his judgment in order to arrive at such a conclusion.

9. I have gone through the judgment passed by the learned Additional

Sessions Judge, which is quite exhaustive and has referred to a number

of judgments of this High Court and that of the Apex Court. They sum

up the legal position very succinctly. In all such cases, it has been held

that once the accused exercises his right under Section 13(2) of Prevention

of Food Adulteration Act and voluntarily gets the second sample examined

from Director, CFL, he does so at his own risk. The report in this

regard, statutorily supersedes the report of the Public Analyst for all

practical purposes. However, there have been judgments including the

Full Bench decision in Bishan Sarup’s case (supra) where this Court

has observed that although the finality and conclusiveness is attached to

the report of the Central Food Laboratory, however, the report will still

be open to challenge by the party and it may still have to be ascertained

by the Court as to whether the adulteration is established in the report

or not. It was also observed that it is open to the accused to show that

in the facts of the given case, the sample which was sent for analysis

to the Director, CFL, could not be taken to be a representative sample

of the food articles that were sent for examination. Such a defence has

been taken by the respondent-accused in his statement under Section

313, Cr.P.C. and he has also examined DW-1 who has stated in his

statement that at the time when the sample was taken, there was no

electricity and consequently, some of the ice candies were frozen whereas

others were semi-solid. Similar statement was given by the other defence

witness, though they were not as favourable to the respondent-accused

as DW-1.

10. The learned Magistrate has disbelieved their testimony by

observing that since the witness himself has observed that some of the

ice candies were frozen and some were melting, there is a contradiction

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in the statement of fact itself. The learned Magistrate reasoned that if

there was no light, then all the ice candies ought to have melted. I find

this reasoning to be illogical because when the samples were taken from

the deep freezer, and assuming that there was no electricity, it is not

necessary that all the ice candies will melt in a uniform manner. The ones

which were kept at the bottom of the freezer would still be slightly

frozen whereas the ones near the opening would start melting much

faster, even if all the ice candies were taken out simultaneously.

11. The valuation of the two parameters, namely, sugar content and

the content of dye are at a variance in the two reports, i.e. of the Public

Analyst and of the Director, CFL. This has not been explained by the

prosecution anywhere as to why it has happened so. It is not clear

whether this is because of the lapse of time or because of some other

reason. In such a contingency, the plea of the respondent-accused that

the sample was not homogeneous cannot be said to be without any merit

and hence, cannot be brushed aside. In a criminal trial when there are

two possible views, one in favour of the accused and the other against

him. The court would invariably lean in favour of the view favouring the

accused. The learned Additional Sessions Judge in my considered opinion

has rightly relied on the view favouring the accused. Moreover, one must

also be pragmatic to the realities of life. The sample was purported to

have been taken almost 22 years back and, therefore, I feel that simply

by granting the leave to appeal, the final adjudication of the matter will

still kept under suspense. It is not a case where some adulterant has been

mixed from outside and, therefore, it is better to give quietus to the

matter.

12. For the reasons mentioned above, I am of the considered opinion

that no ground is made out by the State for grant of leave to appeal

against the impugned order dated 08.07.2008 acquitting the respondent

accused. Accordingly, the leave to appeal is dismissed.

ILR (2011) VI DELHI 686

CRL. A.

DHARAMBIR & ANR. ....APPELLANTS

VERSUS

STATE ....RESPONDENT

(S. RAVINDRA BHAT & G.P. MITTAL, JJ.)

CRL. A. NO. : 130/1998 & DATE OF DECISION: 26.7.2011

CRL. A. NO. : 122/1998

(A) Indian Penal Code, 1860—Sections 498A, Section 302,

read with Section 34—Appellant convicted under

Section 498 (A) & 302 (IPC)—Trial Court in addition to

relying on the testimony of witnesses also relied on

the dying declaration recorded by the Doctor on MLC

Exhibit PW16 though rejected the dying the declaration

PW5/A recorded by PW-13 SI Raghunath Singh on the

ground that it was neither recorded in the presence

of the Doctor to vouch about the fitness of deceased

nor was attested by any person who was present at

the time of recording the statement and the statement

had thumb impression in which ridges were visible

despite deceased having suffered 98% burns—Present

appeal filed by Appellants—It was observed that after

the judgment of five Judges Bench of the Supreme

Court in Laxman vs. State of Maharashtra (2002) 6 SCC

710, fitness certificate in every dying declaration has

become immaterial and what is required to be seen is

whether the person hearing or recording the dying

declaration was satisfied that the person making the

dying declaration is mentally fit—PW13’s deposition

that he had obtained fitness certificate from the Doctor

was not shaken in cross-examination to show that

deceased was not conscious—Also, there is no

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universal rule that dying declaration recorded by Police

Officer is unreliable or must necessarily be made to a

Magistrate—Since SDM had expressed inability to

reach Hospital and patient was critical, it was duty of

PW13 to record statement—There is also no

requirement of Law that dying declaration must be

recorded in a specified format and it is irrelevant if

statement is not recorded in question answer form—

The dying declaration Exhibit PW5/A recorded by PW3

rejected wrongly—The dying declaration coupled with

other evidence sufficient to prove guilt of Appellants.

Now, turning to Seema’s dying declaration recorded in MLC

Ex. PW-8/A; we may say that criticism regarding her fitness

and truthfulness of the dying declaration is ill-founded. It is

noteworthy that Paparambaka Rosamma’s case (supra)

relied by the Appellant’s counsel was overruled by a five

Judges Bench of the Supreme Court in Laxman v. State of

Maharashtra, (2002) 6 SCC 710. In the case of Laxman

(supra) the Supreme Court held as under: -

“Normally, therefore, the court in order to satisfy

whether the deceased was in a fit mental condition to

make the dying declaration looks up to the medical

opinion. But where the eyewitnesses state that the

deceased was in a fit and conscious state to make the

declaration, the medical opinion will not prevail, nor

can it be said that since there is no certification of the

doctor as to the fitness of the mind of the declarant,

the dying declaration is not acceptable.” (Para 21)

The reception of dying declaration in evidence is an exception

to the non-admissibility of hearsay evidence. It is believed

that truth sits on the tongue of a dying man; he wouldn’t lie

for he is to meet his Creator. In the case of Laxman (supra)

the Supreme Court observed that the situation in which a

man is on his death bed is very solemn and serene, and this

in fact is the reason, to accept the veracity of his statement

in law. It is for this reason that the requirements of oath and

cross-examination are dispensed with. It was added that

since the accused would not have any opportunity of cross-

examination, the court insists that the dying declaration

should be of such a nature so as to inspire full confidence

of the Court in its truthfulness and correctness. In Kundula

Bala Subrahmanyam v. State of A.P., (1993) 2 SCC 684,

the sanctity of a dying declaration was highlighted as under:

-

‘‘A dying declaration made by person on the verge of

his death has a special sanctity as at that solemn

moment, a person is most unlikely to make any untrue

statement. The shadow of impending death is by itself

the guarantee of the truth of the statement made by

the deceased regarding the causes or circumstances

leading to his death. A dying declaration, therefore,

enjoys almost a sacrosanct status, as a piece of

evidence, coming as it does from the mouth of the

deceased victim. Once the statement of the dying

person and the evidence of the witnesses testifying to

the same passes the test of careful scrutiny of the

courts, it becomes a very important and a reliable

piece of evidence and if the court is satisfied that the

dying declaration is true and free from any

embellishment, such a dying declaration, by itself, can

be sufficient for recording conviction even without

looking for any corroboration.’’ (Para 25)

The dying declaration Ex.PW-5/A recorded by PW-13 SI

Raghunath Singh was rejected by the Trial Court primarily

on the ground that the statement of Seema was not recorded

in question answer form; doctor was not present throughout

to vouch that Seema was fit while her statement was being

recorded by PW-13 and that the ridges of the thumb were

visible on the declaration Ex.PW-5/A in spite of the fact that

Seema sustained 98% burns and thus it was not possible

that the ridges would be visible while obtaining a thumb

impression. (Para 26)

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(B) Code of Criminal Procedure, 1973—Section 157—

Officer In-charge of Police Station enjoined under

Section 157 to forward copy of FIR forthwith to Illka

Magistrate empower to take cognizance of an offence

so that prosecution may not concoct facts and set up

false case against an accused—However, mere delay

in forwarding the copy of FIR to the Magistrate under

Section 157 which was otherwise recorded promptly is

of no consequence, if the Court is otherwise

convicted about the truthfulness of the prosecution

case and there is otherwise positive and trustworthy

evidence on record.

The Section 157 of Cr.P.C. enjoins upon an officer in

charge of a Police Station to send a report forthwith to the

Illaqa Magistrate empowered to take cognizance of an offence

when he has reason to suspect the commission of an

offence which he is empowered under section 156 to

investigate. The purpose of sending a copy of an FIR to the

Magistrate forthwith is that the prosecution may not be able

to concoct facts and setup a false case against an accused

as the FIR contains a brief statement of events. In the case

of Munshi Prasad & Ors. v. State of Bihar, (2002) 1 SCC

351, it was held that while it is true that Section 157 of the

Code makes it obligatory on the officer in charge of the

police station to send a report of the information received to

a Magistrate forthwith, but that does not mean and imply to

denounce and discard an otherwise positive and trustworthy

evidence on record. Technicality ought not to outweigh the

course of justice – if the court is otherwise convinced and

has come to a conclusion as regards the truthfulness of the

prosecution case. Similarly, in the case of Anil Rai v. State

of Bihar, (2001) 7 SCC 318, it was held that where the FIR

is shown to have been promptly recorded delay in sending

the copy of FIR to Area Magistrate is not of any consequence.

(Para 18)

Important Issue Involved: (A) In order to satisfy whether

deceased was in a fit mental condition to make the time

declaration, what is necessary is that the person recording

the statement is satisfied about the mental fitness of the

deceased while recording the dying declaration. Fitness

Certificate by a Doctor in every dying declaration is not

essential.

(B) Mere delay in forwarding the copy of FIR to the

Magistrate under Section 157 of Code of Criminal Procedure

1973, which was otherwise recorded promptly is of no

consequence if the Court is otherwise convinced about the

truthfulness of the prosecution case.

[An Ba]

APPEARANCES:

FOR THE APPELLANTS : Mr. U.N. Bhachawat, Sr. Advocate

with Mr. Syed Hasan Isfahani and

Mr. Alok Bhachawat, Advocates.

FOR THE RESPONDENT : Mr. Lovkesh Sawhney, APP for the

State

CASES REFERRED TO:

1. Munshi Prasad & Ors. vs. State of Bihar, (2002) 1 SCC

351.

2. Laxman vs. State of Maharashtra, (2002) 6 SCC 710.

3. Paras Yadav vs. State of Bihar, 1999 SCC (Cri) 104.

4. Paparambaka Rosamma vs. State of A.P., (1999) 7 SCC

695.

5. Betal Singh vs. State of M.P., 1996 SCC (Cri) 624.

6. Kundula Bala Subrahmanyam vs. State of A.P., (1993) 2

SCC 684.

7. Dalip Singh vs. State of Punjab [(1979) 4 SCC 332 :

1979 SCC (Cri) 968 : AIR 1979 SC 1173].

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8. Munnu Raja vs. State of M.P. [(1976) 3 SCC 104 : 1976

SCC (Cri) 376 : AIR 1976 SC 2199].

RESULT: Appeal Dismissed.

G.P. MITTAL, J.

1. The Appellants Dharambir, Raghubir Singh and Satbir @ Sattey

(the Appellant Ratti Kaur has expired and the proceedings against her

have abated) stand convicted by the judgment and order dated 24.03.1998

and 27.03.1998 passed by learned Addl. Sessions Judge, Delhi, (‘‘the

impugned judgment’’) for offences punishable under Section 498A and

Section 302 Indian Penal Code (IPC) read with Section 34 IPC. They

were sentenced to undergo life imprisonment for the offence under Section

302 IPC and a rigorous imprisonment for 2 years for the offence under

Section 498A IPC. Apart from this sentence, fines were also imposed.

2. First, the facts. Seema (the deceased) was married to Appellant

Dharambir about a year and half prior to 30.08.1991. On the night of

30.08.1991 she sustained burn injuries and was removed to Safdarjung

Hospital by PW-1 Kishan Kapoor (her immediate neighbour) and PW-2

Mahavir Singh (her brother-in-law) who used to reside in her

neighbourhood. Ratti Kaur (now deceased) was Seema’s mother-in-law;

the Appellant Dharambir is the husband whereas Appellants Raghubir

Singh and Satbir @ Sattey are her Brothers-in-law.

3. According to the prosecution version on 30.08.1991 Seema

crossed over to the roof of PW-1 Kishan Kapoor’s house, after sustaining

burn injuries. On noticing Seema in this condition PW-1, called PW-2

Mahavir Singh (her brother-in-law) who was living just one house away

from his house. On seeing Seema in that condition PW2 wrapped a

Chadar around Seema. Since, the width of the lane where they resided

was very narrow, Seema was put on a cot and was first taken to the

Police Station Mehrauli, and then she was removed to Safdarjung Hospital

in a PCR van.

4. Seema was admitted to Safdarjung Hospital at 1:35 A.M. on

31.08.1991 by PW-1, PW-2 and one Ashwani. While giving the history

of sustaining burns, Seema told Dr. Rohit Nayyar (PW-16) that her in-

laws were demanding dowry of ‘ 35,000/- from her father and when her

father refused to pay the dowry, her husband, her two brothers-in-law

(Raghubir and Satbir) and her mother-in-law poured kerosene oil on her

and set her ablaze. At the time of her admission in the Hospital Dr. Rohit

Nayyar found the patient to be conscious but dehydrated; she was found

to be having 100% deep burns.

5. At 1:50 A.M. PW-13 SI Raghunath Singh reached the Hospital

and moved an application to Dr. Rohit Nayyar for recording Seema’s

statement. After obtaining fitness certificate from the doctor, he (SI

Raghunath Singh) recorded Seema’s statement Ex. PW-5/A. He made

endorsement Ex. PW-5/B and sent it to the Police Station for registering

the case. In the statement recorded by the IO, Seema attributed specific

role to the Appellants, holding them responsible for setting her on fire.

6. Unfortunately, Seema succumbed to her burn injuries on 31.8.1991

at about 5:40 A.M. Dr. B. Swain (PW-6) who conducted postmortem of

Seema, found the extent of burns to be 98%. He did not find any mark

of struggle and opined that the cause of death was shock following ante-

mortem burn injuries.

7. The Appellants were charge sheeted for the offences punishable

under section 498A, 302 read with Section 34 IPC. On Appellant’s

pleading not guilty, the prosecution examined 16 witnesses.

8. The Appellants were examined under Section 313 Cr.P.C. The

factum of Seema being wife of Dharambir and the inter se relationship

between the Appellants and the deceased was not disputed. The Appellants

denied having demanded or received any dowry much less Rs. 35,000/

- which was alleged to have been demanded by them. The Appellants

claimed that they were ignorant of any dying declaration was recorded

by PW-16 Dr. Rohit Nayyar or PW-13 SI Raghunath Singh. It was the

case of all the Appellants that Seema and Appellant Dharambir were

staying separately in their house where the incident occurred, whereas

rest of the Appellants were residing separately with their respective

families. The Appellants argued that Seema was frustrated as she could

not conceive any child since solemnization of marriage in the year 1990,

and on account of frustration she committed suicide.

9. The Appellant examined DW-1 Khemchand primarily to prove

that nobody was present in H. No.255 on 30.08.1991 at 9:30 P.M. when

the said incident took place. The said witness deposed that Appellant

Dharambir who was working as a Driver went to his house after 11:00

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P.M. DW-2 Rambir Singh was examined to prove the plea of alibi put

up by Dharambir. By impugned judgment the Trial Court rejected the

Dharambir’s alibi plea. It also rejected the dying declaration alleged to be

made to PW-1 and PW-2 as they (PW-1 & PW-2) turned hostile.

10. The Trial Court also rejected the dying declaration Ex. PW-8/

A recorded by PW-13 on the ground that it was neither recorded in the

presence of the doctor nor was attested by any person, who was present

at the time of recording the statement. The Trial Court, however, found

the dying declaration on Ex.PW-8/A (Seema’s MLC) by PW-16 Dr.

Rohit Nayyar to be reliable, truthful and made by Seema in a fit state of

mind. The Trial Court also found that the allegation of demand of Rs.

35,000/- as dowry was established by the testimony of PW-7 Mahavir

Singh (Seema’s father). Thus, the Appellants were convicted and sentenced

as aforesaid.

11. We have heard Mr. U. N. Bachawat, learned Senior Counsel

assisted by Mr. Mahipal Malik, Mr. Uday Singh, Mr. Syed Hasan Isfahani

and Mr. Alok Bhachawat, Advocates and Mr. Lovkesh Sawhney, learned

APP for the State and have perused the record.

12. It is argued by the learned counsel for the Appellants that

Seema had sustained 100% burn injuries and her pulse was 140 as

against the normal pulse of 60 to 90; it is not recorded on the MLC that

Seema was oriented and thus there was nothing on the record to show

that she was in a fit state of mind to make a statement. It is contended

that Dr. Rohit Nayyar nowhere recorded in the MLC Ex.PW-8/A nor

issued any fitness certificate that the patient was conscious and was in

a fit state of mind to make a statement. It is submitted that in the

circumstances, the Trial Court fell into grave error in relying on the dying

declaration recorded in the MLC Ex.PW-8/A.

13. The Learned Senior Counsel places reliance on Paparambaka

Rosamma v. State of A.P., (1999) 7 SCC 695. It is urged that a

conviction can be recorded on the basis of dying declaration if the same

is truthful and wholly reliable and whenever there is suspicion the Court

ought not to rely on a dying declaration without corroboration.

14. The learned Senior Counsel urges that PW-1 and PW-2 have

not only disowned the alleged dying declaration made to them, rather,

PW-1 has deposed that the deceased had informed him that there was

nobody in the house and, therefore, she asked him to take her to Hospital.

This part of the PW-1’s testimony demolishes prosecution’s version that

the Appellants were responsible for setting Seema on fire.

15. Mr. Bachawat, learned Senior Counsel contended that, Ashwani,

who was admittedly one of the persons present at the time of Seema’s

admission in the hospital was not examined by the prosecution and,

therefore, an adverse inference has to be drawn against him. Further, it

is also argued that the dying declaration was manipulated and that is why

the special report was not sent to the learned Illaqa Magistrate as required

under Section 157 of the Code of Criminal Procedure (Cr.P.C.).

16. On the other hand Mr. Lovkesh Sawhney, learned APP on

behalf of State submits that the dying declaration made by Seema was

true, voluntarily and made without any tutoring; the same was correctly

and faithfully recorded by PW-16 Dr. Rohit Nayyar while Seema was in

a fit state of mind to make the statement. It is submitted that the demand

of Rs. 35,000/- as dowry stood established from the testimony of Seema’s

father (PW-7). Though, argued Mr. Sawhney, there was no need of

corroboration to a reliable dying declaration yet, there is sufficient

corroboration to the dying declaration in the shape of PW-7’s testimony

and thus no interference is called for in the Trial Court’s judgment.

17. The incident took place in an urbanized rural area i.e. Mehrauli.

Admittedly, PW-1 Kishan Kapoor is Dharambir’s and PW-2 Mahavir’s

(Appellant’s brother) immediate neighbour and the Appellants are Ratti

Kaur’s sons. It is not disputed that Seema went to PW-1 Kishan Kapoor

(for help), who in turn called PW-2 Mahavir and they removed her to

the Hospital. PWs 1 and 2 did not support the prosecution version that

Seema made a dying declaration to them. They were cross-examined by

the learned APP and were confronted with the portion of statement under

Section 161 Cr.P.C., where they stated that Seema made a dying

declaration to them. A suggestion by the learned APP that they had

deposed falsely in order to save the Appellants was of course denied by

them. It is very natural for a real brother and a neighbor to save the

culprits from possible punishment. Hence they did not support the

prosecution and resiled from their earlier statement made to the police.

The Appellants, therefore, cannot take any advantage of any stray statement

made by PW-1 that Seema had informed him that she had caught fire

when there was nobody in the house. The non-examination of

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Ashwani(whose name appeared in the MLC) does not affect the

prosecution’s case as quality and not the quantity of evidence has to be

considered. Since, the prosecution cited Mahavir and Kishan (out of the

three persons) as the persons who removed Seema to Safdarjung Hospital

no motive can be attributed to the prosecution in not citing Ashwani as

a witness in the case.

18. The Section 157 of Cr.P.C. enjoins upon an officer in charge

of a Police Station to send a report forthwith to the Illaqa Magistrate

empowered to take cognizance of an offence when he has reason to

suspect the commission of an offence which he is empowered under

section 156 to investigate. The purpose of sending a copy of an FIR to

the Magistrate forthwith is that the prosecution may not be able to

concoct facts and setup a false case against an accused as the FIR

contains a brief statement of events. In the case of Munshi Prasad &

Ors. v. State of Bihar, (2002) 1 SCC 351, it was held that while it is

true that Section 157 of the Code makes it obligatory on the officer in

charge of the police station to send a report of the information received

to a Magistrate forthwith, but that does not mean and imply to denounce

and discard an otherwise positive and trustworthy evidence on record.

Technicality ought not to outweigh the course of justice – if the court

is otherwise convinced and has come to a conclusion as regards the

truthfulness of the prosecution case. Similarly, in the case of Anil Rai

v. State of Bihar, (2001) 7 SCC 318, it was held that where the FIR

is shown to have been promptly recorded delay in sending the copy of

FIR to Area Magistrate is not of any consequence.

19. In the instant case Seema was removed to Safdarjung Hospital

at 1:35 A.M. on 31.08.1991 and the information about the same was sent

to her parents (who were residents of Gurgaon) by the IO much later.

The statement of Seema recorded in the MLC Ex. PW-8/A by Dr. Rohit

Nayyar was part of the official record and we have no reason to disbelieve

the same or that the same could have been manuplated. Thus, failure to

send the special report under Section 157 Cr.P.C. was notfatal to the

prosecution case.

20. The questions for consideration are whether there was any

harassment in connection with the demand of dowry and whether Seema

made any dying declaration to PW-16 Dr. Rohit Nayyar. Firstly, with

regard to the demand of dowry, the prosecution relies on the testimony

of PW-3, Mukhtiar Singh, PW-4 Rishi Pal Singh and PW-7 Mahavir

Singh. PW-7 Mahavir Singh deposed that he had received a compensation

(for acquisition of his land) of Rs. 5,00,000/- and gave a sum of Rs.10,000/

- twice to his daughter Seema i.e. Rs. 20,000/- in all. He deposed that

the accused persons kept silent for a few days and about a month prior

to her death Seema came to his house and asked for Rs. 35,000/- as the

said amount was demanded by all the accused. He deposed that he paid

another sum of Rs. 20,000/- to his daughter and sent her back to her in-

law’s house and asked her not to comeback for more money. Further,

he deposed that he could not meet his daughter thereafter. In his cross-

examination PW-7 admitted that he did not inform the Police that he

received a compensation of Rs. 5,00,000/-. At the same time no suggestion

was given to the witness that he had received a compensation of Rs.

5,00,000/-. The witness was confronted with his statement made to the

police where his claim that he paid Rs.10,000/- each on two occasions

and Rs. 20,000/- on another occasion was not recorded. However, there

was no cross-examination on the point of demand of ‘ 35,000/- by the

Appellants through Seema. Thus, it is established that there was demand

of dowry of Rs. 35,000/- by the Appellants.

21. Now, turning to Seema’s dying declaration recorded in MLC

Ex. PW-8/A; we may say that criticism regarding her fitness and

truthfulness of the dying declaration is ill-founded. It is noteworthy that

Paparambaka Rosamma’s case (supra) relied by the Appellants’ counsel

was overruled by a five Judges Bench of the Supreme Court in Laxman

v. State of Maharashtra, (2002) 6 SCC 710. In the case of Laxman

(supra) the Supreme Court held as under: -

‘‘Normally, therefore, the court in order to satisfy whether the

deceased was in a fit mental condition to make the dying

declaration looks up to the medical opinion. But where the

eyewitnesses state that the deceased was in a fit and conscious

state to make the declaration, the medical opinion will not prevail,

nor can it be said that since there is no certification of the doctor

as to the fitness of the mind of the declarant, the dying declaration

is not acceptable.’’

22. After the decision in Laxman’s case (supra) a fitness certificate

with every dying declaration has become immaterial. What is required to

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be seen is whether the person recording/ hearing the dying declaration is

satisfied that the person making the dying declaration is mentally fit.

23. In this case the condition of Seema is recorded to be critical,

her pulse was 140 per minute. It is further recorded that she was

conscious and gave her history herself implicating the Appellants. During

the trial PW-16 Dr. Rohit Nayyar was recalled for cross-examination

under Section 311 Cr.P.C. at Appellant’s instance. Dr. Rohit Nayyar was

frank enough to admit that the pulse of a normal person varies from 60

to 90 per minute and whenever the patient loses fluid or supply of blood,

the pulse rate goes up; further he also stated that whenever blood pressure

decreases, blood supply to brain decreases. The witness stated that he

had not recorded the patient to be oriented but had recorded her to be

conscious, which would mean that she was not disoriented. A suggestion

was given to Dr. Rohit Nayyar that Seema did not make any statement

and that he recorded patient’s history on IO’s instructions. It is not

suggested as to how Dr. Rohit Nayyar, who was working as a Senior

Resident Doctor in Safdarjung Hospital was under influence of the IO.

Thankfully, it was not suggested to the doctor that Seema’s parents or

any of her other relations were present due to which Seema made the

statement after tutoring.

24. PW-16 Dr. Rohit Nayyar was a senior doctor, who at the

relevant time was doing his super specialization (which he completed)

and joined Batra Hospital in 1994. We see no reason to doubt or disbelieve

the dying declaration (of Seema) as recorded by him.

25. The reception of dying declaration in evidence is an exception

to the non-admissibility of hearsay evidence. It is believed that truth sits

on the tongue of a dying man; he wouldn’t lie for he is to meet his

Creator. In the case of Laxman (supra) the Supreme Court observed

that the situation in which a man is on his death bed is very solemn and

serene, and this in fact is the reason, to accept the veracity of his

statement in law. It is for this reason that the requirements of oath and

cross-examination are dispensed with. It was added that since the accused

would not have any opportunity of cross-examination, the court insists

that the dying declaration should be of such a nature so as to inspire full

confidence of the Court in its truthfulness and correctness. In Kundula

Bala Subrahmanyam v. State of A.P., (1993) 2 SCC 684, the sanctity

of a dying declaration was highlighted as under: -

‘‘A dying declaration made by person on the verge of his death

has a special sanctity as at that solemn moment, a person is

most unlikely to make any untrue statement. The shadow of

impending death is by itself the guarantee of the truth of the

statement made by the deceased regarding the causes or

circumstances leading to his death. A dying declaration, therefore,

enjoys almost a sacrosanct status, as a piece of evidence, coming

as it does from the mouth of the deceased victim. Once the

statement of the dying person and the evidence of the witnesses

testifying to the same passes the test of careful scrutiny of the

courts, it becomes a very important and a reliable piece of evidence

and if the court is satisfied that the dying declaration is true and

free from any embellishment, such a dying declaration, by itself,

can be sufficient for recording conviction even without looking

for any corroboration.’’

26. The dying declaration Ex.PW-5/A recorded by PW-13 SI

Raghunath Singh was rejected by the Trial Court primarily on the ground

that the statement of Seema was not recorded in question answer form;

doctor was not present throughout to vouch that Seema was fit while her

statement was being recorded by PW-13 and that the ridges of the thumb

were visible on the declaration Ex.PW-5/A in spite of the fact that Seema

sustained 98% burns and thus it was not possible that the ridges would

be visible while obtaining a thumb impression.

27. There is no universal rule that the dying declaration recorded by

a police officer is unreliable. The superior courts have consistently held

that the dying declaration, once it is found to be true and recorded while

the deceased was in a fit state of mind to make the statement, is sufficient

to base conviction of an accused even without any corroboration. In

Betal Singh v. State of M.P., 1996 SCC (Cri) 624, the Supreme Court

took the view that it would not be right to reject every statement recorded

by a police officer. We would like to extract para 14 of the said judgment

hereunder: -

‘‘It is true that in Munnu Raja v. State of M.P. [(1976) 3 SCC

104 : 1976 SCC (Cri) 376 : AIR 1976 SC 2199] this Court has

struck a note of caution that the investigating officers, who are

naturally interested in the success of the investigation, ought to

be discouraged in recording the dying declarations, during the

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course of investigation. However, in Dalip Singh v. State of

Punjab [(1979) 4 SCC 332 : 1979 SCC (Cri) 968 : AIR 1979

SC 1173] this Court noticed the above observation and pointed

out that it is not meant to suggest that such dying declarations

are always untrustworthy. Their Lordships observed: (SCC p.

335, para 8)

‘‘We do not mean to suggest that such dying declarations

are always untrustworthy, but what we want to emphasize

is that better and more reliable methods of recording a

dying declaration of an injured person should be taken

recourse to and the one recorded by the police officer

may be relied upon if there was no time or facility available

to the prosecution for adopting any better method.’’

28. In Paras Yadav v. State of Bihar, 1999 SCC (Cri) 104, the

Supreme Court again placed reliance on the statement of deceased

Shambhu Yadav recorded by Sub-Inspector for conviction of the accused.

29. We are not inclined to subscribe to the reasoning given by the

Trial Court as stated earlier, in Laxman (supra) the controversy regarding

obtaining a certificate of fitness from the doctor was set at rest and it

was held that it is for the eye witness to decide whether the maker of

the statement was conscious or in a fit state to make the statement or

not. In this case the testimony of PW-13 that he (PW-13) had obtained

the fitness certificate from the doctor was not shaken in cross-examination

despite a lengthy and searching cross-examination. Nothing could be

brought out in PW-13’s cross-examination to show that Seema was not

conscious and fit to make the statement Ex.PW-5/A.

30. In Laxman (supra) it was observed that there was no requirement

of law that the dying declaration must necessarily be made to a Magistrate

or it should be recorded in a specified format. Therefore, it was immaterial

if the statement was not recorded by the IO in question answer form.

31. Of course, more value is attached to the dying declaration

recorded by a Magistrate or by a doctor attending to the patient for the

reason that they are not likely to be influenced by any extraneous

circumstances. In this case an attempt was made by PW-13 to have the

statement recorded by the SDM. PW-13 deposed that “the SDM showed

his inability as he was not having any arrangement of the conveyance”.

This part of PW-13’s testimony was not challenged in cross-examination.

Admittedly, Seema was in a critical condition and ultimately succumbed

to burn injuries at 5:40 A.M. Since, the SDM had expressed his inability

to reach the Hospital in the dead of night for the reason as stated above,

it was PW-13’s duty to record Seema’s statement.

32. Admittedly, Seema’s parents had not yet reached Delhi and

were not by Seema’s side when her statement was recorded. A suggestion

was given to PW-13 that Seema’s statement was falsely recorded as

Appellants had strained relations with their brother Mahavir Singh (PW-

2). No evidence was produced by the Appellants to show the said

constrained relationship, in fact no suggestion was given to PW-2 Mahavir

Singh in his cross-examination rather PW-2 Mahavir Singh did not support

the prosecution version in order to save the Appellants as has been

observed by us earlier. Thus, we are of the view that the dying declaration

Ex.PW-5/A recorded by PW-13 was wrongly rejected. In the

circumstances of the case PW-13 was exhibited to have recorded the

statement, which he did after obtaining a fitness certificate from Dr.

Rohit Nayyar (PW-16).

33. The statement Ex.PW-5/A narrates the details of the incident.

It corroborates PW-7 Mahavir’s testimony regarding demand of Rs.

35,000/-. It further corroborates a dying declaration on the MLC Ex.PW-

8/A regarding demand of Rs. 35,000/- by the Appellants as also setting

Seema on fire by the three Appellants and deceased Ratti Kaur. The dying

declaration Ex.PW-5/A goes a step further and gives the details of the

role of each of Appellants and the beatings given to her for non-meeting

the demand of Rs. 35,000/-

34. There may be stray cases where even a dying person may lie

or falsely implicate a person in a case. In those cases the maker of the

statement must have had a motive to falsely implicate a person which can

be either on account of any enmity or ill will. In this case the deceased

got married to Appellant Dharambir just one and half year before the

incident. The Appellants have taken up the plea that Seema was depressed

and wanted to take the extreme step of committing suicide. It is not

understandable why she would falsely involve her husband, two of her

brothers-in-law and her mother-in-law and not other relations (not even

the other brother-in-law i.e. PW-2 Mahavir).

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35. We are convinced that the dying declaration was truthfully

made and correctly and faithfully recorded by PW-16 Dr. Rohit Nayyar.

The same, by itself, is sufficient to base Appellants conviction, although

the same also finds corroboration from PW-7 Mahavir i.e. Seema’s

father and the dying declaration Ex.PW-5/A recorded by PW-13.

36. We do not find any error or infirmity in the impugned judgment

and order. The Appeals are without any merit and have, therefore, to fail.

The same are accordingly dismissed.

37. The Appellants were granted bail pending hearing of the appeals.

They are directed to surrender before the Trial Court on 16.08.2011 to

serve the remainder of the sentence, failing which steps shall be taken

by the Trial Court for their arrest. The Registry is directed to send a

copy of the judgment to the Trial Court immediately for compliance of

the said directions.

38. The appeals are disposed of in above terms.

ILR (2011) VI DELHI 701

LPA

C.S. AGARWAL ....APPELLANT

VERSUS

STATE & ORS. ....RESPONDENTS

(A.K. SIKRI, SURESH KAIT & M.L. MEHTA, JJJ.)

LPA NO. : 819/2010 & DATE OF DECISION: 29.07.2011

LPA NO. : 825/2010

Constitution of India, 1950—Article 226—Code of

Criminal Procedure, 1973—Section 482—Clause 10 and

18 of Letters Patent Act—Appellant C.S. Aggarwal,

Director of M/s Rockman Projects Limited (referred to

as RPL) made a representation for the purpose of

securing investment to Mr. Sameer Kohli, director of

M/s Kohli Housing and Development Pvt. Ltd—Intended

to develop one SEZ on 250 acres land situated at

Delhi-Jaipur Highway owned by RPL—Petitioner

received in-principal approval from the Govt. of India

for the project—On the representation, respondent

no. 3 agreed to buy 74% shares worth Rs. 185 crores

in the Special Purpose Vehicle (SPL) formed for this

purpose—MOU was signed—Advance payment of Rs.

40 crores was made by respondent no. 3 on the

condition that either this advance will be refunded

back to him or the land of 250 acres would be

transferred in favour of him in case the SEZ notification

is not received by 31st December 2008—Subsequently

an amount of Rs. 3 crores was given to the petitioner

by respondent no. 3—No notification could be received

by RPL by 31.12.2008—Mr. D.K. Jain, the other director

of RPL issued a public notice revoking all authority

given to the petitioner to act on behalf of RPL—After

expiration of the dead line, respondent no.3 demanded

his money back, but in Vain—Respondent made a

complaint, on the basis of which, FIR no. 266/09 was

registered against the appellant herein u/s 420/406/

120-B IPC—Appellant challenged the registration of

FIR and sought quashing of the same—Hon’ble Single

Judge dismissed the petition—Appellant preferred the

Letter Patent Appeal under clause 10 of the Letter

Patent Act—Respondent took a primary objection to

the maintainability of the Letter Patent Appeal on the

point that judgment was passed in exercise of criminal

jurisdiction and the Letter Patent appeal against the

order is clearly barred by Clause 10 and 18 of Letters

Patent Act—Held—Proceedings under Article 226 of

the Constitution would be treated as original civil

proceedings only when it concerns civil rights—A

fortiori, if it concerns a criminal matter, then such

proceedings would be original criminal proceedings—

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Indian Law Reports (Delhi) ILR (2011) VI Delhi703 704C.S. Agarwal v. State & Ors. (A.K. Sikri, J.)

Letter Patent would lie when the Single Judge decides

the writ petition in proceedings concerning civil

rights—On the other hand, if these proceedings are

concerned with rights in criminal law domain, then it

can be said that the Single Judge was exercising his

‘criminal jurisdiction’ while dealing with such a petition

filed under Article 226 of the Constitution—In a petition

under Article 226 of the Constitution when the High

Court is exercising extraordinary jurisdiction, the

nature of proceedings, whether civil or criminal, would

depend upon the nature of right violated and the

nature of relief sought in the said petition—Writ of

this nature filed under Article 226 of the Constitution—

Seeking quashing of such an FIR would therefore be

‘‘criminal proceedings’’ and while dealing with such

proceedings, the High Court exercises its ‘‘criminal

jurisdiction’’—The LPAs are barred and not

maintainable—Dismissed.

No doubt, as per the aforesaid pronouncements explaining

the nature of power conferred under Article 226 of the

Constitution, the High court in such proceedings exercises

original jurisdiction. At the same time, it is also clarified that

the said jurisdiction is not to be confused with the ‘‘original

civil jurisdiction’’ of the High Court. Further, proceedings

under Article 226 of the Constitution would be treated as

original civil proceedings only when it concerns civil rights.

A fortiori, if it concerns a criminal matter, then such

proceedings would be original criminal proceedings. Letters

Patent would lie when the Single Judge decides the writ

petition in proceedings concerning civil rights. On the other

hand, if these proceedings are concerned with rights in

criminal law domain, then it can be said that the Single

Judge was exercising his ‘criminal jurisdiction’ while dealing

with such a petition filed under Article 226 of the Constitution.

(Para 19)

For this reason, we cannot agree with the extreme position

taken by the appellants that the exercise of powers under

Article 226 of the Constitution would never tantamount to

exercising criminal jurisdiction, irrespective of the nature of

proceedings. We, further, are of the opinion that if such a

petition relates to criminal proceedings while dealing with

this petition under Article 226 of the Constitution, the Court

would be exercising ‘‘criminal jurisdiction’’. In this context, it

would be relevant to refer to the judgment of the Supreme

Court in S.A.L. Narayan Row And Anr. vs Ishwarlal

Bhagwandas and Anr. [AIR 1965 SC 1818]. In that case,

proceedings were initiated under the Income Tax Act, 1922.

At the conclusion of proceedings before the High Court

under Article 226, a certificate for fitness was sought under

Article 131 (1)(c) read with Article 132(1) of the Constitution.

The question before the Apex Court was as to whether the

proceedings before the High Court under Article 226 are

‘‘civil proceedings’’. The Constitution Bench opined that

whether the proceedings are civil or not depends upon the

nature of the right violated and the appropriate relief which

may be claimed and not upon the nature of the Tribunal

which is invested with authority to grant relief. In the process,

following pertinent observations were made which are

apposite in our context:

‘‘A criminal proceeding on the other hand is ordinarily

one in which if carried to its conclusion it may result

in the imposition of sentences such as death,

imprisonment, fine or forfeiture of property.’’

The Court was, thus, categorical that even in a petition

under Article 226 of the Constitution when the High Court is

exercising extraordinary jurisdiction, the nature of

proceedings, whether civil or criminal, would depend upon

the nature of right violated and the nature of relief sought

in the said petition. (Para 20)

However a contrary view is taken by a Division Bench of the

Gujarat High Court in the case of Sanjeev Rajendrabhai

Bhatt Vs. State of Gujarat [1999 Cr.LJ 3388]. In that case,

the Gujarat High Court held that the Letters Patent Appeal

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705 706C.S. Agarwal v. State & Ors. (A.K. Sikri, J.)

[2000 (2) ALT 448].

5. Sanjeev Rajendrabhai Bhatt vs. State of Gujarat [1999

Cr.LJ 3388].

6. Harwinder Singh vs. Union of India [1994 (55) DLT

176].

7. Umaji Keshao Meshram and Otehrs vs. Smt. Radhikabai

and Another [AIR 1986 SC 1272].

8. Saroda Soonduree Dossee vs. Tincowree Nundee [1884]

Hyde’s Reports 70.

9. Ahmedabad Mfg. & Calico Ptg. Co. Ltd. vs. Ram Tahel

Ramnand & Ors. [1973] 1 S.C.R. 185).

10. State of Gujarat vs. Vakhatsinghji Vajesinghji Vaghela

A.I.R. 1968 S.C. 1487, 1488.

11. Arbind Kumar Singh vs. Nand Kishore Prasad & Ors.

[1968] 3 S.C.R. 322, 324.

12. Commissioner of Income-tax, Bombay and another

sIshwarlal Bhagwandas and others [1966] 1 S.C.R. 190,

197-8.

13. Ramesh and another vs. Seth Gendalal Motilal Patni and

others [1966] 3 S.C.R. 198, 203.

14. S.A.L. Narayan Row And Anr. vs. Ishwarlal Bhagwandas

and Anr. [AIR 1965 SC 1818].

15. State of Uttar Pradesh and Others vs. Dr. Vijay Anand

Maharaj [AIR 1963 SC 946].

16. Mahomedalli Allabux vs. Ismailji Abdulali, Raghunath

Keshav Khadilkar vs. Poona Muncipality and another,

Ryots of Garabandho and other villages vs. Zamindar of

Parlakimedi and another and Moulvi Hamid Hasan

Nomani vs. Banwarilal Roy and others L.R. [1946-47] 74

I.A. 120, 130-31; s.c.= A.I.R. 1947 P.C. 90, 98).

17. Venkataratnam vs. Secretary of State, ILR 53 Mad 979

: (AIR 1938 Mad 896).

RESULT: Appeals dismissed.

against such order is not maintainable. (Para 23)

Important Issue Involved: The proceedings seeking

quashing of FIR are ‘‘criminal proceedings’’ and while dealing

with such proceeding the High Court exercises its ‘‘criminal

jurisdiction’’. Hence against order in such proceeding, Letters

Patent Appeal is not maintainable.

[Vi Ba]

APPEARANCES:

FOR THE APPELLANT : Mr. Sandeep Sethi, Sr. Advocate,

Mr. Siddharth Luthra, Sr. Advocate,

Mr. Arvind Nigam, Sr. Advocate

with Ms. Ramjana Roy Gawai, Mr.

P.K. Dubey, Mr. Abhishek Kr. Rai,

Mr. Kunal Sood, Mr. Shailesh

Suman, Mr. Anurag Yadav, Mr.

Arshadeep Singh, Ms. Vasudha Sen,

Mr. Madhur Jain, Advocate in LPA

No. 819 of 2010. Mr. Sakal Bhushan,

with Mr. Sumit Gupta, Advocates in

LPA No. 825 of 2010.

FOR THE RESPONDENT : Mr. K.T.S. Tulsi, Sr. Advocate, Mr.

Ramesh Gupta, Sr. dvocate with Mr.

Rajinder Singh, Mr. Gaurav M.

Librahem, Mr. Lalit Choudhary

Advocates for the Respondent no. 3

Mr. Ranjit Kapoor, ASC for the State.

CASES REFERRED TO:

1. Dr. Rajni Patriwala vs. Dr. D. Mohan & Anr. [2009 (3)

JCC 1896].

2. State of Karnataka vs. Pastor P. Raju [2006 (6) SCC

782].

3. Adishwar Jain vs. Union of India [2006 Cri.LJ 3193].

4. Gangaram Kandaram vs. Sunder Chhkha Amin and Others

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Indian Law Reports (Delhi) ILR (2011) VI Delhi

A.K. SIKRI, J.

1. C.S. Agarwal, the appellant in LPA No.819 of 2010, had filed

Writ Petition (Crl.) No.57 of 2010 invoking the jurisdiction of this Court

under Article 226 of the Constitution of India read with Section 482 of

the Code of Criminal Procedure seeking appropriate writ for quashing the

FIR No.264/2009 dated 23.12.2009 lodged against him and others by the

Economic Offences Wing, Crime and Railways, Delhi under Sections

420/406/120-B of the Indian Penal Code. The said writ petition has been

dismissed vide orders dated 11.11.2010 passed by the learned Single

Judge of this Court and against that order LPA No.819 of 2010 has been

preferred by C.S. Agarwal.

2. Another accused in the said FIR is D.K. Jain. He has also filed

LPA No.825 of 2010 challenging the same judgment, inter alia, on the

ground that some of the observations in the said orders are prejudicial to

him and therefore, he is also an aggrieved party. The respondents took

a primary objection to the maintainability of these LPAs contenting the

judgment of the learned Single Judge was passed in exercise of criminal

jurisdiction and a Letters Patent Appeal against such an order is clearly

barred by Clause 10 and Clause 18 of the Letters Patent Constituting the

High Court of Judicature at Lahore, which is application to the Judicature

of High Court of Delhi as well.

3. The Division Bench heard the matter on this aspect and vide

orders dated 14.01.2011 deemed it appropriate to refer the matter to the

Full Bench making following reference for consideration:

‘‘22. Accordingly, we make following reference for consideration

the Full Bench:

‘‘Whether the writ petition filed under Article 226 of the

Constitution of India read with Section 482 of the Code

of Criminal Procedure for quashing a FIR amount to

invoking ‘original jurisdiction’ or these proceedings are to

be treated as invoking ‘criminal jurisdiction?’’

4. This is how the matter came to be heard by this Bench and the

arguments were heard on the aforesaid reference. We may point out at

this stage itself that if the answer to the reference is that Shri C.A.

Agarwal, by means of the aforesaid W.P.(Crl.) NO.57 of 2010 had

invoked ‘‘original jurisdiction’’ the Letters Patent Appeal would be

competent. On the other hand, if those proceedings are to be treated as

invoking ‘‘criminal jurisdiction’’, then the consequence would be that

intra-Court appeal, by means of present Letters Patent Appeal is barred

by Clause 10 invoking Letters Patent Constituting the High Court of

Judicature at Lahore, which parties agree, is applicable to the High Court

of Delhi as well. The Division Bench while making the reference has

stinctly stated the factual matrix of the events which led C.S. Agarwal

to file the aforementioned writ petition. In order to understand the

arguments of both the parties, we are reproducing the facts as stated by

the Division Bench in its order dated 14.01.2011:

Mr. C. S. Aggarwal, director of M/S Rockman Projects Limited

(referred to as ‘RPL’), made a representation, for the purpose of securing

investment, to Mr. Sameer Kohli, director M/S Kohli Housing and

Development Pvt. Ltd. (in short KHPDL) that the RPL is intending to

develop one SEZ on 250 acres land, which is owned by the RPL, situated

on Delhi-Jaipur Highway at village Shidhrawali, Gurgaon, Haryana and

for this project the petitioner has received in-principal approval dated

22.08.2006 from the Government of India. On the basis of this

representation, after being got convinced by the petitioner that he has full

authority, supported by the Board resolution dated 14.05.2007, to enter

into commercial deals on behalf of RPL, respondent no. 3 agreed to buy

74% shares worth Rs. 185 crores in the Special purpose vehicle (SPL)

formed for this purpose. Respondent No. 3 was told that when the final

notification regarding SEZ will be received by the company, it will transfer

the land to the SPV. In pursuant to this agreement, one MoU dated 18th

June 2007 was signed and advance payment of Rs. 40 crores was made

by the respondent no. 3 on the condition that either this advance will be

refunded back to him or the land of 250 acres would be transferred in

favour of him in case the SEZ notification is not received by 31st

December 2008. This amount was to be utilized for the purpose of

consolidation and procurement of more land. Subsequently, an amount of

Rs. 3 crores was further given to the petitioner by respondent no.3 and

he entered into a Shareholder agreement and an FDI investor Xander

with RPL on 19th February 2008, which was to come into effect only

if the SEZ notification has been received by 31st December 2008. However

no notification could be received by RPL by 31st December 2008; instead

on the same day, Mr. D. K. Jain, the other director of RPL, issued a

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public notice revoking all authority given to the petitioner to act on behalf

of RPL. In September 2009, the petitioner published a counter public

notice claiming thereby that RPL had 99 years lease agreement with D.

K. Jain’s land owing company for 250 acres of land and also had an

agreement to sell in his favour for the entire land.

After the expiration of the deadline of 31st December 2008,

respondent no. 3 demanded back his money but all of his efforts in this

direction went into vain. During the investigation, carried on by the

respondent on its own, he came to know that it was falsely represented

to him that RPL had 250 acres land and instead only 170 acres of land

was available. Even the authority, which issued approval letter, was

provided with wrong information on this account that the applicant fulfills

the criteria of having a minimum of 250 acres of land for the purpose

of development of SEZ. It was also revealed to the respondent no. 3 that

no such payment was made by the petitioner herein for the purpose of

purchasing more land as agreed between the parties in the MoU and

subsequently represented by the petitioner herein to the respondent no.

3. Under these circumstances, the respondent no. 3 filed a complaint

dated 12.10.2009 at Hauz Khas police station. He also lodged a similar

complaint dated 14.10.2009 with Dy. Commissioner of Police, Economic

Offences Wing Crime and Railways, Delhi, in pursuant to which a FIR

no.266/09 dated 23.12.2010 was registered against the appellant herein

under Sections 420/406/120-B of the Indian Penal Code.

