INDIAN LAW REPORTS DELHI SERIES 2011 · 2012-07-19 · INDIAN LAW REPORTS DELHI SERIES 2011...

INDIAN LAW REPORTS

DELHI SERIES

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

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

EDITOR

MR. A.S. YADAVREGISTRAR (VIGILANCE)

CO-EDITORS

MS. NEENA BANSAL KRISHNA

(ADDITIONAL DISTRICT & SESSIONS JUDGES)

REPORTERS

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MR. TALWANT SINGH MR. SANJOY GHOSE

MR. GIRISH KATHPALIA MR. K. PARMESHWAR

MS. SHALINDER KAUR (ADVOCATES)

MR. V.K. BANSAL VINAY KUMAR GUPTA

MR. L.K. GAUR MR. KESHAV K. BHATI

MR. GURDEEP SINGH DEPUTY REGISTRAR

MS. ADITI CHAUDHARY

MR. ARUN BHARDWAJ

(ADDITIONAL DISTRICT

& SESSIONS JUDGES)

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NOMINAL-INDEX

VOLUME-VI, PART-I

NOVEMBER, 2011

Rajiv Goela and Anr. v. Delhi Development Authority ........................... 1

Fitzee Ltd. v. Brilliant Tutorials (P.) LTd. ................................................ 8

K.L. Chandak v. Mr. Jai Chand & Ors. ................................................. 17

Susan Leigh Beer v. India Tourism Development Corporation Ltd. ...... 31

Anil Kumar Sharma @ Bobby v. Delhi State/NCT Delhi ....................... 82

Rajesh Kr. Chaturvedi v. Union of India & Ors. ................................. 106

Chamno Devi v. Smt. Usha & Ors. ..................................................... 133

Delhi Development Authority v. Hans Raj Batheja ............................... 141

Indian Associates v. The State and Others .......................................... 153

Yogesh Duggal & Ors. v. State & Ors. ............................................... 175

Bharat Vats v. Garima Vats .................................................................. 198

Commissioner of Income Tax v. M/s. Mediworld

Publications Pvt. Ltd. ..................................................................... 203

Faheem Ahmed v. Maviya @ Luxmi.................................................... 216

Commissioner of Income Tax v. M/s. SAS Pharmaceuticals ............. 243

Anand Prakash v. The Delhi State Co-Operative Bank Ltd. & Anr. .... 251

S.K. Mitra v. Asst. General Manager State Bank of India ................... 262

Babu Lal & Ors. v. Mahavir Singh @ Mahvir Prashad & Ors. ........... 270

R.D. Gupta & Ors. v. D.T.C. & Anr. .................................................. 277

Devendra Kumar v. Govt. of NCT of Delhi and Ors. ......................... 290

Arti Jethani v. Daehsan Trading (India) Pvt Ltd. & Ors. .................... 319

Akbari Begum & Ors. v. State ............................................................. 328

State GNCT of Delhi v. Mukesh .......................................................... 340

State (Govt. of NCT of Delhi) v. Girdhari LaL Verma........................ 354

IHHR Hospitality Pvt. Ltd. v. Bestech India Pvt. Ltd. ......................... 364

Jindal Stainless Limited & Anr. v. Union of India & Ors. ................... 373

Chugh Kathuria Engineers (P) Ltd. v. Delhi

Development Authority (DDA) ...................................................... 395

BSES Rajdhani Power Ltd. v. Union of India & Ors. .......................... 429

(ii)

(i)

SUBJECT-INDEX

VOLUME-VI PART-I

NOVEMBER, 2011

ARBITRATION ACT, 1940—Section 30 and 33—Indian

Contract Act, 1872—Section 15 and 16—Code of Civil

Procedure, 1908—Section 34, Order IX Rule 8, Order VI Rule

4—Petitioner was allotted work of construction of flats—

Disputes between parties referred to sole arbitrator—Award

rendered by arbitrator challenged before High Court—As

arbitrator had failed to consider a letter of petitioner accepting

responsibility for delay in execution of work, award partly set

aside and new arbitrator appointed to decide claims—Arbitrator

held delay in completion was on part of respondent—Award

challenged before High Court—Plea taken, impugned order is

not based on any evidence placed before arbitrator and that

there is an error apparent on face of award—There was no

pleading to support story that letter admitting delay was

obtained from petitioner under duress or coercion—Per contra

plea taken, arbitrator had considered evidence and concluded

delay was attributable to respondent at various stages of

work—Held—A plea of coercion or undue influence or duress

has necessarily to be specifically raised and pleaded as a fact—

Though Code of Civil Proceedure is not strictly applicable to

arbitral proceedings, Principles thereof, which are evolved to

achieve fairness in proceedings, are attached even to arbitral

proceedings—To permit a party to arbitration proceeding to

raise oral plea of ‘‘coercion’’ or ‘‘duress’’ or ‘‘undue

influence’’, would cause irreparable injustice to opposite party

as opposite party would be put to grave disadvantage in dealing

with such a vague and indefinite plea which is devoid of

particulars and specifics—Grant of extension of time by

respondent, till date of abandonment, cannot necessarily lead

to conclusion that delay was attributable to respondent, and

not petitioner—A party to a contract has option to accept

breach thereof by opposite party and require opposite party

to still complete contract—It is not that whenever there is

breach of contract by one party, opposite party should rescind

contract—Claim for tools & plants stationed at site for

prolonged period made rule of Court—Arbitrator appointed to

reconsider claims for expenses incurred for delayed work/

losses suffered by petitioner due to contract getting prolonged.

M/s. Chugh Kathuria Engineers (P) Ltd. v.

Delhi Development Authority (DDA) ........................... 395

ARBITRATION AND CONCILIATION ACT, 1996—Section

8—Petition filed by defendant for referring disputes raised by

plaintiff for arbitration after four weeks of filing Written

Statement—Plea taken, defendant had already pleaded in

written statement that there is arbitration agreement between

parties and this Court has no jurisdiction to adjudicate instant

suit—Applicants did not submit to jurisdiction of Civil Court

and application is maintainable even after filing of written

statement—Held—Defendants have already filed their Written

Statement and have disclosed their entire defence in main

proceedings and not in supplemental proceedings—Application

for referring disputes for Arbitration would be maintainable if

applicant had not filed his first statement on substance of

dispute—But when Written Statement is filed, it can hardly

be disputed that applicant has submitted not only first but

whole of his statement on dispute between parties. Mere

disclosure of arbitration agreement in Written Statement and

claiming civil Court has no jurisdiction to try suit would be

of no consequence unless Written Statement itself contains a

prayer for referring dispute for arbitration—Jurisdiction of

Civil Court is not ousted on account of arbitration agreement

between parties—It is ousted because of application filed under

Section 8 of Act, provided it otherwise confirms to

requirements laid down in Section.

Arti Jethani v. Daehsan Trading (India) Pvt

Ltd. & Ors. .................................................................... 319

(iv)

(iii)

BAR COUNCIL OF DELHI ELECTION RULES, 1968

(RULES)—Rule 31(A)(ii)—Consitutional Validity—Petitioner

secured maximum number of first preference votes amongst

the unsuccessful candidates in the election to Bar Council of

Delhi—A casual vacancy occurred—Petitioner’s

representation for co-opting him as member was rejected—

Present writ petition was filed on grounds that Rule 31(A)(ii)

was unconstitutional—No intelligible differentia between two

vacancies, caused when election is set aside and arising out

of death or resignation- co-option procedure to be followed

to fill both kind of vacancy by candidate who has secured

maximum first preference votes amongst unsuccessful

candidate—Respondents contended that nature of vacancies

are different—Method of co-option is to aviod re-election—

Inclusion of next man in different circumstances does not

invite wrath of equality clause. Held—Rule 31(A)(ii) is

constitutionally valid—Co-option is a permissible method for

filling casual vacancy the Rule confers power on electoral

college and not all voters to co-opt a member—Conferment

of such power is not arbitrary—Involvement of larger body

for co-option is unacceptable—Only qualification for being co-

opted-enumerated under Rule 7 and 7A of Rules.

Devendra Kumar v. Govt. of NCT of Delhi

and Ors. .......................................................................... 290

CENTRAL EXCISE ACT, 1994—Section 37B—Payment of

whole service tax exempted on services provided to a

Developer or Units of SEZ by any service provider, for

purpose of development, operation and maintenance of SEZ

or for setting up of a SEZ unit or for manufacture of goods

by SEZ Units, on satisfaction of certain conditions—Impugned

circular clarified that service tax is exempted on provision of

only such services which are rendered by service providers

to Developer or Unit for its authorized operation within area

of SEZ—Circular challenged in writ petition before High Court

—Plea taken, only condition required for availing exemption

from payment of service tax by a Developer/Entrepreneur is

that taxable service should be used for carrying on authorized

operations by Developer/Entrepreneurs—Location of service

provider or place of service is entirely irrelevant for purpose

of this exemption—Per contra plea taken, service tax

exemption is available only for services which are provided

to carry on authorized operation in a SEZ—Held—Only

condition that is required to be satisfied to avail service tax

benefit is that services must be rendered for purpose of

carrying out ‘‘authorized operations in a special economic

zone’’—If intention of legislature was to exempt only those

services from levy of service tax that are rendered within SEZ,

legislature would have categorically stated so in statute—A

subordinate legislation has to confirm to parent statute and any

subordinate legislation inconsistent to provisions of parent

statute is liable to be set aside—Circulars being executive/

administrative in character cannot supersede or override Act

and statutory Rules—Impugned circular seeks to impose a

condition that was not intention of legislature in SEZ Act or

Rules and is liable to be set aside.