The appellant Sh. C.S. Aggarwal, by way of W.P. (Crl.) No. 57 of

2010 filed under article 226 of the Indian Constitution r/w section 482

Cr.P.C. challenged the registration of the aforesaid FIR and sought

quashing of the same. However, Learned Single Judge of this High Court

found no merit in that petition and dismissed the same vide order dated

11.11.2010 on the ground that the investigation done by the EOW clearly

indicates that the petitioner had, from the very beginning, a dishonest

intention to cheat the respondent no.3. Feeling aggrieved by the dismissal

of his writ petition, the appellant Sh. C.S. Aggarwal has preferred the

Letter Patent Appeal under clause 10 of the Letter Patent Act of the

Punjab and Lahore High Court which is applicable to the Delhi High

Court. Sh. D.K. Jain has also filed LPA raising the grievance that even

when he was not a party to the writ proceedings, the learned Single

Judge had made observations prejudicial to his interest at his back.

5. Before we analyze the respective contentions it would be

appropriate to mention at the outset that the Delhi High Court was

constituted not by the Letters Patent but by the Delhi High Court Act,

1966 (in short ‘the DHC Act’). The counsels have proceeded on the

premise that the Letters Patent as applicable to the erstwhile Punjab and

Lahore High Courts are applicable to the Delhi High Court. Section 5 of

the DHC Act confers original jurisdiction to the Delhi High Court while

Section 10 thereof confers appellate jurisdiction. These provisions read

as follows:

‘‘5. Jurisdiction of High Court of Delhi. —

(1) The High Court of Delhi shall have, in respect of the territories

for the time being included in the Union territory of Delhi, all

such original, appellate and other jurisdiction as, under the law

in force immediately before the appointed day, is exercisable in

respect of the said territories by the High Court of Punjab. (2)

Notwithstanding anything contained in any law for the time being

in force, the High Court of Delhi shall also have in respect of the

said territories ordinary original civil jurisdiction in every suit the

value of which exceeds rupees twenty lakhs.

10. Powers of Judges. —

(1) Where a single Judge of the High Court of Delhi exercises

ordinary original civil jurisdiction conferred by sub-section (2) of

section 5 on that Court, an appeal shall lie from the judgment of

the single Judge to a Division Court of that High Court.

(2) Subject to the provisions of sub-section (1), the law in force

immediately before the appointed day relating to the powers of

the Chief Justice, single Judges and Division Courts of the High

Court of Punjab and with respect to all matters ancillary to the

exercise of those powers, shall, with the necessary modifications,

apply in relation to the High Court of Delhi.’’

6. In addition to the appeals that can be filed under section 10 of

the DHC Act, three more categories of appeals lie to this Court. Thus the

following four categories constitute appellate jurisdiction of the Delhi

High Court:

a. Firstly, appeals under Section 10 of the DHC Act but they

C.S. Agarwal v. State & Ors. (A.K. Sikri, J.)

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are limited only to those judgments referable to Section

5(2) thereof.

b. Secondly, appeals under the Code of Civil Procedure.

c. Thirdly, appeals under different statutes, which itself

provides for an appeal.

d. Fourthly, appeals under Clause 10 of the Letters Patent.

7. Here we are concerned only with the fourth category. Clause 10

of the Letters Patent reads as follows:

‘‘10. Appeals to the High Court from Judges of the Court

— And we do further ordain that an appeal shall lie to the said

High Court of Judicature at Lahore from the judgment (not being

a judgment passed in the exercise of appellate jurisdiction in

respect of a decree or order made in the exercise of appellate

jurisdiction by a Court subject to the Superintendence of the said

High Court, and not being an order made in the exercise of

revisional jurisdiction, and not being a sentence or order passed

or made in the exercise of the power of Superintendence under

the provisions of Section 107 of the Government of India Act,

or in the exercise of criminal jurisdiction) of one Judge of the

said High Court or one Judge of any Division Court, pursuant to

Section 108 of the Government of India Act, and that

notwithstanding anything hereinbefore provided an appeal shall

lie to the said High Court from a judgment of one Judge of the

said High Court or one Judge of any Division Court, pursuant of

Section 108 of the Government of India Act, made on or after

the first day of February, one thousand nine hundred and twenty-

nine in the exercise of appellate jurisdiction in respect of a decree

or order made in the exercise of appellate jurisdiction by a Court

subject to the superintendence of the said High Court where the

Judge who passed the judgment declares that the case is a fit

one for appeal; but that the right of appeal from other judgments

of Judges of the said High Court or of such Division Court shall

be to Us, Our heirs or Successors in our or their Privy Council,

as hereinafter provided.’’

8. This clause clearly prohibits maintainability of an intra-court

appeal if the impugned judgment is passed in exercise of:

1. Revisional Jurisdiction

2. The power of superintendence

3. Criminal Jurisdiction

9. Similarly, clause 18 of the same Letter Patent provides that no

appeal would lie from any sentence or order passed or made by the

courts of original jurisdiction.

10. Since reference was made to Clauses 15, 17 and 18, we deem

it proper to reproduce those Clauses as well:

‘‘15. Ordinary original criminal jurisdiction of the High Court

— And we do further ordain that the High Court of Judicature

at Lahore shall have ordinary original criminal jurisdiction in respect

of all such persons within the Provinces of the Punjab and Delhi

as the Chief Court of the Punjab had such criminal jurisdiction

over immediately before the publication of these present.

17. Extraordinary original criminal jurisdiction — And we

do further ordain that the High Court of Judicature at Lahore

shall have extraordinary original criminal jurisdiction over all

persons residing in places within the jurisdiction of any Court

subject to its Superintendence, and shall have authority to try at

its discretion any such persons brought before it on charges

preferred by any Magistrate or other officer specially empowered

by the Government in that behalf.

18. No appeal from High Court exercising original jurisdiction

Court may reserve points of law — And we do further ordain

that there shall be no appeal to the High Court of Judicature at

Lahore from any sentence or order passed or made by the Courts

of original criminal jurisdiction which may be constituted by one

or more Judges of the said High Court. But it shall be at the

discretion of any such Court to reserve any point or points of

law for the opinion of the said High Court.’’

11. Keeping in mind the aforesaid provision, we have to answer the

question as to whether the judgment passed by the learned Single Judge

in the writ petition filed by C.S. Agarwal was in exercise of ‘criminal

jurisdiction’.

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12. As is clear from the reading of the Reference order of the

Division Bench (which was the position maintained before us as well),

the counsel for the parties on both the sides are at ad idem that when

a writ petition is filed originally in the jurisdiction of this Court, Letters

Patent Appeal is maintainable against the order passed by the learned

Single Judge in such a writ petition. The parties have, joined, issues on

the question as to whether writ petition filed for quashing the FIR should

be treated as invoking ‘criminal jurisdiction’ of the High Court.

13. On the aforesaid issue, arguments were advanced by Mr. Sandeep

Sethi, Mr. Siddharth Luthra and Mr. Arvind Nigam, learned Senior

Counsels appearing for the appellants. On behalf of the respondents Mr.

K.T.S. Tulsi and Mr. Ramesh Gupta, learned Senior Counsels put forth

their submissions which were supplemented by Mr. Gaurav M. Librahem.

Mr. Ranjit Kapoor, ASC appeared for the State, who also contested the

filing of LPA. We have given our thoughtful considerations to all these

submissions.

14. We are not reproducing, at this juncture, the arguments advanced

by the Counsels of both the sides. Instead, we would like to proceed

with our analysis of law and reasons in support of our view, viz., when

writ petition is filed seeking quashing of FIR, Letters Patent Appeal

would not be maintainable against the order passed by the learned Single

Judge in such a writ petition. However, we clarify that while giving our

analysis, we shall be touching upon each and every argument raised

before us.

15. Clause 10 of the Letters Patent Appeal, as pointed out above,

debars the filing of intra-court appeal against the order of the Single

Judge passed in exercise of revisional jurisdiction, the power of

superintendence and the criminal jurisdiction. Since we are concerned

with the case falling in the last category, the exact words used in Clause

10 in this behalf are ‘‘not being a sentence or order passed or made in

exercise of criminal jurisdiction of one Judge or the said High Court .....’’

The contention of the appellants is that the impugned order has to be a

sentence or order in exercise of criminal jurisdiction. It is argued that in

the present case, FIR is registered against the appellants under Section

154 of Code of Criminal Procedure. The matter is still at the stage of

investigation. No report/Challan is filed under Section 173 of the Code of

Criminal Procedure by the Investigating Agency so far. In the absence

of any such report/Challan under Section 173 of the Code of Criminal

Procedure, the Criminal Court of competent jurisdiction has yet to take

cognizance of the matter. At this stage itself, when the matter is still

under investigation, C.S. Agarwal felt aggrieved by the very act of

registration of FIR on the part of the Investigating Agency, i.e., Police

Authorities. It is for this reason, the prayer made in the writ petition is

to quash the FIR. Such a writ petition seeking quashing of the FIR when

the matter is still at the stage of investigation is permissible under Article

226 of the Constitution of India has held by the Apex Court in the case

of State of Haryana Vs. Bhajan Lal [1992 Supp. (1) SCC 335]. Of

course, the scope of such a jurisdiction is very limited and available only

in exceptional circumstances to prevent abuse of any Court of otherwise

secure the ends of justice. Some incidences of such kind of cases were

highlighted by the Supreme Court in the aforesaid judgments making it

clear that the said list was not exhaustive.

16. It was vehemently argued by the learned counsel appearing on

behalf of the appellant that when such a power is exercised by the High

Court whether under Section 482 of Code of Criminal Procedure or

under Article 226 of the Constitution of India and the registration of FIR

is quashed, it amounts to quashing of ‘criminal proceedings’ as the

consequence of registration of FIR is to initiate ‘criminal proceedings’.

According to the learned counsels, it is to be distinct from exercise of

‘criminal jurisdiction’ which expression occurs in Clause 10 of Letters

Patent Appeal. On this basis, argument was that the order passed in such

a petition is not in exercise of any ‘criminal jurisdiction’, but relates to

‘criminal proceedings’. Advancing this proposition, it was also argued

that the Letters Patent Appeal does not make any provision for writ

jurisdiction. It only provides for appeal under Clause 10 against certain

categories of orders. Insofar as proceedings under Article 226 are

concerned, the same are ‘original’ and ‘extraordinary’ in nature.

17. There cannot be any quarrel about the nature of proceedings

under Article 226 of the Constitution. In the case of State of Uttar

Pradesh and Others Vs. Dr. Vijay Anand Maharaj [AIR 1963 SC

946], the Constitution Bench of the Apex Court had the occasion to

explain the nature of proceedings under Article 226 of the Constitution.

That was a case where an assessment order was passed under the U.P.

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Agricultural Income Tax Act 1948 (3 of 1949). Those assessments which

were without jurisdiction were validated by U.P. Act 14 of 1956 giving,

at the same time, right to the assessee to review orders made under U.P.

Act, 1956. The assessment order made by the Additional Collector under

the U.P. Act 3 of 1949 by challenging the writ petition under Article 226

of the Constitution and the learned Single Judge of the Allahabad High

Court had set aside the order on the ground that the assessment was

without jurisdiction. As pointed out above, all such assessments were

validated by the U.P. Act 14 of 1956 with retrospective effect. Since the

power to review was given, an application for review made to the Single

Judge who had passed an order under Article 226 of the Constitution

was filed which was dismissed on the ground that the U.P. Act 14 of

1956 did not apply to orders under Article 226. The Letters Patent Appeal

against this order was taken to a Division Bench, which was dismissed,

inter alia, on the ground that order dismissing review application was not

a ‘judgment’ within the meaning of High Court Rules and therefore, was

not appellable. Challenging this order of the Division Bench, State of U.P.

had approached the Supreme Court. In the aforesaid backdrop, the question

arose about the nature of proceedings and the scope of jurisdiction under

Article 226 of the Constitution. The Constitution Bench explained the

nature of proceedings under Article 226 in the following manner:

‘‘Article 226 confers a power on a High Court to issue the writs,

orders, or directions mentioned therein for the enforcement of

any of the rights conferred by Part III or for any other purpose.

This is neither an appellate nor a revisional jurisdiction of the

High Court. Though the power is not confined to the prerogative

writs issued by the English Courts, it is modeled on the said

writs mainly to enable the High Courts to keep the subordinate

tribunals within bounds. Before the Constitution, the chartered

High Court, that is, the High Courts at Bombay, Calcutta and

Mad- ras, were issuing prerogative writs similar to those issued

by the King’s Bench Division, subject to the same limitations

imposed on the said. writs. In Venkataratnam v. Secretary of

State, ILR 53 Mad 979 : (AIR 1938 Mad 896), a division Bench

of the Madras High Court, consisting of Venkatasubba Rao and

Madhavan Nair, JJ,; held that the jurisdiction to issue a writ of

certiorari was original jurisdiction. In Ryots of Garabandha v.

The Zamindar of Parlakimedi (1), another division Bench of

the same High Court, consisting of Leach, C. J., and Madhavan

Nair J., considered the question again incidentally and came to

the same conclusion “and held that a writ of certiorari is issued

only in exercise of the original jurisdiction of the High Court. In

Ramayya v. State of Madras (2), a division Bench, consisting

of Govinda Menon and Ramaswami Oounder, JJ,, considered

the question whether the proceedings under Art. 226 of the

Constitution are in exercise of the original Jurisdiction or revisional

jurisdiction of the High Court, and the learned Judges held that

the power to issue writs under Art. 226 of the Constitution is

original and the jurisdiction exercised is original jurisdiction. In

Moulvi Hamid Hassan Nomani v. Banwarilal Boy (3), the

Privy Council was considering the question whether the original

civil jurisdiction which the Supreme Court of Calcutta possessed

over certain classes of persons outside the territorial limits of

that jurisdiction has been inherited by the High Court. In that

context the Judicial Committee observed:

‘‘It cannot be disputed that the issue of such writs is

a matter of original jurisdiction”.

The Calcutta. High Court, in Budge Budge Municipality v.

Mangru, 57 Cal WN 25 : (AIR 1953 Cal. 433) (SB), came to

the same conclusion, namely, that the jurisdiction exercised under

Art. 226 of the Constitution is original as distinguished from

appellate or revisional jurisdiction; but the High Court pointed out

that the jurisdiction, though original, is a special jurisdiction and

should not be confused with ordinary civil jurisdiction under the

Letters Patent. The Andhra High Court in Satyanarayanamurthi

v. 1. T. Appellate Tribunal (1) described it as an extraordinary

original jurisdiction. It is, therefore, clear from the nature of

the power conferred under Art. 226 of the Constitution and

the decisions on the subject that the High Court in exercise

of its power under Art. 226 of the Constitution exercises

original jurisdiction, though the said jurisdiction shall not

be confused with the ordinary civil jurisdiction of the High

Court. This jurisdiction, though original in character as contrasted

with its appellate and revisional jurisdictions, is exercisable

throughout the territories in relation to which it exercises

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jurisdiction and may for convenience, be described as

extraordinary original jurisdiction. If that be so, it cannot be

contended that a petition under Art. 226 of the Constitution is a

continuation of the proceedings under the Act.’’

(emphasis supplied)

18. This position was reiterated by the Supreme Court in the case

of Umaji Keshao Meshram and Otehrs Vs. Smt. Radhikabai and

Another [AIR 1986 SC 1272] taking stock of the gamut of case law

including the aforesaid Constitution Bench Judgment. The Court explained

that even prior to the commencement of the Constitution, Chartered High

Courts were possessed with the power to issue prerogative writs, though

in a much restricted form. The provisions in the nature of Articles 226,

227 and 228 were incorporated in the Constitution with an intention to

confer the enlarged power upon all the High Courts and not merely three

Chartered High Courts. In the process, certain significant observations

were made explaining the scope of Letters Patent Appeal dealing with the

provisions of the Letters Patent of Calcutta High Court. We would like

to reproduce the same:

‘‘............These several jurisdictions were conferred upon the

High Courts by different clauses of the Letters Patent. Clause

14, however, specifically provided for an intra-court appeal only

from judgments “in all cases of original civil jurisdiction”. The

marginal note to clause 14 was “Appeal from the Courts of

original jurisdiction to the High Court in its appellate jurisdiction”.

Jurisdictions other than ordinary and extra- ordinary civil

jurisdictions were conferred by clauses which followed clause

14. For this reason, it was doubted at one time whether an intra-

court appeal would lie from the judgment of one Judge in the

exercise of original testamentary jurisdiction but in the case of

Saroda Soonduree Dossee v. Tincowree Nundee [1884] Hyde’s

Reports 70, a Division Bench of three Judges of the Calcutta

High Court by a majority held that such an appeal would lie. The

Letters Patent of 1865 followed the pattern of the Letters Patent

of 1862. Clause 15 forms part of a group of clauses consisting

of clauses 11 to 18 headed “Civil Jurisdiction of the High Court”.

Clause 12 deals with original jurisdiction as to suits and clause

13 with extra- ordinary original civil jurisdiction while clause 14

deals with joinder of several causes of action. Though the marginal

note to clause 15 was the same as that to the old clause 14, a

most material change was made in clause 15 by providing that

intra-court appeals would lie “from the judgment (not being a

sentence or order passed or made in any criminal trial) of one

Judge of the said High Court, or of one Judge of any Division

Court.” The word “judgment” in clause 15 is not qualified in any

way as to the jurisdiction in which it is given except that it

should not be a sentence or order passed or made in any criminal

trial, thus excluding judgments given in the exercise of criminal

jurisdiction. Criminal jurisdiction is provided for in clauses 22 to

29.......

xxx xxx xxx

98. From what has been said above it must follow that when a

Single Judge of a Chartered High Court decides a petition under

Articles 226 or 227, his judgment is one given pursuant to Article

225 of the Constitution and is appealable under clause 15 of the

Letters Patent unless it falls within one of the excluded categories.

99. According to the Full Bench even were clause 15 to apply,

an appeal would be barred by the express words of clause 15

because the nature of the jurisdiction under Article 226 and 227

is the same inasmuch as it consists of granting the same relief,

namely, scrutiny of records and control of subordinate courts

and tribunals and, therefore, the exercise of jurisdiction under

these Articles would be covered by the expression “revisional

jurisdiction” and “power of superintendence”. We are afraid, the

Full Bench has misunderstood this scope and effect of the powers

conferred by these Articles. These two Articles stand on an

entirely different footing. As made abundantly clear in the earlier

part of this judgment, their source and origin are different and

the models upon which they are patterned are also different.

Under Article 226 the High Courts have power to issue directions,

orders and writs to any person or authority including any

Government. Under Article 227 every High Court has the power

of superintendence over all courts and tribunals throughout the

territory in relation to which it exercises jurisdiction. The power

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to issue writs is not the same as the power of superintendence.

By no stretch of imagination can a writ in the nature of habeas

corpus or mandamus or quo warranto or prohibition or certiorari

be equated with the power of superintendence. These are writs

which are directed against persons, authorities and the State.

The power of superintendence conferred upon every High Court

by Article 227 is a supervisory jurisdiction intended to ensure

that subordinate courts and tribunals act within the limits of their

authority and according to law (see State of Gujarat v.

Vakhatsinghji Vajesinghji Vaghela A.I.R. 1968 S.C. 1487,

1488, and Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram

Tahel Ramanand & Ors.). The orders, directions and writs

under Article 226 are not intended for this purpose and the

power of superintendence conferred upon the High Courts by

Article 227 is in addition to that conferred upon the High Courts

by Article 226. Though at the first blush it may seem that a writ

of certiorari or a writ of prohibition partakes of the nature of

superintendence inasmuch as at times the end result is the same,

the nature of the power to issue these writs is different from the

supervisory or superintending power under Article 227. The

powers conferred by Articles 226 and 227 are separate and

distinct and operate in different fields. The fact that the same

result can at times be achieved by two different processes does

not mean that these processes are the same.

100. Under Article 226 an order, direction or writ is to issue to

a person, authority or the State. In a proceeding under that

Article the person, authority or State against whom the direction,

order or writ is sought is a necessary party. Under Article 227,

however, what comes up before the High Court is the order or

judgment of a subordinate court or tribunal for the purpose of

ascertaining whether in giving such judgment or order that

subordinate court or tribunal has acted within its authority and

according to law. Prior to the commencement of the Constitution,

the Chartered High Courts as also the Judicial Committee had

held that the power to issue prerogative writs possessed by the

Chartered High Courts was an exercise of original jurisdiction

(see Mahomedalli Allabux v. Ismailji Abdulali, Raghunath

Keshav Khadilkar v. Poona Muncipality and another, Ryots

of Garabandho and other villages v. Zamindar of Parlakimedi

and another and Moulvi Hamid Hasan Nomani v. Banwarilal

Roy and others L.R. [1946-47] 74 I.A. 120, 130-31; s.c.=

A.I.R. 1947 P.C. 90, 98). In the last mentioned case which dealt

with the nature of a writ of quo warranto, the Judicial Committee

held:

“In their Lordships’ opinion any original civil jurisdiction

possessed by the High Court and not in express terms

conferred by the Letters Patent or later enactments falls

within the description of ordinary original civil jurisdiction.”

By Article 226 the power of issuing prerogative writs possessed

by the Chartered High Courts prior to the commencement of the

Constitution has been made wider and more extensive and

conferred upon every High Court. The nature of the exercise of

the power under Article 226, however, remains the same as in

the case of the power of issuing prerogative writs possessed by

the Chartered High Courts. A series of decisions of this Court

has firmly established that a proceeding under Article 226

is an original proceeding and when it concerns civil rights,

it is an original civil proceeding (see, for instance, State of

Uttar Pradesh v. Dr. Vijay Anand Maharaj [1963] 1 S.C.R.

1, 16, Commissioner of Income-tax, Bombay and another v.

Ishwarlal Bhagwandas and others [1966] 1 S.C.R. 190, 197-

8, Ramesh and another v. Seth Gendalal Motilal Patni and

others [1966] 3 S.C.R. 198, 203, Arbind Kumar Singh v.

Nand Kishore Prasad & Ors. [1968] 3 S.C.R. 322, 324 and

Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel

Ramnand & Ors. [1973] 1 S.C.R. 185).’’

(Emphasis supplied)

19. No doubt, as per the aforesaid pronouncements explaining the

nature of power conferred under Article 226 of the Constitution, the High

court in such proceedings exercises original jurisdiction. At the same

time, it is also clarified that the said jurisdiction is not to be confused

with the ‘‘original civil jurisdiction’’ of the High Court. Further, proceedings

under Article 226 of the Constitution would be treated as original civil

proceedings only when it concerns civil rights. A fortiori, if it concerns

719 720C.S. Agarwal v. State & Ors. (A.K. Sikri, J.)

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a criminal matter, then such proceedings would be original criminal

proceedings. Letters Patent would lie when the Single Judge decides the

writ petition in proceedings concerning civil rights. On the other hand,

if these proceedings are concerned with rights in criminal law domain,

then it can be said that the Single Judge was exercising his ‘criminal

jurisdiction’ while dealing with such a petition filed under Article 226 of

the Constitution.

20. For this reason, we cannot agree with the extreme position

taken by the appellants that the exercise of powers under Article 226 of

the Constitution would never tantamount to exercising criminal jurisdiction,

irrespective of the nature of proceedings. We, further, are of the opinion

that if such a petition relates to criminal proceedings while dealing with

this petition under Article 226 of the Constitution, the Court would be

exercising ‘‘criminal jurisdiction’’. In this context, it would be relevant

to refer to the judgment of the Supreme Court in S.A.L. Narayan Row

And Anr. vs. Ishwarlal Bhagwandas and Anr. [AIR 1965 SC 1818].

In that case, proceedings were initiated under the Income Tax Act, 1922.

At the conclusion of proceedings before the High Court under Article

226, a certificate for fitness was sought under Article 131 (1)(c) read

with Article 132(1) of the Constitution. The question before the Apex

Court was as to whether the proceedings before the High Court under

Article 226 are ‘‘civil proceedings’’. The Constitution Bench opined that

whether the proceedings are civil or not depends upon the nature of the

right violated and the appropriate relief which may be claimed and not

upon the nature of the Tribunal which is invested with authority to grant

relief. In the process, following pertinent observations were made which

are apposite in our context:

‘‘A criminal proceeding on the other hand is ordinarily one in

which if carried to its conclusion it may result in the imposition

of sentences such as death, imprisonment, fine or forfeiture of

property.’’

The Court was, thus, categorical that even in a petition under Article 226

of the Constitution when the High Court is exercising extraordinary

jurisdiction, the nature of proceedings, whether civil or criminal, would

depend upon the nature of right violated and the nature of relief sought

in the said petition.

21. We are conscious of the judgment of the Full Bench of the

Andhra High Court in the case of Gangaram Kandaram Vs. Sunder

Chhkha Amin and Others [2000 (2) ALT 448]. It specifically held that

exercise for powers under Article 226 of the Constitution of India by

issuing a writ in quashing the FIR is not an exercise under ‘criminal

jurisdiction’. Following discussion in this behalf from the said judgment

is extracted below:

‘‘14. With regard to the second question as to whether the

appeal under Clause 15 of Letters Patent of the Court lies against

the judgment in such a case. In other words, whether the

proceedings for quashing of the investigation in a criminal case

under Article 226 of the Constitution is a civil proceeding and the

judgment as above is judgment in a civil proceeding in exercise

of the original jurisdiction of the Court for the purpose of appeal

under Clause 15 of Letters Patent.

15. As per Clause 15 of Letters Patent, no appeal shall lie against

the judgment of one Judge of the said High Court or one Judge

of any Division Bench passed in exercise of appellate jurisdiction

in respect of decree or order made in exercise of appellate

jurisdiction by a Court subject to the superintendence of the said

High Court and not being an order made in exercise of the

revisional jurisdiction and not being a sentence or order passed

or made in exercise of power of superintendence of Section 107

of Government of India Act or in exercise of criminal jurisdiction.

An appeal shall lie to the Division Bench under Clause 15 of

Letters Patent from the judgment of one Judge of the High Court

or one Judge of any Division Bench. The appeal from judgments

of single Judges of the High Court shall lie to the Division Bench

except the judgments prohibited by Clause 15. The learned single

Judge while exercising the extraordinary jurisdiction under Article

226 quashed the criminal proceedings. In our view, the exercise

powers under Article 226 of the Constitution by issuing a writ

in quashing the FIR is not in exercise of criminal jurisdiction. No

doubt against the order under Section 482 of Cr.PC or against

the proceedings under Contempt of Court, no appeal will lie

under Clause 15 of Letters Patent, but against the judgments

721 722C.S. Agarwal v. State & Ors. (A.K. Sikri, J.)

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quashing the FIR is in exercise of the original jurisdiction of the

Court under Article 226, writ appeal lies under Clause 15 of

Letters Patent. Issuing a writ of mandamus or certiorari by the

High Court under Article 226 pertaining to a criminal complaint

or proceeding cannot be said to be an order passed in exercise

of the criminal jurisdiction. Therefore, we hold that an appeal lies

under Clause 15 of Letters Patent.’’

22. The appellants have placed strong reliance on the aforesaid

judgments to buttress his submission that while exercising powers under

Article 226 of the Constitution, the learned Single Judge was not exercising

‘‘criminal jurisdiction’’.

23. However a contrary view is taken by a Division Bench of the

Gujarat High Court in the case of Sanjeev Rajendrabhai Bhatt Vs.

State of Gujarat [1999 Cr.LJ 3388]. In that case, the Gujarat High

Court held that the Letters Patent Appeal against such order is not

maintainable.

24. In identical circumstances, where the learned Single Judge had

dismissed the petition filed under Article 226 of the Constitution seeking

quashing of the FIR registered under various provisions of the Indian

Penal Code and NDPS Act, albeit, on the ground of want of territorial

jurisdiction, LPA was preferred by the writ petitioner (accused in the said

FIR). The maintainability of letters patent appeal was challenged. The

Division Bench proceeded to examine the issue of maintainability in the

light of two questions: first, whether an order passed by the Single Judge

could be said to have been made in exercise of extraordinary powers

under Article 226 of the Constitution or it was an exercise of supervisory

jurisdiction under Article 227 of the Constitution and second, whether the

order passed by the learned Single Judge was the exercise of criminal

jurisdiction within the meaning of Clause 15 of the Letters Patent.

25. While dealing with the first question, the Division Bench examined

the nature of scope and ambit of Article 226 as well as Article 227 of

the Constitution in the light of various pronouncements of the Supreme

Court. However, no final opinion was expressed on this question. In any

case, we are also not concerned with this aspect. Moreover, we have

proceeded on the basis that C.S. Agarwal had filed petition under Article

226 of the Constitution and the scope of that petition has already been

examined above.

26. The Division Bench examined the second question is depth and

opined that the order passed by the learned Single Judge was in exercise

of ‘criminal jurisdiction’ as referred in Clause 15 of Letters Patent and

therefore, LPA was not maintainable.

27. Referring to the judgment of the Constitution Bench in S.A.L.

Narayan Row And Anr. (supra), describing the nature of criminal

proceedings, the Division Bench of Gujarat High Court treated such

proceedings in exercise of criminal jurisdiction giving the following rationale:

‘‘80. In our considered opinion, in the instant case, the

proceedings can be said to be criminal proceedings inasmuch as,

carried to its conclusion, they may result into imprisonment, fine

etc. as observed by the Supreme Court in Narayana Row. 81.

From the totality of facts and circumstances, we have no hesitation

in holding mat the learned single Judge has passed an order in

exercise of criminal jurisdiction. At the cost of repetition, we

reiterate what we have already stated earlier that the proceedings

were of a criminal nature. Whether a criminal Court takes

cognizance of an offence or sends a complaint for investigation

under Sub-section (3) of Section 156 of the Code of Criminal

Procedure, 1973 does not make difference so far as the nature

of proceedings is concerned. Even if cognizance is not taken,

that fact would not take out the case from the purview of

criminal jurisdiction.

82. In our judgment, a proceeding under Article 226 of the

Constitution arising from an order passed or made by a Court in

exercise or purported exercise of power under the Code of

Criminal Procedure is still a ‘criminal proceeding’ within the

meaning of Clause 15 of the Letters Patent. A proceeding seeking

to avoid the consequences of a criminal proceeding initiated under

the Code of Criminal Procedure will continue to remain ‘criminal

proceeding’ covered by the bracketed portion of Clause 15 of

the Letters Patent. 83. As Clause 15 of the Letters Patent expressly

bars an appeal against the order passed by a single Judge of the

High Court in exercise of criminal jurisdiction, LPAs are not

maintainable and deserve to be dismissed only on that ground.

723 724C.S. Agarwal v. State & Ors. (A.K. Sikri, J.)

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We accordingly hold that the Letters Patent Appeals are not

maintainable at law and they are liable to be dismissed.’’

28. Respectfully agreeing with the aforesaid view, we express our

inability to subscribe to the view taken by the Full Bench of the Andhra

Pradesh High Court.

29. It would be necessary to clarify here that it cannot be said that

in any of the cases under Article 226 of the Constitution, the Court is

exercising ‘criminal jurisdiction’. It would depend upon the rights sought

to be enforced and the nature of relief which the petitioner seeks in such

proceedings. For example, if a writ petition seeking writ of habeas corpus

is filed, while dealing with such a petition, the Court is not exercising

criminal jurisdiction as no criminal proceedings are pending. In fact, the

order of preventive detention is made without any trial under the criminal

law. Likewise, when a person is convicted and sentenced after the

conclusion of criminal trial and such an order of conviction has attained

finality and he files writ petition under Article 226 of the Constitution

challenging the orders of the Government refusing to grant parole while

dealing with such a petition, the Single Judge is not exercising criminal

jurisdiction, as no criminal proceedings are pending.

30. Likewise, the proceedings under Income Tax Act filed under

Article 226 will not involve criminal jurisdiction. The judgment of the

Supreme Court in the case of Dr. Vijay Anand Maharaj (supra)

demonstrates this. The case arose out of assessment of income tax

which was challenged by way of writ petition under Article 226 of the

Constitution of India. The said proceedings were held by the Constitutional

Bench to be ‘‘original special jurisdiction’’ or ‘‘extraordinary original

jurisdiction’’ and cannot be confused with ‘‘ordinary civil jurisdiction’’.

31. For this reason, we are of the opinion that the Division Bench

judgment of this Court in the case of Harwinder Singh Vs. Union of

India [1994 (55) DLT 176] which dealt with habeas corpus petition is

of no assistance to decide the controversy before us. Likewise, the

judgment of Punjab and Haryana High Court in the case of Adishwar

Jain Vs. Union of India [2006 Cri.LJ 3193] holding LPA to be

maintainable is also not relevant. Again, that was a case of preventive

detention.

32. The test, thus, is whether criminal proceedings are pending or

not and the petition under Article 226 of the Constitution is preferred

concerning those criminal proceedings which could result in conviction

and order of sentence.

33. When viewed from this angle, it is clear that if the FIR is not

quashed, it may lead to filing of Challan by the investigating agency;

framing of charge; and can result in conviction of order of sentence.

Writ of this nature filed under Article 226 of the Constitution. Seeking

quashing of such an FIR would therefore be ‘‘criminal proceedings’’ and

while dealing with such proceedings, the High Court exercises its ‘‘criminal

jurisdiction’’.

34. It would be pertinent to point out that insofar as the present

case is concerned, this view of ours becomes more formidable when we

peruse the nature of challenge that was laid by the appellant C.S. Agarwal

in the writ petition seeking quashing of the FIR. This petition was filed

under Article 226 of the Constitution read with Section 482 of the Code

of Criminal Procedure. We are conscious of the judgment of the Supreme

Court in the case of State of Karnataka Vs. Pastor P. Raju [2006 (6)

SCC 782] holding that power to quash an FIR is only under Article 226

of the Constitution and not under Section 482 of Code of Criminal

Procedure. At the same time, one has also to keep in mind the limited

grounds on which challenge can be predicated by filing writ petition

under Article 226 of the Constitution to which proceedings are still at the

stage of investigation after registration of FIR [State of Haryana Vs.

Bhajan Lal (supra)].

35. We would also like to point out the judgment of the Supreme

Court in the case of MMTC Vs. Commissioner of Commercial Tax

[2009 (1) SCC 8] and that of the judgment of the Madhya Pradesh High

Court in the case of Dr. Jaidev Siddha Vs. Jaiprakash Siddha [2007

(3) MPLJ 595].

36. In the case of MMTC (supra), the Supreme Court held that for

determining the real character of the impugned order, the Court may look

at the basic averments invoking the jurisdiction.

37. In Dr. Jaidev Siddha Vs. Jaiprakash Siddha (supra), the

High Court followed the said principle observing as under:

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‘‘17. From the aforesaid enunciation of law it is quite vivid and

luminiscent that the pleadings in the writ petition, nature of the

order passed by the learned Single Judge, character and the

contour of the order, directions issued, nomenclature given, the

jurisdictional prospective in the constitutional context are to be

perceived. It cannot be said in a hyper technical manner that an

order passed in a writ petition, if there is assail to the order

emerging from the Inferior Tribunal or Subordinate Courts has

to be treated all the time for all purposes to be under Article 227

of the Constitution of India. Phraseology used in exercise of

original jurisdiction under Article 226 of the Constitution in Section

2 of the Act cannot be given a restricted and constricted meaning

because an order passed in a writ petition can tantamount to an

order under Article 226 or 227 of the Constitution of India and

it would depend upon the real nature of the order passed by the

learned Single Judge. To elaborate; whether the learned Single

Judge has exercised his jurisdiction under Article 226 or under

Article 227 or both would depend upon various aspects and

many a facet as has been emphasized in the aforequoted decisions

of the Apex Court. The pleadings, as has been indicated

hereinabove, also assume immense significance. As has been

held in the case of Surya Dev Rai (supra), a writ of certiorari

can be issued under Article 226 of the Constitution against an

order of a Tribunal or an order passed by the Subordinate Court.

In quintessentially, it cannot be put in a straitjacket formula that

any order of the learned Single Judge that deals with an order

arising from an Inferior Tribunal or the Subordinate Court is an

order under Article 227 of the Constitution of India and not an

order under Article 226 of the Constitution. It would not be an

overemphasis to state that an order in a writ petition can fit into

the subtle contour of Articles 226 and 227 of the Constitution in

a composite manner and they can co-inside, co- exit, overlap or

imbricate. In this context it is apt to note that there may be cases

where the learned Single Judge may feel disposed or inclined to

issue a writ to do full and complete justice because it is to be

borne in mind that Article 226 of the Constitution is fundamentally

a repository and reservoir of justice based on equity and good

conscience. It will depend upon factual matrix of the case.’’

38. Keeping in mind the aforesaid considerations, let us scan through

the averments by C.S. Agarwarl in his writ petition. The FIR in question

lodged by the respondent No.3 alleges cheating and misappropriation on

the part of the appellants. In the first para of the writ petition, it is alleged

that the Economic Offences Wing, Delhi has registered the FIR in a mala

fide and illegal manner when the Court of Metropolitan Magistrate, Patiala

House Courts, New Delhi was seized of the matter wherein the Police

officials itself had filed a status report/action taken report concluding that

the transaction between the parties is of civil nature. The petitioner has

also impugned order dated 14.01.2010 passed by the Court of Shri

Ravinder Singh, M.M., in CC No.264/2009 alleging that the learned Judge

has adopted illegal procedure in violation of directions given by this Court

in the matter of Dr. Rajni Patriwala Vs. Dr. D. Mohan & Anr. [2009

(3) JCC 1896]. Thus, in any case, a part of the writ petition relates to

quashing the order passed by the learned Metropolitan Magistrate in the

criminal proceedings. Even other relief seeking quashing of the FIR is

primarily on the ground that it is a civil matter and therefore, Economic

Offences Wing should not have registered the FIR and registration of

such an FIR is colourable exercise of power. In support of this plea, it

was argued that essential ingredients of the offence in respect of various

provisions under which FIR was registered were not made out. The

perusal of the order of the learned Single Judge would reflect that the

entire matter was argued from criminal law perspective with regard to

illegality of investigation entered upon by the Police on registration of

FIR. The learned Single Judge has gone into the allegations made in the

FIR on the basis of which it is prima facie concluded that those allegations,

if found correct, would constitute the offence of cheating and

misappropriation. We are not commenting upon the correctness or

otherwise of the order passed by the learned Single Judge. What we

emphasize is that this would clearly show that the entire matter is looked

into from the criminal law perspective and while dealing with the matter

the learned Single Judge was exercising ‘criminal jurisdiction’.

39. We find force in the submission of Mr. Tulsi, learned Senior

Counsel for the respondent that the decision of the Constitutional Bench

of the Supreme Court in the case of I.S.A.L. Rao (supra) cited by the

learned Senior Counsel for the petitioner does not support his contention

in any way. All that is held in the said judgment by the Supreme Court

727 728C.S. Agarwal v. State & Ors. (A.K. Sikri, J.)

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is that the proceeding for the recovery of tax and interest was a civil

proceeding. It was further clarified in para 8 of the said judgment that

the character of proceeding does not depend on the nature of Tribunal

but on the nature of right violated. Enforcement of civil right and seeking

quashing of investigation of criminal offences punishable under penal

statute are totally different.

40. We are, thus, of the considered opinion that the learned Single

Judge was exercising criminal jurisdiction while dealing with the writ

petition of C.S. Agarwal filed under Article 226 of the Constitution. As

a consequence, the LPAs are barred and not maintainable. Accordingly,

we dismiss these appeals with costs.

ILR (2011) VI DELHI 729

WP (C)

M/S STERLING AGRO INDUSTRIES LTD. ....PETITIONER

VERSUS

UNION OF INDIA & ORS. ....RESPONDENTS

(DIPAK MISRA, CJ. VIKRAMAJIT SEN, A.K. SIKRI,

SANJIV KHANNA & MANMOHAN, JJJJ.)

WP (C) NO. : 6570/2010, DATE OF DECISION: 01.08.2011

8399/2009, 2447/2010,

2448/2010 & 6953/2010

Constitution of India, 1950—Article 226—Petitioner

industry is situated at Industrial area Q-5-6, Ghirongi,

Distt. Bhind, Malanpur in the State of Madhya Pradesh—

Assistant Commissioner of Custom, ICD, Malanpur

ordered that no draw-back facility is admissible to the

petition as it had by way of procuring duty free inputs

under Rule 19 (2) of the Central Excise Rules, 2002,

contravened clause (ii) of the second proviso to Rule

3 (1) of the Central Excise Drawback Rules, 1995 and

also condition No. 7 (F) of the notification No. 68/2007-

Cus (NT) and condition No. 8 (F) of the notification No.

103/2008-Cus (NT)—Petitioner preferred revision—

Revision dismissed by Revisionary Authority,

Government of India, Ministry of Finance, Department

of Revenue—Petitioner challenged the legal

substantiality and sustainability of the order dated

09.07.2010 passed by Revisionary Authority—Division

Bench referred the matter for reconsideration by Full

Bench doubting the correctness and soundness of

the decision in New India Assurance Company Limited

v. Union of India and others, AIR 2010 Delhi 43 (FB)—

Full Bench thought it appropriate that the matter

should be considered by a larger Bench—Larger Bench

constituted and matter was placed before the Larger

Bench—Controversy is pertaining to the jurisdiction

of Hon’ble High Court of Delhi in these writ petitions

under Article 226—Held—The principle of forum

conveniens in its ambit and sweep encapsulates the

concept that a cause of action arising within the

jurisdiction of the Court would not itself constitute to

be the determining factor compelling the Court to

entertain the matter—While exercising jurisdiction

under Articles 226 and 227 of the Constitution of India,

the Court cannot be totally oblivious of the concept of

forum conveniens—The Full Bench in New India

Assurance Co. Ltd. (supra) has not kept in view the

concept of forum conveniens and has expressed the

view that if the appellate authority who has passed

the order is situated in Delhi, then the Delhi High

Court should be treated as the forum conveniens—

Findings and conclusions of the Full Bench in New

India Assurance Company Limited (supra) Modified and

conclusions in seriatim Stated as follows : (a) The

finding recorded by the Full Bench that the sole

cause of action emerges at the place or location

729 730Sterling Agro Industries Ltd. v. Union of India (Dipak Misra, CJ.)

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where the tribunal/appellate authority/revisional

authority is situate and the said High Court i.e., Delhi

High Court cannot decline to entertain the writ petition

as that would amount to failure of the duty of the

Court, cannot be accepted inasmuch as such a finding

is totally based on the situs of the Tribunal/Appellate

Authority/Revisional Authority totally ignoring the

concept of forum conveniens (b) Even if a miniscule

part of cause of action arises within the jurisdiction of

this court, a writ petition would be maintainable before

this Court; however, the cause of action has to be

understood as per the ratio laid down in the case of

Alchemist Ltd. (c) An order of the Appellate authority

constitutes a part of cause of action to make the writ

petition maintainable in the High Court within whose

jurisdiction the appellate authority is situated—Yet,

the same may not be the singular factor to compel the

High Court to decide the matter on merits—The High

Court may refuse to exercise its discretionary

jurisdiction by invoking the doctrine of forum

conveniens. (d) The conclusion that where the

appellate or revisional authority is located constitutes

the place of forum conveniens as stated in absolute

terms by the Full Bench is not correct as it will vary

from case to case and depend upon the lis in

question—(e) The finding that the court may refuse to

exercise jurisdiction under Article 226 if only the

jurisdiction is invoked in a malafide manner is too

restricted/constricted as the exercise of power under

Article 226 being discretionary, cannot be limited or

restricted to the ground of malafide alone—(f) While

entertaining a writ petition, the doctrine of forum

conveniens and the nature of cause of action are

required to be scrutinized by the High Court depending

upon the factual matrix of each case in view of what

has been stated in Ambica Industries (supra) and Adani

Exports Ltd. (supra)—(g) The conclusion of the earlier

decision of the Full Bench in New India Assurance

Company Limited (supra) ‘‘that since the original order

merges into the appellate order, the place where the

appellate authority is located is also forum conveniens’’

is not correct—(h) Any decision of this Court contrary

to the conclusions enumerated hereinabove stands

overruled—Ex consequenti, reference answered by

partially overruling and clarifying the decision in New

India Assurance company Limited (supra) in the above

terms. Matters directed to be listed before the

appropriate Division Bench for appropriate

consideration.

The principle of forum conveniens in its ambit and sweep

encapsulates the concept that a cause of action arising

within the jurisdiction of the Court would not itself constitute

to be the determining factor compelling the Court to entertain

the matter. While exercising jurisdiction under Articles 226

and 227 of the Constitution of India, the Court cannot be

totally oblivious of the concept of forum conveniens. The

Full Bench in New India Assurance Co. Ltd. (supra) has

not kept in view the concept of forum conveniens and has

expressed the view that if the appellate authority who has

passed the order is situated in Delhi, then the Delhi High

Court should be treated as the forum conveniens. We are

unable to subscribe to the said view. (Para 32)

In view of the aforesaid analysis, we are inclined to modify

the findings and conclusions of the Full Bench in New India

Assurance Company Limited (supra) and proceed to

state our conclusions in seriatim as follows:

(a) The finding recorded by the Full Bench that the

sole cause of action emerges at the place or location

where the tribunal/appellate authority/revisional

authority is situate and the said High Court (i.e., Delhi

High Court) cannot decline to entertain the writ petition

as that would amount to failure of the duty of the

Court cannot be accepted inasmuch as such a finding

is totally based on the situs of the tribunal/appellate

731 732Sterling Agro Industries Ltd. v. Union of India (Dipak Misra, CJ.)

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authority/revisional authority totally ignoring the concept

of forum conveniens.

(b) Even if a miniscule part of cause of action arises

within the jurisdiction of this court, a writ petition would

be maintainable before this Court, however, the cause

of action has to be understood as per the ratio laid

down in the case of Alchemist Ltd. (supra).

(c) An order of the appellate authority constitutes a

part of cause of action to make the writ petition

maintainable in the High Court within whose jurisdiction

the appellate authority is situated. Yet, the same may

not be the singular factor to compel the High Court to

decide the matter on merits. The High Court may

refuse to exercise its discretionary jurisdiction by

invoking the doctrine of forum conveniens.

(d) The conclusion that where the appellate or revisional

authority is located constitutes the place of forum

conveniens as stated in absolute terms by the Full

Bench is not correct as it will vary from case to case

and depend upon the lis in question.

(e) The finding that the court may refuse to exercise

jurisdiction under Article 226 if only the jurisdiction is

invoked in a malafide manner is too restricted /

constricted as the exercise of power under Article 226

being discretionary cannot be limited or restricted to

the ground of malafide alone.

(f) While entertaining a writ petition, the doctrine of

forum conveniens and the nature of cause of action

are required to be scrutinized by the High Court

depending upon the factual matrix of each case in

view of what has been stated in Ambica Industries

(supra) and Adani Exports Ltd. (supra).

(g) The conclusion of the earlier decision of the Full

Bench in New India Assurance Company Limited

(supra) ‘‘that since the original order merges into the

appellate order, the place where the appellate authority

is located is also forum conveniens’’ is not correct.

(h) Any decision of this Court contrary to the

conclusions enumerated hereinabove stands

overruled. (Para 33)

Ex consequenti, we answer the reference by partially

overruling and clarifying the decision in New India

Assurance Company Limited (supra) in the above terms.

Matters be listed before the appropriate Division Bench for

appropriate consideration. (Para 34)

Important Issue Involved: The doctrine of forum

conveniens and nature of cause of cause is to be scrutinized

by High Court for exercising jurisdiction under Article 226

of Constitution of India, 1950.

[Vi Ba]

APPEARANCES:

FOR THE PETITIONER : Mr. M.P. Devnath with Mr. Manish

Panda, Mr. Abhishek Anand and Mr.

Tarun Jain, Advocates Mr. Atul

Nanda, Amicus Curiae Mr. Sanjay

Parikh with Mr. Ritwick Dutta and

Mr. Rahul Choudhary Advocates Mr.

R. Santhanam with Mr. A.P. Sinha,

Advocates Mr. A.S. Chandhiok, ASJ

with Mr. Sandeep Bajaj, Mr. G.S.

Parwanda, Ms. Riya Kaul, Ms. Neha

Rastogi, Advocates for UOI.

FOR THE RESPONDENTS : Mr. A.S. Chandhiok, ASG with Ms.

Sonia Sharma and Ms. Sandeep Bajaj,

Advocates for UOI. Mr. A.S.

Chandhiok, ASG with Mr. Mukesh

Anand with Mr. Shailesh Tiwari, Mr.

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Indian Law Reports (Delhi) ILR (2011) VI Delhi

Sumit Batra & Mr. R.C.S. Bhadoria,

Mr. Jayendra Advocates for R-2 &

R-3. Mr. D.K. Sharma, Advocate for

R-1 Ms. Yogmaya Agnihotri,

Advocate for R-2. Mr. Ashwani

Mata, Sr. Advocate with Mr. Rishi

Agrawala, Mr. Akshay Ringe and Ms.

Kanika Agnihotri, Ms. Misha

Rohtagi, Mr. Vaibhav Agnihotri,

Advocates for R-3. Mr. A.S.

Chandhiok, ASG with Mr. Sandeep

Bajaj, Mr. G.S. Parwanda, Ms. Riya

Kaul, Ms. Neha Rastogi, Advocates

for UOI. Mr. A.S. Chandhiok, ASJ

with Mr. Sandeep Bajaj, Mr. G.S.

Parwanda, Ms. Riya Kaul, Ms. Neha

Rastogi, Advocates for UOI. Mr.

A.S. Chandhiok, ASG with Mr.

Mukesh Anand with Mr. Shailesh

Tiwari, Mr. Sumit Batra & Mr.

R.C.S. Bhadoria, Mr. Jayendra

Advocates Department of Central

Excise.

CASES REFERRED TO:

1. India Assurance Company Limited vs. Union of India

and others, AIR 2010 Delhi 43 (FB).

2. Rajendran Chingaravelu vs. R.K. Mishra, (2010) 1 SCC

457.

3. Rajkumar Shivhare vs. Assistant Director of Enforcement,

Mumbai 154 (2008) DLT 28.

4. West Coast Ingots (P) Ltd. vs. Commissioner of Central

Excise, New Delhi, 2007 (209) ELT 343 (Del).

5. Ambica Industries vs. Commissioner of Central Excise,

2007 (213) ELT 323(SC).

6. Alchemist Ltd. and Anr. vs. State Bank of Sikkim and

ors., (2007) 11 SCC 335.

7. Bombay Snuff (P) Ltd. vs. Union of India, 2006 (194)

ELT 264 (Del).

8. Mayar (H.K.) Ltd. vs. Owners & Parties, Vessel M.V.

Fortune Express, (2006) 3 SCC 100: (2006) 2 Scale 30

9. Mosaraf Hossain Khan vs. Bhagheeratha Engg. Ltd. &

Ors., (2006) 3 SCC 658.

10. National Textile Corporation Ltd. vs. Haribox Swalram,

(2004) 9 SCC 786 : JT (2004) 4 SC 508.

11. Kusum Ingots & Alloys Ltd. vs. Union of India, (2004)

6 SCC 254 : JT (2004) Supp 1 SC 475.

12. Kishore Rungta and ors. vs. Punjab National Bank and

ors., 2003 (151) ELT 502 (Bom).

13. Union of India vs. Adani Exports Ltd., (2002) 1 SCC

567.

14. Sita Ram Singhania vs. Bank of Tokyo-Mitsubishi Ltd.

and ors, AIR 2000 SC 2180.

15. Navinchandra N. Majithia vs. State of Maharashtra, AIR

2000 SC 2966.

16. CBI. Anti-Corruption Branch vs. Narayan Diwakar, (1999)

4 SCC 656.

17. Bharat Coking Coal Limited vs. Jharia Talkies & Cold

Storage (P) Ltd., 1997 CWN 122.

18. Oil and Natural Gas Commission vs. Utpal Kumar Basu

and others, (1994) 4 SCC 711.

19. ONGC vs. Utpal Kumar Basu, (1994) 4 SCC 711 : JT

(1994) 6 SC 1.

20. S.S. Jain & Co. vs. Union of India, (1994) 1 CHN 445.

21. New Horizon Ltd. vs. Union of India, AIR 1994 Del 126.

22. Aligarh Muslim University vs. Vinay Engg. Enterprises

(P) Ltd., (1994) 4 SCC 710.

23. Indian Institute of Technology vs. P.C. Jain and Ors., 45

(1991) DLT42.

24. A.B.C. Laminart (P) Ltd. vs. A.P. Agencies, AIR 1989

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A

B

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D

E

F

G

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B

C

D

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I

SC 1239.

25. State of Rajasthan vs. Swaika Properties, AIR 1985 SC

1289.

26. Union of India vs. Oswal Woollen Mills Ltd., (1984) 2

SCC 646.

27. Sri Nasiruddin vs. State Transport Appellate Tribunal,

(1975) 2 SCC 671.

28. Damomal Kausomal Raisinghani vs. Union of India, AIR

1967 Bom 355.

29. Collector of Customs, Calcutta vs. East India Commercial

Co. Ltd., Calcutta and others, AIR 1963 SC 1124.

30. Ltd. Col. Khajoor Singh vs. Union of India, AIR 1961

SC 532.

31. K.S. Rashid and Son vs. The Income Tax Investigation

Commission etc., AIR 1954 SC 207.

32. Election Commission India vs. Saka Venkata Rao, AIR

1953 SC 210.

33. Madanlal Jalan vs. Madanlal, AIR 1949 Cal 495.

34. Bhagat Singh Bugga vs. Dewan Jagbir Sawhany, AIR

1941 Cal 670.

35. Chand Kour vs. Partab Singh ILR (1889) 16 Cal 98, 102.

36. Chand Kour vs. Partab Singh ILR (1887-88) 15 IA 156.

RESULT: Writ petitions disposed of.

DIPAK MISRA, CJ.

1. In view of the similitude of the principal controversy pertaining

to the jurisdiction of the High Court of Delhi being involved in these writ

petitions, they were heard analogously and as the said issue is the only

question of reference, it is being adverted to and dealt with by a singular

order. For the sake of convenience, we shall adumbrate the facts in

W.P.(C) No.6570/2010.

2. Expressing doubt with regard to the correctness and soundness

of the decision in New India Assurance Company Limited v. Union

of India and others, AIR 2010 Delhi 43 (FB), a Division Bench thought

it appropriate to refer the matter for reconsideration by a Full Bench and,

accordingly, a Full Bench was constituted and the Full Bench thought it

appropriate that the matter should be considered by a larger Bench and,

accordingly, the larger Bench has been constituted and the matter has

been placed before us for the aforesaid purpose.

3. Before we proceed to analyze and appreciate the ratio decidendi

in New India Assurance Company Limited (supra), it is seemly to

exposit the necessitous primary facts averred in the present writ petition.

The petitioner, in invocation of the jurisdiction under Article 226 of the

Constitution of India, has called in question the legal substantiality and

sustainability of the order No.214-15/10-Cus dated 9.7.2010, Annexure-

1, passed by the Revisionary Authority, Government of India, Ministry

of Finance, Department of Revenue, whereby the revision application

preferred by the petitioner has been dismissed concurring with the view

expressed by the Commissioner (Appeal-I), Customs & Central Excise,

Indore whereby the appellate authority has given the stamp of approval

to the order passed by the Assistant Commissioner of Customs ICD,

Malanpur who had expressed the view that no drawback facility is

admissible to the petitioner as it had, by way of procuring duty free

inputs under Rule 19(2) of the Central Excise Rules, 2002, contravened

clause (ii) of the second proviso to Rule 3(1) of the Central Excise

Drawback Rules, 1995 and also condition No.7(F) of the notification

No.68/2007-Cus (NT) and condition No.8(F) of the notification No.103/

2008-Cus (NT).

4. It is the admitted position that the petitioner – industry is situate

at Industrial Area, Q-5-6, Ghirongi, Dist. — Bhind, Malanpur in the State

of Madhya Pradesh. The initial order was passed on 30.5.2009 by the

Assistant Commissioner of Customs ICD, Malanpur, Dist. Bhind (M.P.).

The appellate order was passed by the Commissioner (Appeals)-I, Customs

and Central Excise & Service Tax at Indore (M.P.).

5. Being dissatisfied with the order passed by the revisional authority,

the petitioner has invoked the inherent jurisdiction of this Court under

Article 226 of the Constitution of India solely on the foundation that the

revisional authority, namely, the office of the Joint Secretary to the

Government of India, is in Delhi and, therefore, this Court has the

territorial jurisdiction to deal with the lis in question. It is proponed in the

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Indian Law Reports (Delhi) ILR (2011) VI Delhi

petition that it is the Joint Secretary who is answerable to justify his

order and, ergo, this Court can and should dwell upon the controversy.

In the grounds enumerated in the writ petition, reliance has been placed

on the decision rendered in New India Assurance Company Limited

(supra).

6. We have heard the learned counsel for the parties and Mr.Atul

Nanda, learned senior counsel as the Amicus Curiae.

7. At this juncture, we think it apposite to refer to the history of

Article 226 of the Constitution of India. Initially, Article 226 of the

Constitution of India read thus:

‘‘226. (1) Notwithstanding anything in Article 32, every High

Court shall have power, throughout the territories in relation to

which it exercises jurisdiction, to issue to any person or authority,

including in appropriate cases any Government, within those

territories directions, orders or writs, including writs in the nature

of habeas corpus, mandamus, prohibition, quo warranto and

certiorari, or any of them, for the enforcement of any of the

rights conferred by Part III and for any other purpose.

(2) The power conferred on a High Court by clause (1) shall not

be in derogation of the power conferred on the Supreme Court

by clause (2) of Article 32.’’

8. On the basis of the aforesaid constitutional provision, a strict

construction was placed and the plea of cause of action or forum

conveniens was not given acceptance by the Apex Court in Election

Commission India v. Saka Venkata Rao, AIR 1953 SC 210. Their

Lordships opined in the said case as follows:

‘‘The rule that cause of action attracts jurisdiction in suits is

based on statutory enactment and cannot apply to writs issuable

under Article 226 which makes no reference to any cause of

action or where it arises but insists on the presence of the

person or authority ‘‘within the territories’’ in relation to which

the High Court exercises jurisdiction.’’

9. In Ltd. Col. Khajoor Singh v. Union of India, AIR 1961 SC

532, a Division Bench of Jammu and Kashmir High Court had upheld the

preliminary objections raised before it and had held that it had no

jurisdiction to issue a writ against the Union of India and to arrive at the

said conclusion, the High Court had placed reliance on the decisions in

Saka Venkata Rao (supra) and K.S. Rashid and Son v. The Income

Tax Investigation Commission etc., AIR 1954 SC 207. It was contended

before the Apex Court that the aforesaid two decisions were distinguishable

from the factual matrix therein inasmuch as in the earlier cases, the

Election Commission and the Income Tax Investigation Commission were

statutory bodies which have their location in Delhi and, therefore, the

view was expressed in that manner. The majority posed two questions,

namely, (i) whether the Government of India as such can be said to have

a location in a particular place, that is, New Delhi, irrespective of the fact

that its authority extends over all the States and its officers function

throughout India; and (ii) whether there is any scope for introducing the

concept of cause of action as the basis for exercise of jurisdiction under

Article 226. Their Lordships, while dealing with the first aspect, opined

thus:

‘‘It would, therefore, in our opinion be wrong to introduce in

Article 226 the concept of the place where the order passed has

effect in order to determine the jurisdiction of the High Court

which can give relief under Article 226. The introduction of

such a concept may give rise to confusion and conflict of

jurisdiction.’’

10. Thereafter, it has been held as follows:

‘‘There can, therefore, be no escape from the conclusion that

these words in Article 226 refer not to the place where the

Government may be functioning but only to the place where the

person or authority is either resident or is located. So far therefore

as a natural person is concerned, he is within those territories if

he resides there permanently or temporarily. So far as an authority

(other than a Government) is concerned, it is within the territories

if its office is located there. So far as a Government is concerned

it is within the territories only if its seat is within those territories.’’

11. Their Lordships then answered the second question in the

following terms:

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‘‘16. Article 226 as it stands does not refer anywhere to the

accrual of cause of action and to the jurisdiction of the High

Court depending on the place where the cause of action accrues

being within its territorial jurisdiction. Proceedings under Article

226 are not suits; they provide for extraordinary remedies by a

special procedure and give powers of correction to the High

Court over persons and authorities and these special powers

have to be exercised within the limits set for them. These two

limitations have already been indicated by us above and one of

them is that the person or authority concerned must be within

the territories over which the High Court exercises jurisdiction.

Is it possible then to overlook this constitutional limitation and

say that the High Court can issue a writ against a person or

authority even though it may not be within its territories simply

because the cause of action has arisen within those territories?

It seems to us that it would be going in the face of the express

provision in Art. 226 and doing away with an express limitation

contained therein if the concept of cause of action were to be

introduced in it. Nor do we think that it is right to say that

because Art. 300 specifically provides for suits by and against

the Government of India, the proceedings under Art. 226 are

also covered by Art. 300. It seems to us that Art. 300 which is

on the same line as S.176 of the Government of India Act, 1935,

dealt with suits as such and proceedings analogous to or

consequent upon suits and has no reference to the extraordinary

remedies provided by Art. 226 of the Constitution. The concept

of cause of action cannot in our opinion be introduced in Art.

226, for by doing so we shall be doing away with the express

provision contained therein which requires that the person or

authority to whom the writ is to be issued should be resident in

or located within the territories over which the High Court has

jurisdiction. It is true that this may result in some inconvenience

to person residing far away from New Delhi who are aggrieved

by some order of the Government of India as such, and that may

be a reason for making a suitable constitutional amendment in

Art. 226.’’

12. After the said decision came into the field, the Parliament brought

the 15th Amendment and inserted Clause (1A) in the Constitution by the

15th Amendment Act, 1963. Clause (1A) read as follows:

‘‘(1A) The power conferred by clause (1) to issue directions,

orders or writs to any Government, authority or person may also

be exercised by any High Court exercising jurisdiction in relation

to the territories within which the cause of action, wholly or in

part, arises for the exercise of such power, notwithstanding that

the seat of such Government or authority or the residence of

such person is not within those territories.’’

13. By the 42nd constitutional amendment, Clause (1A) was

renumbered as Clause (2) and in the present incarnation, it reads as

follows:

‘‘(2) The power conferred by clause (1) to issue directions,

orders or writs to any Government, authority or person may also

be exercised by any High Court exercising jurisdiction in relation

to the territories within which the cause of action, wholly or in

part, arises for the exercise of such power, notwithstanding that

the seat of such Government or authority or the residence of

such person is not within those territories.’’

14. From the aforesaid chronological narration of the growth of

Article 226 of the Constitution, the concept of cause of action arising

wholly or in part came into existence for the exercise of power under

the said Article.

15. Regard being had to the aforesaid historical backdrop, we shall

presently proceed to deal with the Full Bench decision in New India

Assurance Company Limited (supra) to perceive how it has dealt with

the concept of jurisdiction in the context of the conception of cause of

action and the appreciation of the ratio of various citations by the Full

Bench referred to by it. It is worth noting that the matter travelled to the

Full Bench by reference made by the Division Bench while hearing a

letters patent appeal from an order of the single Judge who had dismissed

the writ petition summarily on the ground that significant part of the

cause of action could not have been said to have arisen within the

territorial jurisdiction of this Court and merely because the order under

challenge had been passed by the appellate authority located within the

territorial jurisdiction, the same could not be sufficient enough for

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main contention is of possibility of conflict. We do not find any

merit in this contention of the counsel for the contesting

respondent. First, that is not the case in hand. The contesting

respondent is not aggrieved by the order of the appellate authority

and has not assailed the same before any High Court. Thus,

there is no possibility of conflicting judgments or confusion in

the present case. Secondly, even if in a given case such a situation

were to arise, the same is bound to be brought to the notice of

the court and the likelihood of both courts proceeding with the

writ petition and conflicting judgments is remote. In such a

situation, following the principle in Section 10 of the Code of

Civil Procedure, the subsequently filed petition may be stayed in

view of the earlier petition entailing similar questions or the court

may ask the petitioner to approach the High Court where the

earlier petition has been filed. In our opinion, it will be inappropriate

to refuse to exercise jurisdiction merely on the basis of possibility

of conflict of judgments, particularly in view of the clear language

of Article 226(2).

30. Having held that this Court has jurisdiction, it cannot be said

that only an insignificant or miniscule part of the cause of action

has accrued within the jurisdiction of this Court or that the

substantial cause of action has accrued within the jurisdiction of

the High Court of Andhra Pradesh. In fact, the sole cause of

action for the writ petition is the order of the appellate authority

and which cause of action has accrued entirely within the

jurisdiction of this Court and this Court would be failing in its

duty/function if declined to entertain the writ petition on the

ground of the contesting respondent being situated within the

jurisdiction of the High Court of Andhra Pradesh. Though the

petition has been filed under Article 226 of the Constitution, it

cannot be lost sight of that jurisdiction in such cases under

Article 226 is overlapping with Article 227. Article 227 is clear

in this regard. The power of superintendence over Tribunals is

vested in the High Court within whose jurisdiction the Tribunal

is situated. In that light of the matter also, it cannot be said that

only insignificant or miniscule part of the cause of action has

accrued within the jurisdiction of this Court. The appellate

authority in the present case having passed the order which is

743 744Sterling Agro Industries Ltd. v. Union of India (Dipak Misra, CJ.)

conferment of jurisdiction. The learned single Judge, to arrive at the said

conclusion, had placed reliance on the decisions in Ambica Industries

v. Commissioner of Central Excise, 2007 (213) ELT 323(SC), Bombay

Snuff (P) Ltd. v. Union of India, 2006 (194) ELT 264 (Del), Rajkumar

Shivhare v. Assistant Director of Enforcement, Mumbai 154 (2008)

DLT 28 and West Coast Ingots (P) Ltd. v. Commissioner of Central

Excise, New Delhi, 2007 (209) ELT 343 (Del). The Full Bench referred

to the arguments canvassed at the Bar, took note of the legislative history

of Article 226 of the Constitution of India and referred to the decisions

of the Apex Court in Collector of Customs, Calcutta v. East India

Commercial Co. Ltd., Calcutta and others, AIR 1963 SC 1124, Kusum

Ingots & Alloys Ltd. v. Union of India, (2004) 6 SCC 254, Sri

Nasiruddin v. State Transport Appellate Tribunal, (1975) 2 SCC 671

and Navinchandra N. Majithia v. State of Maharashtra, AIR 2000 SC

2966, the decision of the High Court of Bombay in Kishore Rungta and

ors. v. Punjab National Bank and ors., 2003 (151) ELT 502 (Bom)

and the decision of the High Court of Delhi in Indian Institute of

Technology v. P.C. Jain and Ors., 45 (1991) DLT42 and eventually

held thus:

‘‘29. As held in Nasiruddin’s case, even where part of the cause

of action arose, it would be open to the litigant, who is the

dominus litis to have his forum conveniens. In the present case,

since the Appellate Authority is situated at New Delhi, the Delhi

High Court has the jurisdiction under Article 226 of the

Constitution of India and, therefore, there was no occasion for

the learned single Judge to apply the principle of forum conveniens

to refuse to exercise the jurisdiction. The principle of forum

nonconveniens originated as a principle of international law,

concerned with Comity of Nations. A domestic court in which

jurisdiction is vested by law otherwise ought not to refuse exercise

of jurisdiction for the reason that under the same law some other

courts also have jurisdiction. However, the remedy under Article

226 being discretionary, the court may refuse to exercise

jurisdiction when jurisdiction has been invoked mala fide. There

is no such suggestion in the present case. Nothing has been

urged that it is inconvenient to the contesting respondent to

contest the writ before this Court. The counsel for the contesting

respondent has not disputed the jurisdiction of this Court; his

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impugned in the petition, being situated within the jurisdiction of

this Court, even if the cause of action doctrine were to be

invoked, substantial part of the cause of action has accrued

within the jurisdiction of this Court only. Even the language of

the impugned order giving rise to the cause of action in the writ

petition, discloses significant cause of action to have accrued

within the jurisdiction of this Court. This Court while deciding

this writ petition is not required to issue any direction, order or

writ to any person outside its jurisdiction. Section 110H of the

Insurance Act provides for appeal to the Central Government,

seat whereof is admittedly within the jurisdiction of this Court.

CONCLUSION

31. For the foregoing reasons, we hold that where an order is

passed by an appellate authority or a revisional authority, a part

of cause of (sic action) arises at that place. When the original

authority is situated at one place and the appellate authority is

situated at another, a writ petition would be maintainable at both

the places. As the order of appellate authority constitutes a part

of cause of action, a writ petition would be maintainable in the

High Court within whose jurisdiction it is situate having regard

to the fact that the petitioner is dominus litis to choose his

forum, and that since the original order merges into the appellate

order, the place where the appellate authority is located is also

forum conveniens.’’

[Emphasis added]

16. On a nuanced scrutiny of the decision of the Full Bench, it is

clear as day that it has expressed the view which can be culled out in

seriatim as follows:

(i) Once the Court comes to hold that it has jurisdiction, the

plea that only an insignificant or miniscule part of the

cause of action has accrued within the jurisdiction of the

Court or that the substantial cause of action has accrued

in another State is inconsequential.

(ii) The ‘‘sole’’ cause of action emerges when an order by

the appellate authority situated within the territorial

jurisdiction of Delhi is passed and when the ‘‘sole’’ cause

of action accrues entirely within the jurisdiction of this

Court, declining to entertain the writ petition would amount

to failure of duty of the Court.

(iii) This Court has jurisdiction under Article 227 since it has

the power of superintendence over tribunals situated within

its jurisdiction and judged in that light, it cannot be said

that only an insignificant or miniscule part of the cause of

action has accrued within the jurisdiction of this Court.

(iv) Even if the doctrine of cause of action is adopted or

invoked, the substantial part of the cause of action arises

because the order under assail is that of the appellate

authority / tribunal which is situated in Delhi.

(v) As the original order merges into the appellate order, the

place where the appellate authority is located is also the

forum conveniens.

(vi) The remedy under Article 226 being discretionary, the

Court may refuse to exercise jurisdiction only when

jurisdiction has been invoked with malafide intent.

Be it noted, the Full Bench had also observed that as the appellate

authority is situate at New Delhi, the Delhi High Court has the jurisdiction

under Article 226 of the Constitution of India and, therefore, there was

no occasion for the learned Single Judge to apply the principle of forum

conveniens to refuse exercise of jurisdiction.

17. Presently, we shall proceed to advert to the authorities that have

been referred to and relied upon by the Full Bench for the simon pure

reason that understanding of the principles exposited therein would enable

us to appreciate the enunciation of the law by the Full Bench and also

refer to certain authorities that have been cited before us.

18. In the case of Sri Nasiruddin (supra), it has been held thus:

‘‘...the expression “cause of action” in an application under Article

226 would be as the expression is understood and if the cause

of action arose because of the appellate order or the revisional

order which came to be passed at Lucknow then Lucknow

would have jurisdiction though the original order was passed at

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a place outside the areas in Oudh. It may be that the original

order was in favour of the person applying for a writ. In such

case an adverse appellate order might be the cause of action.

The expression “cause of action” is well-known. If the cause of

action arises wholly or in part at a place within the specified

Oudh areas, the Lucknow Bench will have jurisdiction. If the

cause of action arises wholly within the specified Oudh areas, it

is indisputable that the Lucknow Bench would have exclusive

jurisdiction in such a matter. If the cause of action arises in part

within the specified areas in Oudh it would be open to the litigant

who is the dominus litis to have his forum conveniens. The

litigant has the right to go to a Court where part of his cause of

action arises. In such cases, it is incorrect to say that the litigant

chooses any particular Court. The choice is by reason of the

jurisdiction of the Court being attracted by part of cause of

action arising within the jurisdiction of the Court...’’

19. In Kishore Rungta and ors. (supra), a writ petition was filed

challenging the order passed by the Debt Recovery Appellate Tribunal,

Mumbai dismissing an order of the Debt Recovery Appellate Tribunal,

Jaipur. A preliminary objection was raised regarding the jurisdiction of

the High Court of Bombay. The Division Bench of the High Court of

Bombay referred to the decisions in East India Commercial Co. Ltd.,

Calcutta and others (supra), Damomal Kausomal Raisinghani v.

Union of India, AIR 1967 Bom 355, Navinchandra N. Majithia (supra)

and Sita Ram Singhania v. Bank of Tokyo-Mitsubishi Ltd. and ors,

AIR 2000 SC 2180 and came to opine thus:

‘‘16. Mr. Tulzapurkar lastly submitted that a part of the cause

of action having arisen in Mumbai, this Court has jurisdiction to

entertain the Petition in view of Article 226(2) of the Constitution.

We are in agreement with Mr. Tulzapurkar. The 15th amendment

to the Constitution which introduced clause 2 in Article 226 was

intended to widen the ambit of the area for reaching the writs

issued by the High Court. Clause 2 of Article 226 is as under:

‘‘(2) The power conferred by clause (1) to issue directions,

orders or writs to any Government authority or person

may also be exercised by any High Court exercising

jurisdiction in relation to the territories within which the

cause, of action, wholly or in part, arises for the exercise

of such power, notwithstanding that the seat of such

Government or authority or the residence of such person

is not within those territories.’’

In this connection Mr. Tulzapurkar relied upon the judgment of

the Supreme Court in the case of Navinchandra N. Majithia v.

State of Maharashtra, The Supreme Court held that the power

conferred on the High Courts under Article 226 could as well be

exercised by any High Court exercising Jurisdiction in relation to

the territories within which the cause of action, wholly or in part

arises and it is no matter that the seat of the Authority concerned

is outside the territorial limits of the jurisdiction of that High

Court. The Supreme Court further held that the amendment was

aimed at widening the width of the area for reaching the writs

issued by different High Courts. The Supreme Court also held

that the words “cause of action wholly or in part arises” seem

to have been lifted from Section 20 of the Code of Civil

Procedure, which section also deals with the jurisdictional aspect

of the Courts.’’

20. In Alchemist Ltd. and Anr. v. State Bank of Sikkim and

ors., (2007) 11 SCC 335, after referring to the decisions in A.B.C.

Laminart (P) Ltd. v. A.P. Agencies, AIR 1989 SC 1239, Union of

India v. Oswal Woollen Mills Ltd., (1984) 2 SCC 646, State of

Rajasthan v. Swaika Properties, AIR 1985 SC 1289, Oil and Natural

Gas Commission v. Utpal Kumar Basu and others, (1994) 4 SCC

711, CBI, Anti-Corruption Branch v. Narayan Diwakar, (1999) 4

SCC 656, Union of India v. Adani Exports Ltd., (2002) 1 SCC 567,

Kusum Ingots & Alloys Ltd. (supra) and National Textile Corpn.

Ltd. v. Haribox Swalram, (2004) 9 SCC 786, the Supreme Court

expressed the view as follows:

‘‘34. In Kusum Ingots & Alloys Ltd. v. Union of India,

(2004) 6 SCC 254 : JT (2004) Supp 1 SC 475, the appellant was

a Company registered under the Companies Act having its head

office at Mumbai. It obtained a loan from the Bhopal Branch of

the State Bank of India. The Bank issued a notice for repayment

of loan from Bhopal under the Securitisation and Reconstruction

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of Financial Assets and Enforcement of Security Interest Act,

2002. The appellant Company filed a writ petition in the High

Court of Delhi which was dismissed on the ground of lack of

territorial jurisdiction. The Company approached this Court and

contended that as the constitutionality of a parliamentary legislation

was questioned, the High Court of Delhi had the requisite

jurisdiction to entertain the writ petition.

35. Negativing the contention and upholding the order passed by

the High Court, this Court ruled that passing of a legislation by

itself does not confer any such right to file a writ petition in any

Court unless a cause of action arises therefor. The Court stated:

(Kusum Ingots case, SCC p. 261, para 20)

‘‘20. A distinction between a legislation and executive

action should be borne in mind while determining the said

question”.

Referring to ONGC v. Utpal Kumar Basu, (1994) 4 SCC 711

: JT (1994) 6 SC 1, it was held that all necessary facts must

form an ‘‘integral part’’ of the cause of action. The fact which

is neither material nor essential nor integral part of the cause of

action would not constitute a part of cause of action within the

meaning of Clause (2) of Article 226 of the Constitution.

36. In National Textile Corporation Ltd. v. Haribox Swalram,

(2004) 9 SCC 786 : JT (2004) 4 SC 508, referring to earlier

cases, this Court stated that: (SCC p. 797, para 12.1)

‘‘12.1 ...the mere fact that the writ petitioner carries on

business at Calcutta or that the reply to the correspondence

made by it was received at Calcutta is not an integral part

of the cause of action and, therefore, the Calcutta High

Court had no jurisdiction to entertain the writ petition and

the view to the contrary taken by the Division Bench

cannot be sustained.’’

37. From the aforesaid discussion and keeping in view the ratio

laid down in a catena of decisions by this Court, it is clear that

for the purpose of deciding whether facts averred by the appellant-

petitioner would or would not constitute a part of cause of

749 750Sterling Agro Industries Ltd. v. Union of India (Dipak Misra, CJ.)

action, one has to consider whether such fact constitutes a

material, essential, or integral part of the cause of action. It is

no doubt true that even if a small fraction of the cause of action

arises within the jurisdiction of the court, the court would have

territorial jurisdiction to entertain the suit/petition. Nevertheless it

must be a ‘‘part of cause of action’’, nothing less than that.

38. In the present case, the facts which have been pleaded by

the Appellant Company, in our judgment, cannot be said to be

essential, integral or material facts so as to constitute a part of

‘‘cause of action’’ within the meaning of Article 226(2) of the

Constitution. The High Court, in our opinion, therefore, was not

wrong in dismissing the petition.’’ [Emphasis added]

21. In Utpal Kumar Basu and others (supra), a three-Judge Bench

of the Apex Court, while dealing with the territorial jurisdiction in the

backdrop of Article 226(2), has opined thus:

‘‘5. Clause (1) of Article 226 begins with a non-obstante clause-

notwithstanding anything in Article 32 - and provides that every

High Court shall have power ‘‘throughout the territories in relation

to which it exercises jurisdiction’’, to issue to any person or

authority, including in appropriate cases, any Government, ‘‘within

those territories’’ directions, orders or writs, for the enforcement

of any of the rights conferred by Part III or for any other

purpose. Under clause (2) of Article 226 the High court may

exercise its power conferred by clause (1) if the cause of action,

wholly or in part, had arisen within the territory over which it

exercises jurisdiction, notwithstanding that the seat of such

Government or authority or the residence of such person is not

within those territories. On a plain reading of the aforesaid two

clauses of Article 226 of the Constitution it becomes clear that

a High Court can exercise the power to issue directions, orders

or writs for the enforcement of any of the fundamental rights

conferred by Part III of the Constitution or for any other purpose

if the cause of action, wholly or in part, had arisen within the

territories in relation to which it exercises jurisdiction,

notwithstanding that the seat of the Government or authority or

the residence of the person against whom the direction, order or

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writ is issued is not within the said territories. In order to confer

jurisdiction on the High Court of Calcutta, NICCO must show

that at least a part of the cause of action had arisen within the

territorial jurisdiction of that Court. That is at best its case in the

writ petition.

6. It is well settled that the expression ‘‘cause of action’’ means

that bundle of facts which the petitioner must prove, if traversed,

to entitle him to a judgment in his favour by the Court. In Chand

Kour v. Partab Singh ILR (1889) 16 Cal 98, 102 Lord Watson

said:

‘‘...the cause of action has no relation whatever to the

defence which may be set up by the defendant, nor does

it depend upon the character of the relief prayed for by

the plaintiff. It refers entirely to the grounds set forth in

the plaint as the cause of action, or, in other words, to

the media upon which the plaintiff asks the Court to

arrive at a conclusion in his favour.’’

Therefore, in determining the objection of lack of territorial

jurisdiction the court must take all the facts pleaded in support

of the cause of action into consideration albeit without embarking

upon an enquiry as to the correctness or otherwise of the said

facts. In other words the question whether a High Court has

territorial jurisdiction to entertain a writ petition must be answered

on the basis of the averments made in the petition, the truth or

otherwise whereof being immaterial. To put it differently, the

question of territorial jurisdiction must be decided on the facts

pleaded in the petition.’’ [Emphasis added]

22. In Kusum Ingots & Alloys Ltd. (supra), the Apex Court

posed the question whether the seat of Parliament or the legislature of a

State would be a relevant factor for determining the territorial jurisdiction

of a High Court to entertain a writ petition under Article 226 of the

Constitution of India. Their Lordships not only referred to clause (2) of

Article 226 of the Constitution of India but also to the facet of cause of

action as stated in Chand Kour v. Partab Singh ILR (1887-88) 15 IA

156, Utpal Kumar Basu and others (supra), Swaika Properties (supra),

Aligarh Muslim University v. Vinay Engg. Enterprises (P) Ltd., (1994)

4 SCC 710, Union of India v. Adani Exports Ltd., (2002) 1 SCC 567

and Haribox Swalram (supra) and came to hold as follows:

‘‘19. Passing of a legislation by itself in our opinion does not

confer any such right to file a writ petition unless a cause of

action arises therefor.

20. A distinction between a legislation and executive action should

be borne in mind while determining the said question.

21. A parliamentary legislation when receives the assent of the

President of India and is published in the Official Gazette, unless

specifically excluded, will apply to the entire territory of India.

If passing of a legislation gives rise to a cause of action, a writ

petition questioning the constitutionality thereof can be filed in

any High Court of the country. It is not so done because a cause

of action will arise only when the provisions of the Act or some

of them which were implemented shall give rise to civil or evil

consequences to the petitioner. A writ court, it is well settled

would not determine a constitutional question in a vacuum.

22. The court must have the requisite territorial jurisdiction. An

order passed on a writ petition questioning the constitutionality

of a parliamentary Act, whether interim or final, keeping in view

the provisions contained in clause (2) of Article 226 of the

Constitution of India, will have effect throughout the territory of

India subject of course to the applicability of the Act.’’

23. Thereafter, in paragraphs 27 and 29, their Lordships stated

thus:

‘‘27. When an order, however, is passed by a court or tribunal

or an executive authority whether under provisions of a statute

or otherwise, a part of cause of action arises at that place. Even

in a given case, when the original authority is constituted at one

place and the appellate authority is constituted at another, a writ

petition would be maintainable at both the places. In other words

as order of the appellate authority constitutes a part of cause of

action, a writ petition would be maintainable in the High Court

within whose jurisdiction it is situate having regard to the fact

that the order of the appellate authority is also required to be set

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aside and as the order of the original authority merges with that

of the appellate authority.

X X X X

29. In view of clause (2) of Article 226 of the Constitution of

India, now if a part of cause of action arises outside the jurisdiction

of the High Court, it would have jurisdiction to issue a writ. The

decision in Khajoor Singh (supra) has, thus, no application.’’

[Emphasis added]

24. After so stating, in paragraph 30, their Lordships held thus:

‘‘30. We must, however, remind ourselves that even if a small

part of cause of action arises within the territorial jurisdiction of

the High Court, the same by itself may not be considered to be

a determinative factor compelling the High Court to decide the

matter on merit. In appropriate cases, the Court may refuse to

exercise its discretionary jurisdiction by invoking the doctrine of

forum conveniens. [See Bhagat Singh Bugga v. Dewan Jagbir

Sawhany, AIR 1941 Cal 670, Madanlal Jalan v. Madanlal,

AIR 1949 Cal 495, Bharat Coking Coal Limited v. Jharia

Talkies & Cold Storage (P) Ltd., 1997 CWN 122, S.S. Jain

& Co. v. Union of India, (1994) 1 CHN 445 and New Horizon

Ltd. v. Union of India, AIR 1994 Del 126.’’

[Emphasis supplied]

25. In Ambica Industries (supra), their Lordships have expressed

thus:

‘‘40. Although in view of Section 141 of the Code of Civil

Procedure the provisions thereof would not apply to writ

proceedings, the phraseology used in Section 20(c) of the Code

of Civil Procedure and clause (2) of Article 226, being in pari

materia, the decisions of this Court rendered on interpretation of

Section 20(c) CPC shall apply to the writ proceedings also.

Before proceeding to discuss the matter further it may be pointed

out that the entire bundle of facts pleaded need not constitute a

cause of action, as what is necessary to be proved, before the

petitioner can obtain a decree, is material facts. The expression

material facts is also known as integral facts.

41. Keeping in view the expression “cause of action” used in

Clause (2) of Article 226 of the Constitution of India, indisputably

even if a small fraction thereof accrues within the jurisdiction of

the Court, the Court will have jurisdiction in the matter though

the doctrine of forum conveniens may also have to be

considered.’’

[Emphasis added]

26. At this juncture, we may profitably refer to the decision in

Adani Exports Ltd. (supra) wherein their Lordships, after referring to

the decision in Utpal Kumar Basu and others (supra), have held thus:

‘‘17. It is seen from the above that in order to confer jurisdiction

on a High Court to entertain a writ petition or a special civil

application as in this case, the High Court must be satisfied from

the entire facts pleaded in support of the cause of action that

those facts do constitute a cause so as to empower to court to

decide a dispute which has, at least in part, arisen within its

jurisdiction. It is clear from the above judgment that each and

every fact pleaded by the respondents in their application does

not ipso facto lead to the conclusion that those facts give rise

to a cause of action within the court’s territorial jurisdiction

unless those facts pleaded are such which have a nexus or

relevance with the lis that is involved in the case. Facts which

have no bearing with the lis or the dispute involved in the case,

do not give rise to a cause of action so as to confer territorial

jurisdiction on the court concerned. If we apply this principle

then we see that none of the facts pleaded in Paragraph 16 of

the petition, in our opinion, fall into the category of bundle of

facts which would constitute a cause of action giving rise to a

dispute which could confer territorial jurisdiction on the courts

at Ahmedabad.’’

27. In Rajendran Chingaravelu v. R.K. Mishra, (2010) 1 SCC

457, the appellant, a Computer Engineer, with the intention to buy a

property at Chennai, identified a prospective seller at Chennai and proceeded

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from Hyderabad with a large sum of money to Chennai and when his

baggage was checked at the Hyderabad airport by the security personnel,

he was allowed to leave Hyderabad. However, at Chennai, some officers

of the Income Tax Investigation Wing rushed in and he was pulled out

of the aircraft and taken to the office on the first floor of the airport. He

was questioned there about the money he was carrying. After certain

enquiry and investigation, as nothing was found to be amiss or irregular,

the seized money was returned to him, but without any interest. Being

aggrieved by the action of the department, he filed a writ petition in the

High Court of Andhra Pradesh seeking certain reliefs. The High Court of

Andhra Pradesh declined to interfere and directed the appellant therein to

approach the appropriate court at Chennai. The said order was the subject

matter of appeal by special leave before the Apex Court. In that context,

their Lordships have held thus:

‘‘9. The first question that arises for consideration is whether

the Andhra Pradesh High Court was justified in holding that as

the seizure took place at Chennai (Tamil Nadu), the appellant

could not maintain the writ petition before it. The High Court did

not examine whether any part of cause of action arose in Andhra

Pradesh. Clause (2) of Article 226 makes it clear that the High

Court exercising jurisdiction in relation to the territories within

which the cause of action arises wholly or in part, will have

jurisdiction. This would mean that even if a small fraction of the

cause of action (that bundle of facts which gives a petitioner, a

right to sue) accrued within the territories of Andhra Pradesh,

the High Court of that State will have jurisdiction.

10. In this case, the genesis for the entire episode of search,

seizure and detention was the action of the security/intelligence

officials at Hyderabad Airport (in Andhra Pradesh) who having

inspected the cash carried by him, alerted their counterparts at

Chennai Airport that the appellant was carrying a huge sum of

money, and required to be intercepted and questioned. A part of

the cause of action therefore clearly arose in Hyderabad. It is

also to be noticed that the consequential income tax proceedings

against him, which he challenged in the writ petition, were also

initiated at Hyderabad. Therefore, his writ petition ought not to

have been rejected on the ground of want of jurisdiction.’’

[Underlining is by us]

28. On a scrutiny of the aforesaid emphasized lines, it is vivid that

their Lordships have opined that a part of the cause of action arose at

Hyderabad as the officers at Hyderabad had alerted their counterparts at

Chennai airport and further consequential income tax proceedings were

also initiated at Hyderabad. In our humble view, the concept of cause of

action which has been referred to in the said decision falls within the

concept of cause of action as explained and elucidated in Alchemist Ltd.

(supra).

29. In Mosaraf Hossain Khan v. Bhagheeratha Engg. Ltd. &

Ors., (2006) 3 SCC 658, the Apex Court referred to the decision in

Kusum Ingots & Alloys Ltd. (supra) and observed as follows:

‘‘26 ...with a view to determine the jurisdiction of one High

Court vis-a-vis the other the facts pleaded in the writ petition

must have a nexus on the basis whereof a prayer can be made

and the facts which have nothing to do therewith cannot give

rise to a cause of action to invoke the jurisdiction of a court. In

that case it was clearly held that only because the High Court

within whose jurisdiction a legislation is passed, it would not

have the sole territorial jurisdiction but all the High Courts where

cause of action arises, will have jurisdiction...’’

Thereafter, their Lordships reproduced paragraphs 27 and 28 of the

said decision and a passage from Adani Exports Ltd. (supra) and

proceeded to state as follows:

‘‘28. We have referred to the scope of jurisdiction under Articles

226 and 227 of the Constitution only to highlight that the High

Courts should not ordinarily interfere with an order taking

cognisance passed by a competent court of law except in a

proper case. Furthermore only such High Court within whose

jurisdiction the order of the subordinate court has been passed,

would have the jurisdiction to entertain an application under Article

227 of the Constitution unless it is established that the earlier

cause of action arose within the jurisdiction thereof.

29. The High Courts, however, must remind themselves about

the doctrine of forum non conveniens also. [See Mayar (H.K.)

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Ltd. v. Owners & Parties, Vessel M.V. Fortune Express,

(2006) 3 SCC 100: (2006) 2 Scale 30]’’ [Underlining is by us]

30. From the aforesaid pronouncements, the concept of forum

conveniens gains signification. In Black’s Law Dictionary, forum

conveniens has been defined as follows: ‘‘The court in which an action

is most appropriately brought, considering the best interests and

convenience of the parties and witnesses.’’

31. The concept of forum conveniens fundamentally means that it

is obligatory on the part of the court to see the convenience of all the

parties before it. The convenience in its ambit and sweep would include

the existence of more appropriate forum, expenses involved, the law

relating to the lis, verification of certain facts which are necessitous for

just adjudication of the controversy and such other ancillary aspects. The

balance of convenience is also to be taken note of. Be it noted, the Apex

Court has clearly stated in the cases of Kusum Ingots (supra), Mosaraf

Hossain Khan (supra) and Ambica Industries (supra) about the

applicability of the doctrine of forum conveniens while opining that arising

of a part of cause of action would entitle the High Court to entertain the

writ petition as maintainable.

32. The principle of forum conveniens in its ambit and sweep

encapsulates the concept that a cause of action arising within the

jurisdiction of the Court would not itself constitute to be the determining

factor compelling the Court to entertain the matter. While exercising

jurisdiction under Articles 226 and 227 of the Constitution of India, the

Court cannot be totally oblivious of the concept of forum conveniens.

The Full Bench in New India Assurance Co. Ltd. (supra) has not kept

in view the concept of forum conveniens and has expressed the view

that if the appellate authority who has passed the order is situated in

Delhi, then the Delhi High Court should be treated as the forum conveniens.

We are unable to subscribe to the said view.

33. In view of the aforesaid analysis, we are inclined to modify the

findings and conclusions of the Full Bench in New India Assurance

Company Limited (supra) and proceed to state our conclusions in

seriatim as follows:

(a) The finding recorded by the Full Bench that the sole

cause of action emerges at the place or location where the

tribunal/appellate authority/revisional authority is situate and

the said High Court (i.e., Delhi High Court) cannot decline

to entertain the writ petition as that would amount to

failure of the duty of the Court cannot be accepted

inasmuch as such a finding is totally based on the situs

of the tribunal/appellate authority/revisional authority totally

ignoring the concept of forum conveniens.

(b) Even if a miniscule part of cause of action arises within

the jurisdiction of this court, a writ petition would be

maintainable before this Court, however, the cause of

action has to be understood as per the ratio laid down in

the case of Alchemist Ltd. (supra).

(c) An order of the appellate authority constitutes a part of

cause of action to make the writ petition maintainable in

the High Court within whose jurisdiction the appellate

authority is situated. Yet, the same may not be the singular

factor to compel the High Court to decide the matter on

merits. The High Court may refuse to exercise its

discretionary jurisdiction by invoking the doctrine of forum

conveniens.

(d) The conclusion that where the appellate or revisional

authority is located constitutes the place of forum

conveniens as stated in absolute terms by the Full Bench

is not correct as it will vary from case to case and depend

upon the lis in question.

(e) The finding that the court may refuse to exercise

jurisdiction under Article 226 if only the jurisdiction is

invoked in a malafide manner is too restricted/constricted

as the exercise of power under Article 226 being

discretionary cannot be limited or restricted to the ground

of malafide alone.

(f) While entertaining a writ petition, the doctrine of forum

conveniens and the nature of cause of action are required

to be scrutinized by the High Court depending upon the

factual matrix of each case in view of what has been

stated in Ambica Industries (supra) and Adani Exports

Ltd. (supra).

757 758Sterling Agro Industries Ltd. v. Union of India (Dipak Misra, CJ.)

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(g) The conclusion of the earlier decision of the Full Bench

in New India Assurance Company Limited (supra) ‘‘that

since the original order merges into the appellate order,

the place where the appellate authority is located is also

forum conveniens’’ is not correct.

(h) Any decision of this Court contrary to the conclusions

enumerated hereinabove stands overruled.

34. Ex consequenti, we answer the reference by partially overruling

and clarifying the decision in New India Assurance Company Limited

(supra) in the above terms. Matters be listed before the appropriate

Division Bench for appropriate consideration.

ILR (2011) VI DELHI 759

CS (OS)

M/S. KRIZM HOTELS PRIVATE LIMITED ....PLAINTIFF

VERSUS

M/S. VAISHNAVI ESTATES (P) LTD. ....DEFENDANT

(J.R. MIDHA, J.)

CS (OS) NO. : 2338/2009 DATE OF DECISION: 01.08.2011

IN I.A. NO. : 15969/2009

Trade Marks Act, 1999—Section 29—Ad-interim

injunction for restraining infringement of trademark-

Plaintiff, proprietor of registered trademark ‘lemon

tree’, was in continuous use of the same since October

2002—Had eleven operational hotels and eight under

construction using the trademark-defendant adopted

identical trademark in 2009 in respect of its housing

project at a distance of 2 kms from plaintiff’s hotel

which came into existence in 2008—Plaintiff filed the

suit for injunction along with application for ad-interim

injunction-defence of the defendant-inter alia-

customers of both the business were different-

invested huge amount-no likelihood of confusion-used

trademark only in respect of one project-undertook to

confine and restrict only in respect of one project and

not to use the same for any other project. Held—

Plaintiff entitled to grant of ad-interim injunction-

defendant adopted trademark without justification-

defence of the defendant that he invested huge

amount-rejected as the suit was instituted in 2009

itself-likely to cause confusion that plaintiff and

defendant have association—Even if services are not

similar, plaintiff is entitled to protection as it has

reputation in India—Balance of convenience lies in

favour of the plaintiff who would suffer irreparable

loss due to confusion—Conduct of defendant did not

appear honest—Warrants imposition of cost—

Defendant directed to change its name within four

weeks.

Findings

9.1 Prima Facie Case

On careful consideration of the respective contentions of

both the parties, this Court is of the prima facie view that the

plaintiff has a strong prima facie case for grant of ad-interim

injunction because:-

9.1.1 The plaintiff is the registered proprietor of the trademark

‘‘Lemon Tree’’.

9.1.2 The plaintiff is in continuous use of the said trademark

since October, 2002.

9.1.3 The plaintiff has eleven operational hotels and eight

hotels are under construction all over the country.

9.1.4 The plaintiff has invested more than Rs. 5,000 crores

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it is detrimental to the distinctive character as well as the

repute of the plaintiff’s registered trade mark.

9.1.10 With respect to the plea that there is a Lemon Tree

Hotel in USA, the defendant has not been able to show

cross border reputation of the said hotel in India.

9.2 Balance of convenience

9.2.1 The balance of convenience lies in favour of the

plaintiff and against the defendant as the plaintiff is the

registered proprietor of the trademark ‘‘Lemon Tree’’ and is

in continuous use since October, 2002 with eleven

operational hotels and eight hotels under construction all

over the country with an investment of more than Rs.5,000

crores.

9.2.2 On the other hand, the defendant who had been

carrying on its construction business in the name of Vaishnavi

Estates (P) Ltd since 1997, adopted the plaintiff’s trademark

‘‘Lemon Tree’’ without any justification in 2009 with the full

knowledge of the plaintiff’s hotel in Hyderabad at a distance

of about 2 kms from the plaintiff’s project and the plaintiff

immediately filed the present suit.

9.2.3 The defendant is using the plaintiff’s registered trade

mark ‘‘Lemon Tree’’ in respect of one project.

9.2.4 The defendant has given an undertaking to this Court

on 23rd March, 2011 not to use the said trademark for any

other project. Even one project in respect of which the

defendant is using the trademark ‘‘Lemon Tree’’ is a joint

venture agreement in respect of which the defendant has

already sold more than 105 flats.

9.2.5 It is not disputed that the defendant has only limited

interest in the project till the sale of the flats.

9.2.6 The defendant cannot ride on the plaintiff’s goodwill

and reputation to sell the remaining flats.

761 762 Krizm Hotels Pvt. Ltd. v. Vaishnavi Estates (P) Ltd. (J.R. Midha, J.)

in the hotel business.

9.1.5 The plaintiff has prima facie reputation in respect of

the said trademark on the basis of the aforesaid facts,

annual revenues and the expenses on advertisements.

9.1.6 The defendant adopted the identical trade mark

‘‘Lemon Tree’’ without any justification in year 2009 in

respect of its project at a distance of 2 kilometers from the

plaintiff’s hotel which came into existence in 2008. The

adoption of the plaintiff’s trade mark ‘‘Lemon Tree’’ by the

defendant appears to be dishonest with the sole intention to

encash the goodwill and reputation of the plaintiff.

9.1.7 The defendant’s claim that the mark ‘‘Lemon Tree’’

has become distinctive of their business and they have

invested huge amount and have given vide publicity is

misconceived in as much as the plaintiff instituted this suit

in 2009 itself immediately after becoming aware of the

defendant’s use. The defendant has also not placed on

record any material to substantiate its claim. The entire

defense of the defendant appears to be frivolous.