M/s. Jindal Stainless Limited & Anr. v. Union of

India & Ors. .................................................................. 373

CODE OF CIVIL PROCEDURE, 1908—Order XXXIX, Rule

1 & 2—Suit for permanent injunction for restraining defendant

no.1 from poaching faculty members of defendant no. 1 or

from instigating them to quit the plaintiff company and join

them—Defendant objected that injunction claimed would have

the effect of curtailing the freedom given to its employees to

improve their future prospects and service conditions—Held—

There is no contract between the plaintiff company and

defendant no. 1 company not to poach on the employees of

each other—In the absence of any such contract, nothing in

law prevented defendant no. 1 company from approaching the

employees of plaintiff company and offering better service

conditions to them—Therefore, it cannot be said that any legal

(v) (vi)

injury was caused to the plaintiff-company by the alleged

poaching or any legal right, vesting in the plaintiff-company,

was violated by defendant No.1 company—Suit dismissed with

cost.

Fitzee Ltd. v. Brilliant Tutorials (P.) LTd. ..................... 8

— Section 34, Order IX Rule 8, Order VI Rule 4—Petitioner was

allotted work of construction of flats—Disputes between

parties referred to sole arbitrator—Award rendered by

arbitrator challenged before High Court—As arbitrator had

failed to consider a letter of petitioner accepting responsibility

for delay in execution of work, award partly set aside and

new arbitrator appointed to decide claims—Arbitrator held

delay in completion was on part of respondent—Award

challenged before High Court—Plea taken, impugned order is

not based on any evidence placed before arbitrator and that

there is an error apparent on face of award—There was no

pleading to support story that letter admitting delay was

obtained from petitioner under duress or coercion—Per contra

plea taken, arbitrator had considered evidence and concluded

delay was attributable to respondent at various stages of

work—Held—A plea of coercion or undue influence or duress

has necessarily to be specifically raised and pleaded as a fact—

Though Code of Civil Proceedure is not strictly applicable to

arbitral proceedings, Principles thereof, which are evolved to

achieve fairness in proceedings, are attached even to arbitral

proceedings—To permit a party to arbitration proceeding to

raise oral plea of ‘‘coercion’’ or ‘‘duress’’ or ‘‘undue

influence’’, would cause irreparable injustice to opposite party

as opposite party would be put to grave disadvantage in dealing

with such a vague and indefinite plea which is devoid of

particulars and specifics—Grant of extension of time by

respondent, till date of abandonment, cannot necessarily lead

to conclusion that delay was attributable to respondent, and

not petitioner—A party to a contract has option to accept

breach thereof by opposite party and require opposite party

to still complete contract—It is not that whenever there is

breach of contract by one party, opposite party should rescind

contract—Claim for tools & plants stationed at site for

prolonged period made rule of Court—Arbitrator appointed to

reconsider claims for expenses incurred for delayed work/

losses suffered by petitioner due to contract getting prolonged.



— Order XLI Rule 4—Maintainability of Appeal if all the legal

representatives are not impleaded—Respondent’s suit for

possession—Decreed—Appeal filed by only one legal

representative without impleading other legal representatives

was allowed by the Appellate Court—Same challenged in

second appeal. Held—Order XLI Rule 4 of the Code permits

one of the several plaintiffs or one of the several defendants

to obtain a reversal of the whole decree—Therefore even

assuming that the decree was against all the legal

representatives—Appeal filed by one legal was competent—

Further under Rule 33—Appellate Court has wide powers to

pass any decree and to make any order notwithstanding that

the appeal has been filed only by one person—Decree can be

passed against those respondents as well who have not filed

any appeal or objection—Condition being that they must be

parties to the suit.

Mr. K.L. Chandak v. Mr. Jai Chand & Ors. .............. 17

— Suit for declaration & Permanent Injunction—This appeal has

impugned the judgment and decree dated 05.3.2007 which had

endorsed the finding of the trial judge dated 20.7.2005 whereby

the suit filed by the plaintiff seeking a declaration and

permanent injunction to the effect that the plaintiff is the owner

of the property and the defendant be restrained from

interfering in the peaceful possession of the plaintiff, had been

dismissed—The plaintiff was in possession of the suit

property—She is a plaintiff had married Nek Ram—Nek

(vii) (viii)

Ram’s whereabouts were not known for last 16 years—

Defendant No.1 came in contact with the plaintiff about 15

years ago—The Plaintiff and the defendant No.1 thereafter got

married—Defendant no.1 did not disclose that he was already

married to one Satyawati and had children from the said

marriage—The fact came to the knowledge of the plaintiff

only in the year 1981—Defendant No.1 had played a fraud

upon her with an ulterior motive to grab her property—By

way of present suit plaintiff had sought decree of declaration

that the plaintiff is the owner of the suit property; permanent

injunction had also been sought restraining the defendant from

interfering in her peaceful possession—Defendant had denied

the version of the plaintiff—It was stated that the plaintiff was

tenant of the defendant no.1—The Court had disbelieved the

version set up by the plaintiff; suit was dismissed—This was

endorsed in the first appeal—Second appeal filed no perversity

has been pointed out—Except two statements no evidence

adduced by appellant to show that property was purchased

benami from her money by defendant No.1 in the name of

defendant No.2—Appeal dismissed.

Babu Lal & Ors. v. Mahavir Singh @ Mahvir

Prashad & Ors. ............................................................. 270

— Order 39, Rule 1 & 2—Permanent Injunction—Trade Marks

Act, 1999—Deceptive similarity—Plaintiff owning and

managing destination spas, luxury business leisure hotels in

India and abroad providing services under Trade Mark and

Service Mark ‘Ananda’—Pre-launch advertising campaign of

residential complex under name ‘Park View Ananda’ launched

by defendant for promoting residential complexes—Claim of

plaintiff that defendant adopted well known mark ‘Ananda’

to create association with plaintiff’s properties and to ride on

goodwill and reputation of plaintiff—Held, difficult to accept

that trade mark ‘Ananda’ had become a well known trade

mark or that it came to be associated exclusively with

plaintiff’s company so as to indicate a connection with the

plaintiff company—No material on record to show that the

mark ‘Ananda’ had acquired such a high brand equity in India

that its use by persons other than plaintiff would dilute its

reputation—Difficult to say that word ‘Ananda’ had become

distinctive with plaintiff company— No evidence of any legal

proceedings having been initiated by the plaintiff company

against registration and/or user of ‘Ananda’ by others—Goods

and services of defendant in wholly unrelated category

compared to plaintiff—Plaintiff failed to make out prima facie

case for grant of injunction against defendant—Application

dismissed.

IHHR Hospitality Pvt. Ltd. v. Bestech India

Pvt. Ltd. ......................................................................... 364

— Order XXXIII, Suit as an indigent person seeking damages—

Plaintiff injured while jumping and slipping into swimming pool

of hotel managed and maintained by Defendant—Said injury

resulted in Plaintiff becoming a quadriplegic—Injury allegedly

due to negligence of Defendant in maintenance of Swimming

Pool—Tiles of floor of swimming pool slippery because of

algae formation—Plaintiff jumped in, feet slipped on floor and

head hit wall of pool—Hence instant suit filed for damages

of Rs. 2 crores.

Susan Leigh Beer v. India Tourism Development

Corporation Ltd. .............................................................. 31

— Suit filed by duly authorised person—Power of attorney

granted to Plaintiff's father—Suit instituted as indigent

person—Application presented by father of Plaintiff—Plaintiff

exempted from presentation of application in person vide order

dated 22.01.1992—Plaintiff's father’s statement recorded—

Admitted that he holds power of attorney—Admittedly power

of attorney not filed along with plaint due to inadvertent

error—Same filed on 25.11.1991 vide application which was

allowed—Plaintiff's testimony amounted to clear ratification—

Procedural defects which do not go to the root of the matter

(ix) (x)

should not be permitted to defeat just cause—Ratio of Naresh

Kumar relied upon—Suit filed by duly authorised person.


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.


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.


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.


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.


Corporation Ltd. .............................................................. 31

— Damages—Plaintiff awarded Rs. 5 lacs for expenditure

incurred under head of medical treatment—Rs. 50 Lacs

awarded on account of physical and mental anguish—Loss

of earnings—Qunatified at Rs. 1 crore and twenty seven

lacs—Plaintiff entitled to total sum alongwith simple interest

with effect from 22.01.1982.


Corporation Ltd. .............................................................. 31

CODE OF CRIMINAL PROCEDURE, 1973—Sections 235,

245, 325, 360, 361, 377—Aggrieved by judgment and order

on sentence, State preferred appeal on ground, sentence of

two and a half years imprisonment for conviction under

Section 376/511 IPC inadequate and calls for enhancement—

Also, Trial Court fell into error in not awarding minimum

sentence of five years for attempting rape—Per contra, amicus

curiae on behalf of Respondent urged that in appeal, by State

on ground of inadequacy of sentence, Accused/Respondent

at same time has liberty to plead for his acquittal or for

reduction of sentence—Thus, case to be considered on

merits—Held:- A proper sentence is amalgam of many factors

(xi) (xii)

such as the nature of the offence, circumstances extenuating

or aggravating offence, prior criminal record, if any, of

offender, age of offender as to employment, background of

offender with reference to education, home life, sobriety and

social adjustment, emotional and mental conditions of offender,

prospects for rehabilitation of offender, possibility of return

of offender to normal life in community, possibility of

treatment of training of offender, possibility that sentence may

serve as a deterrent to crime by offender or by others and

current community need, if any, for such a deterrent in

respect to particular type of offence—No reason found to

disturb conviction of Respondent, however, Court would

exercise and interfere with sentencing discretion of trial Court

“where inadequacy of sentence is gross or glaring or shocks

courts conscious”—In given facts and conspectus of

circumstances, does not warrant interference in order on

sentence.