9.1.8 The defendant’s mark ‘‘Lemon Tree Apartments’’ is

identical to the registered trade mark of the plaintiff; the

services of the plaintiff and the defendant are similar (the

plaintiff is in hotel business whereas the defendant is in the

business of construction); it is likely to cause confusion to

the public that the defendant’s ‘‘Lemon Tree Apartments’’

have an association with the plaintiff and, therefore, the

plaintiff is entitled to protection under Section 29(2) and (3)

of the Trade Marks Act.

9.1.9. Even if the services of the plaintiff and the defendant

are taken to be not similar as contended by the defendant,

the plaintiff is entitled to protection under Section 29(4) of

the Trade Marks Act as the plaintiff has reputation in India;

use of the infringing mark by the defendant is without any

justification; the defendant has taken unfair advantage and

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9.3 Irreparable loss and injury

The plaintiff would suffer irreparable loss and injury in case

the defendant is not restrained from using the plaintiff’s

registered trademark. If the defendant is not restrained from

using the plaintiff’s registered trademark ‘‘Lemon Tree’’, it

would also dilute the plaintiff’s trademark and would also

cause confusion to the public, who would associate the

defendant’s project with the plaintiff.

9.4 Relevant judgments

This case is squarely covered by the principles laid down in

Ozone SPA Private Limited (supra), Rolex SA (supra),

Vardhman Properties Ltd. (supra), Indian Shaving

Project Limited (supra) and Mahendra & Mahendra

Paper Mills Ltd. (supra). With respect to the judgments

cited by the defendant, this Court accepts the submissions

of the plaintiff recorded in para 7 above. (Para 9)

Conduct of the defendant

10.1. In Dalip Singh v. State of U.P., (2010) 2 SCC 114,

the Supreme Court noted as under:-

‘‘1. For many centuries, Indian society cherished two

basic values of life i.e. ‘Satya’ (truth) and ‘Ahimsa’

(non-violence). Mahavir, Gautam Buddha and Mahatma

Gandhi guided the people to ingrain these values in

their daily life. Truth constituted an integral part of the

justice-delivery system which was in vogue in pre-

Independence era and the people used to feel proud

to tell truth in the courts irrespective of the

consequences. However, post-Independence period

has seen drastic changes in our value system. The

materialism has over-shadowed the old ethos and the

quest for personal gain has become so intense that

those involved in litigation do not hesitate to take

shelter of falsehood, misrepresentation and

suppression of facts in the court proceedings. In the

last 40 years, a new creed of litigants has cropped

up. Those who belong to this creed do not have any

respect for truth. They shamelessly resort to falsehood

and unethical means for achieving their goals. In

order to meet the challenge posed by this new creed

of litigants, the courts have, from time to time, evolved

new rules and it is now well established that a litigant,

who attempts to pollute the stream of justice or who

touches the pure fountain of justice with tainted hands,

is not entitled to any relief, interim or final.’’

10.2. In Padmawati and Ors. v. Harijan Sewak Sangh,

154 (2008) DLT 411, this Court noted as under:

‘‘6. The case at hand shows that frivolous defences

and frivolous litigation is a calculated venture involving

no risks situation. You have only to engage

professionals to prolong the litigation so as to deprive

the rights of a person and enjoy the fruits of illegalities.

I consider that in such cases where Court finds that

using the Courts as a tool, a litigant has perpetuated

illegalities or has perpetuated an illegal possession,

the Court must impose costs on such litigants which

should be equal to the benefits derived by the litigant

and harm and deprivation suffered by the rightful

person so as to check the frivolous litigation and

prevent the people from reaping a rich harvest of

illegal acts through the Courts. One of the aim of

every judicial system has to be to discourage unjust

enrichment using Courts as a tool. The costs imposed

by the Courts must in all cases should be the real

costs equal to deprivation suffered by the rightful

person.’’

xxxxxx

‘‘9. Before parting with this case, I consider it

necessary to pen down that one of the reasons

for over-flowing of court dockets is the frivolous

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litigation in which the Courts are engaged by

the litigants and which is dragged as long as

possible. Even if these litigants ultimately loose

the lis, they become the real victors and have

the last laugh. This class of people who

perpetuate illegal acts by obtaining stays and

injunctions from the Courts must be made to pay

the sufferer not only the entire illegal gains

made by them as costs to the person deprived

of his right and also must be burdened with

exemplary costs. Faith of people in judiciary can

only be sustained if the persons on the right

side of the law do not feel that even if they keep

fighting for justice in the Court and ultimately

win, they would turn out to be a fool since

winning a case after 20 or 30 years would make

wrong doer as real gainer, who had reaped the

benefits for all those years. Thus, it becomes

the duty of the Courts to see that such wrong

doers are discouraged at every step and even if

they succeed in prolonging the litigation due to

their money power, ultimately they must suffer

the costs of all these years long litigation. Despite

settled legal positions, the obvious wrong doers,

use one after another tier of judicial review

mechanism as a gamble, knowing fully well that

dice is always loaded in their favour, since even

if they lose, the time gained is the real gain. This

situation must be redeemed by the Courts.’’

(Emphasis supplied)

This Court imposed costs of Rs. 15.1 lakhs in the above

case against which Special Leave to Appeal (Civil) No

29197/2008 was preferred to the Supreme Court. On 19th

March, 2010, the Supreme Court passed the following

order: ‘‘We have heard learned Counsel appearing for the

parties.

We find no ground to interfere with the well-considered

judgment passed by the High Court. The Special

Leave Petition is, accordingly, dismissed.’’

10.3 I agree with the findings by the learned Judge in

Padmawati’s case (supra) and wish to add a few words.

There is another feature which has been observed and it is

of unscrupulous persons filing false claims or defences with

a view that the other person would get tired and would then

agree to compromise with him by giving up some right or

paying some money. If the other party is not able to

continue contesting the case or the Court by reason of

falsehood falls into an error, the wrong succeeds. Many

times, the other party compromises, or at other times, he

may continue to fight it out. But as far as the party in the

wrong is concerned, as this Court noted in Padmawati’s

case (supra), even if these litigants ultimately lose the lis,

they become the real victors and have the last laugh.

10.4 In the present case, the conduct of the defendant does

not appear to be honest. The defendant has raised a

frivolous defence with the hope that the defendant can, with

the Court delays, drag the case for years and the other side

would succumb to buy peace. If the other side does not so

settle in the end, they are hardly compensated and remains

a loser. (Para 10)

Conclusion

12.1 In the facts and circumstances of this case, the

application is allowed and the defendant, their collaborators,

agents, dealers and representatives are restrained from

using the plaintiff’s registered trademark ‘‘Lemon Tree’’ or

any other mark identical with/or deceptively similar to the

plaintiff’s trade mark ‘‘Lemon Tree’’ as a trade mark, trade

name or trading style or in any other manner till the disposal

of this suit.

12.2 Following the judgment of the Supreme Court in

Ramrameshwari Devi (supra) and considering that the

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defendant raised a totally frivolous and dishonest defence

and the hearing of the injunction application continued for

seven hearings, this Court considers the cost of Rs.2,00,000/

- to be realistic. The cost of Rs. 2,00,000/- is, therefore,

imposed on the defendant to be paid to the plaintiff within

four weeks.

12.3 In the interest of justice, equity and fairplay, the

defendant is granted two months time to change its name in

terms of this order and to remove the signboards, brochures,

etc. subject to the payment of cost as aforesaid to the

plaintiff within four weeks.

12.4 The observations made hereinabove are prima facie

and shall not constitute any expression of final opinion on

the issues involved and shall have no bearing on the merits

of the case.

12.5 List before the Regular Bench as per Roster on 5th

August. (Para 12)

Important Issue Involved: A proprietor of trademark is

entitled for protection even if the services of the parties are

not similar, if the trademark is infringed without any

justification and is detrimental to the distinctive character as

well as reputation of his registered trademark.

[Sa Gh]

APPEARANCES:

FOR THE PLAINTIFF : Mr. R.K. Aggarwal, Advocate.

FOR THE DEFENDANT : Mr. S.K. Bansal, Advocate.

CASES REFERRED TO:

1. Ramrameshwari Devi vs. Nirmala Devi, MANU/SC/0714/

2011.

2. Vardhman Properties Ltd. vs. Vardhman Developers and

Infrastructures, 166 (2010) DLT 782.

3. Skol Breweries vs. Unisafe Technologies, 2010 (44) PTC

209 (Del.).

4. Roca Sanitario S.A. vs. Naresh Kumar Gupta, MANU/

DE/2040/2010.

5. Ozone SPA Private Limited vs. Ozone Club, 2010 (42)

PTC 469 (Del.).

6. ITC Ltd. vs. Philips Morris Products, 2010 (42) PTC 572

(Del.).

7. Skol Breweries vs. Unisafe Technologies, 2010 (44) PTC

209 (Del.).

8. J.K. Oil Industries vs. Adani Wilmar Ltd., 2010 (42) PTC

639 (Del.).

9. Dalip Singh vs. State of U.P., (2010) 2 SCC 114.

10. Rolex SA vs. Alex Jewellery Pvt. Ltd., 2009 (6) R.A.J.

489 (Del.).

11. Padmawati and Ors. vs. Harijan Sewak Sangh, 154 (2008)

DLT 411.

12. Khoday Distilleries Ltd. vs. Scotch Whisky Association,

2008 (37) PTC 413 (SC).

13. Mahendra & Mahendra Paper Mills Ltd. vs. Mahindra

& Mahindra Ltd., 2002 (24) PTC 121 (SC).

14. Indian Shaving Products Ltd. vs. Gift Pack, 1998 PTC

(18) (Del.).

15. Kellog Company vs. Pravin Kumar Bhadabhai, 1996 PTC

(16) (Del.).

16. Cool ways India vs. Prince Air Conditioning and

Refrigeration 1993 (1) Arbitration Law Reporter 401.

17. Amrit Soap Company vs. New Punjab Soap Factory 1989

(2) Arbitration Law Reporter 242.

18. Johnson & Johnson and Another vs. Christine Hoden (P)

Ltd., 1988 PTC 39.

RESULT: Application allowed.

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I.A.No.15969/2009

1. The plaintiff has filed this suit for permanent injunction for

restraining infringement of trademark, service mark, copyright and for

damages in respect of its trademark ‘‘Lemon Tree’’.

1.1 Along with the suit, the plaintiff filed I.A.No.15969/2009 for

grant of ex-parte ad-interim injunction. Vide order dated 9th December,

2009, the summons in the suit and notice in the application were issued

to the defendant. However, ex-parte ad-interim injunction was not granted

to the plaintiff at that time.

1.2 On 29th April, 2010, the plaintiff gave up the claim for violation

of the copyright as well as passing off. In view thereof, the plaintiff’s

claim is now restricted to the claim for infringement of trademark only.

1.3 The pleadings in the suit as well as in I.A.No.15969/2009 under

Order XXXIX Rules 1 and 2 of the Code of Civil Procedure are complete.

2. Plaintiff’s Case

2.1 The plaintiff is the proprietor of the registered trademark ‘‘Lemon

Tree’’ in classes 8,12,16,17 and 42. The particulars of the seven

registrations held by the plaintiff are given in para 12 of the plaint and

the registration certificates have been placed on record as Annexure ‘F’.

The plaintiff has also applied for registration in Classes 29, 30, 31, 32

and 35 which are pending with the Trademark Registry.

2.2 The plaintiff conceived and adopted the trade mark ‘‘Lemon

Tree’’ in 2001 and started its use in October, 2002. The plaintiff opened

its first hotel in Gurgaon in June, 2004. The plaintiff has eleven operational

hotels under the name ‘‘Lemon Tree’’ in various states namely, Haryana,

Goa, Maharashtra, U.P., Kerala, Gujarat, Madhya Pradesh, Tamil Nadu

and Karnataka. Eight more hotels of the plaintiff are under construction.

2.3 The plaintiff claims to have invested more than Rs. 5,000

crores in the hotel business. The financial reports and audited accounts

of the plaintiff have been placed on record as Annexure ‘H’.

2.4 The plaintiff claims its hotel chain to be the country’s first

moderately priced, upscale, full service, business and leisure hotels for

catering to the needs of affluent and middle class society. The plaintiff

claims to have acquired high reputation in the market widely recognized

in the country as well as abroad. The plaintiff further claims to have

widely advertised in the media. The annual revenue generated and the

expenditure incurred on advertisements by the plaintiff for the years

ending 31st March, 2005 to 31st March, 2009 are given in para 18 of

the plaint. In the year ending 31st March, 2005, the plaintiff generated

revenue of Rs.2,38,31,842/- out of which the plaintiff spent Rs. 2,00,051/

- on advertisements. The annual revenue of the plaintiff increased to Rs.

56,24,55,700/- in the year ending 31st March, 2009 out of which the

plaintiff has spent Rs. 26,34,238/- on the advertisements. The copies of

the audited reports of the plaintiff for the years 2004-05 to 2008-09 are

on record as Annexure ‘H’. The write ups of the plaintiff’s hotels are on

record as Annexure-I.

2.5 On 17th September, 2009, the plaintiff came to know that the

defendant had started construction of residential apartments under the

name and style of ‘‘Lemon Tree Apartments’’ at Madhapur, Hyderabad

at a distance of about 2 kms from their hotel at Hyderabad known as

Lemon Tree Hotel. The brochure of the defendant is on record as

Annexure-J. The plaintiff immediately thereafter instituted the present suit

seeking the injunction against the defendant.

2.6 The adoption and use of trademark ‘‘Lemon Tree’’ by the

defendant is not bonafide and innocent but malafide and with the dishonest

intention of encashing the goodwill and reputation of the plaintiff. The

defendant had been carrying on its construction business since the year

1997 in the name of M/s Vaishnavi Estates (P) Ltd. The defendant

adopted the trademark ‘‘Lemon Tree’’ in 2009 in respect of its project

at a distance of 2 kms from the plaintiff’s hotel after the plaintiff’s hotel

at Madhapur, Hyderabad came into existence in 2008. According to the

plaintiff, the defendant has no justification for adopting the plaintiff’s

registered trademark ‘‘Lemon Tree’’.

2.7 The defendant’s trademark ‘‘Lemon Tree’’ is identical with the

plaintiff’s registered trademark. It is submitted that services of the

defendant are also similar to the services of the plaintiff. The plaintiff is

in the hotel business whereas the defendant is in the business of

construction of housing apartments and the activities are similar and,

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therefore, the use of the trademark ‘‘Lemon Tree’’ by the defendant

amounts to infringement of trademark under Section 29(2)(a) & (b) of

the Trade Marks Act, 1999.

2.8 Assuming though not admitting that the services of the plaintiff

and the defendant are not similar, the use of the trademark ‘‘Lemon

Tree’’ by the defendant amounts to infringement of trademark even

under Section 29(4) of the Trade Marks Act, 1999 as the plaintiff’s

registered trademark ‘‘Lemon Tree’’ has reputation in India.

3. Defence of the defendant

3.1 The defendant honestly and bonafidely adopted the trademark

‘‘Lemon Tree Apartments’’ in the year 2008 in relation to one of its

housing projects launched in 2008-09 in Hyderabad.

3.2 The defendant’s trademark has become distinctive of the

defendant’s business. The defendant has already invested huge amount

in the said business.

3.3 The defendant has given wide publicity to its project under the

said trademark. The defendant has invested heavily in promotion,

advertisement and publicity of the housing projects.

3.4 The defendant is the proprietor of the trademark ‘‘Lemon Tree

Apartments’’ and has the exclusive rights to use thereof.

3.5 The defendant’s business and services are not similar to the

business/services of the plaintiff. Whereas the plaintiff is carrying on the

business of hotels and hospitality, the defendant is involved in housing

projects. The plaintiff’s business activities are covered in Class 42 whereas

the defendant’s business/activities are covered in Class 36. The customers/

users of both the business and activities are different and different classes

of consumers are the end users of the two services.

3.6 There is no scope of the defendant passing off his goods and

business as that of the plaintiff.

3.7 The plaintiff is not holding any trademark registration for goods/

services in Class 36 or 37 which cover the defendant’s goods/services.

3.8 The defendant’s trademark has few add-ons by way of distinctive

work due to which it is distinct from the plaintiff’s trademark.

3.9 The use of trademark ‘‘Lemon Tree’’ by the defendant does

not amount to infringement under Sections 29(2)(a) and (b) of the Trade

Marks Act, 1999 because the business and services of the plaintiff and

the defendant are different and there is no likelihood of confusion on the

part of the public.

3.10 The use of trademark ‘‘Lemon Tree’’ by the defendant would

not amount to infringement under Section 29(4) of the Trade Marks Act,

1999 because the plaintiff has no reputation.

3.11 The plaintiff has pirated the trademark ‘‘Lemon Tree’’ from

Lemon Tree Hotel in USA which is in business since the year 1998 as

per the internet downloads filed by the defendant.

4. Learned counsel for the plaintiff in the rejoinder vehemently

denied that the defendants honestly and bonafidely adopted the trade

mark ‘‘Lemon Tree’’. The plaintiff further denied that the defendant has

invested heavily in promotion, advertisement and publicity as neither any

material has been placed on record nor any particulars have been furnished

by the defendant in this regard. The plaintiff is in the business of hotel

industry since 2002 and has already invested more than ‘5,000 crores.

The plaintiff has established the brand ‘‘Lemon Tree’’ in the market

whereas the defendant adopted the said mark in 2009 with the sole

intention of encashing the goodwill and reputation of the plaintiff. The

defendant has no explanation as to why it changed its earlier name

Vaishnavi Estates to ‘‘Lemon Tree’’ all of a sudden in 2009. Since the

suit was filed immediately after the defendant entered into the market, no

prejudice would be caused to the defendant if they are restrained from

using the brand ‘‘Lemon Tree’’. With respect to the defendant’s plea that

the plaintiff is a pirate because Lemon Tree Hotel was being run in the

USA much prior to the alleged adoption of the mark by the plaintiff, the

plaintiff submitted that the photocopy of the document downloaded from

the internet by the defendant shows that Lemon Tree hotel in the U.S.

was operated by two Australian families, who have been in the business

of providing accommodation since 1998, from which it cannot be assumed

that the Australian families are running hotel business under the trade

mark ‘‘Lemon Tree’’ since 1998. It was further submitted that there was

no material to show that the said mark used abroad enjoyed any reputation

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in India at any point of time when the plaintiff adopted the same and the

use of the said mark abroad was to the knowledge of the plaintiff when

the plaintiff adopted the mark in India.

5. Judgments relied upon by the plaintiff

5.1 Ozone SPA Private Limited vs. Ozone Club, 2010 (42) PTC

469 (Del.)

In this case, the plaintiff was the registered proprietor of the

trademark ‘OZONE’ in classes 16,30,32,33 and 42. The plaintiff was

running a spa which falls in class 41 whereas the defendant was running

fitness centre, health club and gymnastics. This Court held that the

plaintiff’s mark had acquired goodwill and reputation and, therefore, was

covered under Section 29(4) of the Trade Marks Act for protection of

the mark relating to dissimilar goods as the use of mark by the defendant

would be of unfair advantage and detrimental to the mark of the plaintiff.

The relevant finding of the Court are as under:-

‘‘19. Now I shall deal with the contentions raised by the

defendant. The first objection of the defendant is that the suit for

infringement of the trade mark is not maintainable as the plaintiff

has no registration in its favour in class 41 of the Schedule IV

of the classification, thus, the plaintiff cannot invoke the

jurisdiction under Section 134 of the Act. From the documents

filed by the plaintiff it appears, prima facie, that the trade mark

“Ozone” adopted and used by the plaintiff has acquired secondary

meaning by virtue of long and continuous user. In support of the

claim of goodwill and reputation, the plaintiff has furnished the

statement of sale and promotional expenses as well as the

documents to show that the mark “Ozone” has been continuously

used and advertised in various modern media and the mark was

adopted to distinguish with the services of the plaintiff. The

plaintiff has filed the ample evidence on record to show their

business activities and extensive advertisement and in view of

that, there is no hesitation to come to the conclusion that the said

name “Ozone” is known mark in relation to the services provided

by the plaintiff despite of the fact that the plaintiffs application

for registration in class 41 of Schedule IV of the Classification

in relation to health club and related services is pending for

registration but at the same time it is an admitted fact that the

plaintiff has got the registration in class 42 in relation to services

such as medical, hygiene and beauty care etc.

20. As regards the suit for infringement is concerned, undisputedly

the plaintiffs trade mark “Ozone” is registered in respect of the

various goods in classes 16, 30, 32, 33 and particularly in class

42 in respect of goods including hygiene and beauty care services.

Although, these are not same services but somehow they

are connected with the services provided by the plaintiff

under the mark “Ozone” the mark which has already

acquired a residual goodwill and reputation, therefore, this

Court is of the considered opinion that the present matter

covers under the dicta of Section 29(4) of the Act where the

protection of the mark is given to the dissimilar goods as

use of the mark by the defendant would be unfair advantage

of or is detrimental to the mark of the plaintiff, therefore,

it is a well known trade mark within the meaning of Section

2(1)(zg) of the Act and have the present case covered under

Section 29(4) of the Act.’’

(Emphasis Supplied)

5.2 Rolex SA v. Alex Jewellery Pvt. Ltd., 2009 (6) R.A.J. 489

(Del.) The plaintiff was the proprietor of the well known registered

trademark ‘ROLEX’ in respect of watches in class 14. The defendant

used the said mark in respect of artificial jewellery which was challenged

by the plaintiff. This Court held as under:-

‘‘13. The counsel for the plaintiff had in opening submissions

pitched her case primarily on Section 29(4) of the Act. Trademark,

traditionally is with respect to particular class of goods - there

could be infringement thereof only by use of similar or deceptively

similar mark with respect to same class of goods. Section 29(4)

is a major departure. Thereunder use of similar/deceptively similar

mark in relation to goods which are not similar to those for

which the trademark is registered has been included in the

definition of infringement, if the condition of Section 29(4)(c)

are met.

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14. The trademark ROLEX has been registered in favour of the

plaintiff with respect to watches etc since much prior to the user

claimed by the defendants from 1995. If the plaintiff satisfies the

test of Section 29(4)(c), the plaintiff even on the basis of its

registrations other than with respect to jewellery, would be entitled

to maintain an action of infringement against defendants with

respect to jewellery. The only question to be determined at

this prima facie stage is whether the registered trademark

ROLEX of the plaintiff, in relation to watches, has a

reputation in India and the use of the mark by the defendants

is without due cause and takes unfair advantage of and/or

is detrimental to the distinctive character or repute of the

registered trademark.

15. Section 2(z)(g) defines a well known trademark as the one

which in relation to any goods, means a mark which has become

so to the substantial segment of the public which uses such

goods that the use of such mark in relation to other goods would

be likely to be taken as indicating a connection in the course of

trade between those goods and a person using the mark in relation

to the first mentioned goods. In my view the segment of the

public which uses the watches of the category/price range as

the watches of the plaintiff, ROLEX is a well known

trademark. The said segment of the public if comes across

jewellery/artificial jewellery also bearing the trademark

ROLEX is likely to believe that the said jewellery has a

connection to the plaintiff.’’

(Emphasis Supplied)

5.3 Vardhman Properties Ltd. v. Vardhman Developers and

Infrastructures, 166 (2010) DLT 782

The plaintiff, a real estate developer was the registered proprietor

of the trademark VARDHAMAN GROUP whereas the defendant was

involved in the business of booking flats and real estate consultancy. This

Court restrained the defendant from using the mark VARDHMAN. The

relevant portion of the said judgment are as under:-

‘‘13. The concept of dilution had previously been evolved on a

case-to-case basis by the Courts in India, as a result of which

there was a kind of nebulousness and flexibility in its application.

With the advent of Section 29, which articulates the right to

registered trademark proprietor to sue for infringement, the

statutory remedies are delineated with more clarity. Sections 29(1)

to (3) of the Act, deal with infringement of trademarks, by the

use of similar or identical marks (by the alleged infringer), in

relation to same or similar goods or services. Significantly, Section

29(3) mandates the presumption (“shall”) in relation to such

class of infringement. However, infringement arises in relation

to dissimilar goods or services only if certain essential

ingredients are proved, i.e. (1) the senior mark being a

registered; (2) the identity or close similarity of the junior

mark with that of the registered proprietor’s; (3) the

existence of a distinctive reputation of the registered

proprietor’s mark’s; (4) use of the mark by the junior

mark or the infringer in relation to dissimilar goods or

services; (5) that such use being without due or reasonable

cause; and (6) the use by the infringer causing detriment to

the registered proprietor. ...’’

(Emphasis Supplied)

5.4 Indian Shaving Products Ltd. v. Gift Pack, 1998 PTC (18)

(Del.) —

This Court rejected the argument raised by the defendant that the

impugned mark was also being used by the some other person. The

findings of this Court are as under:-

‘‘52. It was next argued by the learned counsel for the defendant

that the said trade mark Ultra is being used by several other

persons/companies besides the defendants such as Toshiba,

National and Sony. Thus the same has become publici Jurisdiction

and the plaintiffs cannot claim any exclusive right therein.

53. Admittedly, the said parties are not before this Court. Neither

the said parties are claiming any relief against the plaintiffs nor

the plaintiffs are claiming any relief against them. Hence the

said defense, that other persons are also using the said

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trade mark, is not available to the defendants. The Court

is called upon to decide disputes in between the parties

which are before it. The Court cannot be expected to adjudicate

upon a dispute which is not before it. A matter very much akin

to the matter in hand came up before a single Judge of this

Court. It was observed in Cool ways India Vs. Prince Air

Conditioning and Refrigeration 1993 (1) Arbitration Law

Reporter 401. The contention that a plaintiff himself is usurping

or infringing the trade mark of a third party was not to be gone

into by the Court while deciding the issue in between the parties.

What is to be seen by the Court is as to whether the plaintiff has

acquired good-will and reputation for his products. Moreover,

the plaintiffs have placed on record a report on Urban Market for

Batteries, October, 1997. A perusal of the same shows that Sony

New Ultra was sold only one unit during the month of May,

1997. There is no sale in the month of June, July, August,

September, 1997. Similarly, Sony has got no market share during

the months of May, June, July, August and September, 1997.

Thus the same is absolutely of no avail to the defendants. To the

same effect is the view expressed by a learned Single Judge of

this Court in Amrit Soap Company Vs. New Punjab Soap

Factory 1989 (2) Arbitration Law Reporter 242. “The allegation

that some other manufacturers are also using the same trade

mark is of no consequence as the Court is concerned with

parties before it only.”

(Emphasis Supplied)

5.5 Mahendra & Mahendra Paper Mills Ltd. v. Mahindra &

Mahindra Ltd., 2002 (24) PTC 121 (SC) — The plaintiff was the

proprietor of the trademark ‘MAHENDRA’. The Supreme Court referred

to the Bombay High Court case of Kirloskar Diesal Recon Pvt. Ltd vs.

Kirloskar Property Ltd., AIR 1996 Bombay 149 which laid down the

following test:-

‘‘22. ...The real question in each case is whether there is as

a result of misrepresentation a real likelihood of confusion

or deception of the public and consequent damage to the

plaintiff. The focus is shifted from the external objective test of

making comparison of activities of parties to the state of mind

of public in deciding whether it will be confused. ...’’

(Emphasis Supplied)

5.6 Roca Sanitario S.A. v. Naresh Kumar Gupta, MANU/DE/

2040/2010 In this case, the plaintiff was the proprietor of trademark

‘ROCA’ which was adopted by the defendant in respect of the same

goods in India. The interim injunction was declined on the ground that

the plaintiff was not able to prima facie show cross border reputation.

6. Judgments relied upon by the defendant The learned counsel for

the defendant has referred to and relied upon ITC Ltd. vs. Philips

Morris Products, 2010 (42) PTC 572 (Del.), Skol Breweries vs. Unisafe

Technologies, 2010 (44) PTC 209 (Del.), Khoday Distilleries Ltd. vs.

Scotch Whisky Association, 2008 (37) PTC 413 (SC), Kellog Company

vs. Pravin Kumar Bhadabhai, 1996 PTC (16), Johnson & Johnson

and Another vs. Christine Hoden (P) Ltd., 1988 PTC 39 and J.K. Oil

Industries vs. Adani Wilmar Ltd., 2010 (42) PTC 639 (Del.).

7. Plaintiff’s response to the judgments cited by the defendant The

learned counsel for the plaintiff has submitted that the aforesaid judgments

cited by the defendant do not apply to the present case for the reasons

given hereunder:-

7.1 In ITC Ltd. vs. Philips Morris Products, 2010 (42) PTC 572

(Del.), the plaintiff’s trade mark was a logo which resembles a ‘W’,

generally used with the words ‘WELCOME GROUP’ whereas the

defendant’s trade mark was logo of ‘M’ with the word mark

‘MARLBORO’. This Court refused the injunction on the ground that the

competing marks were entirely different and there was no chance of any

confusion or deception.

7.2 In Skol Breweries vs. Unisafe Technologies, 2010 (44) PTC

209 (Del.), the plaintiff was using the trade mark ‘KNOCKOUT’ in

respect of beer. The defendant started selling defence pepper spray under

the trade mark ‘KNOCKOUT’. The injunction was refused on the ground

that the plaintiff had not placed any evidence on record to establish that

the trademark ‘KNOCKOUT’ had acquired distinctiveness to the extent

that the consumers would be confused if they came across pepper spray

with the trade mark ‘KNOCKOUT’ and the nature of business of the

parties was totally different and unrelated.

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7.3 Khoday Distilleries Ltd. vs. Scotch Whisky Association,

2008 (37) PTC 413 (SC) was a case of rectification/cancellation. The

petitioners before the Supreme Court had adopted and registered the

trade mark ‘PETER SCOT’ in respect of whisky in 1968. The respondent

[Scotch Whisky Association (Scotland)] came to know about the said

registration in 1974 but they filed rectification petition in 1986. The

rectification petition was dismissed by the Supreme Court broadly on the

ground that there had been an unexplained delay of more than 18 years

and the adoption of trade mark ‘PETER SCOT’ was bona fide.

7.4 In Kellog Company vs. Pravin Kumar Bhadabhai, 1996 PTC

(16) (Del.), the plaintiff was the registered proprietor of trade mark

‘‘KELLOG’S CORN FLAKE’’. The defendant launched the corn flakes

under the trade mark ‘‘AIMS ARISTO CORN FLAKE’’ prominently

displayed on the boxes. However, the boxes carried some colour

combination similar to the plaintiff’s box. This Court has observed that

since the marks are entirely different, there was no chance of any

confusion or deception.

7.5 In Johnson & Johnson and Another vs. Christine Hoden

(P) Ltd., 1988 PTC 39 (Del.), the plaintiff’s trade mark was ‘STAYFREE’

in respect of sanitary napkins. The defendants started using the trade

mark ‘‘COMFIT ALWAYS’’. The main trade mark used by the defendants

was ‘‘COMFIT ALWAYS’’ and the word ‘‘STAYFREE’’ was used in

descriptive sense. This Court refused the injunction as the two marks

were entirely different and there was no likelihood of confusion and

deception on the part of the public.

7.6 In J.K. Oil Industries vs. Adani Wilmar Ltd., 2010 (42)

PTC 639 (Del), the plaintiff’s trade mark was ‘‘OIL KINGS’’ in respect

of oil. The defendant adopted the trade mark (label) ‘‘KING.S’’ Label.

The injunction was refused because the trademark ‘‘KING.S’’ registered

and in use by the defendant in various countries had worldwide reputation.

This Court further noted the fact that the turnover of the defendant was

more than Rs. 150 crores and they had been spending more than Rs. 5

crores annually on advertisement of their brand.

7.7 The learned counsel for the plaintiff submitted that the aforesaid

cases have been decided on peculiar facts and circumstances of each

case. It is further submitted that the injunction was refused on the

ground that the competing marks were entirely different and, therefore,

there would be no confusion or deception among the public.

8. Undertaking of the defendant

During the course of arguments on 24th February, 2011, learned

counsel for the defendant submitted that the defendant has used the trade

mark ‘‘Lemon Tree Apartments’’ only in respect of one housing project

under construction at Hyderabad and the defendant has no other project

in the offing, whereupon the defendant was directed to file an affidavit

in this regard. Mr.T. Srinivas, Managing Director of the defendant,

submitted an affidavit dated 23rd March, 2001 in which it was stated that

358 flats are being constructed in Lemon Tree Apartments, out of which

construction of 125 flats was complete and the remaining flats were at

various stages of construction and the defendant had already sold 105

flats. The defendant has placed on record copy of the development

agreement dated 24th July, 2008 between the land owners and the three

developers including the defendants. As per the said agreement, the

defendant and two other developers, namely, M/s. Aakruti Construction

and Deepthi Homes entered into an agreement with the four co-owners

of the land for construction of multi-storyed building thereon. The

developers have paid a sum of Rs. 50 lakhs to the land owners and have

agreed to construct four blocks having built up area of 4 Lakh square

feet. The land owners and developers have 50% share each in the built

up property. The development agreement does not contain any clause for

giving any name to the project or the apartments. The Managing Director

of the defendant also appeared before this Court on 23rd March, 2011

and undertook to confine/restrict to use of trade mark ‘‘Lemon Tree

Apartments’’ in respect of one project in hand and not to use the same

for any other project.

9. Findings

9.1 Prima Facie Case

On careful consideration of the respective contentions of both the

parties, this Court is of the prima facie view that the plaintiff has a strong

prima facie case for grant of ad-interim injunction because:-

9.1.1 The plaintiff is the registered proprietor of the trademark

‘‘Lemon Tree’’.

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9.1.2 The plaintiff is in continuous use of the said trademark since

October, 2002.

9.1.3 The plaintiff has eleven operational hotels and eight hotels are

under construction all over the country.

9.1.4 The plaintiff has invested more than Rs. 5,000 crores in the

hotel business.

9.1.5 The plaintiff has prima facie reputation in respect of the said

trademark on the basis of the aforesaid facts, annual revenues and the

expenses on advertisements.

9.1.6 The defendant adopted the identical trade mark ‘‘Lemon Tree’’

without any justification in year 2009 in respect of its project at a

distance of 2 kilometers from the plaintiff’s hotel which came into existence

in 2008. The adoption of the plaintiff’s trade mark ‘‘Lemon Tree’’ by the

defendant appears to be dishonest with the sole intention to encash the

goodwill and reputation of the plaintiff.

9.1.7 The defendant’s claim that the mark ‘‘Lemon Tree’’ has

become distinctive of their business and they have invested huge amount

and have given vide publicity is misconceived in as much as the plaintiff

instituted this suit in 2009 itself immediately after becoming aware of the

defendant’s use. The defendant has also not placed on record any material

to substantiate its claim. The entire defense of the defendant appears to

be frivolous.

9.1.8 The defendant’s mark ‘‘Lemon Tree Apartments’’ is identical

to the registered trade mark of the plaintiff; the services of the plaintiff

and the defendant are similar (the plaintiff is in hotel business whereas

the defendant is in the business of construction); it is likely to cause

confusion to the public that the defendant’s ‘‘Lemon Tree Apartments’’

have an association with the plaintiff and, therefore, the plaintiff is entitled

to protection under Section 29(2) and (3) of the Trade Marks Act.

9.1.9. Even if the services of the plaintiff and the defendant are

taken to be not similar as contended by the defendant, the plaintiff is

entitled to protection under Section 29(4) of the Trade Marks Act as the

plaintiff has reputation in India; use of the infringing mark by the defendant

is without any justification; the defendant has taken unfair advantage and

it is detrimental to the distinctive character as well as the repute of the

plaintiff’s registered trade mark.

9.1.10 With respect to the plea that there is a Lemon Tree Hotel in

USA, the defendant has not been able to show cross border reputation

of the said hotel in India.

9.2 Balance of convenience

9.2.1 The balance of convenience lies in favour of the plaintiff and

against the defendant as the plaintiff is the registered proprietor of the

trademark ‘‘Lemon Tree’’ and is in continuous use since October, 2002

with eleven operational hotels and eight hotels under construction all over

the country with an investment of more than Rs.5,000 crores.

9.2.2 On the other hand, the defendant who had been carrying on

its construction business in the name of Vaishnavi Estates (P) Ltd since

1997, adopted the plaintiff’s trademark ‘‘Lemon Tree’’ without any

justification in 2009 with the full knowledge of the plaintiff’s hotel in

Hyderabad at a distance of about 2 kms from the plaintiff’s project and

the plaintiff immediately filed the present suit.

9.2.3 The defendant is using the plaintiff’s registered trade mark

‘‘Lemon Tree’’ in respect of one project.

9.2.4 The defendant has given an undertaking to this Court on 23rd

March, 2011 not to use the said trademark for any other project. Even

one project in respect of which the defendant is using the trademark

‘‘Lemon Tree’’ is a joint venture agreement in respect of which the

defendant has already sold more than 105 flats.

9.2.5 It is not disputed that the defendant has only limited interest

in the project till the sale of the flats.

9.2.6 The defendant cannot ride on the plaintiff’s goodwill and

reputation to sell the remaining flats.

9.3 Irreparable loss and injury

The plaintiff would suffer irreparable loss and injury in case the

defendant is not restrained from using the plaintiff’s registered trademark.

If the defendant is not restrained from using the plaintiff’s registered

trademark ‘‘Lemon Tree’’, it would also dilute the plaintiff’s trademark

and would also cause confusion to the public, who would associate the

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defendant’s project with the plaintiff.

9.4 Relevant judgments

This case is squarely covered by the principles laid down in Ozone

SPA Private Limited (supra), Rolex SA (supra), Vardhman Properties

Ltd. (supra), Indian Shaving Project Limited (supra) and Mahendra

& Mahendra Paper Mills Ltd. (supra). With respect to the judgments

cited by the defendant, this Court accepts the submissions of the plaintiff

recorded in para 7 above.

10. Conduct of the defendant

10.1. In Dalip Singh v. State of U.P., (2010) 2 SCC 114, the

Supreme Court noted as under:-

‘‘1. For many centuries, Indian society cherished two basic

values of life i.e. ‘Satya’ (truth) and ‘Ahimsa’ (non-violence).

Mahavir, Gautam Buddha and Mahatma Gandhi guided the people

to ingrain these values in their daily life. Truth constituted an

integral part of the justice-delivery system which was in vogue

in pre-Independence era and the people used to feel proud to tell

truth in the courts irrespective of the consequences. However,

post-Independence period has seen drastic changes in our value

system. The materialism has over-shadowed the old ethos and

the quest for personal gain has become so intense that those

involved in litigation do not hesitate to take shelter of falsehood,

misrepresentation and suppression of facts in the court

proceedings. In the last 40 years, a new creed of litigants has

cropped up. Those who belong to this creed do not have any

respect for truth. They shamelessly resort to falsehood and

unethical means for achieving their goals. In order to meet the

challenge posed by this new creed of litigants, the courts have,

from time to time, evolved new rules and it is now well established

that a litigant, who attempts to pollute the stream of justice or

who touches the pure fountain of justice with tainted hands, is

not entitled to any relief, interim or final.’’

10.2. In Padmawati and Ors. v. Harijan Sewak Sangh, 154

(2008) DLT 411, this Court noted as under:

‘‘6. The case at hand shows that frivolous defences and frivolous

litigation is a calculated venture involving no risks situation. You

have only to engage professionals to prolong the litigation so as

to deprive the rights of a person and enjoy the fruits of illegalities.

I consider that in such cases where Court finds that using the

Courts as a tool, a litigant has perpetuated illegalities or has

perpetuated an illegal possession, the Court must impose costs

on such litigants which should be equal to the benefits derived

by the litigant and harm and deprivation suffered by the rightful

person so as to check the frivolous litigation and prevent the

people from reaping a rich harvest of illegal acts through the

Courts. One of the aim of every judicial system has to be to

discourage unjust enrichment using Courts as a tool. The costs

imposed by the Courts must in all cases should be the real costs

equal to deprivation suffered by the rightful person.’’

xxxxxx

‘‘9. Before parting with this case, I consider it necessary to

pen down that one of the reasons for over-flowing of court

dockets is the frivolous litigation in which the Courts are

engaged by the litigants and which is dragged as long as

possible. Even if these litigants ultimately loose the lis,

they become the real victors and have the last laugh. This

class of people who perpetuate illegal acts by obtaining stays

and injunctions from the Courts must be made to pay the

sufferer not only the entire illegal gains made by them as

costs to the person deprived of his right and also must be

burdened with exemplary costs. Faith of people in judiciary

can only be sustained if the persons on the right side of the

law do not feel that even if they keep fighting for justice in

the Court and ultimately win, they would turn out to be a

fool since winning a case after 20 or 30 years would make

wrong doer as real gainer, who had reaped the benefits for

all those years. Thus, it becomes the duty of the Courts to

see that such wrong doers are discouraged at every step and

even if they succeed in prolonging the litigation due to their

money power, ultimately they must suffer the costs of all

these years long litigation. Despite settled legal positions,

the obvious wrong doers, use one after another tier of judicial

review mechanism as a gamble, knowing fully well that dice

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is always loaded in their favour, since even if they lose, the

time gained is the real gain. This situation must be redeemed

by the Courts.’’

(Emphasis supplied)

This Court imposed costs of Rs. 15.1 lakhs in the above case

against which Special Leave to Appeal (Civil) No 29197/2008 was preferred

to the Supreme Court. On 19th March, 2010, the Supreme Court passed

the following order: ‘‘We have heard learned Counsel appearing for the

parties.

We find no ground to interfere with the well-considered judgment

passed by the High Court. The Special Leave Petition is,

accordingly, dismissed.’’

10.3 I agree with the findings by the learned Judge in Padmawati’s

case (supra) and wish to add a few words. There is another feature

which has been observed and it is of unscrupulous persons filing false

claims or defences with a view that the other person would get tired and

would then agree to compromise with him by giving up some right or

paying some money. If the other party is not able to continue contesting

the case or the Court by reason of falsehood falls into an error, the

wrong succeeds. Many times, the other party compromises, or at other

times, he may continue to fight it out. But as far as the party in the

wrong is concerned, as this Court noted in Padmawati’s case (supra),

even if these litigants ultimately lose the lis, they become the real victors

and have the last laugh.

10.4 In the present case, the conduct of the defendant does not

appear to be honest. The defendant has raised a frivolous defence with

the hope that the defendant can, with the Court delays, drag the case for

years and the other side would succumb to buy peace. If the other side

does not so settle in the end, they are hardly compensated and remains

a loser.

11. Imposition of Costs

In the recent judgment dated 4th July, 2011 in the case of

Ramrameshwari Devi v. Nirmala Devi, MANU/SC/0714/2011, the

Supreme Court has held that the Courts have to take into consideration

pragmatic realities and have to be realistic in imposing the costs. The

relevant paragraphs of the said judgment are reproduced hereunder:-

‘‘45. ....We are clearly of the view that unless we ensure that

wrongdoers are denied profit or undue benefit from the frivolous

litigation, it would be difficult to control frivolous and uncalled

for litigations. In order to curb uncalled for and frivolous litigation,

the courts have to ensure that there is no incentive or motive for

uncalled for litigation. It is a matter of common experience that

court’s otherwise scarce and valuable time is consumed or more

appropriately wasted in a large number of uncalled for cases.’’

‘‘52. The main question which arises for our consideration is

whether the prevailing delay in civil litigation can be curbed? In

our considered opinion the existing system can be drastically

changed or improved if the following steps are taken by the trial

courts while dealing with the civil trials.

A. Pleadings are foundation of the claims of parties. Civil litigation

is largely based on documents. It is the bounden duty and

obligation of the trial judge to carefully scrutinize, check and

verify the pleadings and the documents filed by the parties. This

must be done immediately after civil suits are filed.

B. The Court should resort to discovery and production of

documents and interrogatories at the earliest according to the

object of the Act. If this exercise is carefully carried out, it

would focus the controversies involved in the case and help the

court in arriving at truth of the matter and doing substantial

justice.

C. Imposition of actual, realistic or proper costs and or

ordering prosecution would go a long way in controlling the

tendency of introducing false pleadings and forged and

fabricated documents by the litigants. Imposition of heavy

costs would also control unnecessary adjournments by the

parties. In appropriate cases the courts may consider ordering

prosecution otherwise it may not be possible to maintain

purity and sanctity of judicial proceedings.

D. The Court must adopt realistic and pragmatic approach in

granting mesne profits. The Court must carefully keep in view

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improve.

54. While imposing costs we have to take into consideration

pragmatic realities and be realistic what the Defendants or

the Respondents had to actually incur in contesting the

litigation before different courts. We have to also broadly

take into consideration the prevalent fee structure of the

lawyers and other miscellaneous expenses which have to be

incurred towards drafting and filing of the counter affidavit,

miscellaneous charges towards typing, photocopying, court

fee etc.

55. The other factor which should not be forgotten while imposing

costs is for how long the Defendants or Respondents were

compelled to contest and defend the litigation in various courts.

The Appellants in the instant case have harassed the Respondents

to the hilt for four decades in a totally frivolous and dishonest

litigation in various courts. The Appellants have also wasted

judicial time of the various courts for the last 40 years.

56. On consideration of totality of the facts and circumstances

of this case, we do not find any infirmity in the well reasoned

impugned order/judgment. These appeals are consequently

dismissed with costs, which we quantify as Rs.2,00,000/-

(Rupees Two Lakhs only). We are imposing the costs not out

of anguish but by following the fundamental principle that

wrongdoers should not get benefit out of frivolous litigation.’’

(Emphasis supplied)

This case is squarely covered by the aforesaid judgment and

warrants imposition of realistic costs on the defendant.

12. Conclusion

12.1 In the facts and circumstances of this case, the application is

allowed and the defendant, their collaborators, agents, dealers and

representatives are restrained from using the plaintiff’s registered trademark

‘‘Lemon Tree’’ or any other mark identical with/or deceptively similar to

the plaintiff’s trade mark ‘‘Lemon Tree’’ as a trade mark, trade name or

trading style or in any other manner till the disposal of this suit.

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the ground realities while granting mesne profits.

E. The courts should be extremely careful and cautious in granting

ex-parte ad interim injunctions or stay orders. Ordinarily short

notice should be issued to the Defendants or Respondents and

only after hearing concerned parties appropriate orders should be

passed.

F. Litigants who obtained ex-parte ad interim injunction on the

strength of false pleadings and forged documents should be

adequately punished. No one should be allowed to abuse the

process of the court.

G. The principle of restitution be fully applied in a pragmatic

manner in order to do real and substantial justice.

H. Every case emanates from a human or a commercial problem

and the Court must make serious endeavour to resolve the problem

within the framework of law and in accordance with the well

settled principles of law and justice.

I. If in a given case, ex parte injunction is granted, then the said

application for grant of injunction should be disposed of on

merits, after hearing both sides as expeditiously as may be possible

on a priority basis and undue adjournments should be avoided.

J. At the time of filing of the plaint, the trial court should prepare

complete schedule and fix dates for all the stages of the suit,

right from filing of the written statement till pronouncement of

judgment and the courts should strictly adhere to the said dates

and the said time table as far as possible. If any interlocutory

application is filed then the same be disposed of in between the

said dates of hearings fixed in the said suit itself so that the date

fixed for the main suit may not be disturbed.

53. According to us, these aforementioned steps may help the

courts to drastically improve the existing system of administration

of civil litigation in our Courts. No doubt, it would take some

time for the courts, litigants and the advocates to follow the

aforesaid steps, but once it is observed across the country, then

prevailing system of adjudication of civil courts is bound to

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12.2 Following the judgment of the Supreme Court in

Ramrameshwari Devi (supra) and considering that the defendant raised

a totally frivolous and dishonest defence and the hearing of the injunction

application continued for seven hearings, this Court considers the cost of

Rs.2,00,000/- to be realistic. The cost of Rs. 2,00,000/- is, therefore,

imposed on the defendant to be paid to the plaintiff within four weeks.

12.3 In the interest of justice, equity and fairplay, the defendant is

granted two months time to change its name in terms of this order and

to remove the signboards, brochures, etc. subject to the payment of cost

as aforesaid to the plaintiff within four weeks.

12.4 The observations made hereinabove are prima facie and shall

not constitute any expression of final opinion on the issues involved and

shall have no bearing on the merits of the case.

12.5 List before the Regular Bench as per Roster on 5th August.

ILR (2011) VI DELHI 789

CRL. M.C.

ASHOK CHACHRA ....PETITIONER

VERSUS

THE STATE ....RESPONDENT

(SURESH KAIT, J.)

CRL. M.C. NO. : 2387/2011 DATE OF DECISION: 04.08.2011

Negotiable Instruments Act, 1881—Section 138—

Complaint u/s 138 filed—Accused convicted by trial

Court and sentenced to undergo SI for one year and

fine of Rs. 5,000/-—Criminal Revision filed before

Sessions Court—Substantive Sentence of one year SI

done away with and fine enhanced to Rs. 16,40,000/-

with direction that entire fine amount be given to

complainant as compensation and in default accused

to undergo SI for one year—Fine Amount directed to

be given directly to complainant in four instalments of

Rs.4,10,000/- each—Accused filed revision before High

Court—High Court granted stay subject to deposit of

Rs.10,00,000/- with Registrar General within four

weeks—Criminal Misc. Petition for staying operation

of impugned order passed by ASJ vacated—Application

u/s 424 and another application u/s 421 Cr.P.C. for

sentence for imprisonment in default to be carried out

and for issuance of warrants respectively moved

before M.M.—Vide impugned order M.M. directed court

notice to be issued—Contention of applicant that trial

Court should have issued Non Bailable Warrants

against convict instead of Court notice—No question

of issuing notice to convict arises because there is

no law that requires that a notice should be given

before a warrant of levy of fine is issued against the

person sentenced to fine—Trial Court directed to

ensure arrest of convict in accordance with law—

Appeal Allowed.

In support of his contentions, the learned counsel for the

petitioner has relied upon the Judgment of Allahbad High

court decided on 20.04.1960 in a case of Trilok Chand v.

C.N. Srivastava and Ors.. AIR 1961 ALL 88, wherein in

para 2, the Court has observed as follows:-

‘‘There is no force in the applicant’s contention that

Sri C.N. Srivastava had no jurisdiction to pass the

order of levy of fine and that he could not do so

without issuing a notice to the applicant. Sri. C.N.

Srivastava only executed the order passed by his

predecessor, Sri K.C. Sinha. The order of Sri K.C.

789 790Ashok Chachra v. The State (Suresh Kait, J.)

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Sinha was bound to be executed and since Sri C.N.

Srivastava took up all the work left by him he was

competent to execute the order. No question of any

hearing or of issuing a notice to the applicant arises

because there is no law that requires that a notice

should be given before a warrant of levy of fine is

issued against ‘the person’ sentenced to fine. The

applicant was bound to pay the fine at the rate of

Rs.100/- per day during which the offence continued.

If he disputed that the offence continued or that it was

continued for so many days he ‘‘could object to the

attachment of his property but the attachment does

not become illegal’ because he was not heard before

the warrant was issued’’. (Para 12)

Important Issue Involved: There is no requirement of

giving hearing or issuing notice to convict u/S 138 NI Act

as there is no law that requires that a notice should be given

before a warrant of levy of fine is issued against the person

sentenced to fine.

[Ad Ch]

APPEARANCES:

FOR THE PETITIONER : Mr. Satish Agarwal, Advocate.

FOR THE RESPONDENT : Ms. Rajdipa Behura, APP.

CASE REFERRED TO:

1. Trilok Chand vs. C.N. Srivastava and Ors.. AIR 1961

ALL 88.

RESULT: Appeal Allowed.

SURESH KAIT, J.

(Oral CRL. M.A. 8701/2011 (Exemption)

Allowed subject to all just exceptions.

CRL.M.C. 2387/2011

1. Admit. Issue notice. Ms. Rajdipa Behura, learned APP for State

accepts notice on behalf of State.

2. It is submitted by learned counsel for the petitioner that a complaint

under section 138 of the Negotiable Instruments act was filed in respect

of dishonor of cheque for a sum of 8.8,21,600/- against the accused

Bharat Bhushan. The accused Bharat Bhushan was convicted by learned

Metropolitan Magistrate vide order dated 24.11.2004 to undergo SI for

1 year and fine of Rs.5000/- for the offence punishable under Section

138 of Negotiable Instruments Act, 1881.

3. Vide order dated 28.02,2011 in Criminal Revision No. 88/2010,

the sentence was modified and the substantive sentence of one year

awarded by the learned Trial court was done away with and the fine was

enhanced to Rs.16,40,000/-.

4. Further, it was directed that the respondent shall deposit a fine

of Rs.16,40,000/- and the entire fine amount shall be given to the

revisionist/Sh. Ashok Kumar Chachra as compensation. In default of

payment of fine, respondent shall undergo simple imprisonment for one

year.

5. Respondent submitted before the Revisional Court that he may

be allowed to pay fine/compensation in four installments for Rs.4,10,000/

- each.

6. Accordingly, it was further directed that the fine amount may be

given by the respondent directly to the revisionist and one week’s time

was granted to respondent to pay the first installment of compensation

before the learned Trial court i.e on 07.03.2011.

7. Thereafter, Bharat Bhushan filed a Revision Petition (Crl.) No.

126/2011 before this court, wherein the court granted stay on the operation

of the impugned order dated 28.02.2001 passed by the learned Additional

Sessions Judge till 19.05.2011 subject to the deposit of Rs.10 Lacs with

the Registrar General of this court within four weeks.

8. Vide order dated 05.07.2011 in Crl. Rev. 126/2011 filed by

Bharat Bhushan, the Crl. M.B. 509/2011 was dismissed and the order

791 792Ashok Chachra v. The State (Suresh Kait, J.)

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passed in the said Crl. M.B. for staying the operation of impugned order

dated 28.02.2001 passed by the learned Additional Sessions Judge was

vacated. A Dasti copy of the order was supplied to the parties.

9. On 06.07.2011, an application under Section 424 of Cr.P.C. and

another application under Section 421 Cr.P.C for sentence of imprisonment

in default to be carried out and for issuance of warrants respectively

were moved before the concerned Metropolitan Magistrate along with

copy of the order passed in Crl. Rev. 126/2011 dated 28.02.2001 passed

by the learned Additional Sessions Judge.

10. Learned Metropolitan Magistrate vide order dated 06.07.2011

directed a court notice to be issued to the convict Bharat Bhushan,

returnable for 29.07.2011. The order is reproduced hereunder:-

‘‘06.07.2011

Present : Sh. Sushil Kaushik Ld. Counsel for the complainant.

None for the accused.

Vakalatnama filed. It be taken o record. The accused was

convicted by this court vide order dated 22.11.2004. Against the

said order of conviction accused moved the Sessions Court by

way of appeal, which was dismissed vide order dated 28.02.2011

of the learned ASJ and dismissing the same the Sessions Court

was pleased to modify the order on sentence from that of fine

fo Rs.5,000/- and one year imprisonment to fine of Rs.16,40,000/

- and one year simple imprisonment, in case of default in payment

of said fine.

The order of the Sessions court was challenged by the accused

by moving a revision petition before the Hon’ble High Court of

delhi.

While admitting the said revision petition (Crl. Rev. P. 126/

2011) was pleased to stay the operation of the order dated

28.02.2011 passed by Sh. Vinay Kumar Khanna, Ld. ASJ till the

next date of eharing i.e 19.05.2011, this stay was conditional i.e

it was subject to the petitioner/accused depositing Rs.10,00,000/

- with the Registrar general of the High Court within four weeks

from 19.05.2011.

The said stay was vacated by the Hon’ble High Court vide its

order dated 05.07.2011.

Copy of the said order has been placed on record by the ld.

Counsel for the complainant. Issue court notice to the convict

for 29.07.2011.

Court notice be given dasti.

(NIPUN AWASTHI)

MM(01) South, NI Act

New Delhi 06.07.2011.’’

11. The learned counsel for the applicant/Sh. Ashok Kumar Chachra

further submits that the trial court has issued court notice to the convict

instead of issuing non bailable warrants against the convicts.

12. In support of his contentions, the learned counsel for the petitioner

has relied upon the Judgment of Allahbad High court decided on 20.04.1960

in a case of Trilok Chand v. C.N. Srivastava and Ors.. AIR 1961 ALL

88, wherein in para 2, the Court has observed as follows:-

‘‘There is no force in the applicant’s contention that Sri C.N.

Srivastava had no jurisdiction to pass the order of levy of fine

and that he could not do so without issuing a notice to the

applicant. Sri. C.N. Srivastava only executed the order passed by

his predecessor, Sri K.C. Sinha. The order of Sri K.C. Sinha

was bound to be executed and since Sri C.N. Srivastava took up

all the work left by him he was competent to execute the order.

No question of any hearing or of issuing a notice to the applicant

arises because there is no law that requires that a notice should

be given before a warrant of levy of fine is issued against ‘the

person’ sentenced to fine. The applicant was bound to pay the

fine at the rate of Rs.100/- per day during which the offence

continued. If he disputed that the offence continued or that it

was continued for so many days he ‘‘could object to the

attachment of his property but the attachment does not become

illegal’ because he was not heard before the warrant was issued’’.

793 794Ashok Chachra v. The State (Suresh Kait, J.)

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13. I find force in the submissions made by learned counsel for the

petitioner and in the interest of justice, I direct the trial court to ensure

the arrest of convict/Sh. Bharat Bhushan in accordance with law.

14. Crl. M.C. 2387/2011 is disposed of accordingly.

15. Dasti under the signatures of Court Master.

IL R (2011) DELHI 795

W.P.(C)

SURESH KALMADI (IN JUDICIAL CUSTODY) ....PETITIONER

VERSUS

UNION OF INDIA & ORS. ....RESPONDENTS

(RAJIV SAHAI ENDLAW, J.)

W.P.(C) NO. : 5367/2011 DATE OF DECISION: 05.08.2011

Indian Penal Code, 1860—Section 120B, 420, 467, 468

and 471—Prevention of Corruption Act, 1988—Section

13(1) (d) and 13(2)—Constitution of India, 1950—Article

19(1) (a), 21, 105 (1) and 326—Petitioner, a

Parliamentarian in Judicial Custody filed writ petition

for permission to attend Parliament in Judicial

Custody—Plea taken, Parliamentarian has freedom of

speech subject only to rules and standing orders

regulating procedure of Parliament none of which

prevents petitioner from attending Parliament and

speaking while in custody—Constitutional right of

petitioner to participate in Parlimentary proceedings

and right to vote in Parliament as elected

representative is essence and expression of

Parliamentary democracy—Parliamentary democracy is

basic feature of Constitution of India and there is no

reason for denying such participation to petitioner

while same is possible in judicial custody—Refusing

participation in Parliamentary proceedings to petitioner

would deny him opportunity to fulfill his constitutional

objections to attend proceedings of Parliament—Unless

petitioner is so permitted, Parliamentary Constituency

which had elected him would go unrepresented in

Parliament—Public interest demands that petitioner,

be permitted to attend Parliament—Per contra, plea

taken offences with which petitioner is charged with

are extremely grave and serious causing huge wrongful

pecuniary benefits to certain private parties and

consequent loss to public exchequer—Some of other

accused officials of the Organizing Committee for

Common Wealth Games of which petitioner was

chairman are still absconding—CBI apprehends that

petitioner may misuse liberty sought by way of present

petition to influence witnesses and tamper with

evidence—Held—Argument as raised by petitioner

amounts to placing Members of Parliament (M.P.) at a

pedestal higher than their electorate—Argument

assumes work of a M.P. is more sacred and important

than work/vocation in which citizens who have elected

said Parliamentarian may be engaged in—Such

argument is archaic and creates two classes of citizens

as in a monarchy i.e. king and subject and is alien to

Constitution—Merely because petitioner is a

Parliamentarian does not entitle him to claim any

exception from effect of being in detention—It is not

case of petitioner that vote of petitioner on any aspect

is vital or that without such participation citizens of

his constituency would suffer—Petitioner, in past, as

per his convenience has been missing Sessions of

Parliament—When petitioner could afford to miss

parliament to spend time on National Games or

795 796 Suresh Kalmadi (In Judicial Custody) v. Union of India (Rajiv Sahai Endlaw, J.)

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Participate in Games at China, his desire/keenness to

attend parliament can only be understood as attempt

for fresh air outside prison walls—Petitioner is not

entitled to relief claimed—Petition dismissed with costs

of Rs. 1,00,000/- payable to Prime Minister’s National

Relief Fund.

Important Issue Involved: (A) Merely because the

petitioner is a Parliamentarian does not entitle him to claim

any exception from the effect of being in detention.

(B) The Parliament House cannot be expected to allow even

the sanctuary of its walls to protect a member from the

process of criminal law.

[Ar Bh]

APPEARANCES:

FOR THE PETITIONER : Mr. Ashok Desai, Mr. Neeraj Kishan

Kaul & Mr. Siddharth Luthra, Sr.

Advocates with Ms. Shyel Trehan,

Ms. Diya Kapur, Ms. Manjira Das

Gupta & Mr. Nikhil Pillai, Advocates.

FOR THE RESPONDENTS : Mr. A.S. Chandhiok, ASG with Ms.

Maneesha Dhir, Ms. Preeti Dalal, Mr.

Bhagat Singh & Ms. Mithu Jain,

Advocates for R-1. Mr. Dayan

Krishnan with Mr. Gautam Narayan

& Mr. Nikhil A. Menon, Advocates

for R-3.

CASES REFERRED TO:

1. Shekhar Tiwari vs. State of UP MANU/UP/0553/2009.

2. Kameshwar Baitha vs. State of Jharkhand MANU/JH/

1070/2009.

3. Shekhar Tiwari vs. State of UP MANU/UP/0553/2009.

4. Raja Ram Pal vs. Hon’ble Speaker, Lok Sabha (2007) 3

SCC 184.

5. Raghu Raj Pratap Singh @ Raja Bhaiya vs. State of

U.P. MANU/UP/0237/2003.

6. People’s Union for Civil Liberties (PUCL) vs. Union of

India (2003) 4 SCC 399.

7. Vineet Narain vs. Union of India (1998) 1 SCC 226.

8. P.V. Narasimha Rao vs. State (CBI/SPE) (1998) 4 SCC

626.

9. Daljit Singh Rajput vs. Chandigarh Administration MANU/

PH/0047/1998.

10. Indira Nehru Gandhi vs. Raj Narain 1975 (Supp) SCC.

11. K. Ananda Nambiar vs. Chief Secretary, Government of

Madras AIR 1966 SC 657.

12. Pandit M.S.M. Sharma vs. Sh. Sri Krishna Sinha AIR

1959 SC 395.

RESULT: Dismissed with cost of Rs. 1,00,000/-.

RAJIV SAHAI ENDLAW, J.

1. The petitioner, a Parliamentarian in judicial custody has filed this

writ petition seeking direction for permission to attend the Parliament

while remaining in judicial custody. It is inter alia the case of the petitioner

that he has received summons dated 14th July, 2011 summoning him to

attend the 8th Session of the 15th Lok Sabha commencing from 1st

August, 2011; that on enquiry, he has been informed that a Member who

is in prison in connection with any criminal case can be permitted by the

competent Court to attend day-to-day proceedings of the Lok Sabha; that

the bail application filed by him has been rejected vide order dated 6th

June, 2011; that though he made an application before the Special Judge

before whom he is being prosecuted for offences under Sections 120B

read with Sections 420, 467, 468 and 471 of the Indian Penal Code, 1860

and under Sections 13(2) read with Section 13(1)(d) of the Prevention

of Corruption Act, 1988 but the same was withdrawn with permission

797 798 Suresh Kalmadi (In Judicial Custody) v. Union of India (Rajiv Sahai Endlaw, J.)

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to apply to this Court for the reason that Ministry of Home Affairs is a

necessary party to the matter as security arrangements in Parliament fall

within the jurisdiction of the said Ministry.

2. It is further the case of the petitioner that the Courts have

routinely in the past permitted Members of Parliament to attend Parliament

Sessions while in custody; that Article 105(1) of the Constitution of India

grants to a Parliamentarian the freedom of speech subject only to the

rules and standing orders regulating the procedure of Parliament; that no

rule, standing order or procedure prevents the petitioner from attending

Parliament and speaking there-at while in custody; that the Constitutional

right of the petitioner to participate in Parliamentary proceedings and the

right to vote in Parliament as an elected representative is the essence and

expression of Parliamentary democracy and an expression of the

Constitutional right to vote guaranteed to every adult citizen under Article

326 of the Constitution of India and the freedom of expression guaranteed

by Article 19(1)(a) exercised in electing the petitioner as an elected

representative; that Parliamentary democracy is the basic feature of the

Constitution of India and there is no reason for denying such participation

to the petitioner when the same is possible while remaining in custody;

that because refusing participation in Parliamentary proceedings to the

petitioner would deny him the opportunity to fulfill his Constitutional

obligations to attend the proceedings of Parliament. It is further pleaded

that the petitioner is willing to abide by any condition which may be

imposed in this regard. The petitioner seeks mandamus to the respondents

Union of India Ministry of Home Affairs, Jail Superintendent Tihar Jail

and Central Bureau of Investigation (CBI) to take appropriate steps for

allowing the petitioner to, in custody attend the Parliamentary proceedings

commencing from 1st August, 2011 and scheduled until 8th September,

2011.

3. The petition came up first before this Court on 29th July, 2011

when the senior counsel for the petitioner relied on the orders dated 27th

November, 2008 and 10th February, 2009 in W.P.(C) No.7548/2008 and

W.P.(C) No.854/2009 both preferred by Sh. Rajesh Ranjan @ Pappu

Yadav permitting him to attend the Sessions of Parliament. Reliance was

also placed on newspaper reports of the Jharkhand High Court having

allowed Mr. Madhu Koda to attend Parliament while in custody.

4. However, the aforesaid orders, on a reading thereof appeared to

be consensual and were not found to contain any reasoning or adjudication.

It ˇwas thus put to the senior counsel for the petitioner that the same

could not constitute a precedent.

5. It was enquired from the senior counsel for the petitioner whether

the need / duty to attend Parliament can be placed at higher pedestal than

the other duties which other persons in detention may be required to

perform. It was felt that on the same parity, every person under detention

can claim that he / she should be allowed to carry on his trade / vocation

or to perform his / her duties including as of a son / father / husband

/ wife etc.; every person performing public functions would take the

same plea; the Directors on Board of Companies, the office bearers of

Trusts / Charities / Clubs would say that they too should be allowed to

perform their duties – thereby making arrest / detention farcical.

6. The senior counsel for the petitioner had then contended that

unless the petitioner is so permitted, the Parliamentary Constituency which

had elected him would go unrepresented in Parliament. It was thus

contended that public interest demands that the petitioner be permitted to

attend Parliament.

7. In the face of the aforesaid argument, need was felt to enquire

into the past record of attendance of the petitioner in the Parliament. This

Court felt that if the petitioner in the past, without being prevented as he

now is, had not regularly attended the Parliament then he ought not be

permitted to use that as a mere excuse. The petitioner was as such called

upon to file an affidavit detailing his attendance in Parliament in the last

five years.

8. Further, considering that the Parliament Sessions are now telecast

live, need of the petitioner to attend Parliament in person was also enquired

into.

9. Yet further, in view of the newspaper reports having indicated

that the petitioner was under medical examination, the petitioner was

required to file an affidavit in that regard also.

10. Though the learned ASG and the counsel for the CBI appearing

on advance notice had sought opportunity to file counter affidavits but

799 800 Suresh Kalmadi (In Judicial Custody) v. Union of India (Rajiv Sahai Endlaw, J.)

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being of the view that the question involved was purely legal and

considering the urgency expressed, need for issuing formal notice of the

petition and calling for counter affidavits was not felt and the counsels

were called upon to address finally on the matter.

11. The petitioner has filed an affidavit as directed. CBI has also put

in a short reply.

12. The petitioner in his affidavit has disclosed his attendance during

the Parliamentary Sessions of the 14th Lok Sabha from 2nd June, 2004

to 26th February, 2009 as varying from a low of 42% to a high of 91%.

I may however add that except for one Session where the attendance

was 42%, the attendance in all the other Sessions was above 57%. Qua

the Parliamentary Sessions of the 15th Lok Sabha from 1st June, 2009

to 25th March, 2011 attendance has been disclosed as 100%, 85%, 48%,

75%, 12%, 4% & 39%. It is stated that the poor attendance in some of

the Sessions was during the time leading up to the Commonwealth Games

and during which time the petitioner was dedicating all his time to

organization of the Games. The poor attendance thereafter is stated to be

owing to the participation in Asian Games in China and owing to organizing

the National Games at Ranchi.

13. The petitioner qua his participation in the Parliamentary Sessions

has deposed that he has frequently asked questions and participated in

debates and has in the 15th Lok Sabha already raised 42 questions. It is

further deposed that Members of Parliament are also permitted to

participate in the discussions on the floor of the House and the petitioner

intends to participate in the discussions in the ensuing Session on issues

relating to Pune Airport, the local train network and urban development.

14. The respondent No.3 CBI in its short reply has pleaded that the

offences with which the petitioner is charged with are extremely grave

and serious causing huge wrongful pecuniary benefits to certain private

parties and consequent loss to the public exchequer; that some of the

other accused officials of the Organizing Committee for Commonwealth

Games of which the petitioner was the Chairman are still absconding;

that the CBI apprehends that the petitioner may misuse the liberty sought

by way of the present petition to influence the witnesses and tamper with

the evidence. The respondent No.3 CBI without prejudice to the said

pleas has also detailed the conditions to be imposed in the event of the

petition being allowed.

15. The senior counsel for the petitioner has urged that Parliamentary

ˇrepresentation is essential in a democracy and basic feature of the

Constitution; the people / citizens are represented in the Parliament through

their elected representatives as the petitioner is; that after the 44th

amendment to the Constitution of India, Article 21 cannot be suspended;

that Article 105 prevails over Article 19; that the guilt of the petitioner

has not been established as yet and the petitioner is but an accused; that

the apprehension expressed by the CBI of the petitioner upon being so

allowed to attend Parliament, influencing witnesses can be allayed by

imposing appropriate conditions; that Members of Parliament are the live

link which connect the people to their Government; that the elected

representative has a duty under the Constitution to his electorate and

which entails a corresponding obligation to attend Parliament; that there

is a need for balancing the said functions of the petitioner with his

detention; that for the petitioner to exercise the right of freedom of

speech as a Parliamentarian, he needs to have access to the Parliament

and without such access there can be no such freedom. It is further

stated that Mr. Madhu Koda who has been allowed by the concerned

Court to attend Parliament is also presently lodged in Tihar Jail and

arrangements have already been made for his transit to and fro Parliament

and it will be travesty that while one Parliamentarian lodged in the same

jail is allowed to attend Parliament, other is not.

16. The senior counsel for the petitioner during the course of

hearing has referred to:

(i) P.V. Narasimha Rao Vs. State (CBI/SPE) (1998) 4 SCC

626 in para 47 whereof it was held that Parliamentary

democracy is a part of the basic structure of the

Constitution; in paras 162 & 165, that in a democratic

form of Government, it is the Member of Parliament who

represents the people of his Constituency in the highest

law making bodies at the Centre and performs a public

duty.

(ii) People’s Union for Civil Liberties (PUCL) Vs. Union

801 802 Suresh Kalmadi (In Judicial Custody) v. Union of India (Rajiv Sahai Endlaw, J.)

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of India (2003) 4 SCC 399 para 94 whereof details the

duties and responsibilities of a Member of Parliament.

(iii) Pandit M.S.M. Sharma Vs. Sh. Sri Krishna Sinha AIR

1959 SC 395 in paras 24 & 25 whereof it was laid down

that the freedom of speech under Article 194(1) cannot

be cut down in any way by any law contemplated by

Article 19(2).

17. The arguments as raised by the senior counsel for the petitioner

were raised before the Constitution Bench of the Apex Court also as far

back as in K. Ananda Nambiar Vs. Chief Secretary, Government of

Madras AIR 1966 SC 657. The legendary Mr. Setalvad appearing for the

Member of Parliament then under detention had also contended that a

Member of Parliament has Constitutional rights to function as such Member

and to participate in the business of the House to which he belongs – that

he is entitled to attend every Session of Parliament, to take part in the

debate, and to record his vote and no law can validly take away his right

to function as such Member. It was thus the contention before the Apex

Court also that the legislators have certain Constitutional rights which

cannot validly be taken away by any statute or statutory rule.

18. Of course, the senior counsel here, has not pegged the right of

the petitioner so high. Nevertheless, an exception to the principle of

detention, of the person under detention being deprived from access to

his family, friends, work, vocation etc., is sought to be carved out in the

case of Members of Parliament.

19. Before adverting to what was held by the Constitution Bench

on the contentions aforesaid of Mr. Setalvad, I may humbly observe that

the argument as raised before this Court amounts to placing Members of

Parliament at a pedestal higher than their electorate. The argument assumes

that the work of a Member of Parliament is more sacred and important

than the work / vocation in which the citizens who have elected the said

Parliamentarian may be engaged in. Such an argument is archaic and

creates two classes of citizens as in a monarchy i.e. the King and the

Subject and is alien to our Constitution. The legal luminary of our times,

Mr. Nani A. Palkhivala in his book “Our Constitution Defaced and Defiled”

has explained the essence of our Constitution as under:-

“Our Constitution is primarily shaped and moulded for the

common man. It takes no account of "the portly presence of the

potentates, goodly in girth". It is a Constitution not meant for the

ruler but the ranker, the tramp of the road, the slave with the

sack on his shoulders pricked on with the goad, the man with

too weighty a burden, too weary a load.”

20. The senior counsels for the petitioner did not address on the

query posed to them as aforesaid on 29th July, 2011, i.e. as to how the

work of a Parliamentarian can be placed on a higher pedestal. A Member

of Parliament cannot tell the citizens who have elected him that the sweat

of his brow is dearer or that the work performed by him is more

important. The argument, of a Parliamentarian being entitled to continue

attending Parliament notwithstanding his arrest and when the citizen who

has elected him, inspite of holding position, be that of a Director in a

public limited Company or of an office bearer in a Society or a Club or

having the duty towards spouse, parents and children, being not so

entitled, runs contrary to the principle of equality enshrined in our

Constitution. The duty of a father to a growing child or of a son to an

ailing parent cannot be held to be any less important. If the arguments

as raised were to be accepted, it will be difficult for the Courts to refuse

the same concession to others under detention. They will also claim that

they, while remaining under custody should be allowed to continue with

their vocation to prevent their dependent family members from starving

or suffering. I find, a practicing Advocate under detention to have similarly

claimed that he should, while in custody, be allowed to conduct the cases

of clients who had earlier engaged him; he had also contended that his

clients will go unrepresented and will file consumer complaints against

him. The said claim was negatived by the Division Bench in Daljit Singh

Rajput Vs. Chandigarh Administration MANU/PH/0047/1998. It was

held that the arrest and judicial custody being in accordance with the

established criminal law of the country, he could not exercise the rights

of personal liberty, so long as deprived thereof in accordance with the

procedure prescribed by law. The same holds good for the petitioner

herein.

21. The senior counsel for the petitioner himself had invited attention

to Section 135A of the Civil Procedure Code carving out an exception

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for a Parliamentarian when Parliament is in Session, from civil arrest.

The Legislature has not made any such exception qua arrest for criminal

offences or where the Member of Parliament is charged with an indictable

offence and rightly so, for the House cannot be expected to allow even

the sanctuary of its walls to protect a member from the process of

criminal law.

22. Coming back to the Constitution Bench judgment in K. Ananda

Nambiar (supra), it was held that the Constitution does not impose any

obligation on individual Members of Parliament – they are neither bound

to attend the Session nor under an obligation to be present in the House

when the President addresses it; subject-matter of the various Articles of

the Constitution is not the individual rights of the Members of Parliament,

but they refer to the right of the President to issue a summon for the

ensuing Session of Parliament or to address the House. It was further

held that though the basis of democratic form of Government is that

Members of Legislatures must be given absolute freedom of expression

when matters brought before the Legislature are debated but that is only

when they attend the Session of the House. The argument that it is the

Constitutional and fundamental right of a Parliamentarian to attend the

Session of the House was negatived. It was held that if the order of

detention validly prevents a Parliamentarian from attending a Session of

Parliament, no occasion arises for exercise of the right of freedom of

speech and no complaint can be made that the said right has been

invalidly invaded. Similarly, the argument that so long as the Member of

Parliament has not incurred any disqualification, he is entitled to exercise

his rights as such Member was also negatived and it was held that a

person who is detained, himself foregoes his right to participate in the

business of the Legislature. It was yet further held that so far as a valid

order of detention is concerned, a Member of Parliament can claim no

special status higher than that of an ordinary citizen and is as much liable

to be arrested and detained under it as any other citizen.

23. Though the senior counsel for the petitioner contended that K.

Ananda Nambiar was pronounced in the background of emergency

when Articles 19 to 21 were suspended and dealt with a case of preventive

detention which has an element of adjudication of guilt as compared to

the arrest in the present case and was in the context of challenge to the

law of preventive detention, but in my opinion the said factors have no

bearing on the ratio as culled out herein above of the judgement of the

Constitution Bench.

24. The counsel for the respondent No.3 CBI has contended that

the present also cannot be said to be a case of non application of mind

by the Court in whose judicial custody the petitioner is inasmuch as the

charge sheet has been filed and cognizance has been taken. He further

contends that even in Indira Nehru Gandhi Vs. Raj Narain 1975

(Supp) SCC 1 the same principles as in K. Ananda Nambiar were

reiterated and the principle laid down by Commons in a conference with

the Lords in 1641 that “privilege of Parliament is granted in regard to the

service of the Commonwealth and, is not to be used to the danger of the

Commonwealth” was held to be applicable. He has also drawn attention

to (i) Raja Ram Pal Vs. Hon’ble Speaker, Lok Sabha (2007) 3 SCC

184 also laying down that the privilege of a Member of Parliament from

arrest has never been allowed to interfere with the administration of

criminal justice; (ii) passages in Sir Thomas Erskine May’s “Treatise on

The Law, Privileges, Proceedings and Usage of Parliament” Twenty-

fourth Edition; and (iii) passages in M.N. Kaul and S.L. Shakdher’s

“Practice and Procedure of Parliament” Fifth Edition, and contends that

it is not as if non-attendance of the Parliamentary Session of the petitioner

would lead to forfeiture of his membership.

25. Ld. ASG has also opposed the grant of relief to the petitioner.

He has invited attention to the application filed by the petitioner in July,

2011 before the Special Judge in whose judicial custody the petitioner is,

where the petitioner has stated that he is sick and infirm, suffering from

various ailments resulting inter alia in forgetfulness. It has been suggested

that the petitioner in such state of health cannot be expected to make any

contribution to the Parliament and is using the excuse of attending

Parliament to get away from the rigours of imprisonment after he has

been unsuccessful in obtaining bail. Reliance is also placed on Raghu

Raj Pratap Singh @ Raja Bhaiya Vs. State of U.P. MANU/UP/0237/

2003 where a Division Bench of the Allahabad High Court also held that

the Legislators have no enforceable right to participate in the Session of

the House so long as they are under detention and carved out a distinction

between the right to attend Parliament and the right to vote, right to

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contest election or right to take oath as a Parliamentarian. It was held that

right to vote and right to contest election are statutory rights; while a

person in jail can cast his vote and contest election but there is no such

provision regarding the right to attend Parliament.

26. I find similar view to have been taken in Kameshwar Baitha

Vs. State of Jharkhand MANU/JH/1070/2009 and in Shekhar Tiwari

Vs. State of UP MANU/UP/0553/2009. The Apex Court in Raja Ram

Pal (supra) also held that expulsion of a Member from Parliament does

not violate the democratic principles and the challenge to expulsion on the

ground that the Constituency would go unrepresented in Parliament was

not sustained. The same ground urged here to seek a special right in

favour of the petitioner, thus has no merit.

27. What thus follows is that merely because the petitioner is a

Parliamentarian does not entitle him to claim any exception from the

effect of being in detention. Else, the petitioner has not made out any

case necessitating him to attend the Parliament. It is not the case that the

vote of the petitioner on any aspect is vital or that without such participation

the citizens of his Constituency would suffer. Though the need for

participation on issues relating to Pune Airport, the local train network

and urban development is mentioned but no particulars have been given.

It cannot also be lost sight of that the petitioner in the past, as per his

convenience has been missing Sessions of Parliament. It was not the

mandate of his electorate that he should take up the Chairmanship of the

Organizing Committee for Commonwealth Games or spend time on

National Games or participate in the Games at China. When the petitioner

could afford to miss Parliament then, his desire / keenness to attend now

can only be understood as an attempt for fresh air outside the prison

walls. What the American publisher William Randolph Hearst said, “a

politician will do anything to keep his job – even become a patriot” seems

apposite.

28. Allowing the petitioner to attend the Parliament, even if in

judicial custody, would certainly provide the petitioner respite from

imprisonment. I see no reason to carve out an exception in favour of the

petitioner when his fellow prisoners are not provided such respite.

Sophocles said “Nobody has a more sacred obligation to obey the law

than those who make the law”. The Parliamentary privileges which the

Members of Parliament enjoy are intended to facilitate their work as

representatives of people and should not be mistaken as indicative of rank

or creating a separate class different from the other citizens. The Apex

Court in Vineet Narain Vs. Union of India (1998) 1 SCC 226 held that

the law does not classify offenders differently for treatment thereunder,

including investigation of offences and prosecution for offences, according

to their status in life – every person accused of committing the same

offence is to be dealt with in the same manner in accordance with law,

which is equal in its application to everyone.

29. Though during the hearing, I had enquired whether any provision

in the guidelines relating to parole / furlough exists qua Parliamentarians

but the senior counsel for the petitioner has stated and it has been so

observed in Lok Sabha Debates dated 24th November, 1965 at page 3615

also that a Parliamentarian on parole is not entitled to attend the House.

Moreover, parole is post conviction. No other instances under which a

person while in custody can be permitted to perform his duties has been

cited. 30. The petitioner is thus not found entitled to the relief claimed.

There is no merit in the petition. The same is dismissed with costs of

Rs. 1,00,000/- to the Prime Minister’s National Relief Fund.

ILR (2011) VI DELHI 808

W.P. (C)

S.P. ARYA ....PETITIONER

VERSUS

UNION OF INDIA & ORS. ....RESPONDENTS

(S. MURALIDHAR, J.)

W.P. (C) NO. : 4170/1999 DATE OF DECISION: 30.08.2011

Constitution of India, 1950—Writ—Service matter—LIC

807 808 Suresh Kalmadi (In Judicial Custody) v. Union of India (Rajiv Sahai Endlaw, J.)

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(staff) Regulations, 1950—Regulation 39—Industrial

Disputes Act, 1947—Petitioner appointed in LIC as

office attendant in 1963—Posted in Meerut Division—

Became a trade unionist—Transferred to Mhow in

Madhya Pradesh in November 1978—Did not comply

with the transfer order—Letter dated 22.12.1978

directing the petitioner to join his duties at Mhow-did

not join duties-continued to address leave applications

to Divisional Office at Meerut—Again, vide letter dated

05.02.1979 asked to join duty at Mhow-Did not join-

continued to defy despite another letter dated

21.08.1979—Pleaded illness-Panel of medical examiners

at Medical College, Meerut constituted-petitioner

challenged the constitution of panel and refused to

appear—Transfer order modified on 26.04.1980 from

Mhow to Panipat-modified order not complied with-

further directed to join duty at Panipat vide letter

dated 15.05.1980—Asked to get in touch with Dr.

Aggarwal for medical examination-did neither-resorted

to hunger strike-submitted fitness certificate dated

21.05.1980—LIC (staff) Regulation 1960—Regulation 39

lays down procedure to hold an enquiry-holding of

enquiry dispesed with by the Zonal Manager—Charge

sheet-cum-show cause Notice proposing penalty of

removal from service under Regulation 39 (1) (f) issued

on 21.06.1980—Reply not filed-kept on seeking time-

vide order dated 11.08.1980 discussing the charges

and documents in support of punishment of removal

from service under Regulation 39 (1) (f) imposed—

Appeal against the order-dismissed by the Managing

Director—Memorial preferred before the Chairman

followed by apology—Writ Petition before Allahabad

High Court filed against the order dated 10.08.1980—

Dismissed—Special Leave Petition filed before the

Supreme Court—Liberty given to seek fresh reference

of the dispute to labour court—Process under

Industrial Disputes Act, 1947 invoked—Reference made

809 810S.P. Arya v. Union of India & Ors. (S. Muralidhar, J.)

to CGIT—CGIT passed award dated 16.06.1998—Award

of CGIT challenged through the Writ Petition—Held—

General attitude of petitioner was that of defiance -

decision to dispense with holding of an enquiry not

taken in a hurry-Concurred with CGIT—Petition

dismissed.

The requirement under Clause (2) of Regulation 39 is that

before imposing any penalty on an employee under sub-

clauses (b) to (g) of Clause (1) of Regulation 39,which

includes removal from service, the employee should be

communicated the charges in writing and be given a

reasonable opportunity of defending himself against the

charges. He has also to be issued a show cause against the

action proposed to be taken against him. This in effect

would mean two show cause notices; one prior to the

commencement of the enquiry and the second prior to the

imposition of the penalty. The exception to the above

requirement is Clause (4) of Regulation 39, in terms of

which the authority can dispense with the holding of the

enquiry provided he records reasons in writing that it is not

reasonably practicable to follow the procedure under

Regulation 39 (1) read with Regulation 39 (2). (Para 13)

Important Issue Involved: Under Regulation 39 LIC (staff)

Regulations 1960 before imposing any penalty on an

employee two show cause notices-one prior to the

commencement of enquiry and the second prior to imposition

of penalty have to be issued. And for dispensing with holding

of enquiry reasons have to be recorded in writing.

[Vi Gu]

APPEARANCES:

FOR THE PETITIONERS : Mr. R.K. Saini Advocate with Mr.

Sitab Ali Choudhary, Advocates.

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FOR THE RESPONDENTS : Mr. Kamal Mehta, Advocate for R-

3 LPA of India None for R-1/UOI.

CASES REFEREED TO:

1. Satyavir Singh vs. Union of India AIR 1986 SC 555.

2. Union of India vs. Tulsi Ram Patel AIR 1985 SC 1416.

RESULT: Petition dismissed.

S. MURALIDHAR, J.

1. The Petitioner challenges an Award dated 16th June 1990 passed

by the Central Government Industrial Tribunal (‘CGIT’) in ID No. 112

of 1990 upholding the validity of the action of Respondent No. 3, Life

Insurance Corporation of India (‘LIC’), in removing the Petitioner from

service with effect from 11th August 1980.

2. The Petitioner joined the services of the LIC on 4th December

1963 as an Office Assistant. The service conditions of the Petitioner

were covered by the Life Insurance Corporation of India (Staff)

Regulations 1960 (‘Staff Regulations’) framed under Section 49 (2) (b)

and (bb) of the Life Insurance Corporation of India Act, 1956 (‘LIC

Act’). The Petitioner states that he was an active trade union member

and the General Secretary of the Meerut Division of the Insurance

Employees Union. He was also at one time its President. The Petitioner

states that in April 1975 while he was Joint Secretary of the Central Zone

Insurance Employees Federation he brought to the notice of the Zonal

Manager (‘ZM’) certain irregularities and abuse of authority by the then

Divisional Manager (‘DM’). The dismissal of the Petitioner after a show

cause notice-cum-charge sheet issued by the DM was revoked in 1977

and the Petitioner was reinstated with consequential benefits. In June

1977, the Petitioner went on a hunger strike protesting against the excesses

of the management in suspending a number of other officers and workmen.

Subsequently the cases against the workmen were withdrawn. According

to the Petitioner the agitation annoyed the management.

3. In 1978 there were massive floods in north India. On account

of the management not acceding to the demand of the LIC employees for

flood advance, a ‘work to rule’ was observed by the workmen and

various unions for two days in the first week of November 1978. The

Petitioner states that he played an important role in this agitation as a

trade union activist. The Petitioner states that as a result he was arbitrarily

transferred from Meerut to Mhow in Madhya Pradesh by an order dated

27th November 1978. Seven employees who happened to be the office

bearers of the trade union, excluding the Petitioner, were issued charge

sheets on 28th November, 1978 and were placed under suspension. The

Petitioner states that he had gone on casual leave in the first half of 27th

November 1978 and then from 28th November to 2nd December 1978.

He claims to have been undergoing medical treatment on account of

which he had to get his leave extended. Consequently, he was not able

to receive the transfer order and learnt of it from a newspaper report of

13th December 1978 while he was still bedridden. The Petitioner maintains

that he was not officially conveyed the orders of the management that

he should report for duty at Mhow in Madhya Pradesh. He claims to

have been sending the management the medical certificates justifying his

seeking leave on medical grounds.

4. The case of the LIC is that the Petitioner did not comply with

the repeated orders issued by the Divisional Office at Meerut asking him

to join duties at the branch office at Mhow before 30th December, 1978.

LIC maintains that the Petitioner came to know of the transfer order on

27th November 1978 itself but left the office by submitting a leave

application for half a day thus avoiding service of the transfer order on

him. He extended his leave up to 2nd December, 1978. However, he kept

visiting the office, addressing meetings and organising demonstrations.

At 4 pm on 29th November 1978 the Petitioner along with an advocate

met the DM and pressed him for withdrawal of the transfer order. When

the DM did not agree he was threatened with dire consequences including

physical injury to him personally and to the members of his family. On

the same day at about 7 pm the Branch Manager (C&S) was sought to

be manhandled but somehow the situation was averted by the arrival of

a police mobile van. Thereafter two communications were sent to the

Petitioner’s residential address by the LIC by registered post. These were

returned by the postal authorities undelivered with the remark ‘‘avoided

to take’’. The orders were also displayed on the notice board of the

Divisional Office on 2nd December, 1978 in accordance with the

procedure prescribed in the Staff Regulations. The DM published the

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information about the transfer of the Petitioner in the daily newspaper.

By a letter dated 22nd December, 1978 the Petitioner was directed to join

duty at the branch office at Mhow before 30th December, 1978. The

same letter made it clear to the Petitioner that if he failed to join as

directed he would expose himself to disciplinary action. This letter was

received by the Petitioner on 24th December, 1978. However, he did not

comply with the order and kept addressing leave applications to the

Divisional Office at Meerut. The DM addressed letters dated 30th

December, 1978 and 25th January 1979 directing the Petitioner to address

leave applications to the DM at Indore where his services had been

transferred. Nevertheless, the Petitioner continued addressing leave

applications to the DM at Meerut. Another registered letter was addressed

to the workman on 5th February 1979 asking him to join duty at Mhow.

This letter was received by the Petitioner on 9th February 1979 but he

did not comply with the order. Another letter was issued to them on 21st

August 1979 which was received by the Petitioner on 22nd September,

1979 but he continued to defy the orders.

5. Since the Petitioner was pleading illness, the DM at Indore

constituted a panel of medical examiners headed by Dr RK Aggarwal of

the Medical College Meerut to examine the Petitioner. By letter dated 15th

February 1980 he directed the Petitioner to appear before the said panel

on 17th March 1980. The Petitioner by his letter dated 23rd March, 1980

claimed that he had received the information only on 19th March, 1980

and therefore could not appear before the panel. Dr Aggarwal again fixed

the date of medical examination as 11th April 1980 and informed the

Petitioner of that date both by telegram and by a letter dated 31st March

1980. This was received by the Petitioner, but he challenged the

constitution of the panel and refused to appear before it.

6. The ZM by order dated 26th April 1980 modified the transfer

order and asked the Petitioner to report for duty at Panipat, a place nearer

to Meerut. However even this modified order was not complied with by

the Petitioner. By letter dated 15th May 1980 the Petitioner was directed

to report for duty at Panipat within seven days. He was alternatively

asked to get in touch with Dr Aggarwal for medical examination if he

was still pleading sickness. The Petitioner did neither. He instead resorted

to a hunger strike and submitted a fitness certificate dated 21st May

1980.

7. A detailed order was passed by the ZM on 21st June 1980

concluding that it was not reasonably practicable to follow the procedure

laid down in Regulation 39 of the Staff Regulations and to hold an

enquiry. He accordingly ordered that a charge sheet-cum-show cause

notice should be issued to the Petitioner proposing the penalty of removal

from service under Regulation 39 (1) (f). The charge sheet stated that

the Petitioner had committed gross breach of discipline, defied office

orders, disobeyed lawful orders of competent authorities, knowingly done

things detrimental to the interests of the LIC and acted in a manner

prejudicial to good conduct thereby violating the provisions of Regulations

21 and 39 (1) of the Staff Regulations. The Petitioner was asked to reply

to the show cause notice within ten days. The Petitioner kept seeking

time to reply to the show cause notice which time was extended

periodically. Despite numerous opportunities the Petitioner did not file

any reply. By a letter dated 23rd July, 1980 he sought time till 16th

August, 1980 and asked for a copy of the establishment manual, copies

of the circulars regarding transfers and a copy of the report of Dr

Aggarwal. These documents were not relevant for the Petitioner to file

his reply. Moreover since the Petitioner had not appeared before Dr

Aggarwal’s panel there was no question of giving him a copy of any

report of such panel.

8. By the impugned order dated 11th August 1980 the ZM, after

discussing the charges and the documents in support thereof, imposed

on the Petitioner the punishment of removal from service under Regulation

39 (1) (f) of the Staff Regulations. On 10th October 1980 the Petitioner

preferred an appeal against the said order. The Managing Director of

LIC, after considering the Petitioner’s appeal, dismissed it by a speaking

order dated 20th June 1981. The Petitioner then preferred a memorial to

the Chairman on 8th July, 1981 in which he inter alia prayed for a lenient

view to be taken and undertook “to completely eschew violence of any

sort and intimidating tactics even as part of m association with trade

union activities or otherwise.” In a further letter dated 23rd September

1991 the Petitioner tendered his apology for the incident and assured to

maintain discipline in the office.’’

9. Initially, against the order dated 10th August, 1980 the Petitioner

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filed a writ petition in the Allahabad High Court. Against the dismissal of

the said writ petition the Petitioner filed a Special Leave Petition (‘SLP’)

in the Supreme Court. While dismissing the SLP the Supreme Court gave

liberty to the Petitioner to seek a fresh reference of the dispute to the

Labour Court. It appears that thereafter the Petitioner invoked the processes

under the Industrial Disputes Act, 1947 (‘ID Act’) and a reference was

made to the CGIT. The impugned Award dated 16th June 1998 of the

CGIT was challenged in the present petition in which this Court issued

rule on 28th January 2000. Subsequently, the writ petition was permitted

to be amended.

10. Mr RK Saini learned counsel for the Petitioner first assailed the

transfer order dated 27th November 1978 as being mala fide and issued

only with a view to punish the Petitioner for espousing the just causes

of the workmen. This plea was examined by the CGIT and found to be

without substance. The narration of facts shows that the management

was in fact not rigid about the place of transfer. After unsuccessfully

trying to get the Petitioner to comply with the transfer order dated 27th

November 1978 the ZM issued another order on 26th April 1980 asking

the Petitioner to report at the Panipat office of the LIC which was nearer

to Meerut. This effectively negates the plea that the transfer of the

Petitioner was actuated by malice. On the other hand, there was sufficient

material on record before the CGIT to show that the Petitioner deliberately

avoided service of the transfer order dated 27th November 1978. Later,

he kept sending representations to the DM at Meerut and defied the

orders of transfer. When a medical board was constituted, the Petitioner

failed to appear before it despite the dates being fixed twice. The Petitioner

thus failed to avail of the opportunity to establish his medical condition,

which was the principal reason pleaded by him for not complying with

the transfer order. When later he was transferred to Panipat he continued

to remain absent without justification. He was given one more chance at

that stage to get in touch with Dr Aggarwal for medical examination.

This too he did not do. In fact he himself produced a fitness certificate

and yet did not report for duty at Panipat. This court finds no error in

the analysis of the evidence by the CGIT and its conclusions on this

aspect. The Petitioner has been unable to offer any satisfactory explanation

for his inability to report for duty, during the period of two years after

27th November 1978, either at Mhow or at Panipat. This brazen defiance

of the orders issued to the Petitioner to report for duty was a gross act

of indiscipline. The Petitioner had sufficient opportunity even before the

CGIT to produce medical certificates to justify his staying away from the

enquiry. He appears to have not been successful in proving that case

before the CGIT. This Court obviously cannot re-appreciate the evidence.

On this aspect the impugned Award cannot be said to be perverse or

contrary to the evidence on record.

11. Mr Saini fervently urged that a major penalty like removal of an

employee from service could not have been awarded without a proper

enquiry. He assailed the order dated 21st June 1980 passed by the ZM

opining that it was not reasonably practicable to hold an enquiry in terms

of Regulation 39 (4) (ii). Relying on the decisions of the Supreme Court

in Union of India v. Tulsi Ram Patel AIR 1985 SC 1416 and Satyavir

Singh v. Union of India AIR 1986 SC 555, it was submitted that the

reasons adduced by the ZM for dispensing with the enquiry were not

justified or reasonable. He submitted that the ZM had cited the very

reasons for removal of the Petitioner from service as the reasons for not

holding the enquiry and therefore the requirement of Regulation 39 (4)

was not satisfied. Further, it was incumbent on the ZM to consider

whether in the circumstances where the Petitioner was unable to report

for duty on account of his medical condition, an enquiry could be held

even at a later point in time when he was found medically fit. Mr Kamal

Mehta learned counsel for the LIC on the other hand referred to the order

dated 21st June, 1980 and the finding of the CGIT thereon and submitted

that the ZM was justified in his conclusion that it was not reasonably

practicable to hold an enquiry in terms of the procedure under Regulation

39.

12. Regulation 39 of the Staff Regulations reads as under:

‘‘Penalties 39. (1) Without prejudice to the provisions of other

regulations, [any one or more of] the following penalties for

good and sufficient reasons, and as hereinafter provided, be

imposed [by the disciplinary authority specified n Schedule] on

an employee who commits a breach of regulations of the

Corporation, or who displays negligence, inefficiency or indolence

815 816S.P. Arya v. Union of India & Ors. (S. Muralidhar, J.)