State GNCT of Delhi v. Mukesh .................................. 340

— Sections 235, 245, 325, 360, 361, 377—Aggrieved by judgment

and order on sentence, State preferred appeal on ground,

sentence of two and a half years imprisonment for conviction

under Section 376/511 IPC inadequate and calls for

enhancement—Also, Trial Court fell into error in not awarding

minimum sentence of five years for attempting rape—Per

contra, amicus curiae on behalf of Respondent urged that in

appeal, by State on ground of inadequacy of sentence,

Accused/Respondent at same time has liberty to plead for his

acquittal or for reduction of sentence—Thus, case to be

considered on merits—Held:- A proper sentence is amalgam

of many factors such as the nature of the offence,

circumstances extenuating or aggravating offence, prior

criminal record, if any, of offender, age of offender as to

employment, background of offender with reference to

education, home life, sobriety and social adjustment, emotional

and mental conditions of offender, prospects for rehabilitation

of offender, possibility of return of offender to normal life in

community, possibility of treatment of training of offender,

possibility that sentence may serve as a deterrent to crime by

offender or by others and current community need, if any,

for such a deterrent in respect to particular type of offence—

No reason found to disturb conviction of Respondent,

however, Court would exercise and interfere with sentencing

discretion of trial Court “where inadequacy of sentence is gross

or glaring or shocks courts conscious”—In given facts and

conspectus of circumstances, does not warrant interference

in order on sentence.


CONSTITUTION OF INDIA, 1950—Article 226—Writ

Petition—Railway Protection Force (RPF) Rules, 1987—

Service Law—Petitioner constable in RPF attached with a

detachment deployed at railway station for static guard

alongwith ten others under the command of one head

constable—Deceased Naik Amarjeet Yadav was murdered at

railway station allegedly by petitioner—Petitioner annoyed with

deceased and had an argument with him—For that reason fired

three rounds from his service rifle at the deceased resulting

in instantaneous death—FIR registered by police u/s 302 IPC

against petitioner—In preliminary inquiry, allegations proved—

Disciplinary authority dismissed petitioner from service stating

that not reasonably practicable to hold a departmental inquiry—

In Appeal, order of disciplinary authority set aside and regular

departmental inquiry ordered on the charges of gross

remissness and negligence in discharge of duty, willful breach

of discipline and serious misconduct—He was kept under

suspension during the pendency—Charges proved against

him—Again dismissed from service by disciplinary authority—

Filed appeal against the order before Appellant Authority—

During the pendency of appeal, acquitted by the court due to

lack of evidence—Transpired that all witnesses examined in

the departmental inquiry not produced in criminal trial—

(xiii) (xiv)

Represented to the Appellate Authority in view of acquittal

relating to the same incident the punishment in departmental

inquiry be set aside—Appeal dismissed being time barred—

Filed revision before revisional authority—Revision

dismissed—Preferred writ petition—Contended, in view of the

fact that he has been acquitted in the criminal proceedings

based on same set of allegations which constituted the

gravamen of departmental proceedings the order of

Discriptionary Authority should be quashed—Further

contended that he could not participate in disciplinary

proceedings since he was not paid subsistence allowance—

Held—Departmental inquiry and criminal proceedings operate

in their distinct and mutually exclusive jurisdictional areas—

In a disciplinary proceedings the area of investigation covers

the field of (a) enforcement of discipline (b) level of integrity

(c) misconduct pertaining to devotion towards duty—In

criminal proceedings the area of investigation covers the

culpability from the point of view of criminal law—Standard

of proof in the two proceedings are different—In the former,

it is preponderance of probability and in the latter beyond

reasonable doubt—Rule of Evidence Act applicable in the

criminal trial; not applicable in the disciplinary proceedings

wherein any material having logical probative value to prove

or disprove the fact in issue relevant and admissible—In the

case in hand, the scope of departmental inquiry covering

disciplinary aspect wider and different and accordingly the

acquittal of the petitioner in the criminal proceedings has no

effect on the punishment of dismissal from service imposed

on him in the departmental proceedings—Further requirement

of furnishing a non-employment certificate by the suspended

employee to draw his subsistence allowance granted on

monthly basis to the employee to sustain himself—If the

suspended fails to submit the certificate, he cannot complain

about not getting the subsistence allowance—Writ Petition

Dismissed.

Rajesh Kr. Chaturvedi v. Union of India & Ors. ..... 106

— Article 226—Petition challenging the enquiry and the

proceedings being violative of service rules applicable to the

staff of respondent—Seeking quashing of order of retirement

and reinstatement into service—Petitioner was employed with

the respondent in 1993 as clerk-cum-typist—Lastly worked

as Manager—Charged with misconduct of making payments

against false credit entries—Misuse of powers and ignoring

the prescribed Banking rules—Not taking care of interest of

the bank and having tampered with the record of the Bank—

Inquiry conducted—Petitioner found guilty—Respondent

imposed a penalty of compulsory retirement on the

petitioner—Appeal preferred—Rejected by Board of

Directors—Petition—Challenged on the ground of

maintainability—Petitioner alleges that employees of respondent

are governed by Central Civil Services (Conduct) Rules, 1964

and Central Civil Services (Classification, Control and Appeal)

Rules 1965, which shows that it is State and hence writ

petition is maintainable—Held—Merely, because a Society

adopts the rules applicable to Government servants to its own

employees would not convert the said Co-opertative Society

into Government—Similarly, merely because the respondent

is performing banking function would also not make the writ

petition maintainable—It is not shown that the function so

performed by the respondent is monopolistic—According to

the document handed over by the petitioner himself there are

as many as 32 Co-opertaive Societies in Delhi performing the

banking functions—This is besides the other banks operating

in Delhi—Thus the said ground for maintainability of the writ

petition is also rejected—In view of the aforesaid dicta of the

Supreme Court, the reasons given in rejoinder do not justify

the maintainability of the writ petition not maintainable.

Anand Prakash v. The Delhi State Co-Operative Bank

Ltd. & Anr. .................................................................... 251

— Article 226—Industrial Disputes Act, 1947—Section 17-B—

Application under Section 17-B of the Act by workman

(xv) (xvi)

claiming that, he was not gainfully not employed since 1994—

Single Judge observed that the application was filed in 2006

after 12 years—Workman directed to file his statements of

bank accounts from 1994 till date, Telephone bills, whether

he resided in his own premises or rented premises and also

an affidavit in corporating these facts—Aggrieved, appellant

filed Letter Patent Appeal—The affidavit in terms of Section

17-B clearing stating that respondent workman was not

gainfully employed already filed—Such inquiry is not

permissible under Section 17-B—Held—It is the duty of the

Court to arrive at a conclusion with regard to the entitlement

of the benefit under Section 17-B of the Act keeping in view

the decisions in Dena Bank (supra), Viveka Nand Sethi (supra)

K.B. Singh & Ors. (supra), Vinod Kumar (supra) and

Bhagawan Giri (supra)—The writ court has to see whether

the workman received adequate remunertaion during such

period and whether the respondent-management has produced

ample material to show that the workman had been really

gainfully employed—Mere survival would not be enough—It

will depend upon the factum of adequacy of amount

received—In the case at hand, the learned Single Judge has

erroneously observed that the workman had filed an

application after 12 years as the same is not factually correct—

It is clear that the appellant filed the application in quite

promptitute—The information that have been directed by the

learned Single Judge to be given by the workman are in the

realm of roving enquiry putting the entire burden on the

workman—Such a roving enquiry, is unwarranted and,

accordingly, the order impugned set aside.

S.K. Mitra v. Asst. General Manager State Bank

of India ........................................................................... 262

— Article 226—Special Economic Zones Act, 2005—Section

26(1) (e), 26(2), 51, 55 and 58—Special Economic Zone

Rules, 2006—Rule 31—Central Excise Act, 1994—Section

37B—Payment of whole service tax exempted on services

provided to a Developer or Units of SEZ by any service

provider, for purpose of development, operation and

maintenance of SEZ or for setting up of a SEZ unit or for

manufacture of goods by SEZ Units, on satisfaction of certain

conditions—Impugned circular clarified that service tax is

exempted on provision of only such services which are

rendered by service providers to Developer or Unit for its

authorized operation within area of SEZ—Circular challenged

in writ petition before High Court —Plea taken, only condition

required for availing exemption from payment of service tax

by a Developer/Entrepreneur is that taxable service should be

used for carrying on authorized operations by Developer/

Entrepreneurs—Location of service provider or place of

service is entirely irrelevant for purpose of this exemption—

Per contra plea taken, service tax exemption is available only

for services which are provided to carry on authorized

operation in a SEZ—Held—Only condition that is required to

be satisfied to avail service tax benefit is that services must

be rendered for purpose of carrying out ‘‘authorized

operations in a special economic zone’’—If intention of

legislature was to exempt only those services from levy of

service tax that are rendered within SEZ, legislature would

have categorically stated so in statute—A subordinate legislation

has to confirm to parent statute and any subordinate legislation

inconsistent to provisions of parent statute is liable to be set

aside—Circulars being executive/administrative in character

cannot supersede or override Act and statutory Rules—

Impugned circular seeks to impose a condition that was not

intention of legislature in SEZ Act or Rules and is liable to be

set aside.


India & Ors. .................................................................. 373

GUARDIAN AND WARDS ACT, 1890—Jurisdiction—Minor

child born on 14.11.2008 in USA—Parents came to Delhi,

resided in house of father—Mother forced to leave matrimonial

(xvii) (xviii)

home along with minor child due to ill-treatment—Living in

Noida since 04.06.2009—Appellant filed petition under Section

25 of Guardians and Wards Act, 1890 for custody of minor—

Petition dismissed for want of territorial jurisdiction—Hence

present appeal—Petition to be filed where minor ordinarily

resides—Minor staying in Noida since 04.06.2009—Petition

filed after period of more than one year from date when wife

left matrimonial home along with minor—Ordinary place of

residence to be Noida—No illegality in impugned order.

Bharat Vats v. Garima Vats. ........................................ 198

— Section 9—Jurisdiction—Appellant states that application filed

on similar grounds—Same withdrawn—Hence could not file

similar application—Parties cannot confer jurisdiction where

Court has none—Only convenience of minor to be seen—No

application of res judicata or issue estoppels with respect to

interim applications—Appeal only filed to harass Respondent

and minor child—Appeal dismissed.

Bharat Vats v. Garima Vats ......................................... 198

INCOME TAX ACT, 1961—Section 28 (va), Section 55(2) (o)—

Capital gain and income from business—Assessee, engaged

in business of health care, print media and electronic media

communications, entered into specified assets transfer

agreement with another company for sale of all its rights.

Titles and interest in specified assets including the business

intellectual property rights alongwith goodwill and all rights

etc. for consideration of Rs. 3,80,02,500/-—Assessing Officer

held that the amount of Rs. 3,80,02,500/- is income and as

such taxable under the head business and professions instead

of being the capital gain as claimed by the assessee—In appeal,

CIT(A) accepted the contention of the assessee and held that

the said amount was not business income but long term capital

gain on transfer of assets—In further appeal of the revenue,

the ITAT upheld the decision of CITA—Hence, appeal to the

High Court under Section 260(A)(1) Income Tax Act—High

Court held, trademarks/brands, copyright and goodwill will

constitute assets of the business and are profit earning

apparatus and as such, sale thereof would lead to capital gain.

Commissioner of Income Tax v. M/s. Mediworld

Publications Pvt. Ltd. ................................................... 203

— Section 271 (1) (c)—This appeal arises out of the order of

the Income Tax Appellate Tribunal—A survey was carried out

at the business premises and godown of the respondent-

assessee on 06.01.2003—In that survey, discrepancies in cash,

stock and renovation were found—The assessee accepted this

difference and surrendered the amount—No attempt was made

by the assessee even after this surrender to retract therefrom

or to explain that there were no such discrepancies—

Assessment also reflected the surrendered amount in his

income tax returns—Assessing officer initiated separate penalty

proceedings which culiminated in imposition of penalty—CIT

(A) deleted the penalty by holding that there was no

concealment—Tribunal dismissed appeal filed by Revenue—

Instant appeal filed—It is to be kept in mind that Section

271(1)(c) of the Act is a penal provision and such a provision

has to be strictly construed. Unless the case falls within the

four-corners of the said provision, penalty cannot be

imposed—The penalty can be imposed only if concealment

is found in the income tax returns—Since the assessee, may

be after being exposed in survey, had made complete

disclosure of his income in his income tax return and they

was no concealment or non-disclosure of income, no penalty

could have been imposed—Appeal dismissed.

Commissioner of Income Tax v. M/s. SAS

Pharmaceuticals .............................................................. 243

INDIAN CONTRACT ACT, 1872—Section 15 and 16—Code

of Civil Procedure, 1908—Section 34, Order IX Rule 8, Order

VI Rule 4—Petitioner was allotted work of construction of

flats—Disputes between parties referred to sole arbitrator—

(xix) (xx)

Award rendered by arbitrator challenged before High Court—

As arbitrator had failed to consider a letter of petitioner

accepting responsibility for delay in execution of work, award

partly set aside and new arbitrator appointed to decide claims—

Arbitrator held delay in completion was on part of

respondent—Award challenged before High Court—Plea

taken, impugned order is not based on any evidence placed

before arbitrator and that there is an error apparent on face

of award—There was no pleading to support story that letter

admitting delay was obtained from petitioner under duress or

coercion—Per contra plea taken, arbitrator had considered

evidence and concluded delay was attributable to respondent

at various stages of work—Held—A plea of coercion or

undue influence or duress has necessarily to be specifically

raised and pleaded as a fact—Though Code of Civil Proceedure

is not strictly applicable to arbitral proceedings, Principles

thereof, which are evolved to achieve fairness in proceedings,

are attached even to arbitral proceedings—To permit a party

to arbitration proceeding to raise oral plea of ‘‘coercion’’ or

‘‘duress’’ or ‘‘undue influence’’, would cause irreparable

injustice to opposite party as opposite party would be put to

grave disadvantage in dealing with such a vague and indefinite

plea which is devoid of particulars and specifics—Grant of

extension of time by respondent, till date of abandonment,

cannot necessarily lead to conclusion that delay was

attributable to respondent, and not petitioner—A party to a

contract has option to accept breach thereof by opposite party

and require opposite party to still complete contract—It is not

that whenever there is breach of contract by one party,

opposite party should rescind contract—Claim for tools &

plants stationed at site for prolonged period made rule of

Court—Arbitrator appointed to reconsider claims for expenses

incurred for delayed work/losses suffered by petitioner due

to contract getting prolonged.



INDIAN EVIDENCE ACT, 1872—Section 4 and 36—

Constitution of India, 1950—Article 25 and 26— Respondent

filed a petition for declaring registration of her marriage with

appellant to be of no effect—As per respondent, for

membership of library in Jama Masjid, appellant persuaded

respondent to convert to Islam for this purpose—Respondent

singed certain documents which appellant claimed to be

registration of marriage and conversion certificate and that by

virtue of those respondent became his wife—Petition allowed

by Trial Court—Order challenged in appeal—Plea taken, trial

Court committed jurisdiction error in entertaining suit of

respondent—Documentary evidence to prove conversion of

respondent from Hindu religion to Muslim religion ignored by

trial Court—Respondent did not file any objection to

registration of marriage—Per contra, plea taken respondent

had never changed her religion and there is no marriage which

can be said to have taken place between appellant and

respondent—Held—In certain situations one party to marriage

belonging to one religion can take a decision to embrace

religion of other party but such a conversion should not be

undertaken merely to achieve purpose of marriage—It should

be done to embrace new religion with a will and desire to

completely follow tenets of new religion while simultaneously

forsaking tenets of religion being professed by a person prior

thereto—Respondent got prepared her conversion certificate

to marry appellant—She feigned to have adopted another

religion for purpose of wordly gain of marriage—Trial Court

rightly held there was no conversion of respondent from

Hinduism to Islam—Except nikahnama nothing proved on

record to establish fact that essential requirement of offer and

acceptance was made by parties in presence and hearing of

witnesses—Registration of marriage was obtained in violation

of mandatory conditions required for purpose of registration

as parties had never lived together since their marriage—

Marriage certificate is conclusive evidence to prove its issuance

by a proper and competent marriage officer after following

due procedure prescribed under Act and Rules framed

(xxi) (xxii)

thereunder—Said conclusive evidence cannot come in way of

parties challenging such a marriage certificate or marriage

itself—No merit in present appeal.

Faheem Ahmed v. Maviya @ Luxmi ........................... 216

— Section 68—Attesting witnesses—Limitation Act, 1963—

Article 137—Deceased executed Will dated 12.08.1971;

expired on 20.02.1984—Husband pre-deceased her—Survived

by five sons and three daughters—Property in question

comprise of a house in Karol Bagh—Bequeathed the ground

floor in favour son O.P.- first floor in favour of son V.P.—

Not give any share to other children—Will got registered during

her life time on 21.02.1978—All children of the testatrix except

the legal heir of V.P. had filed no objection to grant of

probate—Grant of probate sought on November 1994—

Objections filed inter-alia-alleging Will not executed by testatrix

in sound and disposing mind—She was completely deaf in

1971-not possible for anybody to communicate with her to

make her understand the contents of the Will—Also challenged

the execution, validity, contents and attestations of the Will

on the ground testatrix did not know English language—ADJ

observed the testimony of attesting witness does not inspire

confidence—Full of contradictions on material points—Cast

serious doubt on genuineness of Will—Not explained why Will

got registered after seven years of its execution and delay of

nine years in filing the probate petition—Dismissed probate

petition—Preferred appeal—Held—While granting the probate,

Court is obliged to see that there was no legal impediment in

the grant of probate—The only attesting witness denied the

signature of testatrix firstly on the Will itself in his

examination-in-chief and only on the suggestion in cross-

examination after about two years he remembered the testatrix

signing the Will—Second attesting witness not examined—The

attestation of Will by second witness not even whispered by

attesting witness—Attesting witness accepted testatrix did not

know English-9 years delay in filing probate petition not

explained—No reason to interfered with the decision—Appeal

Dismissed.