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Indian Law Reports (Delhi) ILR (2011) VI Delhi

A

B

C

D

E

F

G

H

I

A

B

C

D

E

F

G

H

I

or who knowingly does anything detrimental to the interest of

the Corporation, or conflicting with the instructions or who

commits a breach of discipline, or is guilty of any other act

prejudicial to good conduct —

(a) censure;

(b) withholding of one or more increments either permanently

or for a specified period;

(c) recovery from pay or such other amount as may be due

to him of the whole or part of any pecuniary loss caused

to the Corporation by negligence or breach of orders;

(d) reduction to a lower service, or post, or to a lower time-

scale, or to a lower stage in a time-scale; (e) compulsory

retirement;

(f) removal from service which shall not be a disqualification

for future employment;

(g) dismissal.

(2) No order imposing on an employee of any of the penalties

specified in clauses (b) to (g) of sub-regulation (1) supra, shall

be passed by the disciplinary authority specified in Schedule

without the charge or charges being communicated to him in

writing and without his having been given a reasonable opportunity

of defending himself against such charge or charges and of

showing cause against the action proposed to be taken against

him.

(3) The disciplinary authority empowered to impose any of the

penalties, (b), (c), (d), (e), (f) or (g) may itself enquire into such

of the charges as are not admitted or if it considers it necessary

so to do, appoint a board of enquiry or any enquiry officer for

the purpose.

(4) Notwithstanding anything contained in sub-regulations (1)

and (2) above-

(i) where a penalty is imposed on an employee on the grounds

of conduct which had led to a conviction on a criminal charge;

or

(ii) where the authority concerned is satisfied for reasons to be

recorded in writing, that it is not reasonably practicable to follow

the procedure prescribed in this regulation; or

(iii) where an employee has abandoned his post, the disciplinary

authority may consider the circumstances of the case and pass

such orders.

Explanations 1: For the purpose of this regulation, an employee

shall be deemed to have abandoned his post if he absents himself

from duty without leave or overstays his leave for a continuous

period of ninety days without any intimation therefor in writing.

2. All communications under this regulation and copies of orders

passed thereunder may be delivered personally to the employee

if he is attending office; otherwise they shall be sent by registered

post to the address noted in the service record. Where such

communications or copies of orders cannot be served on him

personally or by registered post, copies thereof shall be affixed

on the notice board of the office in which the employee is

employed, and on such affixing such communications and orders

shall be deemed to have been properly served on him.’’

13. The requirement under Clause (2) of Regulation 39 is that

before imposing any penalty on an employee under sub-clauses (b) to (g)

of Clause (1) of Regulation 39,which includes removal from service, the

employee should be communicated the charges in writing and be given

a reasonable opportunity of defending himself against the charges. He has

also to be issued a show cause against the action proposed to be taken

against him. This in effect would mean two show cause notices; one

prior to the commencement of the enquiry and the second prior to the

imposition of the penalty. The exception to the above requirement is

Clause (4) of Regulation 39, in terms of which the authority can dispense

with the holding of the enquiry provided he records reasons in writing

that it is not reasonably practicable to follow the procedure under

Regulation 39 (1) read with Regulation 39 (2).

14. The narration of events indicates that numerous attempts were

817 818S.P. Arya v. Union of India & Ors. (S. Muralidhar, J.)

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Indian Law Reports (Delhi) ILR (2011) VI Delhi

made by the LIC to get the Petitioner to comply with its orders of

transfer. These attempts for over a period of eighteen months from 27th

November 1978 till 21st June 1980 were unsuccessful. The Petitioner

was refusing to even submit to any medical examination. The general

attitude of the Petitioner was that of defiance. He simply was not prepared

to comply with any order whatsoever that was issued by the LIC. The

decision to dispense with the holding of an enquiry was not taken in a

hurry. It is only after waiting for more than eighteen months and after

complete frustration with every attempt at making the Petitioner report

for duty that the ZM concluded that it was not reasonably practicable to

hold an enquiry. While this also constituted the reason for the Petitioner’s

ultimate removal from service, it certainly was a valid consideration for

the decision to dispense with the holding of an enquiry. Without the

participation of the charged employee the holding of an enquiry would be

a futile exercise. This Court concurs with the CGIT that the order dated

21st June 1980 passed by the ZM was valid.

15. Mr Saini submitted that the impugned order of dismissal was

passed by the ZM whereas the Petitioner’s disciplinary authority was the

Divisional Manager. The ZM, he pointed out, was the Appellate Authority

(‘AA’). It is submitted that with the AA himself passing the order of

removal, the Petitioner was effectively denied one tier of appeal. Apart

from the fact that this plea does not appear to have been urged before

the CGIT, this Court finds that against the order of removal the Petitioner

preferred an appeal to the Managing Director. It cannot therefore be said

that the Petitioner was deprived of any right of appeal. In any event, the

Petitioner had a full innings before the CGIT as well. There is therefore

no merit in this submission either.

16. Mr Saini ultimately submitted that the punishment of removal

from service was too harsh in the facts and circumstances of the case.

This Court is unable to agree. This is indeed an extraordinary case where

an employee has defied the orders of transfer as well as the orders to

report for duty. He also did not comply with the orders to appear before

a medical board to prove his medical condition. Even after proclaiming

that he was medically fit the Petitioner continued to defy the transfer

order. The LIC obviously was left with no other option but to remove

him from service for this gross act of indiscipline. The punishment

819 820S.P. Arya v. Union of India & Ors. (S. Muralidhar, J.)

awarded by the LIC, which has been upheld by the CGIT, does not call

for interference.

17. For all the aforementioned reasons this Court finds no ground

having been made out for grant of any of the reliefs prayed for by the

Petitioner. The writ petition is dismissed, but in the circumstances, with

no order as to costs.

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INDIAN LAW REPORTS

DELHI SERIES

2011(Containing cases determined by the High Court of Delhi)

GENERAL INDEX VOLUME-6

EDITOR

MR. A.S. YADAVREGISTRAR (VIGILANCE)

CO-EDITORSMS. NEENA BANSAL KRISHNA

(ADDITIONAL DISTRICT & SESSIONS JUDGES)

REPORTERS

MR. CHANDER SHEKHAR MS. ANU BAGAI

MR. TALWANT SINGH MR. SANJOY GHOSE

MR. GIRISH KATHPALIA MR. K. PARMESHWAR

MR. VINAY KUMAR GUPTA (ADVOCATES)

MS. SHALINDER KAUR MR. KESHAV K. BHATI

MR. V.K. BANSAL JOINT REGISTRAR

MR. L.K. GAUR

MR. GURDEEP SINGH

MS. ADITI CHAUDHARY

MR. ARUN BHARDWAJ

(ADDITIONAL DISTRICT

& SESSIONS JUDGES)

PUBLISHED UNDER THE AUTHORITY OF HIGH COURT OF DELHI,

BY THE CONTROLLER OF PUBLICATIONS, DELHI-110054.

INDIAN LAW REPORTS

DELHI SERIES

2011 (6)

VOLUME INDEX

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LIST OF HON’BLE JUDGES OF DELHI HIGH COURT

During November-December, 2011

1. Hon’ble Mr. Justice A.K. Sikri, Acting Chief Justice

2. Hon’ble Mr. Justice Sanjay Kishan Kaul

3. Hon’ble Mr. Justice Badar Durrez Ahmed

4. Hon’ble Mr. Justice Pradeep Nandrajog

5. Hon’ble Mr. Justice Anil Kumar

6. Hon’ble Ms. Justice Gita Mittal

7. Hon’ble Mr. Justice S. Ravindra Bhat

8. Hon’ble Mr. Justice Sanjiv Khanna

9. Hon’ble Ms. Justice Reva Khetrapal

10. Hon’ble Mr. Justice P.K. Bhasin

11. Hon’ble Mr. Justice Kailash Gambhir

12. Hon’ble Mr. Justice G.S. Sistani

13. Hon’ble Dr. Justice S. Muralidhar

14. Hon’ble Ms. Justice Hima Kohli

15. Hon’ble Mr. Justice Vipin Sanghi

16. Hon’ble Mr. Justice Sudershan Kumar Misra

17. Hon’ble Ms. Justice Veena Birbal

18. Hon’ble Mr. Justice Siddharth Mridul

19. Hon’ble Mr. Justice Manmohan

20. Hon’ble Mr. Justice V.K. Shali

21. Hon’ble Mr. Justice Manmohan Singh

22. Hon’ble Mr. Justice Rajiv Sahai Endlaw

23. Hon’ble Mr. Justice J.R. Midha

24. Hon’ble Mr. Justice Rajiv Shakdher

25. Hon’ble Mr. Justice Sunil Gaur

26. Hon’ble Mr. Justice Suresh Kait

27. Hon’ble Mr. Justice Valmiki J. Mehta

28. Hon’ble Mr. Justice V.K. Jain

29. Hon’ble Ms. Justice Indermeet Kaur

30. Hon’ble Mr. Justice A.K. Pathak

31. Hon’ble Ms. Justice Mukta Gupta

32. Hon’ble Mr. Justice G.P. Mittal

33. Hon’ble Mr. Justice M.L. Mehta

34. Hon’ble Mr. Justice R.V. Easwar

35. Hon’ble Ms. Justice Pratibha Rani

36. Hon’ble Ms. Justice S.P. Garg

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LAW REPORTING COUNCIL

DELHI HIGH COURT

1. Hon’ble Mr. Justice S. Ravindra Bhat Chairman

2. Hon’ble Mr. Justice Sunil Gaur Member

3. Hon’ble Ms. Justice Pratibha Rani Member

4. Mr. V.P. Singh, Senior Advocate Member

5. Mr. Maninder Singh, Senior Advocate Member

6. Mr. Mukesh Anand, Senior Counsel of Member

Union Govt. Attached to the High Court

7. Mr. V.P. Vaish, Registrar General Secretary

CONTENTS

VOLUME-6

NOVEMBER AND DECEMBER, 2011

Pages

1. Comparative Table ........................................................... (i-iv)

2. Statute Section ................................................................ (v-vi)

3. Nominal Index .................................................................... 1-4

4. Subject Index .................................................................. 1-90

5. Case Law....................................................................... 1-820

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COMPARATIVE TABLE

ILR (DS) 2011 (VI) = OTHER JOURNAL

NOVEMBER AND DECEMBER

Page No. Journal Name Page No. Journal Name Page No.

1 No Equivalent

8 2011 (4) AD (Delhi) 572

17 2011 (122) DRJ 363

31 2011 (178) DLT 83 = 2011 (123) DRJ 404

82 2011 (3) AD (Delhi) 477 = 2011 Crl J 2394

82 2011 (2) JCC 1480

106 No Equivalent

133 No Equivalent

141 No Equivalent

153 2011 (178) DLT 631 = 2011 (124) DRJ 48

175 2011 (179) DLT 557 = 2011 (123) DRJ 638

175 2011 (5) AD (Delhi)

198 No Equivalent

203 2011 (5) AD (Delhi) 362 = 2011 (6) AD (Delhi) 187

216 2011 (178) DLT 671 = 2011 (4) AD (Delhi) 286

216 2011 (123) DRJ 554

243 2011 (4) AD (Delhi) 456 = 2011 (335) ITR 259

251 No Equivalent

262 No Equivalent

270 No Equivalent

277 2011 (183) DLT 66

290 2011 (181) DLT 187

319 2011 (4) R.A.J. 352 = 2011 (4) AD (Delhi) 668

319 2011 (2) Arb LR 382 = 2011 (180) DLT 511

328 2011 (3) JCC 1817

340 2011 (3) JCC 1569 = 2011 (3) Crimes 111

(ii)

354 2011 (3) JCC 1744

364 2011 (5) R.A.J. 115 = 2011 (47) PTC 129

364 2011 (8) AD (Delhi) 70

373 No Equivalent

395 2011 (3) Arb LR 26 = 2011 (126) DRJ 183

429 No Equivalent

453 2011 (179) DLT 293 = 2011 (2) JCC 1362

453 2011 (123) DRJ 666 = 2011 (5) AD (Delhi) 611

462 2011 (181) DLT 455

470 2010 (165) Comp Cas 334

515 2011 (6) AD (Delhi) 562

527 2011 (5) AD (Delhi) 792 = 2011 (3) JCC 1870

531 2011 (6) AD (Delhi) 75 = 2011 (182) AD 468

537 No Equivalent

553 No Equivalent

576 No Equivalent

584 2011 (6) AD (Delhi) 468

595 No Equivalent

605 2011 (6) AD (Delhi) 176 = 2011 (3) JCC 175 (Ni)

635 2011 (6) AD (Delhi) 1 = 2011 (3) JCC 1836

652 No Equivalent

673 No Equivalent

679 No Equivalent

686 No Equivalent

701 2011 (125) DRJ 241 = 2011 (8) AD (Delhi) 265

729 2011 (181) DLT 658 = 2011 AIR (DEL) 174

729 2011 (124) DRJ 633

759 No Equivalent

789 2011 (6) AD (Delhi) 505

795 No Equivalent

808 2011 (7) AD (Delhi) 212(i)

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COMPARATIVE TABLE

OTHER JOURNAL = ILR (DS) 2011 (VI)

NOVEMBER AND DECEMBER

Journal Name Page No. = ILR (DS) 2011 (VI) Page No.

2011 (2) Arb LR 382 = ILR (DS) 2011 (VI) 319

2011 (3) Arb LR 26 = ILR (DS) 2011 (VI) 395

2011 (4) AD (Delhi) 572 = ILR (DS) 2011 (VI) 8

2011 (3) AD (Delhi) 477 = ILR (DS) 2011 (VI) 82

2011 (5) AD (Delhi)` = ILR (DS) 2011 (VI) 175

2011 (5) AD (Delhi) 362 = ILR (DS) 2011 (VI) 203

2011 (6) AD (Delhi) 187 = ILR (DS) 2011 (VI) 203

2011 (4) AD (Delhi) 286 = ILR (DS) 2011 (VI) 216

2011 (4) AD (Delhi) 456 = ILR (DS) 2011 (VI) 243

2011 (4) AD (Delhi) 668 = ILR (DS) 2011 (VI) 319

2011 (8) AD (Delhi) 70 = ILR (DS) 2011 (VI) 364

2011 (5) AD (Delhi) 611 = ILR (DS) 2011 (VI) 453

2011 (6) AD (Delhi) 562 = ILR (DS) 2011 (VI) 515

2011 (5) AD (Delhi) 792 = ILR (DS) 2011 (VI) 527

2011 (6) AD (Delhi) 75 = ILR (DS) 2011 (VI) 531

2011 (182) AD 468 = ILR (DS) 2011 (VI) 531

2011 (6) AD (Delhi) 468 = ILR (DS) 2011 (VI) 584

2011 (6) AD (Delhi) 176 = ILR (DS) 2011 (VI) 605

2011 (6) AD (Delhi) 1 = ILR (DS) 2011 (VI) 635

2011 (8) AD (Delhi) 265 = ILR (DS) 2011 (VI) 701

2011 (6) AD (Delhi) 505 = ILR (DS) 2011 (VI) 789

2011 (7) AD (Delhi) 212 = ILR (DS) 2011 (VI) 808

2011 AIR (DEL) 174 = ILR (DS) 2011 (VI) 729

2010 (165) Comp Cas 334 = ILR (DS) 2011 (VI) 470

2011 (3) Crimes 111 = ILR (DS) 2011 (VI) 340

2011 Crl J 2394 = ILR (DS) 2011 (VI) 82

2011 (178) DLT 83 = ILR (DS) 2011 (VI) 31

2011 (178) DLT 631 = ILR (DS) 2011 (VI) 153

2011 (179) DLT 557 = ILR (DS) 2011 (VI) 175

2011 (178) DLT 671 = ILR (DS) 2011 (VI) 216

2011 (183) DLT 66 = ILR (DS) 2011 (VI) 277

2011 (181) DLT 187 = ILR (DS) 2011 (VI) 290

2011 (180) DLT 511 = ILR (DS) 2011 (VI) 319

2011 (179) DLT 293 = ILR (DS) 2011 (VI) 453

2011 (181) DLT 455 = ILR (DS) 2011 (VI) 462

2011 (181) DLT 658 = ILR (DS) 2011 (VI) 729

2011 (122) DRJ 363 = ILR (DS) 2011 (VI) 17

2011 (123) DRJ 404 = ILR (DS) 2011 (VI) 31

2011 (124) DRJ 48 = ILR (DS) 2011 (VI) 153

2011 (123) DRJ 638 = ILR (DS) 2011 (VI) 175

2011 (123) DRJ 554 = ILR (DS) 2011 (VI) 216

2011 (126) DRJ 183 = ILR (DS) 2011 (VI) 395

2011 (123) DRJ 666 = ILR (DS) 2011 (VI) 453

2011 (125) DRJ 241 = ILR (DS) 2011 (VI) 701

2011 (124) DRJ 633 = ILR (DS) 2011 (VI) 729

2011 (335) ITR 259 = ILR (DS) 2011 (VI) 243

2011 (2) JCC 1480 = ILR (DS) 2011 (VI) 82

2011 (2) JCC 1362 = ILR (DS) 2011 (VI) 453

2011 (47) PTC 129 = ILR (DS) 2011 (VI) 364

2011 (4) R.A.J. 352 = ILR (DS) 2011 (VI) 319

2011 (5) R.A.J. 115 = ILR (DS) 2011 (VI) 364

2011 (3) JCC 1817 = ILR (DS) 2011 (VI) 328

2011 (3) JCC 1569 = ILR (DS) 2011 (VI) 340

2011 (3) JCC 1744 = ILR (DS) 2011 (VI) 354

2011 (3) JCC 1870 = ILR (DS) 2011 (VI) 527

2011 (3) JCC 175 (Ni) = ILR (DS) 2011 (VI) 605

2011 (3) JCC 1836 = ILR (DS) 2011 (VI) 635

(iv)

(iiii)

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HIGH COURT OF DELHI : NEW DELHI

NOTIFICATION

Delhi, the 24th November, 2011

No. 514/Rules/DHC.— In exercise of the powers conferred by

Section 7 of the Delhi High Court Act, 1966 (Act 26 of 1966) and all

other powers enabling it in this behalf, the High Court of Delhi, hereby

makes the following amendment in Part A(a) of Chapter 1 of Volume V

of the Delhi High Court Rules & Orders :—

THE FOLLOWING SHALL BE INTRODUCED AS RULE 11A

AFTER THE EXISTING RULE 11 OF PART A(a) OF CHAPTER 1 OF

DELHI HIGH COURT RULES AND ORDERS, VOLUMES V :

“11A Payment and refund of court fees etc. by electronic means—

In addition to the existing modes, payment and refund of court fees,

costs and other charges can be effected by electronic means.

Explanation : For the purposes of this Rule, “Payment and refund

by electronic means” includes payment and refund through an electronic

payment gateway, debit card, credit card, cash card, wire transfer, on-

line payment or any other recognized mode of electronic payment.”

By Order of the Court,

V.P. VAISH, Registrar General

Note : This amendment shall come into force from the date of

its publication in the Gazette.

(v)

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Chugh Kathuria Engineers (P) Ltd. v. Delhi

Development Authority (DDA) ...................................................... 395

Commissioner of Income Tax v. M/s. Mediworld

Publications Pvt. Ltd. ..................................................................... 203

Commissioner of Income Tax v. M/s. SAS Pharmaceuticals .............. 243

“D”

Delhi Development Authority v. Hans Raj Batheja ................................ 141

Delhi Metro Rail Corporation Ltd. v. Samrat Ranga and Ors. .............. 595

Deepti Mandlaus v. State (Govt. of NCT of Delhi) and Anr. ............... 453

Devendra Kumar v. Govt. of NCT of Delhi and Ors. .......................... 290

Dharambir & Anr. v. State .................................................................... 686

“F”

Faheem Ahmed v. Maviya @ Luxmi ..................................................... 216

Fitzee Ltd. v. Brilliant Tutorials (P.) LTd. ................................................ 8

“I”

IHHR Hospitality Pvt. Ltd. v. Bestech India Pvt. Ltd. .......................... 364

Indian Associates v. The State and Others ........................................... 153

“J”

Jaipal v. State ......................................................................................... 553

Jindal Stainless Limited & Anr. v. Union of India & Ors. .................... 373

1

NOMINAL-INDEX

VOLUME-VI, PART-II

NOVEMBER AND DECEMBER, 2011

“A”

Akbari Begum & Ors. v. State .............................................................. 328

Anand Prakash v. The Delhi State Co-Operative Bank Ltd. & Anr. ..... 251

Anil Kumar Sharma @ Bobby v. Delhi State/NCT Delhi ........................ 82

Anita Devi & Others v. United India Assurance Co. Ltd. & Ors. ........ 673

Arti Jethani v. Daehsan Trading (India) Pvt Ltd. & Ors. ..................... 319

Ashok Chachra v. The State .................................................................. 789

“B”

BSES Rajdhani Power Ltd. v. Union of India & Ors. ........................... 429

Babu Lal & Ors. v. Mahavir Singh @ Mahvir Prashad & Ors. ............ 270

Bharat Vats v. Garima Vats ................................................................... 198

Bhole Baba Dairy Industries Ltd. v. Union of India and Ors. ............... 537

Bijay v. The State (G.N.C.T. of Delhi) ................................................. 515

Braham Prakash Dutta and Anr. v. Railway Protection Force

and Ors. ......................................................................................... 576

“C”

C.S. Agarwal v. State & Ors. ............................................................... 701

Chamno Devi v. Smt. Usha & Ors. ...................................................... 133

2

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“K”

K.L. Chandak v. Mr. Jai Chand & Ors. .................................................. 17

M/s. Krizm Hotels Private Limited v. M/s. Vaishnavi Estates

(P) Ltd. ........................................................................................... 759

“M”

M. Arun Ahluwalia v. Arun Oberoi & Anr. ........................................... 605

M. K. Sharma and Anr. v. Shri SH Tek Chand and Others ................. 652

“N”

North Delhi Power Ltd. v. Surender Kumar ......................................... 584

“R”

R.D. Gupta & Ors. v. D.T.C. & Anr. ................................................... 277

R.K.P. Nishad v. C.B.I. ......................................................................... 635

Rajesh Kr. Chaturvedi v. Union of India & Ors. ................................... 106

Rajiv Goela and Anr. v. Delhi Development Authority ............................ 1

“S”

S.K. Mitra v. Asst. General Manager State Bank of India .................... 262

S.P. Arya v. Union of India & Ors. ...................................................... 808

Satpal Singh v. Delhi Sikh Gurdwara Management Committee

& Anr. ........................................................................................... 462

Spice Communications Limited & Anr. ................................................ 470

State (Govt. of NCT of Delhi) v. Girdhari LaL Verma......................... 354

State GNCT of Delhi v. Mukesh ........................................................... 340

State v. Sunil Dutt ................................................................................. 679

M/s Sterling Agro Industries Ltd. v. Union of India & Ors. ................ 729

Suresh Kalmadi (In Judicial Custody) v. Union of India

& Ors. ........................................................................................... 795

Susan Leigh Beer v. India Tourism Development Corporation Ltd. ....... 31

Swaran Singh v. State ........................................................................... 527

“Y”

Yogender Kumar & Another v. Ram Kishan Gupta and Anr. ............... 531

Yogesh Duggal & Ors. v. State & Ors. ................................................ 175

43

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SUBJECT-INDEX

VOLUME-VI, PART-II

NOVEMBER AND DECEMBER, 2011

ARBITRATION ACT, 1940—Section 30 and 33—Indian

Contract Act, 1872—Section 15 and 16—Code of Civil

Procedure, 1908—Section 34, Order IX Rule 8, Order VI Rule

4—Petitioner was allotted work of construction of flats—

Disputes between parties referred to sole arbitrator—Award

rendered by arbitrator challenged before High Court—As

arbitrator had failed to consider a letter of petitioner accepting

responsibility for delay in execution of work, award partly set

aside and new arbitrator appointed to decide claims—Arbitrator

held delay in completion was on part of respondent—Award

challenged before High Court—Plea taken, impugned order is

not based on any evidence placed before arbitrator and that

there is an error apparent on face of award—There was no

pleading to support story that letter admitting delay was

obtained from petitioner under duress or coercion—Per contra

plea taken, arbitrator had considered evidence and concluded

delay was attributable to respondent at various stages of

work—Held—A plea of coercion or undue influence or duress

has necessarily to be specifically raised and pleaded as a fact—

Though Code of Civil Proceedure is not strictly applicable to

arbitral proceedings, Principles thereof, which are evolved to

achieve fairness in proceedings, are attached even to arbitral

proceedings—To permit a party to arbitration proceeding to

raise oral plea of ‘‘coercion’’ or ‘‘duress’’ or ‘‘undue

influence’’, would cause irreparable injustice to opposite party

as opposite party would be put to grave disadvantage in dealing

with such a vague and indefinite plea which is devoid of

particulars and specifics—Grant of extension of time by

respondent, till date of abandonment, cannot necessarily lead

to conclusion that delay was attributable to respondent, and

not petitioner—A party to a contract has option to accept

breach thereof by opposite party and require opposite party

to still complete contract—It is not that whenever there is

breach of contract by one party, opposite party should rescind

contract—Claim for tools & plants stationed at site for

prolonged period made rule of Court—Arbitrator appointed to

reconsider claims for expenses incurred for delayed work/

losses suffered by petitioner due to contract getting prolonged.

M/s. Chugh Kathuria Engineers (P) Ltd. v.

Delhi Development Authority (DDA) ........................... 395

ARBITRATION AND CONCILIATION ACT, 1996—Section

8—Petition filed by defendant for referring disputes raised by

plaintiff for arbitration after four weeks of filing Written

Statement—Plea taken, defendant had already pleaded in

written statement that there is arbitration agreement between

parties and this Court has no jurisdiction to adjudicate instant

suit—Applicants did not submit to jurisdiction of Civil Court

and application is maintainable even after filing of written

statement—Held—Defendants have already filed their Written

Statement and have disclosed their entire defence in main

proceedings and not in supplemental proceedings—Application

for referring disputes for Arbitration would be maintainable if

applicant had not filed his first statement on substance of

dispute—But when Written Statement is filed, it can hardly

be disputed that applicant has submitted not only first but

whole of his statement on dispute between parties. Mere

disclosure of arbitration agreement in Written Statement and

claiming civil Court has no jurisdiction to try suit would be

of no consequence unless Written Statement itself contains a

prayer for referring dispute for arbitration—Jurisdiction of

Civil Court is not ousted on account of arbitration agreement

between parties—It is ousted because of application filed under

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Section 8 of Act, provided it otherwise confirms to

requirements laid down in Section.

Arti Jethani v. Daehsan Trading (India) Pvt

Ltd. & Ors. .................................................................... 319

BAR COUNCIL OF DELHI ELECTION RULES, 1968

(RULES)—Rule 31(A)(ii)—Consitutional Validity—Petitioner

secured maximum number of first preference votes amongst

the unsuccessful candidates in the election to Bar Council of

Delhi—A casual vacancy occurred—Petitioner’s

representation for co-opting him as member was rejected—

Present writ petition was filed on grounds that Rule 31(A)(ii)

was unconstitutional—No intelligible differentia between two

vacancies, caused when election is set aside and arising out

of death or resignation- co-option procedure to be followed

to fill both kind of vacancy by candidate who has secured

maximum first preference votes amongst unsuccessful

candidate—Respondents contended that nature of vacancies

are different—Method of co-option is to aviod re-election—

Inclusion of next man in different circumstances does not

invite wrath of equality clause. Held—Rule 31(A)(ii) is

constitutionally valid—Co-option is a permissible method for

filling casual vacancy the Rule confers power on electoral

college and not all voters to co-opt a member—Conferment

of such power is not arbitrary—Involvement of larger body

for co-option is unacceptable—Only qualification for being co-

opted-enumerated under Rule 7 and 7A of Rules.

Devendra Kumar v. Govt. of NCT of Delhi

and Ors. .......................................................................... 290

CENTRAL EXCISE ACT, 1994—Section 37B—Payment of

whole service tax exempted on services provided to a

Developer or Units of SEZ by any service provider, for

purpose of development, operation and maintenance of SEZ

or for setting up of a SEZ unit or for manufacture of goods

by SEZ Units, on satisfaction of certain conditions—Impugned

circular clarified that service tax is exempted on provision of

only such services which are rendered by service providers

to Developer or Unit for its authorized operation within area

of SEZ—Circular challenged in writ petition before High Court

—Plea taken, only condition required for availing exemption

from payment of service tax by a Developer/Entrepreneur is

that taxable service should be used for carrying on authorized

operations by Developer/Entrepreneurs—Location of service

provider or place of service is entirely irrelevant for purpose

of this exemption—Per contra plea taken, service tax

exemption is available only for services which are provided

to carry on authorized operation in a SEZ—Held—Only

condition that is required to be satisfied to avail service tax

benefit is that services must be rendered for purpose of

carrying out ‘‘authorized operations in a special economic

zone’’—If intention of legislature was to exempt only those

services from levy of service tax that are rendered within SEZ,

legislature would have categorically stated so in statute—A

subordinate legislation has to confirm to parent statute and any

subordinate legislation inconsistent to provisions of parent

statute is liable to be set aside—Circulars being executive/

administrative in character cannot supersede or override Act

and statutory Rules—Impugned circular seeks to impose a

condition that was not intention of legislature in SEZ Act or

Rules and is liable to be set aside.

M/s. Jindal Stainless Limited & Anr. v. Union of

India & Ors. .................................................................. 373

CODE OF CIVIL PROCEDURE, 1908—Order XXXIX, Rule

1 & 2—Suit for permanent injunction for restraining defendant

no.1 from poaching faculty members of defendant no. 1 or

from instigating them to quit the plaintiff company and join

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them—Defendant objected that injunction claimed would have

the effect of curtailing the freedom given to its employees to

improve their future prospects and service conditions—Held—

There is no contract between the plaintiff company and

defendant no. 1 company not to poach on the employees of

each other—In the absence of any such contract, nothing in

law prevented defendant no. 1 company from approaching the

employees of plaintiff company and offering better service

conditions to them—Therefore, it cannot be said that any legal

injury was caused to the plaintiff-company by the alleged

poaching or any legal right, vesting in the plaintiff-company,

was violated by defendant No.1 company—Suit dismissed with

cost.

Fitzee Ltd. v. Brilliant Tutorials (P.) LTd. ..................... 8

— Section 34, Order IX Rule 8, Order VI Rule 4—Petitioner was

allotted work of construction of flats—Disputes between

parties referred to sole arbitrator—Award rendered by

arbitrator challenged before High Court—As arbitrator had

failed to consider a letter of petitioner accepting responsibility

for delay in execution of work, award partly set aside and

new arbitrator appointed to decide claims—Arbitrator held

delay in completion was on part of respondent—Award

challenged before High Court—Plea taken, impugned order is

not based on any evidence placed before arbitrator and that

there is an error apparent on face of award—There was no

pleading to support story that letter admitting delay was

obtained from petitioner under duress or coercion—Per contra

plea taken, arbitrator had considered evidence and concluded

delay was attributable to respondent at various stages of

work—Held—A plea of coercion or undue influence or duress

has necessarily to be specifically raised and pleaded as a fact—

Though Code of Civil Proceedure is not strictly applicable to

arbitral proceedings, Principles thereof, which are evolved to

achieve fairness in proceedings, are attached even to arbitral

proceedings—To permit a party to arbitration proceeding to

raise oral plea of ‘‘coercion’’ or ‘‘duress’’ or ‘‘undue

influence’’, would cause irreparable injustice to opposite party

as opposite party would be put to grave disadvantage in dealing

with such a vague and indefinite plea which is devoid of

particulars and specifics—Grant of extension of time by

respondent, till date of abandonment, cannot necessarily lead

to conclusion that delay was attributable to respondent, and

not petitioner—A party to a contract has option to accept

breach thereof by opposite party and require opposite party

to still complete contract—It is not that whenever there is

breach of contract by one party, opposite party should rescind

contract—Claim for tools & plants stationed at site for

prolonged period made rule of Court—Arbitrator appointed to

reconsider claims for expenses incurred for delayed work/

losses suffered by petitioner due to contract getting prolonged.

M/s. Chugh Kathuria Engineers (P) Ltd. v.

Delhi Development Authority (DDA) ........................... 395

— Order XLI Rule 4—Maintainability of Appeal if all the legal

representatives are not impleaded—Respondent’s suit for

possession—Decreed—Appeal filed by only one legal

representative without impleading other legal representatives

was allowed by the Appellate Court—Same challenged in

second appeal. Held—Order XLI Rule 4 of the Code permits

one of the several plaintiffs or one of the several defendants

to obtain a reversal of the whole decree—Therefore even

assuming that the decree was against all the legal

representatives—Appeal filed by one legal was competent—

Further under Rule 33—Appellate Court has wide powers to

pass any decree and to make any order notwithstanding that

the appeal has been filed only by one person—Decree can be

passed against those respondents as well who have not filed

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any appeal or objection—Condition being that they must be

parties to the suit.

Mr. K.L. Chandak v. Mr. Jai Chand & Ors. ............... 17

— Suit for declaration & Permanent Injunction—This appeal has

impugned the judgment and decree dated 05.3.2007 which had

endorsed the finding of the trial judge dated 20.7.2005 whereby

the suit filed by the plaintiff seeking a declaration and

permanent injunction to the effect that the plaintiff is the owner

of the property and the defendant be restrained from

interfering in the peaceful possession of the plaintiff, had been

dismissed—The plaintiff was in possession of the suit

property—She is a plaintiff had married Nek Ram—Nek

Ram’s whereabouts were not known for last 16 years—

Defendant No.1 came in contact with the plaintiff about 15

years ago—The Plaintiff and the defendant No.1 thereafter got

married—Defendant no.1 did not disclose that he was already

married to one Satyawati and had children from the said

marriage—The fact came to the knowledge of the plaintiff

only in the year 1981—Defendant No.1 had played a fraud

upon her with an ulterior motive to grab her property—By

way of present suit plaintiff had sought decree of declaration

that the plaintiff is the owner of the suit property; permanent

injunction had also been sought restraining the defendant from

interfering in her peaceful possession—Defendant had denied

the version of the plaintiff—It was stated that the plaintiff was

tenant of the defendant no.1—The Court had disbelieved the

version set up by the plaintiff; suit was dismissed—This was

endorsed in the first appeal—Second appeal filed no perversity

has been pointed out—Except two statements no evidence

adduced by appellant to show that property was purchased

benami from her money by defendant No.1 in the name of

defendant No.2—Appeal dismissed.

Babu Lal & Ors. v. Mahavir Singh @ Mahvir

Prashad & Ors. .............................................................. 270

— Order 39, Rule 1 & 2—Permanent Injunction—Trade Marks

Act, 1999—Deceptive similarity—Plaintiff owning and

managing destination spas, luxury business leisure hotels in

India and abroad providing services under Trade Mark and

Service Mark ‘Ananda’—Pre-launch advertising campaign of

residential complex under name ‘Park View Ananda’ launched

by defendant for promoting residential complexes—Claim of

plaintiff that defendant adopted well known mark ‘Ananda’

to create association with plaintiff’s properties and to ride on

goodwill and reputation of plaintiff—Held, difficult to accept

that trade mark ‘Ananda’ had become a well known trade

mark or that it came to be associated exclusively with

plaintiff’s company so as to indicate a connection with the

plaintiff company—No material on record to show that the

mark ‘Ananda’ had acquired such a high brand equity in India

that its use by persons other than plaintiff would dilute its

reputation—Difficult to say that word ‘Ananda’ had become

distinctive with plaintiff company— No evidence of any legal

proceedings having been initiated by the plaintiff company

against registration and/or user of ‘Ananda’ by others—Goods

and services of defendant in wholly unrelated category

compared to plaintiff—Plaintiff failed to make out prima facie

case for grant of injunction against defendant—Application

dismissed.

IHHR Hospitality Pvt. Ltd. v. Bestech India

Pvt. Ltd. .......................................................................... 364

— Order XXXIII, Suit as an indigent person seeking damages—

Plaintiff injured while jumping and slipping into swimming pool

of hotel managed and maintained by Defendant—Said injury

resulted in Plaintiff becoming a quadriplegic—Injury allegedly

due to negligence of Defendant in maintenance of Swimming

Pool—Tiles of floor of swimming pool slippery because of

algae formation—Plaintiff jumped in, feet slipped on floor and

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head hit wall of pool—Hence instant suit filed for damages

of Rs. 2 crores.

Susan Leigh Beer v. India Tourism Development

Corporation Ltd. ............................................................... 31

— Suit filed by duly authorised person—Power of attorney

granted to Plaintiff's father—Suit instituted as indigent

person—Application presented by father of Plaintiff—Plaintiff

exempted from presentation of application in person vide order

dated 22.01.1992—Plaintiff's father’s statement recorded—

Admitted that he holds power of attorney—Admittedly power

of attorney not filed along with plaint due to inadvertent

error—Same filed on 25.11.1991 vide application which was

allowed—Plaintiff's testimony amounted to clear ratification—

Procedural defects which do not go to the root of the matter

should not be permitted to defeat just cause—Ratio of Naresh

Kumar relied upon—Suit filed by duly authorised person.

Susan Leigh Beer v. India Tourism Development

Corporation Ltd. ............................................................... 31

— Nature of injuries—Evidence led—Nature of injuries were such

which resulted in fracture of cervical vertebrae—Resulted in

Plaintiff becoming a quadriplegic—Plaintiff represented school

in swimming—Member of State teams for water polo—

Member of Queensland Team—Plaintiff admittedly jumped into

shallow end of pool—Feet Slid forward—Head struck side of

pool—Plaintiff remembered bottom of pool to be slippery—

Nature of injuries stand determined.

Susan Leigh Beer v. India Tourism Development

Corporation Ltd. ............................................................... 31

— Cause of injuries—In written statement, Defendant did not

plead that Plaintiff dived into pool—Only in course of cross-

examination and arguments it was urged that Plaintiff did not

jump but dived into pool—Unless fact pleaded, no evidence

led can cure defect—Plaintiff contended that she jumped into

shallow end of pool, slipped and suffered injuries—Fully

supported by medical evidence—Theory propounded by

lifeguard also rejected as unreliable and practicably not

possible.

Susan Leigh Beer v. India Tourism Development

Corporation Ltd. ............................................................... 31

— Maintenance of pool tiles—Evidence led—Glazed tiles

inherently slippery—This would be further accentuated by

present of algal material—Growth occurs first in shallow

end—Initial stages of algae growth, water may remain clear.

Susan Leigh Beer v. India Tourism Development

Corporation Ltd. ............................................................... 31

— Res ipsa loquitur—Employed when no direct material on

particular aspect—Things speak for themselves—Three

conditions—Incident of this kind could only occur on account

of slippery floor—Accident caused by agency or

instrumentality within exclusive control of Defendant—Third,

accident not caused by any voluntary contribution on part of

plaintiff—All three conditions met—Res lpsa Loquitur

applicable—Burden shifts to Defendant—Defendants failed to

provide plausible explanation for injury—Failed to meet burden

of proof—Hence injury sustained on account of negligence

of Defendant.

Susan Leigh Beer v. India Tourism Development

Corporation Ltd. ............................................................... 31

— Damages—Plaintiff awarded Rs. 5 lacs for expenditure

incurred under head of medical treatment—Rs. 50 Lacs

awarded on account of physical and mental anguish—Loss

of earnings—Qunatified at Rs. 1 crore and twenty seven

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lacs—Plaintiff entitled to total sum alongwith simple interest

with effect from 22.01.1982.

Susan Leigh Beer v. India Tourism Development

Corporation Ltd. ............................................................... 31

— Order XXI Rule 97—Suit for specific performance of

agreement to sell decreed exparte in favour of plaintiff against

the defendant, followed by registration of sale deed and

mutation of property in the name of plaintiff—Before the

execution court, the petitioners/objectors contended that they

had purchased the property from one Pushpa Singh who had

purchased the same from the defendant prior to the date of

agreement to sell between plaintiff and the defendant and they

are in peaceful possession—Execution court dismissed the

objections, holding that since registered sale deed was executed

in favour of plaintiff and mutation done under the orders of

the court, the objections were not maintainable—Held, the

record shows that the address of the defendant was not

correctly mentioned in the suit though the same was known

to the plaintiff and this shows that contention of the objectors

that fraud was played upon the court cannot be ruled out —

Further held, the very purpose of Order XXI Rule 97&98 CPC

is to avoid filing of separate suit and execution court

empowered to conduct detailed inquiry on the objections—

Matter remanded back to the execution court to decide the

objections afresh.

Yogender Kumar & Another v. Ram Kishan Gupta

and Anr. .......................................................................... 531

— Order 1 Rule 10—Motor Vehicles Act, 1988—Section 2(30)-

165—Order of Motor Accident Claims Tribunal rejecting

Petitioner’s application seeking impleading of licensee who had

been granted permission for operation of Feeder Buses for

Metro Link Feeder Bus Project of DMRC Ltd. challenged

before HC—Plea taken, petitioner had entered into agreement

whereunder licensee was granted permission for operation of

feeder buses for Metro Feeder Bus Project—Licensee had

undertaken to indemnify petitioner against accident/claims/

liability arising out of operation of buses—There was no privity

of contract between petitioner and injured victim—Rejection

of application tantamounted to pre-judging issue of liability

even without a trial—Held—Provisions of M.V. Act envisage

that claims Tribunal should hold enquiry to ascertain liabilities

of persons who are involved in use of vehicle or persons who

are vicariously liable—Issue of possession or control of vehicle

assumes importance and may be determining factor in fixing

liabilities of parties to claim petition—Order rejecting

petitioner’s application for impleadment of licensee set aside.

Delhi Metro Rail Corporation Ltd. v. Samrat Ranga

and Ors. .......................................................................... 595

— Section 16, 20 and 22—Legal question framed as to whether

Delhi court has territorial jurisdiction to entertain and try a suit

for specific performance relating to a property situated outside

Delhi—On the basis of legal precedents, held that Delhi Courts

have no jurisdiction to entertain and try a suit for specific

performance relating to an immovable property situated outside

Delhi because the relief cannot be entirely obtained through

the personal obedience of the defendant under the proviso to

Section 16 CPC as the defendant will have to go out of Delhi

to get the sale deed registered—Plaints of both suits directed

to be returned to the plaintiffs.

Shri M. K. Sharma and Anr. v. Shri SH Tek Chand

and Others ...................................................................... 652

— Section 157—Officer In-charge of Police Station enjoined

under Section 157 to forward copy of FIR forthwith to Illka

Magistrate empower to take cognizance of an offence so that

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prosecution may not concoct facts and set up false case

against an accused—However, mere delay in forwarding the

copy of FIR to the Magistrate under Section 157 which was

otherwise recorded promptly is of no consequence, if the

Court is otherwise convicted about the truthfulness of the

prosecution case and there is otherwise positive and

trustworthy evidence on record.

Dharambir & Anr. v. State ........................................... 686

— Order 1 Rule 10—Motor Vehicles Act, 1988—Section 2(30)-

165—Order of Motor Accident Claims Tribunal rejecting

Petitioner’s application seeking impleading of licensee who had

been granted permission for operation of Feeder Buses for

Metro Link Feeder Bus Project of DMRC Ltd. challenged

before HC—Plea taken, petitioner had entered into agreement

whereunder licensee was granted permission for operation of

feeder buses for Metro Feeder Bus Project—Licensee had

undertaken to indemnify petitioner against accident/claims/

liability arising out of operation of buses—There was no privity

of contract between petitioner and injured victim—Rejection

of application tantamounted to pre-judging issue of liability

even without a trial—Held—Provisions of M.V. Act envisage

that claims Tribunal should hold enquiry to ascertain liabilities

of persons who are involved in use of vehicle or persons who

are vicariously liable—Issue of possession or control of vehicle

assumes importance and may be determining factor in fixing

liabilities of parties to claim petition—Order rejecting

petitioner’s application for impleadment of licensee set aside.

Delhi Metro Rail Corporation Ltd. v. Samrat Ranga

and Ors. .......................................................................... 595

CODE OF CRIMINAL PROCEDURE, 1973—Section 482—

Clause 10 and 18 of Letters Patent Act—Appellant C.S.

Aggarwal, Director of M/s Rockman Projects Limited (referred

to as RPL) made a representation for the purpose of securing

investment to Mr. Sameer Kohli, director of M/s Kohli Housing

and Development Pvt. Ltd—Intended to develop one SEZ on

250 acres land situated at Delhi-Jaipur Highway owned by

RPL—Petitioner received in-principal approval from the Govt.

of India for the project—On the representation, respondent

no. 3 agreed to buy 74% shares worth Rs. 185 crores in the

Special Purpose Vehicle (SPL) formed for this purpose—MOU

was signed—Advance payment of Rs. 40 crores was made

by respondent no. 3 on the condition that either this advance

will be refunded back to him or the land of 250 acres would

be transferred in favour of him in case the SEZ notification

is not received by 31st December 2008—Subsequently an

amount of Rs. 3 crores was given to the petitioner by

respondent no. 3—No notification could be received by RPL

by 31.12.2008—Mr. D.K. Jain, the other director of RPL

issued a public notice revoking all authority given to the

petitioner to act on behalf of RPL—After expiration of the dead

line, respondent no.3 demanded his money back, but in Vain—

Respondent made a complaint, on the basis of which, FIR

no. 266/09 was registered against the appellant herein u/s 420/

406/120-B IPC—Appellant challenged the registration of FIR

and sought quashing of the same—Hon’ble Single Judge

dismissed the petition—Appellant preferred the Letter Patent

Appeal under clause 10 of the Letter Patent Act—Respondent

took a primary objection to the maintainability of the Letter

Patent Appeal on the point that judgment was passed in

exercise of criminal jurisdiction and the Letter Patent appeal

against the order is clearly barred by Clause 10 and 18 of

Letters Patent Act—Held—Proceedings under Article 226 of

the Constitution would be treated as original civil proceedings

only when it concerns civil rights—A fortiori, if it concerns

a criminal matter, then such proceedings would be original

criminal proceedings—Letter Patent would lie when the Single

Judge decides the writ petition in proceedings concerning civil

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rights—On the other hand, if these proceedings are concerned

with rights in criminal law domain, then it can be said that

the Single Judge was exercising his ‘criminal jurisdiction’

while dealing with such a petition filed under Article 226 of

the Constitution—In a petition under Article 226 of the

Constitution when the High Court is exercising extraordinary

jurisdiction, the nature of proceedings, whether civil or

criminal, would depend upon the nature of right violated and

the nature of relief sought in the said petition—Writ of this

nature filed under Article 226 of the Constitution—Seeking

quashing of such an FIR would therefore be ‘‘criminal

proceedings’’ and while dealing with such proceedings, the

High Court exercises its ‘‘criminal jurisdiction’’—The LPAs

are barred and not maintainable—Dismissed.

C.S. Agarwal v. State & Ors. ...................................... 701

— Section 311A, Constitution of India, 1950—Article 20—

Appellants preferred appeals to challenge their conviction under

Section 302, 201, 384 read with Section 34 of Act—They

urged, one of circumstance i.e. delivery of ransom note in

the handwriting of the appellant Jaipal not proved—Also police

did not have power to take accused's handwriting under

Section 73 of Indian Evidence Act—Moreover, Section 311

A of Cr.P.C. was incorporated in the statute book only w.e.f.

23.06.2006 and was not retrospective in its application—Held:-

Obtaining the handwriting of an accused during investigation

is not hit by Article 20 (3) of the Constitution of India as an

accused cannot be said to be a witness against himself, if he

is asked to give his handwriting for purpose of verification

of any document purported to be in his handwriting—Some

forms of testimonial acts lie outside the scope of Article

20(3)—Obtaining appellant Jaipal's handwriting during

investigation not illegal.

Jaipal v. State................................................................. 553

— Sections 235, 245, 325, 360, 361, 377—Aggrieved by judgment

and order on sentence, State preferred appeal on ground,

sentence of two and a half years imprisonment for conviction

under Section 376/511 IPC inadequate and calls for

enhancement—Also, Trial Court fell into error in not awarding

minimum sentence of five years for attempting rape—Per

contra, amicus curiae on behalf of Respondent urged that in

appeal, by State on ground of inadequacy of sentence,

Accused/Respondent at same time has liberty to plead for his

acquittal or for reduction of sentence—Thus, case to be

considered on merits—Held:- A proper sentence is amalgam

of many factors such as the nature of the offence,

circumstances extenuating or aggravating offence, prior

criminal record, if any, of offender, age of offender as to

employment, background of offender with reference to

education, home life, sobriety and social adjustment, emotional

and mental conditions of offender, prospects for rehabilitation

of offender, possibility of return of offender to normal life in

community, possibility of treatment of training of offender,

possibility that sentence may serve as a deterrent to crime by

offender or by others and current community need, if any,

for such a deterrent in respect to particular type of offence—

No reason found to disturb conviction of Respondent,

however, Court would exercise and interfere with sentencing

discretion of trial Court “where inadequacy of sentence is gross

or glaring or shocks courts conscious”—In given facts and

conspectus of circumstances, does not warrant interference

in order on sentence.