Yogesh Duggal & Ors. v. State & Ors. ..................... 175

INDIAN PENAL CODE, 1860—Section 302/34, 364—Case of

the prosecution that on night of incident, one Chotu

(absconder) went near tent house of PW3 at 9 p.m. and

started urinating—One person (not examined as witness)

objected. Chotu slapped him and left threatening to “see” him

later—Later Chotu returned at the spot with the two appellants

and the three attacked the deceased—Appellant Anil Kumar

held the deceased by his mouth while appellant Tika Ram

caught hold of him and Chotu hit the deceased with an iron

rod on the head—PW13 and 16 woke up and raised an alarm

on which assailants fled—Trial Court convicted appellants for

offence u/s 302/34—Held, plan or site map drawn to scale is

admissible only if the witnesses corroborate the draftsman’s

statement that they showed him the places—Unclear if PW

16 could see the appellants when the deceased was attacked—

From evidence there is no doubt about the presence of

appellants in the assault—To attract common intention, mere

presence of co-accused is not always sufficient—No

universally acceptable formula that in such instances, the

intention to cause death cannot be attributed to such non-

participating co-accused; at the same time courts has to

recognize the need to exercised caution—Contention of the

appellants that even if they were present, their common

intention to kill deceased could not be proved beyond

reasonable doubt—Evidence established the presence of

accused and PW13 and PW16 having known them—None of

the witnesses deposed that either appellant was armed—

Appellants not present when earlier quarrel had taken place—

The person with whom, the main assailant Chotu quarrelled

was not examined—He was not present at spot of occurrence

and his connection or relationship with deceased not proved—

Weapon of offence (saria) not described by witnesses and

(xxiii) (xxiv)

also not produced—Description given by PW16 about role

played by each appellant not clear—In view of uncertainty as

to role played by each appellant, it would not be possible to

discern a common intention to cause death of deceased—It

can be inferred that they shared the intention with the co-

accused to cause injury enough to subdue or take care of the

deceased i.e. intention of causing bodily injury as was likely

to cause death amounting to an offence punishable u/s 304

Part I—Appeals partly allowed—Conviction u/s 302/34 altered

to one u/s 304 Part I/34.

Anil Kumar Sharma @ Bobby v. Delhi State/NCT

Delhi .................................................................................. 82

— Section 302 and 34—Aggrieved appellants challenged their

conviction under Section 302/34—They urged, prosecution

witnesses i.e. brothers, mother and husband of deceased

turned hostile—Also, dying declaration of deceased can not

be sole basis of conviction as no fitness certificate given by

Doctor either on the dying declaration or just prior to making

dying declaration—Per contra, prosecution contended

appellants being mother in law, Jethani (wife of husband’s elder

brother), Devrani (wife of husband’s younger brother) and

Nanad (husband’s sister) held guilty for having burnt deceased

alive who received 90% burn injuries—Dying declaration of

stellar quality and wholly reliable; therefore it could be made

sole basis of conviction even though some prosecution

witnesses turned hostile—Held:- Endorsement on the dying

declaration “taken in my presence” cannot substitute for a clear

cut certificate of fitness—Moreover, endorsement on MLC “fit

for statement” should bear signatures of the doctor—Contents

of dying declaration do not inspire much confidence and

language in which it was recorded, was clearly not of deceased

but that of a police officer, so case against appellants not free

from doubt—Appellants acquitted.

Akbari Begum & Ors. v. State .................................... 328

— Section 363, 376, 511, Criminal Procedure Code, 1973—

Sections 235, 245, 325, 360, 361, 377—Aggrieved by judgment

and order on sentence, State preferred appeal on ground,

sentence of two and a half years imprisonment for conviction


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


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.


— Section 161—Prevention of Corruption Act, 1947—Sections

5(1) (d) and Sections 5 (2)—Respondent was supervisor of

Delhi Cantt. Area—He demanded Rs. 400/- for correction of

electoral rolls and addition of votes deleted—Raid conducted—

Respondent apprehended—After trial, the respondent was

(xxv) (xxvi)

acquitted—Appeal preferred by State—Held—It is evident that

in the entire testimony of PW-3 it is nowhere stated that the

Respondent demanded money—This evidence of PW3 is also

corroborated by PW 4 who also in his testimony does not

state that the Respondent demanded money; rather has stated

that at no stage money was demanded by the Respondent

either initially or at the time of trap—To constitute an offence

under Section 161 IPC & Section 5 (1) (d) of the Prevention

Corruption Act it is necessary that there is a demand of money

and the same is accepted for doing a favour—Demand of

Money is a sine qua non for the conviction of the accused—

Thus, in the absence of demand and the presumption, the

offence punishable under Sections 161 and 5 (1) (d) read with

5 (2) of the PC Act has not been proved beyond reasonable

doubt by the prosecution in the present case.

State (Govt. of NCT of Delhi) v. Girdhari

LaL Verma ...................................................................... 354

— Section 323, 148, 149—Moral Turpitude—Respondent

workman was employee of Delhi Vidyut Board—On

04.05.1973, he was convicted for offences punishable under

Sections 148/302/323 and 149 IPC—In Criminal appeal, the

High Court of Punjab and Haryana found him guilty of

offences under Sections 323/149/148 of IPC but the charges

levelled against him under Section 302 IPC were not found

to have been proven—On 30.09.1996, his services terminated

on the ground that he had been convicted for offences which

involved moral turpitude—Industrial dispute raised—Labour

Court vide award dated 17.12.2005, directed his reinstatement

with back wages and consequential benefits—Appellant

invoked jurisdiction—The workman was involved in

commission of a serious criminal offence which involved

moral turpitude—The workman contends that finding recorded

by labour Court is impeccable and do not warrant

interference—Single Judge held—The imposition of

punishment was excessive—The award passed by the labour

Court did not warrant interference—Letters Patent Appeal—

Held—The punishment under Section 323 of the IPC has a

different contour but when a person is convicted under Section

148 of the Act, it establishes, in a way, the nature, attitude,

proclivity and propensity of the person concerned—The

petitioner was working as a peon in the Delhi Vidyut Board—

He got himself involved in a criminal case of this nature and

eventually, the conviction has been recorded under Sections

323/149 and 148 of the IPC—Regard being had to the

conviction in respect of the nature of an offence, as engrafted

under Section 148 of the IPC, we are disposed to think that

it involves an offence involving moral turpitude.

BSES Rajdhani Power Ltd. v. Union of India

& Ors. ............................................................................. 429

INDUSTRIAL DISPUTES ACT, 1947—Section 10—Indian Penal

Code, 1860—Section 323, 148, 149—Moral Turpitude—

Respondent workman was employee of Delhi Vidyut Board—

On 04.05.1973, he was convicted for offences punishable

under Sections 148/302/323 and 149 IPC—In Criminal appeal,

the High Court of Punjab and Haryana found him guilty of

offences under Sections 323/149/148 of IPC but the charges

levelled against him under Section 302 IPC were not found

to have been proven—On 30.09.1996, his services terminated

on the ground that he had been convicted for offences which

involved moral turpitude—Industrial dispute raised—Labour

Court vide award dated 17.12.2005, directed his reinstatement

with back wages and consequential benefits—Appellant

invoked jurisdiction—The workman was involved in

commission of a serious criminal offence which involved

moral turpitude—The workman contends that finding recorded

by labour Court is impeccable and do not warrant

interference—Single Judge held—The imposition of

punishment was excessive—The award passed by the labour

Court did not warrant interference—Letters Patent Appeal—

Held—The punishment under Section 323 of the IPC has a

(xxvii) (xxviii)

different contour but when a person is convicted under Section

148 of the Act, it establishes, in a way, the nature, attitude,

proclivity and propensity of the person concerned—The

petitioner was working as a peon in the Delhi Vidyut Board—

He got himself involved in a criminal case of this nature and

eventually, the conviction has been recorded under Sections

323/149 and 148 of the IPC—Regard being had to the

conviction in respect of the nature of an offence, as engrafted

under Section 148 of the IPC, we are disposed to think that

it involves an offence involving moral turpitude.

BSES Rajdhani Power Ltd. v. Union of India

& Ors. ............................................................................. 429

— Section 17-B—Application under Section 17-B of the Act by

workman claiming that, he was not gainfully not employed

since 1994—Single Judge observed that the application was

filed in 2006 after 12 years—Workman directed to file his

statements of bank accounts from 1994 till date, Telephone

bills, whether he resided in his own premises or rented

premises and also an affidavit in corporating these facts—

Aggrieved, appellant filed Letter Patent Appeal—The affidavit

in terms of Section 17-B clearing stating that respondent

workman was not gainfully employed already filed—Such

inquiry is not permissible under Section 17-B—Held—It is the

duty of the Court to arrive at a conclusion with regard to the

entitlement of the benefit under Section 17-B of the Act

keeping in view the decisions in Dena Bank (supra), Viveka

Nand Sethi (supra) K.B. Singh & Ors. (supra), Vinod Kumar

(supra) and Bhagawan Giri (supra)—The writ court has to

see whether the workman received adequate remunertaion

during such period and whether the respondent-management

has produced ample material to show that the workman had

been really gainfully employed—Mere survival would not be

enough—It will depend upon the factum of adequacy of

amount received—In the case at hand, as we perceive, the

learned Single Judge has erroneously observed that the

workman had filed an application after 12 years as the same

is not factually correct—It is clear that the appellant filed the

application in quite promptitute—The information that have

been directed by the learned Single Judge to be given by the

workman are in the realm of roving enquiry putting the entire

burden on the workman—Such a roving enquiry, is

unwarranted and, accordingly, the order impugned set aside.

S.K. Mitra v. Asst. General Manager State Bank

of India ........................................................................... 262

INDIAN REGISTRATION ACT, 1908—Registered Will—Grant

of Probate—Indian Evidence Act, 1872—Section 68—

Attesting witnesses—Limitation Act, 1963—Article 137—

Deceased executed Will dated 12.08.1971; expired on

20.02.1984—Husband pre-deceased her—Survived by five

sons and three daughters—Property in question comprise of

a house in Karol Bagh—Bequeathed the ground floor in favour

son O.P.- first floor in favour of son V.P.—Not give any share

to other children—Will got registered during her life time on

21.02.1978—All children of the testatrix except the legal heir

of V.P. had filed no objection to grant of probate—Grant of

probate sought on November 1994—Objections filed inter-alia-

alleging Will not executed by testatrix in sound and disposing

mind—She was completely deaf in 1971-not possible for

anybody to communicate with her to make her understand

the contents of the Will—Also challenged the execution,

validity, contents and attestations of the Will on the ground

testatrix did not know English language—ADJ observed the

testimony of attesting witness does not inspire confidence—

Full of contradictions on material points—Cast serious doubt

on genuineness of Will—Not explained why Will got registered

after seven years of its execution and delay of nine years in

filing the probate petition—Dismissed probate petition—

Preferred appeal—Held—While granting the probate, Court is

obliged to see that there was no legal impediment in the grant

of probate—The only attesting witness denied the signature

(xxix) (xxx)

of testatrix firstly on the Will itself in his examination-in-chief

and only on the suggestion in cross-examination after about

two years he remembered the testatrix signing the Will—

Second attesting witness not examined—The attestation of Will

by second witness not even whispered by attesting witness—

Attesting witness accepted testatrix did not know English-9

years delay in filing probate petition not explained—No reason

to interfered with the decision—Appeal Dismissed.


INDIAN SUCCESSION ACT, 1925—WILL—Grant of

Probate—Appeal—Deceased, father of respondent no.1

executed registered Will in regard to self acquired property

in favour of respondent no.1, his daughter excluding wife and

son—Wife and son contested the proceedings for grant of

probate—Filed joint objections inter-alia Will obtained and

procured fraudulently—Respondent no.1 neither resident with

deceased at village nor looked after him—Right of deceased

to bequeath property through Will challenged—Property not

self acquired, being ancestral—Respondent no.1 contended

that deceased filed a suit against objector wherein admitted

execution of Will in favour of respondent no.1—Deceased

was suffering from cancer—Objector used to harass and

torture deceased during his last days—Deceased executed

GPA, Agreement to sell, Affidavit etc. in her favour and in

favour of her husband out of love and affection—Respondent

no.1 examined herself; attesting witnesses, officials of sub-

registrar—and witnesses to prove the drafting of Will and

attestation of other documents—Objectors examined

themselves—ADJ observed, none objected that, deceased was

not in sound, disposing mind or was incapable of understanding

consequences of disposition—Attesting witnesses

trustworthy—Execution of Will proved—Appellant admitted

litigations between them and the deceased—Appellant had filed

maintenance applications against deceased and was living

separately from the deceased—Even filed preventive

proceedings against deceased under Criminal Procedure

Code—ADJ Held—Strained relationship; pendency of civil and

criminal proceedings and living separately were valid grounds

in the mind of deceased to exclude his son and wife from

benefit of his estate—Conduct not unnatural—Question of

property being ancestral or self acquired left to be decided

by civil court of concerned jurisdiction—Held—Will

registered; proved by clerk; two attesting witnesses proved

the execution of Will—No evidence led by respondent to prove

Will in Question not signed by deceased testator—Admitted

criminal proceedings between deceased, and his wife and

sons—Appeal dismissed.

Smt. Chamno Devi v. Smt. Usha & Ors. ................... 133

— Section 278, 307—Late Rani Padmawati Devi died intestate

on 12.04.1987 leaving behind her husband, Raja Birendra

Bahadur Singh; two sons, namely Shivendra Bahadur Singh

(SBS) and Ravindra Bahadur Singh (RBS) and two daughters

Usha Devi and Sharda Devi—SBS filed Case No. 43/1987

seeking Letters of Administration under Section 278 of the

Indian Succession Act—The heirs of Late Rani Padmawati

Devi were respondent in the said petition—Issue was framed

on 18.3.1988—Letter of Administration granted to (LOA)

petitioners and petitioner SBS appointed as administrator—RBS

being the heir of her pre-deceased mother and claiming to have

1/5th share in the estate, filed application under Order IX Rule

13 of the CPC being IA No.4065/1988 on 18th July, 1988

setting aside the order dated 10th May, 1988 granting LOA—

Pending this application the petitioner under the authority of

LOA negotiated and entered into a sale transaction with the

appellant, Indian Associates. The purpose of transaction as

claimed by the petitioner as administrator was utilization of

the sale consideration to meet the liabilities relating to wealth

tax and income tax of the estate—According to appellant the

(xxxi) (xxxii)

agreement to sell was entered into on 9th September, 1988 and

a sale deed was executed by the administrator on 11th October,

1988, but the same was not registered by the sub-Registrar—

Miscellaneous petition filed before Madhya Pradesh High

Court—The said writ petition came to be dismissed by the

Madhya Pradesh High Court—It is noted that a case regarding

excess land than the prescribed limited under the Urban Land

Ceiling Act was pending against Rani Padmawati Devi since

1977 before the competent authority at Raipur (M.P.)—Certain

conditions/restriction on use and sale of land had been imposed

on Rani Padmawati Devi by the concerned authority of

Madhya Pradesh Government—Later, the concerned authority

granted permission to sell the lands—This was challenged by

respondent in Madhya Pradesh High Court by way of writ—

This writ was allowed and order dated 20th September, 1988

whereby permission was granted to sell the land was

quashed—The absolute power of disposal of property

conferred on an executor or administrator as envisaged under

sub-section (1) is subject to sub-section (2) of Section 307

of the Indian Succession Act. It was madatory to seek

permission of the Court granting the probate or the LOA. as

the case may be, before entering into transaction of disposal

of immovable property as vested in them in their capacity as

executor or the administrator—As per Section 317 of the Act,

the administrator was required to exhibit in the Court the

inventory containing full account of the properties including

the creditors and debtors—Mere agreement to sell would not

entitle the appellant to have much say in the present

proceeding—Of course, the appellant may have the remedy

somewhere else in some other proceedings—Unregistered sale

deed is not a complete sale—No doubt, the sale deed in the

present case was executed and presented before the Sub-

Registrar, but as noted above, same was not registered because

of persistent stay and also because of Urban Lan Ceiling Act—

Section 54 of the Transfer of Property Act, Stipulates that

sale or transfer of immovable property or other intangible thing

is to be only by way of registered sale deed/instrument—No

ground for inference—Appeal dismissed.

M/s Indian Associates v. The State and Others .......... 153

— Section 63 (c)—WILL—Indian Registration Act, 1908—

Registered Will—Grant of Probate—Indian Evidence Act,

1872—Section 68—Attesting witnesses—Limitation Act,

1963—Article 137—Deceased executed Will dated 12.08.1971;

expired on 20.02.1984—Husband pre-deceased her—Survived

by five sons and three daughters—Property in question

comprise of a house in Karol Bagh—Bequeathed the ground

floor in favour son O.P.- first floor in favour of son V.P.—

Not give any share to other children—Will got registered during

her life time on 21.02.1978—All children of the testatrix except

the legal heir of V.P. had filed no objection to grant of

probate—Grant of probate sought on November 1994—

Objections filed inter-alia-alleging Will not executed by testatrix

in sound and disposing mind—She was completely deaf in

1971-not possible for anybody to communicate with her to

make her understand the contents of the Will—Also challenged

the execution, validity, contents and attestations of the Will

on the ground testatrix did not know English language—ADJ

observed the testimony of attesting witness does not inspire

confidence—Full of contradictions on material points—Cast

serious doubt on genuineness of Will—Not explained why Will

got registered after seven years of its execution and delay of

nine years in filing the probate petition—Dismissed probate

petition—Preferred appeal—Held—While granting the probate,

Court is obliged to see that there was no legal impediment in

the grant of probate—The only attesting witness denied the


examination-in-chief and only on the suggestion in cross-

examination after about two years he remembered the testatrix

signing the Will—Second attesting witness not examined—The

attestation of Will by second witness not even whispered by

attesting witness—Attesting witness accepted testatrix did not

(xxxiii) (xxxiv)

know English-9 years delay in filing probate petition not

explained—No reason to interfered with the decision—Appeal

Dismissed.