State GNCT of Delhi v. Mukesh .................................. 340

— Sections 235, 245, 325, 360, 361, 377—Aggrieved by judgment

and order on sentence, State preferred appeal on ground,

sentence of two and a half years imprisonment for conviction

under Section 376/511 IPC inadequate and calls for

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enhancement—Also, Trial Court fell into error in not awarding

minimum sentence of five years for attempting rape—Per

contra, amicus curiae on behalf of Respondent urged that in

appeal, by State on ground of inadequacy of sentence,

Accused/Respondent at same time has liberty to plead for his

acquittal or for reduction of sentence—Thus, case to be

considered on merits—Held:- A proper sentence is amalgam

of many factors such as the nature of the offence,

circumstances extenuating or aggravating offence, prior

criminal record, if any, of offender, age of offender as to

employment, background of offender with reference to

education, home life, sobriety and social adjustment, emotional

and mental conditions of offender, prospects for rehabilitation

of offender, possibility of return of offender to normal life in

community, possibility of treatment of training of offender,

possibility that sentence may serve as a deterrent to crime by

offender or by others and current community need, if any,

for such a deterrent in respect to particular type of offence—

No reason found to disturb conviction of Respondent,

however, Court would exercise and interfere with sentencing

discretion of trial Court “where inadequacy of sentence is gross

or glaring or shocks courts conscious”—In given facts and

conspectus of circumstances, does not warrant interference

in order on sentence.

State GNCT of Delhi v. Mukesh .................................. 340

COMPANIES ACT, 1956—Section 391 to 394—Jurisdiction to

decide the issue of arrangement of the companies—

Department of Telecommunications (DoT) filed applications

for recall of order dated 05.02.2010 allowing amalgamation

of Spice Communication Limited (Spice) with Idea Cellular

Limited (Idea)—Contending that material documents—DoT’s

letter rejecting the amalgamation and License Agreements and

Merger Guidelines 2008 (guidelines) Suppressed—Wherein it

was clearly mentioned that the prior permission of DoT was

mandatory for filing a petition for merger before the Court-

Unified Access Services License Agreements (licenses)—

Clause 6.1 and 6.2 prohibit transfer of licences without prior

permission of DoT whereas clause 6.3 is restricted to

assignment of license agreement pursuant to approval of

merger scheme by this court under section 391-394 of the

Act—Order approving scheme has caused prejudice to DoT

Delay in filing the explanation does not disentitle DoT from

claiming reliefs sought—Petitioner-Companies contended that

DoT has no locus standi-Under clause 6.3 of license—DoT

has no say in the merger of companies—Guidelines are law

and cannot be suppressed—However admitted

correspondences with DoT-understanding was that DoT had

no objections—DoT on the other hand had suppressed the

letters written by the petitioner Companies—no violation of

guidelines—Clause 6.3 of licenses stipulates that approval of

DoT is to be obtained only on sanction of scheme by the High

Court—Sanction for merger of companies cannot be

conditional upon any statutory or regulatory permission.

Held—High Court alone has exclusive jurisdiction to decide

the issue of arrangement of companies merger of companies

does not result in merger of licenses but all merger/

amalgamation of companies necessarily results in transfer of

licenses for which prior permission is required under clause

6.1 of licenses—Prior permission under clause 6.1—Attracted

in the present case—Petitioner—Companies had suppressed

material documents to obtain unfair advantage—Sanctioned

scheme is binding on all shareholders, creditors—DoT is a

necessary party being a licensor and regulator—Grave

prejudice caused to DoT—However delay of 13 months in

filing the application for recall of order—Not explained—

Situation on ground—Spice lost its entity—Employees have

become employees of idea—Delisted from stock exchange-

not possible to recall the order in entirety—To bring the

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scheme in conformity with the guidelines—The order was

modified—Six overlapping licenses of Spice would not stand

transferred to Idea till DoT grants permission—Overlapping

licenses of Spice shall stand transferred/vested with DoT—

Spectrum allocated would revert back to DoT—In case DoT

refuses or grants conditional approval of transfer licenses—

Idea can challenge it before TDSAT-customers to be provided

uninterrupted services in overlapping license area-Ministry of

Corporate Affairs directed to conduct study and suggest

remedial measures to ensure no party can obtain sanction of

a scheme of arrangement without placing on record relevant

materials.

M/s. Spice Communications Limited & Anr. ............... 470

CONSTITUTION OF INDIA, 1950—Article 226—Writ

Petition—Railway Protection Force (RPF) Rules, 1987—

Service Law—Petitioner constable in RPF attached with a

detachment deployed at railway station for static guard

alongwith ten others under the command of one head

constable—Deceased Naik Amarjeet Yadav was murdered at

railway station allegedly by petitioner—Petitioner annoyed with

deceased and had an argument with him—For that reason fired

three rounds from his service rifle at the deceased resulting

in instantaneous death—FIR registered by police u/s 302 IPC

against petitioner—In preliminary inquiry, allegations proved—

Disciplinary authority dismissed petitioner from service stating

that not reasonably practicable to hold a departmental inquiry—

In Appeal, order of disciplinary authority set aside and regular

departmental inquiry ordered on the charges of gross

remissness and negligence in discharge of duty, willful breach

of discipline and serious misconduct—He was kept under

suspension during the pendency—Charges proved against

him—Again dismissed from service by disciplinary authority—

Filed appeal against the order before Appellant Authority—

During the pendency of appeal, acquitted by the court due to

lack of evidence—Transpired that all witnesses examined in

the departmental inquiry not produced in criminal trial—

Represented to the Appellate Authority in view of acquittal

relating to the same incident the punishment in departmental

inquiry be set aside—Appeal dismissed being time barred—

Filed revision before revisional authority—Revision

dismissed—Preferred writ petition—Contended, in view of the

fact that he has been acquitted in the criminal proceedings

based on same set of allegations which constituted the

gravamen of departmental proceedings the order of

Discriptionary Authority should be quashed—Further

contended that he could not participate in disciplinary

proceedings since he was not paid subsistence allowance—

Held—Departmental inquiry and criminal proceedings operate

in their distinct and mutually exclusive jurisdictional areas—

In a disciplinary proceedings the area of investigation covers

the field of (a) enforcement of discipline (b) level of integrity

(c) misconduct pertaining to devotion towards duty—In

criminal proceedings the area of investigation covers the

culpability from the point of view of criminal law—Standard

of proof in the two proceedings are different—In the former,

it is preponderance of probability and in the latter beyond

reasonable doubt—Rule of Evidence Act applicable in the

criminal trial; not applicable in the disciplinary proceedings

wherein any material having logical probative value to prove

or disprove the fact in issue relevant and admissible—In the

case in hand, the scope of departmental inquiry covering

disciplinary aspect wider and different and accordingly the

acquittal of the petitioner in the criminal proceedings has no

effect on the punishment of dismissal from service imposed

on him in the departmental proceedings—Further requirement

of furnishing a non-employment certificate by the suspended

employee to draw his subsistence allowance granted on

monthly basis to the employee to sustain himself—If the

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suspended fails to submit the certificate, he cannot complain

about not getting the subsistence allowance—Writ Petition

Dismissed.

Rajesh Kr. Chaturvedi v. Union of India & Ors. ...... 106

— Article 226—Petition challenging the enquiry and the

proceedings being violative of service rules applicable to the

staff of respondent—Seeking quashing of order of retirement

and reinstatement into service—Petitioner was employed with

the respondent in 1993 as clerk-cum-typist—Lastly worked

as Manager—Charged with misconduct of making payments

against false credit entries—Misuse of powers and ignoring

the prescribed Banking rules—Not taking care of interest of

the bank and having tampered with the record of the Bank—

Inquiry conducted—Petitioner found guilty—Respondent

imposed a penalty of compulsory retirement on the

petitioner—Appeal preferred—Rejected by Board of

Directors—Petition—Challenged on the ground of

maintainability—Petitioner alleges that employees of respondent

are governed by Central Civil Services (Conduct) Rules, 1964

and Central Civil Services (Classification, Control and Appeal)

Rules 1965, which shows that it is State and hence writ

petition is maintainable—Held—Merely, because a Society

adopts the rules applicable to Government servants to its own

employees would not convert the said Co-opertative Society

into Government—Similarly, merely because the respondent

is performing banking function would also not make the writ

petition maintainable—It is not shown that the function so

performed by the respondent is monopolistic—According to

the document handed over by the petitioner himself there are

as many as 32 Co-opertaive Societies in Delhi performing the

banking functions—This is besides the other banks operating

in Delhi—Thus the said ground for maintainability of the writ

petition is also rejected—In view of the aforesaid dicta of the

Supreme Court, the reasons given in rejoinder do not justify

the maintainability of the writ petition not maintainable.

Anand Prakash v. The Delhi State Co-Operative Bank

Ltd. & Anr. .................................................................... 251

— Article 226—Industrial Disputes Act, 1947—Section 17-B—

Application under Section 17-B of the Act by workman

claiming that, he was not gainfully not employed since 1994—

Single Judge observed that the application was filed in 2006

after 12 years—Workman directed to file his statements of

bank accounts from 1994 till date, Telephone bills, whether

he resided in his own premises or rented premises and also

an affidavit in corporating these facts—Aggrieved, appellant

filed Letter Patent Appeal—The affidavit in terms of Section

17-B clearing stating that respondent workman was not

gainfully employed already filed—Such inquiry is not

permissible under Section 17-B—Held—It is the duty of the

Court to arrive at a conclusion with regard to the entitlement

of the benefit under Section 17-B of the Act keeping in view

the decisions in Dena Bank (supra), Viveka Nand Sethi (supra)

K.B. Singh & Ors. (supra), Vinod Kumar (supra) and

Bhagawan Giri (supra)—The writ court has to see whether

the workman received adequate remunertaion during such

period and whether the respondent-management has produced

ample material to show that the workman had been really

gainfully employed—Mere survival would not be enough—It

will depend upon the factum of adequacy of amount

received—In the case at hand, the learned Single Judge has

erroneously observed that the workman had filed an

application after 12 years as the same is not factually correct—

It is clear that the appellant filed the application in quite

promptitute—The information that have been directed by the

learned Single Judge to be given by the workman are in the

realm of roving enquiry putting the entire burden on the

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workman—Such a roving enquiry, is unwarranted and,

accordingly, the order impugned set aside.

S.K. Mitra v. Asst. General Manager State Bank

of India ........................................................................... 262

— Article 226—Special Economic Zones Act, 2005—Section

26(1) (e), 26(2), 51, 55 and 58—Special Economic Zone

Rules, 2006—Rule 31—Central Excise Act, 1994—Section

37B—Payment of whole service tax exempted on services

provided to a Developer or Units of SEZ by any service

provider, for purpose of development, operation and

maintenance of SEZ or for setting up of a SEZ unit or for

manufacture of goods by SEZ Units, on satisfaction of certain

conditions—Impugned circular clarified that service tax is

exempted on provision of only such services which are

rendered by service providers to Developer or Unit for its

authorized operation within area of SEZ—Circular challenged

in writ petition before High Court —Plea taken, only condition

required for availing exemption from payment of service tax

by a Developer/Entrepreneur is that taxable service should be

used for carrying on authorized operations by Developer/

Entrepreneurs—Location of service provider or place of

service is entirely irrelevant for purpose of this exemption—

Per contra plea taken, service tax exemption is available only

for services which are provided to carry on authorized

operation in a SEZ—Held—Only condition that is required to

be satisfied to avail service tax benefit is that services must

be rendered for purpose of carrying out ‘‘authorized

operations in a special economic zone’’—If intention of

legislature was to exempt only those services from levy of

service tax that are rendered within SEZ, legislature would

have categorically stated so in statute—A subordinate legislation

has to confirm to parent statute and any subordinate legislation

inconsistent to provisions of parent statute is liable to be set

aside—Circulars being executive/administrative in character

cannot supersede or override Act and statutory Rules—

Impugned circular seeks to impose a condition that was not

intention of legislature in SEZ Act or Rules and is liable to be

set aside.

M/s. Jindal Stainless Limited & Anr. v. Union of

India & Ors. .................................................................. 373

— Article 19(1) (a), 21, 105 (1) and 326—Petitioner, a

Parliamentarian in Judicial Custody filed writ petition for

permission to attend Parliament in Judicial Custody—Plea

taken, Parliamentarian has freedom of speech subject only to

rules and standing orders regulating procedure of Parliament

none of which prevents petitioner from attending Parliament

and speaking while in custody—Constitutional right of

petitioner to participate in Parlimentary proceedings and right

to vote in Parliament as elected representative is essence and

expression of Parliamentary democracy—Parliamentary

democracy is basic feature of Constitution of India and there

is no reason for denying such participation to petitioner while

same is possible in judicial custody—Refusing participation in

Parliamentary proceedings to petitioner would deny him

opportunity to fulfill his constitutional objections to attend

proceedings of Parliament—Unless petitioner is so permitted,

Parliamentary Constituency which had elected him would go

unrepresented in Parliament—Public interest demands that

petitioner, be permitted to attend Parliament—Per contra, plea

taken offences with which petitioner is charged with are

extremely grave and serious causing huge wrongful pecuniary

benefits to certain private parties and consequent loss to public

exchequer—Some of other accused officials of the Organizing

Committee for Common Wealth Games of which petitioner

was chairman are still absconding—CBI apprehends that

petitioner may misuse liberty sought by way of present petition

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to influence witnesses and tamper with evidence—Held—

Argument as raised by petitioner amounts to placing Members

of Parliament (M.P.) at a pedestal higher than their electorate—

Argument assumes work of a M.P. is more sacred and

important than work/vocation in which citizens who have

elected said Parliamentarian may be engaged in—Such

argument is archaic and creates two classes of citizens as in

a monarchy i.e. king and subject and is alien to Constitution—

Merely because petitioner is a Parliamentarian does not entitle

him to claim any exception from effect of being in detention—

It is not case of petitioner that vote of petitioner on any aspect

is vital or that without such participation citizens of his

constituency would suffer—Petitioner, in past, as per his

convenience has been missing Sessions of Parliament—When

petitioner could afford to miss parliament to spend time on

National Games or Participate in Games at China, his desire/

keenness to attend parliament can only be understood as

attempt for fresh air outside prison walls—Petitioner is not

entitled to relief claimed—Petition dismissed with costs of Rs.

1,00,000/- payable to Prime Minister’s National Relief Fund.

Suresh Kalmadi (In Judicial Custody) v. Union of India

& Ors. ............................................................................. 795

— Article 226, Guardian and Wards Act, 1890—Section 7—Writ

of Habeas Corpus—Petitioner, the mother seeks issuance of

Writ of Habeas Corpus directing her husband Respondent No.

2 to produce their minor son before Hon’ble High Court—

Petitioner, Respondent No. 2 and the minor son are Indian

Citizens residing in Canada since 04.04.2009—Respondent No.

2 and minor son came to India-Did not return—Before the

petitioner could move Court, respondent filed a petition under

Guardian and Wards Act and Section 6 of Hindu Minority and

Guardianship Act, 1956 for appointment of himself as sole

guardian—Petitioner moved the Superior Court of Justice, in

Canada—Held the child was an Indian Citizen—When the

Canadian Court passed the orders, the Guardianship Court in

New Delhi was already in seisin of the custody matter—No

comity of Courts Principle to apply—When child was brought

to India no custody dispute was pending—Not in violation of

any Court’s order—Golden Rule to be followed—Welfare of

the child—Minor’s right to life and liberty guaranteed under

Article 21 of the Constitution of India—Question to decide

which parent’s care is best for the child—Petition not

allowed—Custody by Respondent No. 2 not unlawful or ill

Deepti Mandlaus v. State (Govt. of NCT of Delhi)

and Anr. .......................................................................... 453

— Article 226—Code of Criminal Procedure, 1973—Section

482—Clause 10 and 18 of Letters Patent Act—Appellant C.S.

Aggarwal, Director of M/s Rockman Projects Limited (referred

to as RPL) made a representation for the purpose of securing

investment to Mr. Sameer Kohli, director of M/s Kohli Housing

and Development Pvt. Ltd—Intended to develop one SEZ on

250 acres land situated at Delhi-Jaipur Highway owned by

RPL—Petitioner received in-principal approval from the Govt.

of India for the project—On the representation, respondent

no. 3 agreed to buy 74% shares worth Rs. 185 crores in the

Special Purpose Vehicle (SPL) formed for this purpose—MOU

was signed—Advance payment of Rs. 40 crores was made

by respondent no. 3 on the condition that either this advance

will be refunded back to him or the land of 250 acres would

be transferred in favour of him in case the SEZ notification

is not received by 31st December 2008—Subsequently an

amount of Rs. 3 crores was given to the petitioner by

respondent no. 3—No notification could be received by RPL

by 31.12.2008—Mr. D.K. Jain, the other director of RPL

issued a public notice revoking all authority given to the

petitioner to act on behalf of RPL—After expiration of the dead

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line, respondent no.3 demanded his money back, but in Vain—

Respondent made a complaint, on the basis of which, FIR

no. 266/09 was registered against the appellant herein u/s 420/

406/120-B IPC—Appellant challenged the registration of FIR

and sought quashing of the same—Hon’ble Single Judge

dismissed the petition—Appellant preferred the Letter Patent

Appeal under clause 10 of the Letter Patent Act—Respondent

took a primary objection to the maintainability of the Letter

Patent Appeal on the point that judgment was passed in

exercise of criminal jurisdiction and the Letter Patent appeal

against the order is clearly barred by Clause 10 and 18 of

Letters Patent Act—Held—Proceedings under Article 226 of

the Constitution would be treated as original civil proceedings

only when it concerns civil rights—A fortiori, if it concerns

a criminal matter, then such proceedings would be original

criminal proceedings—Letter Patent would lie when the Single

Judge decides the writ petition in proceedings concerning civil

rights—On the other hand, if these proceedings are concerned

with rights in criminal law domain, then it can be said that

the Single Judge was exercising his ‘criminal jurisdiction’

while dealing with such a petition filed under Article 226 of

the Constitution—In a petition under Article 226 of the

Constitution when the High Court is exercising extraordinary

jurisdiction, the nature of proceedings, whether civil or

criminal, would depend upon the nature of right violated and

the nature of relief sought in the said petition—Writ of this

nature filed under Article 226 of the Constitution—Seeking

quashing of such an FIR would therefore be ‘‘criminal

proceedings’’ and while dealing with such proceedings, the

High Court exercises its ‘‘criminal jurisdiction’’—The LPAs

are barred and not maintainable—Dismissed.

C.S. Agarwal v. State & Ors. ...................................... 701

— Article 226—Petitioner industry is situated at Industrial area

Q-5-6, Ghirongi, Distt. Bhind, Malanpur in the State of

Madhya Pradesh—Assistant Commissioner of Custom, ICD,

Malanpur ordered that no draw-back facility is admissible to

the petitioner as it had by way of procuring duty free inputs

under Rule 19 (2) of the Central Excise Rules, 2002,

contravened clause (ii) of the second proviso to Rule 3 (1)

of the Central Excise Drawback Rules, 1995 and also

condition No. 7 (F) of the notification No. 68/2007-Cus (NT)

and condition No. 8 (F) of the notification No. 103/2008-Cus

(NT)—Petitioner preferred revision—Revision dismissed by

Revisionary Authority, Government of India, Ministry of

Finance, Department of Revenue—Petitioner challenged the

legal substantiality and sustainability of the order dated

09.07.2010 passed by Revisionary Authority—Division Bench

referred the matter for reconsideration by Full Bench doubting

the correctness and soundness of the decision in New India

Assurance Company Limited v. Union of India and others,

AIR 2010 Delhi 43 (FB)—Full Bench thought it appropriate

that the matter should be considered by a larger Bench—Larger

Bench constituted and matter was placed before the Larger

Bench—Controversy is pertaining to the jurisdiction of Hon’ble

High Court of Delhi in these writ petitions under Article 226—

Held—The principle of forum conveniens in its ambit and

sweep encapsulates the concept that a cause of action arising

within the jurisdiction of the Court would not itself constitute

to be the determining factor compelling the Court to entertain

the matter—While exercising jurisdiction under Articles 226

and 227 of the Constitution of India, the Court cannot be

totally oblivious of the concept of forum conveniens—The

Full Bench in New India Assurance Co. Ltd. (supra) has not

kept in view the concept of forum conveniens and has

expressed the view that if the appellate authority who has

passed the order is situated in Delhi, then the Delhi High Court

should be treated as the forum conveniens—Findings and

conclusions of the Full Bench in New India Assurance

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Company Limited (supra) Modified and conclusions in

seriatim Stated as follows : (a) The finding recorded by the

Full Bench that the sole cause of action emerges at the place

or location where the tribunal/appellate authority/revisional

authority is situate and the said High Court i.e., Delhi High

Court cannot decline to entertain the writ petition as that would

amount to failure of the duty of the Court, cannot be accepted

inasmuch as such a finding is totally based on the situs of

the Tribunal/Appellate Authority/Revisional Authority totally

ignoring the concept of forum conveniens (b) Even if a

miniscule part of cause of action arises within the jurisdiction

of this court, a writ petition would be maintainable before this

Court; however, the cause of action has to be understood as

per the ratio laid down in the case of Alchemist Ltd. (c) An

order of the Appellate authority constitutes a part of cause of

action to make the writ petition maintainable in the High Court

within whose jurisdiction the appellate authority is situated—

Yet, the same may not be the singular factor to compel the

High Court to decide the matter on merits—The High Court

may refuse to exercise its discretionary jurisdiction by invoking

the doctrine of forum conveniens. (d) The conclusion that

where the appellate or revisional authority is located constitutes

the place of forum conveniens as stated in absolute terms by

the Full Bench is not correct as it will vary from case to case

and depend upon the lis in question—(e) The finding that the

court may refuse to exercise jurisdiction under Article 226 if

only the jurisdiction is invoked in a malafide manner is too

restricted/constricted as the exercise of power under Article

226 being discretionary, cannot be limited or restricted to the

ground of malafide alone—(f) While entertaining a writ petition,

the doctrine of forum conveniens and the nature of cause of

action are required to be scrutinized by the High Court

depending upon the factual matrix of each case in view of

what has been stated in Ambica Industries (supra) and Adani

Exports Ltd. (supra)—(g) The conclusion of the earlier

decision of the Full Bench in New India Assurance Company

Limited (supra) ‘‘that since the original order merges into the

appellate order, the place where the appellate authority is

located is also forum conveniens’’ is not correct—(h) Any

decision of this Court contrary to the conclusions enumerated

hereinabove stands overruled—Ex consequenti, reference

answered by partially overruling and clarifying the decision

in New India Assurance company Limited (supra) in the above

terms. Matters directed to be listed before the appropriate

Division Bench for appropriate consideration.

M/s Sterling Agro Industries Ltd. v. Union of India

& Ors. ............................................................................. 729

— Writ—Service matter—LIC (staff) Regulations, 1950—

Regulation 39—Industrial Disputes Act, 1947—Petitioner

appointed in LIC as office attendant in 1963—Posted in

Meerut Division—Became a trade unionist—Transferred to

Mhow in Madhya Pradesh in November 1978—Did not

comply with the transfer order—Letter dated 22.12.1978

directing the petitioner to join his duties at Mhow-did not join

duties-continued to address leave applications to Divisional

Office at Meerut—Again, vide letter dated 05.02.1979 asked

to join duty at Mhow-Did not join-continued to defy despite

another letter dated 21.08.1979—Pleaded illness-Panel of

medical examiners at Medical College, Meerut constituted-

petitioner challenged the constitution of panel and refused to

appear—Transfer order modified on 26.04.1980 from Mhow

to Panipat-modified order not complied with-further directed

to join duty at Panipat vide letter dated 15.05.1980—Asked

to get in touch with Dr. Aggarwal for medical examination-

did neither-resorted to hunger strike-submitted fitness

certificate dated 21.05.1980—LIC (staff) Regulation 1960—

Regulation 39 lays down procedure to hold an enquiry-holding

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of enquiry dispesed with by the Zonal Manager—Charge

sheet-cum-show cause Notice proposing penalty of removal

from service under Regulation 39 (1) (f) issued on

21.06.1980—Reply not filed-kept on seeking time-vide order

dated 11.08.1980 discussing the charges and documents in

support of punishment of removal from service under

Regulation 39 (1) (f) imposed—Appeal against the order-

dismissed by the Managing Director—Memorial preferred

before the Chairman followed by apology—Writ Petition before

Allahabad High Court filed against the order dated

10.08.1980—Dismissed—Special Leave Petition filed before

the Supreme Court—Liberty given to seek fresh reference of

the dispute to labour court—Process under Industrial Disputes

Act, 1947 invoked—Reference made to CGIT—CGIT passed

award dated 16.06.1998—Award of CGIT challenged through

the Writ Petition—Held—General attitude of petitioner was that

of defiance -decision to dispense with holding of an enquiry

not taken in a hurry-Concurred with CGIT—Petition

dismissed.

S.P. Arya v. Union of India & Ors. ........................... 808

CUSTOMS ACT, 1962—Notification No. 23 (RE-2010)/2009-

2014 dated 18.02.2010(ANN-P-I), Notification No. 25 (RE-

2010)/2009-2014 dated 24.03.2011 (ANN-P-II), Notification

No. 37 E (RE-2010)/2009-2014 dated 24.03.2011 (ANN-P-

III)-(impugned Notifications) Export of ‘Casein’ and ‘Casein

Products’-Petitioner manufacturer and exporter of casein and

casein products- eligible and therefore applied and obtained

permission for factory stuffing in terms of CBEC circular no.

60/2011-Cus dated 01.11.2001—Applied to jurisdictional

Central Excise Officers for examination—Goods examined

under four shipping bills on 16.02.2011, 16.02.2011,

16.02.2011 and 18.02.2011—On that very date were removed

from the factory and handed over to ICD, Tuglakabad—

Meanwhile—Impugned notifications were issued prohibiting

export of casein and casein products-AO disallowed export-

goods were presented for examination after the impugned

notifications were passed-CC(A) allowed the appeal-Goods

presented to jurisdictional Central Excise Officers is

presentation for Customs examination-Not hit by the

prohibition—Respondent challenged the order before

Tribunal—Appeal yet to be listed—No stay order—Present

writ petition filed for compliance of the order of CC(A)-

suffering demurrage-continued to be levied at escalating rate.

Held—Petitioner had completed all the formalities for

exportable goods-change of policy provision not applicable to

consignment already handed over to customs for

examination—Petitioner cannot be blamed for procedural

delay-in case the goods are exported, the Petitioner will suffer

irreparable loss as the goods cannot be re-used—Balance of

convenience lies in favour of the Petitioner—Respondents

directed to allow the Petitioner to export the goods.

M/s Bhole Baba Dairy Industries Ltd. v. Union of

India and Ors. ................................................................ 537

DELHI SIKH GURUDWARA ACT, 1971—Section 3(1), 24, 31,

32, 33, 36, 40 (2) (f)—Indian Penal Code, 1860—Section

21—Constitution of India, 1950—Article 226—Right to

Information Act, 2005—Section 2(h)—Writ filed for seeking

mandamus for reinstatement and for payment of wages,

etc.—Question of maintainability of writ petition suo moto

raised by Court—On maintainability, plea taken DSMGC is a

statutory body empowered to manage educational and other

institutions—Members of DSMGC are public servants within

meaning of Indian Penal Code—Terms and conditions of

service of employees of DSMGC have statutory force—Per

contra plea taken, petitioners ought to invoke remedy of

Industrial Disputes Act—Held—Jurisdiction over disputes

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between DSGMC and its employees including past employees

is, first of District Judge and Gurudwara Act provides for a

remedy to this Court against orders of District Judge—Act

on basis of which writ remedy is invoked against DSGMC,

having itself provided a remedy for disputes as subject matter

of these writ petition, writ petitions would not be maintainable

on this ground alone—Court would ordinarily not exercise

writ jurisdiction when alternative, efficacious remedy is

available—Present petitions raise disputed questions of fact

which can be appropriately adjudicated in proceedings before

District Judge than in writ jurisdiction—Petitioners directed

to approach Departmental Appellate Authority/District Judge.

Satpal Singh v. Delhi Sikh Gurdwara Management

Committee & Anr. .......................................................... 462

ELECTRICITY ACT, 2003—Section 135—Petitioner filed

complaint against Respondents for committing offence under

Section 135 of Act on basis of raids conducted by inspection

team—All inspections carried out prior to notification of

Government of NCT empowering technical officers, Managers/

Executive Engineers and above rank officers as authorized

officers—Trial Court discharged Respondents holding

inspection in premises not made by authorized officers; so all

consequential proceedings initiated under Section 135 of Act

illegal—Respondent urged any action taken on basis of invalid

raid is nullity—Held:- An evidence even if illegally collected is

admissible in evidence, though the reliability thereof has to be

tested at time of trial—Trial Court to rehear the matter on order

of charge on basis of evidence on record and other contentions

raised by parties.

North Delhi Power Ltd. v. Surender Kumar................ 584

GUARDIAN AND WARDS ACT, 1890—Jurisdiction—Minor

child born on 14.11.2008 in USA—Parents came to Delhi,

resided in house of father—Mother forced to leave matrimonial

home along with minor child due to ill-treatment—Living in

Noida since 04.06.2009—Appellant filed petition under Section

25 of Guardians and Wards Act, 1890 for custody of minor—

Petition dismissed for want of territorial jurisdiction—Hence

present appeal—Petition to be filed where minor ordinarily

resides—Minor staying in Noida since 04.06.2009—Petition

filed after period of more than one year from date when wife

left matrimonial home along with minor—Ordinary place of

residence to be Noida—No illegality in impugned order.

Bharat Vats v. Garima Vats. ........................................ 198

— Section 9—Jurisdiction—Appellant states that application filed

on similar grounds—Same withdrawn—Hence could not file

similar application—Parties cannot confer jurisdiction where

Court has none—Only convenience of minor to be seen—No

application of res judicata or issue estoppels with respect to

interim applications—Appeal only filed to harass Respondent

and minor child—Appeal dismissed.

Bharat Vats v. Garima Vats ......................................... 198

— Section 7—Writ of Habeas Corpus—Petitioner, the mother

seeks issuance of Writ of Habeas Corpus directing her

husband Respondent No. 2 to produce their minor son before

Hon’ble High Court—Petitioner, Respondent No. 2 and the

minor son are Indian Citizens residing in Canada since

04.04.2009—Respondent No. 2 and minor son came to India-

Did not return—Before the petitioner could move Court,

respondent filed a petition under Guardian and Wards Act and

Section 6 of Hindu Minority and Guardianship Act, 1956 for

appointment of himself as sole guardian—Petitioner moved the

Superior Court of Justice, in Canada—Held the child was an

Indian Citizen—When the Canadian Court passed the orders,

the Guardianship Court in New Delhi was already in seisin of

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the custody matter—No comity of Courts Principle to apply—

When child was brought to India no custody dispute was

pending—Not in violation of any Court’s order—Golden Rule

to be followed—Welfare of the child—Minor’s right to life

and liberty guaranteed under Article 21 of the Constitution of

India—Question to decide which parent’s care is best for the

child—Petition not allowed—Custody by Respondent No. 2

not unlawful or ill

Deepti Mandlaus v. State (Govt. of NCT of Delhi)

and Anr. .......................................................................... 453

INCOME TAX ACT, 1961—Section 28 (va), Section 55(2) (o)—

Capital gain and income from business—Assessee, engaged

in business of health care, print media and electronic media

communications, entered into specified assets transfer

agreement with another company for sale of all its rights.

Titles and interest in specified assets including the business

intellectual property rights alongwith goodwill and all rights

etc. for consideration of Rs. 3,80,02,500/-—Assessing Officer

held that the amount of Rs. 3,80,02,500/- is income and as

such taxable under the head business and professions instead

of being the capital gain as claimed by the assessee—In appeal,

CIT(A) accepted the contention of the assessee and held that

the said amount was not business income but long term capital

gain on transfer of assets—In further appeal of the revenue,

the ITAT upheld the decision of CITA—Hence, appeal to the

High Court under Section 260(A)(1) Income Tax Act—High

Court held, trademarks/brands, copyright and goodwill will

constitute assets of the business and are profit earning

apparatus and as such, sale thereof would lead to capital gain.

Commissioner of Income Tax v. M/s. Mediworld

Publications Pvt. Ltd. .................................................... 203

— Section 271 (1) (c)—This appeal arises out of the order of

the Income Tax Appellate Tribunal—A survey was carried out

at the business premises and godown of the respondent-

assessee on 06.01.2003—In that survey, discrepancies in cash,

stock and renovation were found—The assessee accepted this

difference and surrendered the amount—No attempt was made

by the assessee even after this surrender to retract therefrom

or to explain that there were no such discrepancies—

Assessment also reflected the surrendered amount in his

income tax returns—Assessing officer initiated separate penalty

proceedings which culiminated in imposition of penalty—CIT

(A) deleted the penalty by holding that there was no

concealment—Tribunal dismissed appeal filed by Revenue—

Instant appeal filed—It is to be kept in mind that Section

271(1)(c) of the Act is a penal provision and such a provision

has to be strictly construed. Unless the case falls within the

four-corners of the said provision, penalty cannot be

imposed—The penalty can be imposed only if concealment

is found in the income tax returns—Since the assessee, may

be after being exposed in survey, had made complete

disclosure of his income in his income tax return and they

was no concealment or non-disclosure of income, no penalty

could have been imposed—Appeal dismissed.

Commissioner of Income Tax v. M/s. SAS

Pharmaceuticals .............................................................. 243

INDIAN CONTRACT ACT, 1872—Section 15 and 16—Code

of Civil Procedure, 1908—Section 34, Order IX Rule 8, Order

VI Rule 4—Petitioner was allotted work of construction of

flats—Disputes between parties referred to sole arbitrator—

Award rendered by arbitrator challenged before High Court—

As arbitrator had failed to consider a letter of petitioner

accepting responsibility for delay in execution of work, award

partly set aside and new arbitrator appointed to decide claims—

Arbitrator held delay in completion was on part of

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respondent—Award challenged before High Court—Plea

taken, impugned order is not based on any evidence placed

before arbitrator and that there is an error apparent on face

of award—There was no pleading to support story that letter

admitting delay was obtained from petitioner under duress or

coercion—Per contra plea taken, arbitrator had considered

evidence and concluded delay was attributable to respondent

at various stages of work—Held—A plea of coercion or

undue influence or duress has necessarily to be specifically

raised and pleaded as a fact—Though Code of Civil Proceedure

is not strictly applicable to arbitral proceedings, Principles

thereof, which are evolved to achieve fairness in proceedings,

are attached even to arbitral proceedings—To permit a party

to arbitration proceeding to raise oral plea of ‘‘coercion’’ or

‘‘duress’’ or ‘‘undue influence’’, would cause irreparable

injustice to opposite party as opposite party would be put to

grave disadvantage in dealing with such a vague and indefinite

plea which is devoid of particulars and specifics—Grant of

extension of time by respondent, till date of abandonment,

cannot necessarily lead to conclusion that delay was

attributable to respondent, and not petitioner—A party to a

contract has option to accept breach thereof by opposite party

and require opposite party to still complete contract—It is not

that whenever there is breach of contract by one party,

opposite party should rescind contract—Claim for tools &

plants stationed at site for prolonged period made rule of

Court—Arbitrator appointed to reconsider claims for expenses

incurred for delayed work/losses suffered by petitioner due

to contract getting prolonged.

M/s. Chugh Kathuria Engineers (P) Ltd. v.

Delhi Development Authority (DDA) ........................... 395

INDIAN EVIDENCE ACT, 1872—Section 4 and 36—

Constitution of India, 1950—Article 25 and 26— Respondent

filed a petition for declaring registration of her marriage with

appellant to be of no effect—As per respondent, for

membership of library in Jama Masjid, appellant persuaded

respondent to convert to Islam for this purpose—Respondent

singed certain documents which appellant claimed to be

registration of marriage and conversion certificate and that by

virtue of those respondent became his wife—Petition allowed

by Trial Court—Order challenged in appeal—Plea taken, trial

Court committed jurisdiction error in entertaining suit of

respondent—Documentary evidence to prove conversion of

respondent from Hindu religion to Muslim religion ignored by

trial Court—Respondent did not file any objection to

registration of marriage—Per contra, plea taken respondent

had never changed her religion and there is no marriage which

can be said to have taken place between appellant and

respondent—Held—In certain situations one party to marriage

belonging to one religion can take a decision to embrace

religion of other party but such a conversion should not be

undertaken merely to achieve purpose of marriage—It should

be done to embrace new religion with a will and desire to

completely follow tenets of new religion while simultaneously

forsaking tenets of religion being professed by a person prior

thereto—Respondent got prepared her conversion certificate

to marry appellant—She feigned to have adopted another

religion for purpose of wordly gain of marriage—Trial Court

rightly held there was no conversion of respondent from

Hinduism to Islam—Except nikahnama nothing proved on

record to establish fact that essential requirement of offer and

acceptance was made by parties in presence and hearing of

witnesses—Registration of marriage was obtained in violation

of mandatory conditions required for purpose of registration

as parties had never lived together since their marriage—

Marriage certificate is conclusive evidence to prove its issuance

by a proper and competent marriage officer after following

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due procedure prescribed under Act and Rules framed

thereunder—Said conclusive evidence cannot come in way of

parties challenging such a marriage certificate or marriage

itself—No merit in present appeal.

Faheem Ahmed v. Maviya @ Luxmi ........................... 216

— Section 68—Attesting witnesses—Limitation Act, 1963—

Article 137—Deceased executed Will dated 12.08.1971;

expired on 20.02.1984—Husband pre-deceased her—Survived

by five sons and three daughters—Property in question

comprise of a house in Karol Bagh—Bequeathed the ground

floor in favour son O.P.- first floor in favour of son V.P.—

Not give any share to other children—Will got registered during

her life time on 21.02.1978—All children of the testatrix except

the legal heir of V.P. had filed no objection to grant of

probate—Grant of probate sought on November 1994—

Objections filed inter-alia-alleging Will not executed by testatrix

in sound and disposing mind—She was completely deaf in

1971-not possible for anybody to communicate with her to

make her understand the contents of the Will—Also challenged

the execution, validity, contents and attestations of the Will

on the ground testatrix did not know English language—ADJ

observed the testimony of attesting witness does not inspire

confidence—Full of contradictions on material points—Cast

serious doubt on genuineness of Will—Not explained why Will

got registered after seven years of its execution and delay of

nine years in filing the probate petition—Dismissed probate

petition—Preferred appeal—Held—While granting the probate,

Court is obliged to see that there was no legal impediment in

the grant of probate—The only attesting witness denied the

signature of testatrix firstly on the Will itself in his

examination-in-chief and only on the suggestion in cross-

examination after about two years he remembered the testatrix

signing the Will—Second attesting witness not examined—The

attestation of Will by second witness not even whispered by

attesting witness—Attesting witness accepted testatrix did not

know English-9 years delay in filing probate petition not

explained—No reason to interfered with the decision—Appeal

Dismissed.

Yogesh Duggal & Ors. v. State & Ors. ...................... 175

— Section 73, Code of Criminal Procedure, 1973—Section 311A,

Constitution of India, 1950—Article 20—Appellants preferred

appeals to challenge their conviction under Section 302, 201,

384 read with Section 34 of Act—They urged, one of

circumstance i.e. delivery of ransom note in the handwriting

of the appellant Jaipal not proved—Also police did not have

power to take accused's handwriting under Section 73 of

Indian Evidence Act—Moreover, Section 311 A of Cr.P.C.

was incorporated in the statute book only w.e.f. 23.06.2006

and was not retrospective in its application—Held:- Obtaining

the handwriting of an accused during investigation is not hit

by Article 20 (3) of the Constitution of India as an accused

cannot be said to be a witness against himself, if he is asked

to give his handwriting for purpose of verification of any

document purported to be in his handwriting—Some forms

of testimonial acts lie outside the scope of Article 20(3)—

Obtaining appellant Jaipal's handwriting during investigation not

illegal.

Jaipal v. State................................................................. 553

INDIAN PENAL CODE, 1860—Section 302/34, 364—Case of

the prosecution that on night of incident, one Chotu

(absconder) went near tent house of PW3 at 9 p.m. and

started urinating—One person (not examined as witness)

objected. Chotu slapped him and left threatening to “see” him

later—Later Chotu returned at the spot with the two appellants

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and the three attacked the deceased—Appellant Anil Kumar

held the deceased by his mouth while appellant Tika Ram

caught hold of him and Chotu hit the deceased with an iron

rod on the head—PW13 and 16 woke up and raised an alarm

on which assailants fled—Trial Court convicted appellants for

offence u/s 302/34—Held, plan or site map drawn to scale is

admissible only if the witnesses corroborate the draftsman’s

statement that they showed him the places—Unclear if PW

16 could see the appellants when the deceased was attacked—

From evidence there is no doubt about the presence of

appellants in the assault—To attract common intention, mere

presence of co-accused is not always sufficient—No

universally acceptable formula that in such instances, the

intention to cause death cannot be attributed to such non-

participating co-accused; at the same time courts has to

recognize the need to exercised caution—Contention of the

appellants that even if they were present, their common

intention to kill deceased could not be proved beyond

reasonable doubt—Evidence established the presence of

accused and PW13 and PW16 having known them—None of

the witnesses deposed that either appellant was armed—

Appellants not present when earlier quarrel had taken place—

The person with whom, the main assailant Chotu quarrelled

was not examined—He was not present at spot of occurrence

and his connection or relationship with deceased not proved—

Weapon of offence (saria) not described by witnesses and

also not produced—Description given by PW16 about role

played by each appellant not clear—In view of uncertainty as

to role played by each appellant, it would not be possible to

discern a common intention to cause death of deceased—It

can be inferred that they shared the intention with the co-

accused to cause injury enough to subdue or take care of the

deceased i.e. intention of causing bodily injury as was likely

to cause death amounting to an offence punishable u/s 304

Part I—Appeals partly allowed—Conviction u/s 302/34 altered

to one u/s 304 Part I/34.

Anil Kumar Sharma @ Bobby v. Delhi State/NCT

Delhi .................................................................................. 82

— Section 302 and 34—Aggrieved appellants challenged their

conviction under Section 302/34—They urged, prosecution

witnesses i.e. brothers, mother and husband of deceased

turned hostile—Also, dying declaration of deceased can not

be sole basis of conviction as no fitness certificate given by

Doctor either on the dying declaration or just prior to making

dying declaration—Per contra, prosecution contended

appellants being mother in law, Jethani (wife of husband’s elder

brother), Devrani (wife of husband’s younger brother) and

Nanad (husband’s sister) held guilty for having burnt deceased

alive who received 90% burn injuries—Dying declaration of

stellar quality and wholly reliable; therefore it could be made

sole basis of conviction even though some prosecution

witnesses turned hostile—Held:- Endorsement on the dying

declaration “taken in my presence” cannot substitute for a clear

cut certificate of fitness—Moreover, endorsement on MLC

“fit for statement” should bear signatures of the doctor—

Contents of dying declaration do not inspire much confidence

and language in which it was recorded, was clearly not of

deceased but that of a police officer, so case against appellants

not free from doubt—Appellants acquitted.

Akbari Begum & Ors. v. State .................................... 328

— Section 363, 376, 511, Criminal Procedure Code, 1973—

Sections 235, 245, 325, 360, 361, 377—Aggrieved by judgment

and order on sentence, State preferred appeal on ground,

sentence of two and a half years imprisonment for conviction

under Section 376/511 IPC inadequate and calls for

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enhancement—Also, Trial Court fell into error in not awarding

minimum sentence of five years for attempting rape—Per

contra, amicus curiae on behalf of Respondent urged that in

appeal, by State on ground of inadequacy of sentence,

Accused/Respondent at same time has liberty to plead for his

acquittal or for reduction of sentence—Thus, case to be

considered on merits—Held:- A proper sentence is amalgam

of many factors such as the nature of the offence,

circumstances extenuating or aggravating of offence, prior

criminal record, if any, of offender, age of offender as to

employment, background of offender with reference to

education, home life, sobriety and social adjustment, emotional

and mental conditions of offender, prospects for rehabilitation

of offender, possibility of return of offender to normal life in

community, possibility of treatment of training of offender,

possibility that sentence may serve as a deterrent to crime by

offender or by others and current community need, if any,

for such a deterrent in respect to particular type of offence—

No reason found to disturb conviction of Respondent,

however, Court would exercise and interfere with sentencing

discretion of trial Court “where inadequacy of sentence is gross

or glaring or shocks courts conscious”—In given facts and

conspectus of circumstances, does not warrant interference

in order on sentence.

State GNCT of Delhi v. Mukesh .................................. 340

— Section 161—Prevention of Corruption Act, 1947—Sections

5(1) (d) and Sections 5 (2)—Respondent was supervisor of

Delhi Cantt. Area—He demanded Rs. 400/- for correction of

electoral rolls and addition of votes deleted—Raid conducted—

Respondent apprehended—After trial, the respondent was

acquitted—Appeal preferred by State—Held—It is evident that

in the entire testimony of PW-3 it is nowhere stated that the

Respondent demanded money—This evidence of PW3 is also

corroborated by PW 4 who also in his testimony does not

state that the Respondent demanded money; rather has stated

that at no stage money was demanded by the Respondent

either initially or at the time of trap—To constitute an offence

under Section 161 IPC & Section 5 (1) (d) of the Prevention

Corruption Act it is necessary that there is a demand of money

and the same is accepted for doing a favour—Demand of

Money is a sine qua non for the conviction of the accused—

Thus, in the absence of demand and the presumption, the

offence punishable under Sections 161 and 5 (1) (d) read with

5 (2) of the PC Act has not been proved beyond reasonable

doubt by the prosecution in the present case.

State (Govt. of NCT of Delhi) v. Girdhari

LaL Verma ...................................................................... 354

— Section 323, 148, 149—Moral Turpitude—Respondent

workman was employee of Delhi Vidyut Board—On

04.05.1973, he was convicted for offences punishable under

Sections 148/302/323 and 149 IPC—In Criminal appeal, the

High Court of Punjab and Haryana found him guilty of

offences under Sections 323/149/148 of IPC but the charges

levelled against him under Section 302 IPC were not found

to have been proven—On 30.09.1996, his services terminated

on the ground that he had been convicted for offences which

involved moral turpitude—Industrial dispute raised—Labour

Court vide award dated 17.12.2005, directed his reinstatement

with back wages and consequential benefits—Appellant

invoked jurisdiction—The workman was involved in

commission of a serious criminal offence which involved

moral turpitude—The workman contends that finding recorded

by labour Court is impeccable and do not warrant

interference—Single Judge held—The imposition of

punishment was excessive—The award passed by the labour

Court did not warrant interference—Letters Patent Appeal—

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Held—The punishment under Section 323 of the IPC has a

different contour but when a person is convicted under Section

148 of the Act, it establishes, in a way, the nature, attitude,

proclivity and propensity of the person concerned—The

petitioner was working as a peon in the Delhi Vidyut Board—

He got himself involved in a criminal case of this nature and

eventually, the conviction has been recorded under Sections

323/149 and 148 of the IPC—Regard being had to the

conviction in respect of the nature of an offence, as engrafted

under Section 148 of the IPC, we are disposed to think that

it involves an offence involving moral turpitude.

BSES Rajdhani Power Ltd. v. Union of India

& Ors. ............................................................................. 429

— Section 398—As per prosecution, accused with 3-4 persons

came to house of complainant to commit dacoity—Accused

armed with countrymade pistol—Other associates also armed

with weapons—Accused with associates forcibly entered

house of complainant—Complainant raised alarm—His friend

PW2 sitting inside came out—Appellant fired shot and tried

to flee—Appellant caught by complainant and PW2 with pistol

while others escaped—Police recovered one countrymade

pistol and five live cartridges from accused besides one empty

cartridge in the barrel—Co-accused arrested subsequently—

Trial Court convicted accused for offence u/s 398—Held, In

statement of PW3 complainant, nowhere alleged that appellant

and co-accused attempted to commit robbery—PW2 only

stated that when accused along with others entered, they

shouted ‘Loot Lo Mar Do’—Accused came with intention to

commit robbery which did not fructify into an attempt and

was at best preparation—Basic ingredients of 398 not made

out—Accused acquitted—Appeal Allowed.

Swaran Singh v. State ................................................... 527

— Section 302, 201, 384, 34—Indian Evidence Act, 1873—

Section 73, Code of Criminal Procedure, 1973—Section 311A,

Constitution of India, 1950—Article 20—Appellants preferred

appeals to challenge their conviction under Section 302, 201,

384 read with Section 34 of Act—They urged, one of

circumstance i.e. delivery of ransom note in the handwriting

of the appellant Jaipal not proved—Also police did not have

power to take accused's handwriting under Section 73 of

Indian Evidence Act—Moreover, Section 311 A of Cr.P.C.

was incorporated in the statute book only w.e.f. 23.06.2006

and was not retrospective in its application—Held:- Obtaining

the handwriting of an accused during investigation is not hit

by Article 20 (3) of the Constitution of India as an accused

cannot be said to be a witness against himself, if he is asked

to give his handwriting for purpose of verification of any

document purported to be in his handwriting—Some forms

of testimonial acts lie outside the scope of Article 20(3)—

Obtaining appellant Jaipal's handwriting during investigation not

illegal.