LETTERS PATENT APPEAL—The appellant by the present LPA

has impugned the order dated 19.11.2009—Learned Single

Judge has quashed the demand for misuse charges and interest

as well as show cause notice—Further directed that on paying

Rs.6,37,123.73 towards misuse charges to the appellant, the

respondent’s application for conversion of the property from

lease hold to free hold shall be considered—The property

originally allotted to Tara Singh—Papers including Power of

attorney executed by Tara Singh submitted—Rs.43,337/- on

self assessment and Rs.10,561/- deposited towards

compensation fee pursuant to the letter written by the

appellant—Respondent received unstamped and unexecuted

conveyance deed with direction to get it stamped from the

Collector of Stamps—Respondent waited for about six years

and got the conveyance deed stamped on payment of

Rs.5,655/- and submitted the document vide receipt dated

30.10.2001—The property was being misused—In the present

case, the payment towards conversion charges including the

composition fee applicable as in cases of power of attorney

transaction was made on 20th December, 1994. Thereafter,

notice along with conveyance deed was sent to the respondent

on 7th March 1995 with direction to get it stamped from the

collector of Stamps. The aforesaid exercise was required to

be completed within 45 days, but the respondent had

deposited the original paper after getting the conveyance deed

stamped only on 6th October, 2001—It is held that the date

when the respondent had submitted the conveyance deed after

stamping should be treated as the date on which the complete

application for conversion was filed—The date on which the

respondent had made the payment or had received the copy

of the conveyance deed for stamping should be ignored and

should not be taken as the relevant point.

Delhi Development Authority v. Hans Raj Batheja ... 141

LIMITATION ACT, 1963—Article 137—Deceased executed Will

dated 12.08.1971; expired on 20.02.1984—Husband pre-

deceased her—Survived by five sons and three daughters—

Property in question comprise of a house in Karol Bagh—

Bequeathed the ground floor in favour son O.P.- first floor in

favour of son V.P.—Not give any share to other children—

Will got registered during her life time on 21.02.1978—All

children of the testatrix except the legal heir of V.P. had filed

no objection to grant of probate—Grant of probate sought on

November 1994—Objections filed inter-alia-alleging Will not

executed by testatrix in sound and disposing mind—She was

completely deaf in 1971-not possible for anybody to

communicate with her to make her understand the contents

of the Will—Also challenged the execution, validity, contents

and attestations of the Will on the ground testatrix did not

know English language—ADJ observed the testimony of

attesting witness does not inspire confidence—Full of

contradictions on material points—Cast serious doubt on

genuineness of Will—Not explained why Will got registered

after seven years of its execution and delay of nine years in

filing the probate petition—Dismissed probate petition—

Preferred appeal—Held—While granting the probate, Court is

obliged to see that there was no legal impediment in the grant

of probate—The only attesting witness denied the signature

of testatrix firstly on the Will itself in his examination-in-chief

and only on the suggestion in cross-examination after about

two years he remembered the testatrix signing the Will—

Second attesting witness not examined—The attestation of Will

by second witness not even whispered by attesting witness—

Attesting witness accepted testatrix did not know English-9

years delay in filing probate petition not explained—No reason

to interfered with the decision—Appeal Dismissed.


(xxxv) (xxxvi)

PREVENTION OF CORRUPTION ACT, 1947—Sections 5(1)

(d) and Sections 5 (2)—Respondent was supervisor of Delhi

Cantt. Area—He demanded Rs. 400/- for correction of

electoral rolls and addition of votes deleted—Raid conducted—

Respondent apprehended—After trial, the respondent was

acquitted—Appeal preferred by State—Held—It is evident that

in the entire testimony of PW-3 it is nowhere stated that the

Respondent demanded money—This evidence of PW3 is also

corroborated by PW 4 who also in his testimony does not

state that the Respondent demanded money; rather has stated

that at no stage money was demanded by the Respondent

either initially or at the time of trap—To constitute an offence

under Section 161 IPC & Section 5 (1) (d) of the Prevention

Corruption Act it is necessary that there is a demand of money

and the same is accepted for doing a favour—Demand of

Money is a sine qua non for the conviction of the accused—

Thus, in the absence of demand and the presumption, the

offence punishable under Sections 161 and 5 (1) (d) read with

5 (2) of the PC Act has not been proved beyond reasonable

doubt by the prosecution in the present case.

State (Govt. of NCT of Delhi) v. Girdhari

LaL Verma ...................................................................... 354

RAILWAY PROTECTION FORCE (RPF) RULES, 1987—

Service Law—Petitioner constable in RPF attached with a
















































(xxxvii) (xxxviii)








Dismissed.


SERVICE LAW—Petitioner constable in RPF attached with a























































Dismissed.


SPECIAL ECONOMIC ZONES ACT, 2005—Section 26(1) (e),

26(2), 51, 55 and 58—Special Economic Zone Rules, 2006—

Rule 31—Central Excise Act, 1994—Section 37B—Payment

of whole service tax exempted on services provided to a

(xxxix) (xl)

Developer or Units of SEZ by any service provider, for

purpose of development, operation and maintenance of SEZ

or for setting up of a SEZ unit or for manufacture of goods

by SEZ Units, on satisfaction of certain conditions—Impugned

circular clarified that service tax is exempted on provision of

only such services which are rendered by service providers

to Developer or Unit for its authorized operation within area

of SEZ—Circular challenged in writ petition before High Court

—Plea taken, only condition required for availing exemption

from payment of service tax by a Developer/Entrepreneur is

that taxable service should be used for carrying on authorized

operations by Developer/Entrepreneurs—Location of service

provider or place of service is entirely irrelevant for purpose

of this exemption—Per contra plea taken, service tax

exemption is available only for services which are provided

to carry on authorized operation in a SEZ—Held—Only

condition that is required to be satisfied to avail service tax

benefit is that services must be rendered for purpose of

carrying out ‘‘authorized operations in a special economic

zone’’—If intention of legislature was to exempt only those

services from levy of service tax that are rendered within SEZ,

legislature would have categorically stated so in statute—A

subordinate legislation has to confirm to parent statute and any

subordinate legislation inconsistent to provisions of parent

statute is liable to be set aside—Circulars being executive/

administrative in character cannot supersede or override Act

and statutory Rules—Impugned circular seeks to impose a

condition that was not intention of legislature in SEZ Act or

Rules and is liable to be set aside.


India & Ors. .................................................................. 373

SPECIAL MARRIAGE ACT, 1954—Section 7, 8, 13(2), 15(a),

16, 24(2), 25 (iii) (a & b), 39, 40 (c)—Indian Evidence Act,

1872—Section 4 and 36—Constitution of India, 1950—Article

25 and 26— Respondent filed a petition for declaring

(xli) (xlii)

registration of her marriage with appellant to be of no effect—

As per respondent, for membership of library in Jama Masjid,

appellant persuaded respondent to convert to Islam for this

purpose—Respondent singed certain documents which

appellant claimed to be registration of marriage and conversion

certificate and that by virtue of those respondent became his

wife—Petition allowed by Trial Court—Order challenged in

appeal—Plea taken, trial Court committed jurisdiction error in

entertaining suit of respondent—Documentary evidence to

prove conversion of respondent from Hindu religion to Muslim

religion ignored by trial Court—Respondent did not file any

objection to registration of marriage—Per contra, plea taken

respondent had never changed her religion and there is no

marriage which can be said to have taken place between

appellant and respondent—Held—In certain situations one

party to marriage belonging to one religion can take a decision

to embrace religion of other party but such a conversion should

not be undertaken merely to achieve purpose of marriage—It

should be done to embrace new religion with a will and desire

to completely follow tenets of new religion while

simultaneously forsaking tenets of religion being professed by

a person prior thereto—Respondent got prepared her

conversion certificate to marry appellant—She feigned to have

adopted another religion for purpose of wordly gain of

marriage—Trial Court rightly held there was no conversion

of respondent from Hinduism to Islam—Except nikahnama

nothing proved on record to establish fact that essential

requirement of offer and acceptance was made by parties in

presence and hearing of witnesses—Registration of marriage

was obtained in violation of mandatory conditions required for

purpose of registration as parties had never lived together since

their marriage—Marriage certificate is conclusive evidence to

prove its issuance by a proper and competent marriage officer

after following due procedure prescribed under Act and Rules

framed thereunder—Said conclusive evidence cannot come in

way of parties challenging such a marriage certificate or

marriage itself—No merit in present appeal.

Faheem Ahmed v. Maviya @ Luxmi ........................... 216

SPECIFIC RELIEF ACT, 1963—Agreement to sell—Father of

petitioner entered into agreement to sell suit property in year

1978—Suit for specific performance decreed by ADJ in

favour of plaintiff in year 1987—Civil appeal dismissed by

Supreme Court in year 2007—DDA demanded unearned

increase (UEI)—Demand challenged in High Court—Plea

taken, crucial date for determining market rate for UEI would

be date of agreement to sell and not date of decree of trial

Court—Per contra, plea taken up to time of decree of trial

Court, transaction between parties was incomplete and attained

finality after decision of Supreme Court—DDA acted

reasonably and took date of decree of trial Court as relevant

date—Held—For purpose of calculation of UEI, date of

transaction has necessarily to be date of agreement to sell

which indicates sale consideration—Transfer emanates from

agreement to sell itself as that would have logically led to

execution of sale deed—Supreme Court directed petitioner to

pay Rs. 5 lacs as a matter of good gesture—For all practical

purposes sale consideration should be sum mentioned in

agreement to sell plus Rs. 5 lacs—DDA directed to issue fresh

demand of UEI.