Jaipal v. State................................................................. 553

— Section 120B, 420, 467, 468 and 471—Prevention of

Corruption Act, 1988—Section 13(1) (d) and 13(2)—

Constitution of India, 1950—Article 19(1) (a), 21, 105 (1) and

326—Petitioner, a Parliamentarian in Judicial Custody filed writ

petition for permission to attend Parliament in Judicial

Custody—Plea taken, Parliamentarian has freedom of speech

subject only to rules and standing orders regulating procedure

of Parliament none of which prevents petitioner from attending

Parliament and speaking while in custody—Constitutional right

of petitioner to participate in Parlimentary proceedings and right

to vote in Parliament as elected representative is essence and

expression of Parliamentary democracy—Parliamentary

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democracy is basic feature of Constitution of India and there

is no reason for denying such participation to petitioner while

same is possible in judicial custody—Refusing participation in

Parliamentary proceedings to petitioner would deny him

opportunity to fulfill his constitutional objections to attend

proceedings of Parliament—Unless petitioner is so permitted,

Parliamentary Constituency which had elected him would go

unrepresented in Parliament—Public interest demands that

petitioner, be permitted to attend Parliament—Per contra, plea

taken offences with which petitioner is charged with are

extremely grave and serious causing huge wrongful pecuniary

benefits to certain private parties and consequent loss to public

exchequer—Some of other accused officials of the Organizing

Committee for Common Wealth Games of which petitioner

was chairman are still absconding—CBI apprehends that

petitioner may misuse liberty sought by way of present petition

to influence witnesses and tamper with evidence—Held—

Argument as raised by petitioner amounts to placing Members

of Parliament (M.P.) at a pedestal higher than their electorate—

Argument assumes work of a M.P. is more sacred and

important than work/vocation in which citizens who have

elected said Parliamentarian may be engaged in—Such

argument is archaic and creates two classes of citizens as in

a monarchy i.e. king and subject and is alien to Constitution—

Merely because petitioner is a Parliamentarian does not entitle

him to claim any exception from effect of being in detention—

It is not case of petitioner that vote of petitioner on any aspect

is vital or that without such participation citizens of his

constituency would suffer—Petitioner, in past, as per his

convenience has been missing Sessions of Parliament—When

petitioner could afford to miss parliament to spend time on

National Games or Participate in Games at China, his desire/

keenness to attend parliament can only be understood as

attempt for fresh air outside prison walls—Petitioner is not

entitled to relief claimed—Petition dismissed with costs of Rs.

1,00,000/- payable to Prime Minister’s National Relief Fund.

Suresh Kalmadi (In Judicial Custody) v. Union of

India & Ors. .................................................................. 795

— Sections 498A, Section 302, read with Section 34—Appellant

convicted under Section 498 (A) & 302 (IPC)—Trial Court

in addition to relying on the restimony of witnesses also relied

on the dying declaration recorded by the Doctor on MLC

Exhibit PW16 though rejected the dying the declaration PW5/

A recorded by PW-13 SI Raghunath Singh on the ground that

it was neither recorded in the presence of the Doctor to vouch

about the fitness of deceased nor was attested by any person

who was present at the time of recording the statement and

the statement had thumb impression in which ridges were

visible despite deceased having suffered 98% burns—Present

appeal filed by Appellants—It was observed that after the

judgment of five Judges Bench of the Supreme Court in

Laxman vs. State of Maharashtra (2002) 6 SCC 710, fitness

certificate in every dying declaration has become immaterial

and what is required to be seen is whether the person hearing

or recording the dying declaration was satisfied that the person

making the dying declaration is mentally fit—PW13’s

deposition that he had obtained fitness certificate from the

Doctor was not shaken in cross-examination to show that

deceased was not conscious—Also, there is no universal rule

that dying declaration recorded by Police Officer is unreliable

or must necessarily be made to a Magistrate—Since SDM had

expressed inability to reach Hospital and patient was critical,

it was duty of PW13 to record statement—There is also no

requirement of Law that dying declaration must be recorded

in a specified format and it is irrelevant if statement is not

recorded in question answer form—The dying declaration

Exhibit PW5/A recorded by PW3 rejected wrongly—The

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dying declaration coupled with other evidence sufficient to

prove guilt of Appellants.

Dharambir & Anr. v. State ........................................... 686

— Section 21—Constitution of India, 1950—Article 226—Right

to Information Act, 2005—Section 2(h)—Writ filed for

seeking mandamus for reinstatement and for payment of

wages, etc.—Question of maintainability of writ petition suo

moto raised by Court—On maintainability, plea taken DSMGC

is a statutory body empowered to manage educational and

other institutions—Members of DSMGC are public servants

within meaning of Indian Penal Code—Terms and conditions

of service of employees of DSMGC have statutory force—

Per contra plea taken, petitioners ought to invoke remedy of

Industrial Disputes Act—Held—Jurisdiction over disputes

between DSGMC and its employees including past employees

is, first of District Judge and Gurudwara Act provides for a

remedy to this Court against orders of District Judge—Act

on basis of which writ remedy is invoked against DSGMC,

having itself provided a remedy for disputes as subject matter

of these writ petition, writ petitions would not be maintainable

on this ground alone—Court would ordinarily not exercise

writ jurisdiction when alternative, efficacious remedy is

available—Present petitions raise disputed questions of fact

which can be appropriately adjudicated in proceedings before

District Judge than in writ jurisdiction—Petitioners directed

to approach Departmental Appellate Authority/District Judge.

Satpal Singh v. Delhi Sikh Gurdwara Management

Committee & Anr. .......................................................... 462

INDUSTRIAL DISPUTES ACT, 1947—Section 10—Indian Penal

Code, 1860—Section 323, 148, 149—Moral Turpitude—

Respondent workman was employee of Delhi Vidyut Board—

On 04.05.1973, he was convicted for offences punishable

under Sections 148/302/323 and 149 IPC—In Criminal appeal,

the High Court of Punjab and Haryana found him guilty of

offences under Sections 323/149/148 of IPC but the charges

levelled against him under Section 302 IPC were not found

to have been proven—On 30.09.1996, his services terminated

on the ground that he had been convicted for offences which

involved moral turpitude—Industrial dispute raised—Labour

Court vide award dated 17.12.2005, directed his reinstatement

with back wages and consequential benefits—Appellant

invoked jurisdiction—The workman was involved in

commission of a serious criminal offence which involved

moral turpitude—The workman contends that finding recorded

by labour Court is impeccable and do not warrant

interference—Single Judge held—The imposition of

punishment was excessive—The award passed by the labour

Court did not warrant interference—Letters Patent Appeal—

Held—The punishment under Section 323 of the IPC has a

different contour but when a person is convicted under Section

148 of the Act, it establishes, in a way, the nature, attitude,

proclivity and propensity of the person concerned—The

petitioner was working as a peon in the Delhi Vidyut Board—

He got himself involved in a criminal case of this nature and

eventually, the conviction has been recorded under Sections

323/149 and 148 of the IPC—Regard being had to the

conviction in respect of the nature of an offence, as engrafted

under Section 148 of the IPC, we are disposed to think that

it involves an offence involving moral turpitude.

BSES Rajdhani Power Ltd. v. Union of India

& Ors. ............................................................................. 429

— Section 17-B—Application under Section 17-B of the Act by

workman claiming that, he was not gainfully not employed

since 1994—Single Judge observed that the application was

filed in 2006 after 12 years—Workman directed to file his

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statements of bank accounts from 1994 till date, Telephone

bills, whether he resided in his own premises or rented

premises and also an affidavit in corporating these facts—

Aggrieved, appellant filed Letter Patent Appeal—The affidavit

in terms of Section 17-B clearing stating that respondent

workman was not gainfully employed already filed—Such

inquiry is not permissible under Section 17-B—Held—It is the

duty of the Court to arrive at a conclusion with regard to the

entitlement of the benefit under Section 17-B of the Act

keeping in view the decisions in Dena Bank (supra), Viveka

Nand Sethi (supra) K.B. Singh & Ors. (supra), Vinod Kumar

(supra) and Bhagawan Giri (supra)—The writ court has to

see whether the workman received adequate remunertaion

during such period and whether the respondent-management

has produced ample material to show that the workman had

been really gainfully employed—Mere survival would not be

enough—It will depend upon the factum of adequacy of

amount received—In the case at hand, as we perceive, the

learned Single Judge has erroneously observed that the

workman had filed an application after 12 years as the same

is not factually correct—It is clear that the appellant filed the

application in quite promptitute—The information that have

been directed by the learned Single Judge to be given by the

workman are in the realm of roving enquiry putting the entire

burden on the workman—Such a roving enquiry, is

unwarranted and, accordingly, the order impugned set aside.

S.K. Mitra v. Asst. General Manager State Bank

of India ........................................................................... 262

— Petitioner appointed in LIC as office attendant in 1963—

Posted in Meerut Division—Became a trade unionist—

Transferred to Mhow in Madhya Pradesh in November

1978—Did not comply with the transfer order—Letter dated

22.12.1978 directing the petitioner to join his duties at Mhow-

did not join duties-continued to address leave applications to

Divisional Office at Meerut—Again, vide letter dated

05.02.1979 asked to join duty at Mhow-Did not join-continued

to defy despite another letter dated 21.08.1979—Pleaded

illness-Panel of medical examiners at Medical College, Meerut

constituted-petitioner challenged the constitution of panel and

refused to appear—Transfer order modified on 26.04.1980

from Mhow to Panipat-modified order not complied with-

further directed to join duty at Panipat vide letter dated

15.05.1980—Asked to get in touch with Dr. Aggarwal for

medical examination-did neither-resorted to hunger strike-

submitted fitness certificate dated 21.05.1980—LIC (staff)

Regulation 1960—Regulation 39 lays down procedure to hold

an enquiry-holding of enquiry dispesed with by the Zonal

Manager—Charge sheet-cum-show cause Notice proposing

penalty of removal from service under Regulation 39 (1) (f)

issued on 21.06.1980—Reply not filed-kept on seeking time-

vide order dated 11.08.1980 discussing the charges and

documents in support of punishment of removal from service

under Regulation 39 (1) (f) imposed—Appeal against the

order-dismissed by the Managing Director—Memorial

preferred before the Chairman followed by apology—Writ

Petition before Allahabad High Court filed against the order

dated 10.08.1980—Dismissed—Special Leave Petition filed

before the Supreme Court—Liberty given to seek fresh

reference of the dispute to labour court—Process under

Industrial Disputes Act, 1947 invoked—Reference made to

CGIT—CGIT passed award dated 16.06.1998—Award of

CGIT challenged through the Writ Petition—Held—General

attitude of petitioner was that of defiance -decision to dispense

with holding of an enquiry not taken in a hurry-Concurred

with CGIT—Petition dismissed.

S.P. Arya v. Union of India & Ors. ........................... 808

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INDIAN REGISTRATION ACT, 1908—Registered Will—Grant

of Probate—Indian Evidence Act, 1872—Section 68—

Attesting witnesses—Limitation Act, 1963—Article 137—

Deceased executed Will dated 12.08.1971; expired on

20.02.1984—Husband pre-deceased her—Survived by five

sons and three daughters—Property in question comprise of

a house in Karol Bagh—Bequeathed the ground floor in favour

son O.P.- first floor in favour of son V.P.—Not give any share

to other children—Will got registered during her life time on

21.02.1978—All children of the testatrix except the legal heir

of V.P. had filed no objection to grant of probate—Grant of

probate sought on November 1994—Objections filed inter-alia-

alleging Will not executed by testatrix in sound and disposing

mind—She was completely deaf in 1971-not possible for

anybody to communicate with her to make her understand

the contents of the Will—Also challenged the execution,

validity, contents and attestations of the Will on the ground

testatrix did not know English language—ADJ observed the

testimony of attesting witness does not inspire confidence—

Full of contradictions on material points—Cast serious doubt

on genuineness of Will—Not explained why Will got registered

after seven years of its execution and delay of nine years in

filing the probate petition—Dismissed probate petition—

Preferred appeal—Held—While granting the probate, Court is

obliged to see that there was no legal impediment in the grant

of probate—The only attesting witness denied the signature

of testatrix firstly on the Will itself in his examination-in-chief

and only on the suggestion in cross-examination after about

two years he remembered the testatrix signing the Will—

Second attesting witness not examined—The attestation of Will

by second witness not even whispered by attesting witness—

Attesting witness accepted testatrix did not know English-9

years delay in filing probate petition not explained—No reason

to interfered with the decision—Appeal Dismissed.

Yogesh Duggal & Ors. v. State & Ors. ...................... 175

INDIAN SUCCESSION ACT, 1925—WILL—Grant of

Probate—Appeal—Deceased, father of respondent no.1

executed registered Will in regard to self acquired property in

favour of respondent no.1, his daughter excluding wife and

son—Wife and son contested the proceedings for grant of

probate—Filed joint objections inter-alia Will obtained and

procured fraudulently—Respondent no.1 neither resident with

deceased at village nor looked after him—Right of deceased

to bequeath property through Will challenged—Property not

self acquired, being ancestral—Respondent no.1 contended

that deceased filed a suit against objector wherein admitted

execution of Will in favour of respondent no.1—Deceased

was suffering from cancer—Objector used to harass and

torture deceased during his last days—Deceased executed

GPA, Agreement to sell, Affidavit etc. in her favour and in

favour of her husband out of love and affection—Respondent

no.1 examined herself; attesting witnesses, officials of sub-

registrar—and witnesses to prove the drafting of Will and

attestation of other documents—Objectors examined

themselves—ADJ observed, none objected that, deceased was

not in sound, disposing mind or was incapable of understanding

consequences of disposition—Attesting witnesses

trustworthy—Execution of Will proved—Appellant admitted

litigations between them and the deceased—Appellant had filed

maintenance applications against deceased and was living

separately from the deceased—Even filed preventive

proceedings against deceased under Criminal Procedure

Code—ADJ Held—Strained relationship; pendency of civil and

criminal proceedings and living separately were valid grounds

in the mind of deceased to exclude his son and wife from

benefit of his estate—Conduct not unnatural—Question of

property being ancestral or self acquired left to be decided

by civil court of concerned jurisdiction—Held—Will

registered; proved by clerk; two attesting witnesses proved

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the execution of Will—No evidence led by respondent to prove

Will in Question not signed by deceased testator—Admitted

criminal proceedings between deceased, and his wife and

sons—Appeal dismissed.

Smt. Chamno Devi v. Smt. Usha & Ors. .................... 133

— Section 278, 307—Late Rani Padmawati Devi died intestate

on 12.04.1987 leaving behind her husband, Raja Birendra

Bahadur Singh; two sons, namely Shivendra Bahadur Singh

(SBS) and Ravindra Bahadur Singh (RBS) and two daughters

Usha Devi and Sharda Devi—SBS filed Case No. 43/1987

seeking Letters of Administration under Section 278 of the

Indian Succession Act—The heirs of Late Rani Padmawati

Devi were respondent in the said petition—Issue was framed

on 18.3.1988—Letter of Administration granted to (LOA)

petitioners and petitioner SBS appointed as administrator—RBS

being the heir of her pre-deceased mother and claiming to have

1/5th share in the estate, filed application under Order IX Rule

13 of the CPC being IA No.4065/1988 on 18th July, 1988

setting aside the order dated 10th May, 1988 granting LOA—

Pending this application the petitioner under the authority of

LOA negotiated and entered into a sale transaction with the

appellant, Indian Associates. The purpose of transaction as

claimed by the petitioner as administrator was utilization of

the sale consideration to meet the liabilities relating to wealth

tax and income tax of the estate—According to appellant the

agreement to sell was entered into on 9th September, 1988 and

a sale deed was executed by the administrator on 11th October,

1988, but the same was not registered by the sub-Registrar—

Miscellaneous petition filed before Madhya Pradesh High

Court—The said writ petition came to be dismissed by the

Madhya Pradesh High Court—It is noted that a case regarding

excess land than the prescribed limited under the Urban Land

Ceiling Act was pending against Rani Padmawati Devi since

1977 before the competent authority at Raipur (M.P.)—Certain

conditions/restriction on use and sale of land had been imposed

on Rani Padmawati Devi by the concerned authority of

Madhya Pradesh Government—Later, the concerned authority

granted permission to sell the lands—This was challenged by

respondent in Madhya Pradesh High Court by way of writ—

This writ was allowed and order dated 20th September, 1988

whereby permission was granted to sell the land was

quashed—The absolute power of disposal of property

conferred on an executor or administrator as envisaged under

sub-section (1) is subject to sub-section (2) of Section 307

of the Indian Succession Act. It was madatory to seek

permission of the Court granting the probate or the LOA. as

the case may be, before entering into transaction of disposal

of immovable property as vested in them in their capacity as

executor or the administrator—As per Section 317 of the Act,

the administrator was required to exhibit in the Court the

inventory containing full account of the properties including

the creditors and debtors—Mere agreement to sell would not

entitle the appellant to have much say in the present

proceeding—Of course, the appellant may have the remedy

somewhere else in some other proceedings—Unregistered sale

deed is not a complete sale—No doubt, the sale deed in the

present case was executed and presented before the Sub-

Registrar, but as noted above, same was not registered because

of persistent stay and also because of Urban Lan Ceiling Act—

Section 54 of the Transfer of Property Act, Stipulates that

sale or transfer of immovable property or other intangible thing

is to be only by way of registered sale deed/instrument—No

ground for inference—Appeal dismissed.

M/s Indian Associates v. The State and Others .......... 153

— Section 63 (c)—WILL—Indian Registration Act, 1908—

Registered Will—Grant of Probate—Indian Evidence Act,

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1963—Article 137—Deceased executed Will dated

12.08.1971; expired on 20.02.1984—Husband pre-deceased

her—Survived by five sons and three daughters—Property in

question comprise of a house in Karol Bagh—Bequeathed the

ground floor in favour son O.P.- first floor in favour of son

V.P.—Not give any share to other children—Will got registered

during her life time on 21.02.1978—All children of the testatrix

except the legal heir of V.P. had filed no objection to grant of

probate—Grant of probate sought on November 1994—

Objections filed inter-alia-alleging Will not executed by testatrix

in sound and disposing mind—She was completely deaf in

1971-not possible for anybody to communicate with her to

make her understand the contents of the Will—Also challenged

the execution, validity, contents and attestations of the Will

on the ground testatrix did not know English language—ADJ

observed the testimony of attesting witness does not inspire

confidence—Full of contradictions on material points—Cast

serious doubt on genuineness of Will—Not explained why Will

got registered after seven years of its execution and delay of

nine years in filing the probate petition—Dismissed probate

petition—Preferred appeal—Held—While granting the probate,

Court is obliged to see that there was no legal impediment in

the grant of probate—The only attesting witness denied the

signature of testatrix firstly on the Will itself in his

examination-in-chief and only on the suggestion in cross-

examination after about two years he remembered the testatrix

signing the Will—Second attesting witness not examined—The

attestation of Will by second witness not even whispered by

attesting witness—Attesting witness accepted testatrix did not

know English-9 years delay in filing probate petition not

explained—No reason to interfered with the decision—Appeal

Dismissed.

Yogesh Duggal & Ors. v. State & Ors. ...................... 175

LETTERS PATENT APPEAL—The appellant by the present LPA

has impugned the order dated 19.11.2009—Learned Single

Judge has quashed the demand for misuse charges and interest

as well as show cause notice—Further directed that on paying

Rs.6,37,123.73 towards misuse charges to the appellant, the

respondent’s application for conversion of the property from

lease hold to free hold shall be considered—The property

originally allotted to Tara Singh—Papers including Power of

attorney executed by Tara Singh submitted—Rs.43,337/- on

self assessment and Rs.10,561/- deposited towards

compensation fee pursuant to the letter written by the

appellant—Respondent received unstamped and unexecuted

conveyance deed with direction to get it stamped from the

Collector of Stamps—Respondent waited for about six years

and got the conveyance deed stamped on payment of

Rs.5,655/- and submitted the document vide receipt dated

30.10.2001—The property was being misused—In the present

case, the payment towards conversion charges including the

composition fee applicable as in cases of power of attorney

transaction was made on 20th December, 1994. Thereafter,

notice along with conveyance deed was sent to the respondent

on 7th March 1995 with direction to get it stamped from the

collector of Stamps. The aforesaid exercise was required to

be completed within 45 days, but the respondent had

deposited the original paper after getting the conveyance deed

stamped only on 6th October, 2001—It is held that the date

when the respondent had submitted the conveyance deed after

stamping should be treated as the date on which the complete

application for conversion was filed—The date on which the

respondent had made the payment or had received the copy

of the conveyance deed for stamping should be ignored and

should not be taken as the relevant point.

Delhi Development Authority v. Hans Raj Batheja .... 141

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— Appellant C.S. Aggarwal, Director of M/s Rockman Projects

Limited (referred to as RPL) made a representation for the

purpose of securing investment to Mr. Sameer Kohli, director

of M/s Kohli Housing and Development Pvt. Ltd—Intended

to develop one SEZ on 250 acres land situated at Delhi-Jaipur

Highway owned by RPL—Petitioner received in-principal

approval from the Govt. of India for the project—On the

representation, respondent no. 3 agreed to buy 74% shares

worth Rs. 185 crores in the Special Purpose Vehicle (SPL)

formed for this purpose—MOU was signed—Advance

payment of Rs. 40 crores was made by respondent no. 3 on

the condition that either this advance will be refunded back

to him or the land of 250 acres would be transferred in favour

of him in case the SEZ notification is not received by 31st

December 2008—Subsequently an amount of Rs. 3 crores

was given to the petitioner by respondent no. 3—No

notification could be received by RPL by 31.12.2008—Mr.

D.K. Jain, the other director of RPL issued a public notice

revoking all authority given to the petitioner to act on behalf

of RPL—After expiration of the dead line, respondent no.3

demanded his money back, but in Vain—Respondent made a

complaint, on the basis of which, FIR no. 266/09 was

registered against the appellant herein u/s 420/406/120-B

IPC—Appellant challenged the registration of FIR and sought

quashing of the same—Hon’ble Single Judge dismissed the

petition—Appellant preferred the Letter Patent Appeal under

clause 10 of the Letter Patent Act—Respondent took a primary

objection to the maintainability of the Letter Patent Appeal on

the point that judgment was passed in exercise of criminal

jurisdiction and the Letter Patent appeal against the order is

clearly barred by Clause 10 and 18 of Letters Patent Act—

Held—Proceedings under Article 226 of the Constitution

would be treated as original civil proceedings only when it

concerns civil rights—A fortiori, if it concerns a criminal

matter, then such proceedings would be original criminal

proceedings—Letter Patent would lie when the Single Judge

decides the writ petition in proceedings concerning civil

rights—On the other hand, if these proceedings are concerned

with rights in criminal law domain, then it can be said that

the Single Judge was exercising his ‘criminal jurisdiction’

while dealing with such a petition filed under Article 226 of

the Constitution—In a petition under Article 226 of the

Constitution when the High Court is exercising extraordinary

jurisdiction, the nature of proceedings, whether civil or

criminal, would depend upon the nature of right violated and

the nature of relief sought in the said petition—Writ of this

nature filed under Article 226 of the Constitution—Seeking

quashing of such an FIR would therefore be ‘‘criminal

proceedings’’ and while dealing with such proceedings, the

High Court exercises its ‘‘criminal jurisdiction’’—The LPAs

are barred and not maintainable—Dismissed.

C.S. Agarwal v. State & Ors. ...................................... 701

LIMITATION ACT, 1963—Article 137—Deceased executed Will

dated 12.08.1971; expired on 20.02.1984—Husband pre-

deceased her—Survived by five sons and three daughters—

Property in question comprise of a house in Karol Bagh—

Bequeathed the ground floor in favour son O.P.- first floor in

favour of son V.P.—Not give any share to other children—

Will got registered during her life time on 21.02.1978—All

children of the testatrix except the legal heir of V.P. had filed

no objection to grant of probate—Grant of probate sought on

November 1994—Objections filed inter-alia-alleging Will not

executed by testatrix in sound and disposing mind—She was

completely deaf in 1971-not possible for anybody to

communicate with her to make her understand the contents

of the Will—Also challenged the execution, validity, contents

and attestations of the Will on the ground testatrix did not

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know English language—ADJ observed the testimony of

attesting witness does not inspire confidence—Full of

contradictions on material points—Cast serious doubt on

genuineness of Will—Not explained why Will got registered

after seven years of its execution and delay of nine years in

filing the probate petition—Dismissed probate petition—

Preferred appeal—Held—While granting the probate, Court is

obliged to see that there was no legal impediment in the grant

of probate—The only attesting witness denied the signature

of testatrix firstly on the Will itself in his examination-in-chief

and only on the suggestion in cross-examination after about

two years he remembered the testatrix signing the Will—

Second attesting witness not examined—The attestation of Will

by second witness not even whispered by attesting witness—

Attesting witness accepted testatrix did not know English-9

years delay in filing probate petition not explained—No reason

to interfered with the decision—Appeal Dismissed.

Yogesh Duggal & Ors. v. State & Ors. ...................... 175

MOTOR VEHICLES ACT, 1988—Section 166—Three

deceased, post retirement from Indian Navy, employed with

private company on different posts, travelling together in a

Maruti Wagon R when car collided with Tata Truck—

Tribunal awarded compensation in favour of claimants of

three deceased—Contention of appellants that amount awarded

under head of “Loss of Dependency” inadequate—Held, future

prospects had wrongly not been considered—Tribunal wrongly

did not take allowances into consideration but only annual

salary after deducting 10% as income tax—All three deceased

below the age of 50 years, were mechanical engineers,

specially qualified professional persons working in the field

of their specialized capacity in permanent posts with promotion

prospects; thus future prospects should have been taken into

account—Appellants entitled for “future prospects” which

would be double of the amount of salary after deduction of

tax—Award modified with regard to “Loss of Dependency”—

Appeal allowed.

Anita Devi & Others v. United India Assurance

Co. Ltd. & Ors. ............................................................. 673

NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES

ACT, 1985—Sections 20 & 50—As per prosecution, PW10

along with PW6 and PW7 patrolling on platform at Old Delhi

Railway Station—Secret information received by PW10 that

one person was sitting near the staircase of flyover with Ganja

in iron box—Raiding party constituted and accused nabbed—

Notice u/s 50 NDPS Act given to accused—30 kg Ganja

recovered from iron box of accused out of which 1 kg. taken

as sample—Trial Court convicted accused under Section 20—

Held, notice under Section 50 NDPS not properly given as

Investigating Authority was supposed to give accused the

option of a search either before a Gazetted Officers or a

Magistrate which was not done in present case—FSL Form

never sent to FSL Malviya Nagar and not proved in Court—

Since FSL Form not sent with Samples, samples doubtful—

Sample Ganja taken of 1 kg whereas weight was found to be

910.7 gms.—No explanation as to how weight of Ganja

reduced which casts doubt on sample—IO interpolated

Malkhana Register—FSL form not sent with samples—After

sealing samples, seal not handed over to independent person

but kept with IO—Prosecution case doubtful—Accused

acquitted—Appeal Allowed.

Bijay v. The State (G.N.C.T. of Delhi) ....................... 515

NEGOTIABLE INSTRUMENTS ACT, 1881—Section 138—

Complaint u/s 138 filed—Accused convicted by trial Court and

sentenced to undergo SI for one year and fine of Rs. 5,000/

-—Criminal Revision filed before Sessions Court—Substantive

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Sentence of one year SI done away with and fine enhanced

to Rs. 16,40,000/- with direction that entire fine amount be

given to complainant as compensation and in default accused

to undergo SI for one year—Fine Amount directed to be given

directly to complainant in four instalments of Rs.4,10,000/-

each—Accused filed revision before High Court—High Court

granted stay subject to deposit of Rs.10,00,000/- with

Registrar General within four weeks—Criminal Misc. Petition

for staying operation of impugned order passed by ASJ

vacated—Application u/s 424 and another application u/s 421

Cr.P.C. for sentence for imprisonment in default to be carried

out and for issuance of warrants respectively moved before

M.M.—Vide impugned order M.M. directed court notice to

be issued—Contention of applicant that trial Court should have

issued Non Bailable Warrants against convict instead of Court

notice—No question of issuing notice to convict arises

because there is no law that requires that a notice should be

given before a warrant of levy of fine is issued against the

person sentenced to fine—Trial Court directed to ensure arrest

of convict in accordance with law—Appeal Allowed.

Ashok Chachra v. The State ......................................... 789

— Section 138—Respondent no.1 filed complaint under Section

138 of Act—Aggrieved by summoning order passed by Senior

Civil Judge, petitioner preferred petition for quashing of said

order—Petitioner urged, cheque not dishonoured for reason

of insufficient funds or amount due thereon exceeded amount

arranged to be paid from account—However, there was no

discharge of legal liability of petitioner towards complainant—

Thus, case for dishonour of cheque not made out—Per contra,

Respondents urged, petitioner issued two cheques out of

which one cheque dishonoured and a legal liability on part of

petitioner existed as he had purchased shares from Respondent

and his wife—Held:- Where a cheque is dishonoured for any

reason, it has to be co-related to the insufficiency of funds in

account—Legislative intent is to stop dishonoring of cheque

and adopt a no-nonsense situation and punish the unscrupulous

person who purport to discharge this liability by issuing

cheques, not intending to honour it on account of insufficiency

of funds in their accounts—Petitioner’s contention that he had

no liability to pay, is a question of fact and can be determined

only through Trial—Petition dismissed.

M. Arun Ahluwalia v. Arun Oberoi & Anr. ............... 605

PREVENTION OF CORRUPTION ACT, 1947—Sections 5(1)

(d) and Sections 5 (2)—Respondent was supervisor of Delhi

Cantt. Area—He demanded Rs. 400/- for correction of

electoral rolls and addition of votes deleted—Raid conducted—

Respondent apprehended—After trial, the respondent was

acquitted—Appeal preferred by State—Held—It is evident that

in the entire testimony of PW-3 it is nowhere stated that the

Respondent demanded money—This evidence of PW3 is also

corroborated by PW 4 who also in his testimony does not

state that the Respondent demanded money; rather has stated

that at no stage money was demanded by the Respondent

either initially or at the time of trap—To constitute an offence

under Section 161 IPC & Section 5 (1) (d) of the Prevention

Corruption Act it is necessary that there is a demand of money

and the same is accepted for doing a favour—Demand of

Money is a sine qua non for the conviction of the accused—

Thus, in the absence of demand and the presumption, the

offence punishable under Sections 161 and 5 (1) (d) read with

5 (2) of the PC Act has not been proved beyond reasonable

doubt by the prosecution in the present case.

State (Govt. of NCT of Delhi) v. Girdhari

LaL Verma ...................................................................... 354

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PREVENTION OF CORRUPTION ACT, 1988—Section 13(1)

(d) and 13(2)—Constitution of India, 1950—Article 19(1) (a),

21, 105 (1) and 326—Petitioner, a Parliamentarian in Judicial

Custody filed writ petition for permission to attend Parliament

in Judicial Custody—Plea taken, Parliamentarian has freedom

of speech subject only to rules and standing orders regulating

procedure of Parliament none of which prevents petitioner

from attending Parliament and speaking while in custody—

Constitutional right of petitioner to participate in Parlimentary

proceedings and right to vote in Parliament as elected

representative is essence and expression of Parliamentary

democracy—Parliamentary democracy is basic feature of

Constitution of India and there is no reason for denying such

participation to petitioner while same is possible in judicial

custody—Refusing participation in Parliamentary proceedings

to petitioner would deny him opportunity to fulfill his

constitutional objections to attend proceedings of Parliament—

Unless petitioner is so permitted, Parliamentary Constituency

which had elected him would go unrepresented in

Parliament—Public interest demands that petitioner, be

permitted to attend Parliament—Per contra, plea taken

offences with which petitioner is charged with are extremely

grave and serious causing huge wrongful pecuniary benefits

to certain private parties and consequent loss to public

exchequer—Some of other accused officials of the Organizing

Committee for Common Wealth Games of which petitioner

was chairman are still absconding—CBI apprehends that

petitioner may misuse liberty sought by way of present petition

to influence witnesses and tamper with evidence—Held—

Argument as raised by petitioner amounts to placing Members

of Parliament (M.P.) at a pedestal higher than their electorate—

Argument assumes work of a M.P. is more sacred and

important than work/vocation in which citizens who have

elected said Parliamentarian may be engaged in—Such

argument is archaic and creates two classes of citizens as in

a monarchy i.e. king and subject and is alien to Constitution—

Merely because petitioner is a Parliamentarian does not entitle

him to claim any exception from effect of being in detention—

It is not case of petitioner that vote of petitioner on any aspect

is vital or that without such participation citizens of his

constituency would suffer—Petitioner, in past, as per his

convenience has been missing Sessions of Parliament—When

petitioner could afford to miss parliament to spend time on

National Games or Participate in Games at China, his desire/

keenness to attend parliament can only be understood as

attempt for fresh air outside prison walls—Petitioner is not

entitled to relief claimed—Petition dismissed with costs of Rs.

1,00,000/- payable to Prime Minister’s National Relief Fund.

Suresh Kalmadi (In Judicial Custody) v. Union of

India & Ors. .................................................................. 795

— Sections 7 & 13—Appellant aggrieved by his conviction under

Section 7 & 13(1)(d) of Act, had preferred appeal and urged

no evidence against him with regard to demand or acceptance

of any bribe money from complainant—Thus, his conviction

not proper—On behalf of State argument raised, from

testimony of independent witness proved that appellant

demanded as well as accepted bribe money for doing favour

to complainant; therefore, conviction legal—Held:- Under

Section 13(1)(d), it is required to be proved that accused, as

a public servant, obtained for himself or any other person any

valuable thing or pecuniary advantage by corrupt or illegal

means or that the misused his position in obtaining for himself

or any other person any valuable thing or pecuniary

advantage—Statutory presumption under Section 20 of Act

is available for offence punishable under Section 7 or Section

11 or Clause (a) and Clause (b) of Section 13 (1) and not for

Clause (d) of Section 13 (1)—For offence under Section

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13(1)(d), it will be required to be proved that some initiative

was taken by a person who receives and in that context

demand or request from him will be a pre-requisite—Appellant

rightly held guilty for offences.

R.K.P. Nishad v. C.B.I. ................................................ 635

PREVENTION OF FOOD ADULTERATION ACT, 1954—

Sections 7, 13, 16—Petitioner preferred appeal against

judgment, acquitting Respondent accused for offence

punishable under Section 7 of Act—Respondent was convicted

by learned Metroplitan Magistrate—On appeal by Respondent,

learned Additional Sessions Judge observed, sample obtained

by Food Inspector not homogeneous and consequently not

representative in character—Also, variation in reports of

Director, CFL and Public Analyst about content of adulteration

as well as in values, thus acquitted Respondent—Held:- Once

accused exercises his right under Section 13 (2) of Prevention

of Food Adulteration Act and voluntarily gets second sample

examined from Director, CFL, he does so at his own risk—

Report of Director, CFL, statutorily supersedes report of

Public, Analyst for all practical purposes but both still have

to be the looked in to for the purpose of arriving of the

conclusion as to whether sample was representative in

character or not—Ld Sessions Judge rightly concluded that

sample was not homogeneous—Leave to appeal declined.

State v. Sunil Dutt ......................................................... 679

RAILWAY PROTECTION FORCE (RPF) RULES, 1987—

Service Law—Petitioner constable in RPF attached with a

detachment deployed at railway station for static guard

alongwith ten others under the command of one head

constable—Deceased Naik Amarjeet Yadav was murdered at

railway station allegedly by petitioner—Petitioner annoyed with

deceased and had an argument with him—For that reason fired

three rounds from his service rifle at the deceased resulting

in instantaneous death—FIR registered by police u/s 302 IPC

against petitioner—In preliminary inquiry, allegations proved—

Disciplinary authority dismissed petitioner from service stating

that not reasonably practicable to hold a departmental inquiry—

In Appeal, order of disciplinary authority set aside and regular

departmental inquiry ordered on the charges of gross

remissness and negligence in discharge of duty, willful breach

of discipline and serious misconduct—He was kept under

suspension during the pendency—Charges proved against

him—Again dismissed from service by disciplinary authority—

Filed appeal against the order before Appellant Authority—

During the pendency of appeal, acquitted by the court due to

lack of evidence—Transpired that all witnesses examined in

the departmental inquiry not produced in criminal trial—

Represented to the Appellate Authority in view of acquittal

relating to the same incident the punishment in departmental

inquiry be set aside—Appeal dismissed being time barred—

Filed revision before revisional authority—Revision

dismissed—Preferred writ petition—Contended, in view of the

fact that he has been acquitted in the criminal proceedings

based on same set of allegations which constituted the

gravamen of departmental proceedings the order of

Discriptionary Authority should be quashed—Further

contended that he could not participate in disciplinary

proceedings since he was not paid subsistence allowance—

Held—Departmental inquiry and criminal proceedings operate

in their distinct and mutually exclusive jurisdictional areas—

In a disciplinary proceedings the area of investigation covers

the field of (a) enforcement of discipline (b) level of integrity

(c) misconduct pertaining to devotion towards duty—In

criminal proceedings the area of investigation covers the

culpability from the point of view of criminal law—Standard

of proof in the two proceedings are different—In the former,

it is preponderance of probability and in the latter beyond

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reasonable doubt—Rule of Evidence Act applicable in the

criminal trial; not applicable in the disciplinary proceedings

wherein any material having logical probative value to prove

or disprove the fact in issue relevant and admissible—In the

case in hand, the scope of departmental inquiry covering

disciplinary aspect wider and different and accordingly the

acquittal of the petitioner in the criminal proceedings has no

effect on the punishment of dismissal from service imposed

on him in the departmental proceedings—Further requirement

of furnishing a non-employment certificate by the suspended

employee to draw his subsistence allowance granted on

monthly basis to the employee to sustain himself—If the

suspended fails to submit the certificate, he cannot complain

about not getting the subsistence allowance—Writ Petition

Dismissed.

Rajesh Kr. Chaturvedi v. Union of India & Ors. ...... 106

SERVICE LAW—Petitioner constable in RPF attached with a

detachment deployed at railway station for static guard

alongwith ten others under the command of one head

constable—Deceased Naik Amarjeet Yadav was murdered at

railway station allegedly by petitioner—Petitioner annoyed with

deceased and had an argument with him—For that reason fired

three rounds from his service rifle at the deceased resulting

in instantaneous death—FIR registered by police u/s 302 IPC

against petitioner—In preliminary inquiry, allegations proved—

Disciplinary authority dismissed petitioner from service stating

that not reasonably practicable to hold a departmental inquiry—

In Appeal, order of disciplinary authority set aside and regular

departmental inquiry ordered on the charges of gross

remissness and negligence in discharge of duty, willful breach

of discipline and serious misconduct—He was kept under

suspension during the pendency—Charges proved against

him—Again dismissed from service by disciplinary authority—

Filed appeal against the order before Appellant Authority—

During the pendency of appeal, acquitted by the court due to

lack of evidence—Transpired that all witnesses examined in

the departmental inquiry not produced in criminal trial—

Represented to the Appellate Authority in view of acquittal

relating to the same incident the punishment in departmental

inquiry be set aside—Appeal dismissed being time barred—

Filed revision before revisional authority—Revision

dismissed—Preferred writ petition—Contended, in view of the

fact that he has been acquitted in the criminal proceedings

based on same set of allegations which constituted the

gravamen of departmental proceedings the order of

Discriptionary Authority should be quashed—Further

contended that he could not participate in disciplinary

proceedings since he was not paid subsistence allowance—

Held—Departmental inquiry and criminal proceedings operate

in their distinct and mutually exclusive jurisdictional areas—

In a disciplinary proceedings the area of investigation covers

the field of (a) enforcement of discipline (b) level of integrity

(c) misconduct pertaining to devotion towards duty—In

criminal proceedings the area of investigation covers the

culpability from the point of view of criminal law—Standard

of proof in the two proceedings are different—In the former,

it is preponderance of probability and in the latter beyond

reasonable doubt—Rule of Evidence Act applicable in the

criminal trial; not applicable in the disciplinary proceedings

wherein any material having logical probative value to prove

or disprove the fact in issue relevant and admissible—In the

case in hand, the scope of departmental inquiry covering

disciplinary aspect wider and different and accordingly the

acquittal of the petitioner in the criminal proceedings has no

effect on the punishment of dismissal from service imposed

on him in the departmental proceedings—Further requirement

of furnishing a non-employment certificate by the suspended

employee to draw his subsistence allowance granted on

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monthly basis to the employee to sustain himself—If the

suspended fails to submit the certificate, he cannot complain

about not getting the subsistence allowance—Writ Petition

Dismissed.

Rajesh Kr. Chaturvedi v. Union of India & Ors. ...... 106

— Pay Parity between Inspector Grade-I (Prosecution) RPF and

Senior Public Prosecutor with CBI and Delhi Police—Petitioner

working as Inspector Grade-I (Prosecution) under RPF sought

parity of pay with Senior Public Prosecutor, CBI and Delhi

Police on the principle of equal work equal pay. Held—

Determination of pay scale-domain of executive—Court

intervention has to be slow-cannot assign itself role of an

expert-only where it is apparently manifest that posts are

identical-denial of Article 14 to those placed in lower pay scales

within the domain of writ court—Instant case-difference in

source of recruitment-prosecution conducted by Senior Public

Prosecutor Grade I with RPF relate to petty offences unlike

Public Prosecutors with CBI and Delhi Police—Qualitative

difference in duties—Recommendation of RPF to Finance

Wing—No justification.

Braham Prakash Dutta and Anr. v. Railway Protection

Force and Ors. ............................................................... 576

SPECIAL ECONOMIC ZONES ACT, 2005—Section 26(1) (e),

26(2), 51, 55 and 58—Special Economic Zone Rules, 2006—

Rule 31—Central Excise Act, 1994—Section 37B—Payment

of whole service tax exempted on services provided to a

Developer or Units of SEZ by any service provider, for

purpose of development, operation and maintenance of SEZ

or for setting up of a SEZ unit or for manufacture of goods

by SEZ Units, on satisfaction of certain conditions—Impugned

circular clarified that service tax is exempted on provision of

only such services which are rendered by service providers

to Developer or Unit for its authorized operation within area

of SEZ—Circular challenged in writ petition before High Court

—Plea taken, only condition required for availing exemption

from payment of service tax by a Developer/Entrepreneur is

that taxable service should be used for carrying on authorized

operations by Developer/Entrepreneurs—Location of service

provider or place of service is entirely irrelevant for purpose

of this exemption—Per contra plea taken, service tax

exemption is available only for services which are provided

to carry on authorized operation in a SEZ—Held—Only

condition that is required to be satisfied to avail service tax

benefit is that services must be rendered for purpose of

carrying out ‘‘authorized operations in a special economic

zone’’—If intention of legislature was to exempt only those

services from levy of service tax that are rendered within SEZ,

legislature would have categorically stated so in statute—A

subordinate legislation has to confirm to parent statute and

any subordinate legislation inconsistent to provisions of parent

statute is liable to be set aside—Circulars being executive/

administrative in character cannot supersede or override Act

and statutory Rules—Impugned circular seeks to impose a

condition that was not intention of legislature in SEZ Act or

Rules and is liable to be set aside.

M/s. Jindal Stainless Limited & Anr. v. Union of

India & Ors. .................................................................. 373

SPECIAL MARRIAGE ACT, 1954—Section 7, 8, 13(2), 15(a),

16, 24(2), 25 (iii) (a & b), 39, 40 (c)—Indian Evidence Act,

1872—Section 4 and 36—Constitution of India, 1950—Article

25 and 26— Respondent filed a petition for declaring

registration of her marriage with appellant to be of no effect—

As per respondent, for membership of library in Jama Masjid,

appellant persuaded respondent to convert to Islam for this

purpose—Respondent singed certain documents which

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appellant claimed to be registration of marriage and conversion

certificate and that by virtue of those respondent became his

wife—Petition allowed by Trial Court—Order challenged in

appeal—Plea taken, trial Court committed jurisdiction error in

entertaining suit of respondent—Documentary evidence to

prove conversion of respondent from Hindu religion to Muslim

religion ignored by trial Court—Respondent did not file any

objection to registration of marriage—Per contra, plea taken

respondent had never changed her religion and there is no

marriage which can be said to have taken place between

appellant and respondent—Held—In certain situations one

party to marriage belonging to one religion can take a decision

to embrace religion of other party but such a conversion should

not be undertaken merely to achieve purpose of marriage—It

should be done to embrace new religion with a will and desire

to completely follow tenets of new religion while

simultaneously forsaking tenets of religion being professed by

a person prior thereto—Respondent got prepared her

conversion certificate to marry appellant—She feigned to have

adopted another religion for purpose of wordly gain of

marriage—Trial Court rightly held there was no conversion

of respondent from Hinduism to Islam—Except nikahnama

nothing proved on record to establish fact that essential

requirement of offer and acceptance was made by parties in

presence and hearing of witnesses—Registration of marriage

was obtained in violation of mandatory conditions required for

purpose of registration as parties had never lived together since

their marriage—Marriage certificate is conclusive evidence to

prove its issuance by a proper and competent marriage officer

after following due procedure prescribed under Act and Rules

framed thereunder—Said conclusive evidence cannot come in

way of parties challenging such a marriage certificate or

marriage itself—No merit in present appeal.

Faheem Ahmed v. Maviya @ Luxmi ........................... 216

SPECIFIC RELIEF ACT, 1963—Agreement to sell—Father of

petitioner entered into agreement to sell suit property in year

1978—Suit for specific performance decreed by ADJ in

favour of plaintiff in year 1987—Civil appeal dismissed by

Supreme Court in year 2007—DDA demanded unearned

increase (UEI)—Demand challenged in High Court—Plea

taken, crucial date for determining market rate for UEI would

be date of agreement to sell and not date of decree of trial

Court—Per contra, plea taken up to time of decree of trial

Court, transaction between parties was incomplete and attained

finality after decision of Supreme Court—DDA acted

reasonably and took date of decree of trial Court as relevant

date—Held—For purpose of calculation of UEI, date of

transaction has necessarily to be date of agreement to sell

which indicates sale consideration—Transfer emanates from

agreement to sell itself as that would have logically led to

execution of sale deed—Supreme Court directed petitioner to

pay Rs. 5 lacs as a matter of good gesture—For all practical

purposes sale consideration should be sum mentioned in

agreement to sell plus Rs. 5 lacs—DDA directed to issue fresh

demand of UEI.

Rajiv Goela and Anr. v. Delhi Development

Authority .............................................................................. 1

TRADE MARKS ACT, 1999—Deceptive similarity—Plaintiff

owning and managing destination spas, luxury business leisure

hotels in India and abroad providing services under Trade

Mark and Service Mark ‘Ananda’—Pre-launch advertising

campaign of residential complex under name ‘Park View

Ananda’ launched by defendant for promoting residential

complexes—Claim of plaintiff that defendant adopted well

known mark ‘Ananda’ to create association with plaintiff’s

properties and to ride on goodwill and reputation of plaintiff—

Held, difficult to accept that trade mark ‘Ananda’ had become

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a well known trade mark or that it came to be associated

exclusively with plaintiff’s company so as to indicate a

connection with the plaintiff company—No material on record

to show that the mark ‘Ananda’ had acquired such a high

brand equity in India that its use by persons other than plaintiff

would dilute its reputation—Difficult to say that word

‘Ananda’ had become distinctive with plaintiff company— No

evidence of any legal proceedings having been initiated by the

plaintiff company against registration and/or user of ‘Ananda’

by others—Goods and services of defendant in wholly

unrelated category compared to plaintiff—Plaintiff failed to

make out prima facie case for grant of injunction against

defendant—Application dismissed.

IHHR Hospitality Pvt. Ltd. v. Bestech India

Pvt. Ltd. .......................................................................... 364

— Section 29—Ad-interim injunction for restraining infringement

of trademark-Plaintiff, proprietor of registered trademark

‘lemon tree’, was in continuous use of the same since October

2002—Had eleven operational hotels and eight under

construction using the trademark-defendant adopted identical

trademark in 2009 in respect of its housing project at a

distance of 2 kms from plaintiff’s hotel which came into

existence in 2008—Plaintiff filed the suit for injunction along

with application for ad-interim injunction-defence of the

defendant-inter alia-customers of both the business were

different-invested huge amount-no likelihood of confusion-used

trademark only in respect of one project-undertook to confine

and restrict only in respect of one project and not to use the

same for any other project. Held—Plaintiff entitled to grant

of ad-interim injunction-defendant adopted trademark without

justification-defence of the defendant that he invested huge

amount-rejected as the suit was instituted in 2009 itself-likely

to cause confusion that plaintiff and defendant have

association—Even if services are not similar, plaintiff is entitled

to protection as it has reputation in India—Balance of

convenience lies in favour of the plaintiff who would suffer

irreparable loss due to confusion—Conduct of defendant did

not appear honest—Warrants imposition of cost—Defendant

directed to change its name within four weeks.

M/s. Krizm Hotels Private Limited v. M/s. Vaishnavi

Estates (P) Ltd. .............................................................. 759

VOLUNTARY RETIREMENT SCHEME (VRS)—Entitlement to

benefit of pension scheme—Respondent introduced VRS

before the pension scheme became operational—Appellants

contended that they opted for pension scheme and therefore

be paid pension fact that scheme became operational later-no

effect. Held—In LPA No.1262/2007 dated 5th October, 2007,

Delhi Transport Corporation vs. Kishan Lal Sehgal and

Ors. Held-entitled to pension-in W.P.(C) No. 14027/2009

[DTC Vs. Madhu Bhushan Anand, 2010 (172) DLT 668]

right to pension was denied as higher ex-gratia was paid-ratio

cannot be reconciled matter referred to larger bench.

R.D. Gupta & Ors. v. D.T.C. & Anr. ........................ 277

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