Rajiv Goela and Anr. v. Delhi Development

Authority ............................................................................. 1

TRADE MARKS ACT, 1999—Deceptive similarity—Plaintiff

owning and managing destination spas, luxury business leisure

hotels in India and abroad providing services under Trade

Mark and Service Mark ‘Ananda’—Pre-launch advertising

campaign of residential complex under name ‘Park View

Ananda’ launched by defendant for promoting residential

complexes—Claim of plaintiff that defendant adopted well

known mark ‘Ananda’ to create association with plaintiff’s

properties and to ride on goodwill and reputation of plaintiff—

Held, difficult to accept that trade mark ‘Ananda’ had become

a well known trade mark or that it came to be associated

exclusively with plaintiff’s company so as to indicate a

connection with the plaintiff company—No material on record

to show that the mark ‘Ananda’ had acquired such a high

brand equity in India that its use by persons other than plaintiff

would dilute its reputation—Difficult to say that word

‘Ananda’ had become distinctive with plaintiff company— No

evidence of any legal proceedings having been initiated by the

plaintiff company against registration and/or user of ‘Ananda’

by others—Goods and services of defendant in wholly

unrelated category compared to plaintiff—Plaintiff failed to

make out prima facie case for grant of injunction against

defendant—Application dismissed.

IHHR Hospitality Pvt. Ltd. v. Bestech India

Pvt. Ltd. ......................................................................... 364

VOLUNTARY RETIREMENT SCHEME (VRS)—Entitlement to

benefit of pension scheme—Respondent introduced VRS

before the pension scheme became operational—Appellants

contended that they opted for pension scheme and therefore

be paid pension fact that scheme became operational later-no

effect. Held—In LPA No.1262/2007 dated 5th October, 2007,

Delhi Transport Corporation vs. Kishan Lal Sehgal and

Ors. Held-entitled to pension-in W.P.(C) No. 14027/2009

[DTC Vs. Madhu Bhushan Anand, 2010 (172) DLT 668]

right to pension was denied as higher ex-gratia was paid-ratio

cannot be reconciled matter referred to larger bench.

R.D. Gupta & Ors. v. D.T.C. & Anr. ........................ 277

(xliii) (xliv)

Indian Law Reports (Delhi) ILR (2011) VI Delhi

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1 2Rajiv Goela and Anr. v. Delhi Development Authority (S. Muralidhar, J.)

a sale, which could even be an illegal sale. Usually, the

guideline value or prevalent market rate of properties in the

locality would be considered for determining whether the

sale consideration shown in the agreement to sell reflects

the true market value for the purposes of calculating the

UEI. The difference between the sale consideration calculated

at such market value and the original premium charged for

the plot could give an indication of the profit earned for the

purposes of calculation of UEI. (Para 12)

Important Issue Involved: For the purpose of calculating

Unearned Increase, it is not possible to shift the date of

transaction from date of agreement to sell to some other

date on which trial Court decrees the suit for specific

performance.

[Ar Bh]

APPEARANCES:

FOR THE PETITIONERS : Mr. Sachin Chopra, Advocate.

FOR THE RESPONDENT : Mr. Rajiv Bansal, Advocate.

RESULT: Allowed.

S. MURALIDHAR, J.

1. The prayer in this writ petition is for a direction to quash a

demand of Rs.53,39,816/- raised in a sale permission letter dated 15th

January, 2009 issued by the Respondent Delhi Development Authority

(hereinafter referred to as ‘DDA’). The Petitioners seek a direction to the

DDA to re-issue a revised sale permission letter with the demand calculated

on the basis of rates prevalent on 24th March, 1978 in the areas adjoining

the area in which the property in question, that is at B-334, New Friends

Colony, is situated.

2. In relation to the property in question, the DDA executed a lease

deed on 2nd July, 1974 in favour of Shri D.N. Sharma for an amount

of Rs.24,096.14. Thereafter the father of the Petitioners, Shri Shyam

Shankar Goela entered into an agreement to sell dated 24th March, 1978

ILR (2011) VI DELHI 1

WP (C)

RAJIV GOELA AND ANR. ....PETITIONERS

VERSUS

DELHI DEVELOPMENT AUTHORITY ....RESPONDENT

(S. MURALIDHAR, J.)

WP (C) NO. : 9326/2009 DATE OF DECISION: 09.02.2011

Specific Relief Act, 1963—Agreement to sell—Father

of petitioner entered into agreement to sell suit

property in year 1978—Suit for specific performance

decreed by ADJ in favour of plaintiff in year 1987—

Civil appeal dismissed by Supreme Court in year 2007—

DDA demanded unearned increase (UEI)—Demand

challenged in High Court—Plea taken, crucial date for

determining market rate for UEI would be date of

agreement to sell and not date of decree of trial

Court—Per contra, plea taken up to time of decree of

trial Court, transaction between parties was incomplete

and attained finality after decision of Supreme Court—

DDA acted reasonably and took date of decree of trial

Court as relevant date—Held—For purpose of

calculation of UEI, date of transaction has necessarily

to be date of agreement to sell which indicates sale

consideration—Transfer emanates from agreement to

sell itself as that would have logically led to execution

of sale deed—Supreme Court directed petitioner to

pay Rs. 5 lacs as a matter of good gesture—For all

practical purposes sale consideration should be sum

mentioned in agreement to sell plus Rs. 5 lacs—DDA

directed to issue fresh demand of UEI.

The idea of charging UEI is to recover for the DDA a portion

of the profit/gain earned by the allottee of plot by virtue of

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Indian Law Reports (Delhi) ILR (2011) VI Delhi3 4Rajiv Goela and Anr. v. Delhi Development Authority (S. Muralidhar, J.)

with one Shri D.N. Sharma for sale of the property in question for a total

sale consideration of Rs.85,000/-. Annexure P-1 to the writ petition is a

receipt, which acknowledges payment by Shri Shyam Shankar Goela of

a sum of Rs.8,500/- and contains a clause that Shri Shyam Shankar

Goela will pay the balance amount of Rs.76,500/- “within 15 days from

the date the plan is approved by the DDA.”

3. When Mr. D.N. Sharma did not perform his part of the obligations,

the father of the Petitioners filed a suit, Civil Suit No.129/1980, for

specific performance of the agreement to sell dated 29th March 1978.

Suit No.129/1980 was decreed by the learned Additional District Judge

on 31st March, 1987. The learned ADJ held that the agreement/receipt

dated 24th March, 1978 was a proper agreement to sell between the

parties. The defendants were directed to execute the sale deed in respect

of the property in question in favour of Shri Shyam Shankar Goela.

4. Shri D.N. Sharma and his son preferred an appeal being RFA

No.350/1987 in this Court. A show cause notice was issued by the DDA

on 20th June, 1997 to Shri D.N. Sharma stating, inter alia, that it had

come to the notice of the DDA that Shri D.N. Sharma had “sold the plot

to Shri Shyam Shankar Goela without the prior permission of the lessor”

and thus committed breach of Clause II (6) (b) of the said sub-lease

deed. This was followed by further show cause notices dated 4th March,

1998 and 6th November, 1998 by the DDA to Shri D.N. Sharma.

5. Shri D.N. Sharma then filed Civil Writ Petition No. 898 of 1999

against the DDA in this Court in which it was prayed that DDA should

be restrained from cancelling the sub-lease deed in view of the judgment

dated 31st March, 1987 of the learned Additional District Judge in Suit

No.129/1980. In a reply filed to the said writ petition, the DDA accepted

that there had been an agreement dated 24th March, 1978 entered into

between Shri D.N. Sharma and Shri Shyam Shankar Goela, which

mentions the sale consideration as Rs.85,000/- and further that a sum of

Rs.8,500/- had been paid by Shri Shyam Shankar Goela to Shri D.N.

Sharma as part payment.

6. RFA No. 350 of 1987 was dismissed by this Court on 4th

September, 2001. Thereafter Shri Vishwanath Sharma, son of Shri D.N.

Sharma filed Civil Appeal No.6700/2004 in the Supreme Court. The said

appeal was dismissed by the Supreme Court on 26th February, 2007. In

its counter affidavit and the additional affidavit filed in the Supreme

Court, the DDA stated that it was entitled to recover unearned increase

(‘UEI’) since the property in question had been transferred through a sale

receipt dated 24th March, 1978. It was maintained by the DDA that

execution of the sale receipt and other documents amounted to an illegal

sale of the plot.

7. The Petitioners, as legal heirs of Shri Shyam Shankar Goela,

applied on 30th April, 2007 to the DDA for mutation of the property in

question in their names and for extension of time of two years to construct

a building on the plot. Further applications were made on 17th and 18th

July, 2007 by the Petitioners for early action on the above request.

Several reminders were sent in the months of August, September, October

and November, 2007. In the meanwhile, Shri D.N. Sharma, through his

legal heirs, filed an affidavit in C.W.P.No.898/1999 in this Court seeking

to withdraw the said writ petition. Thereafter on 15th January, 2009, the

impugned letter was issued by the DDA granting sale permission subject

to payment of Rs.53,39,816/- on account of UEI being 50% in the value

of the plot along with interest up to 31st January, 2009.

8. An order dated 1st June, 2010 was passed by this Court which

reads as under:-

“1. The petitioners have filed the present petition seeking directions

to quash the demand made by the DDA in the sum of

Rs.53,39,816/- as raised vide sale permission letter dated

15.1.2009. During the pendency of this matter, present application

has been filed by the petitioners seeking permission for mutation/

construction of building on the plot, on their depositing the entire

amount, as demanded by the DDA, without prejudice to their

rights and contentions.

2. Reply to this application has been filed. In paras 5 (a) to (d)

of the reply, the stand taken by the DDA is as under:

(a) On payment of Rs. 63,41,042/- (Rs.53,39,816 on account of

unearned increase interest upto 31.01.2009, demand which has

already been raised vide letter dated 15.01.2009 and Rs.

10,01,216/- on account of further interest upto 14.06.2010), the

DDA will grant mutation of the premises in question in favour


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5 6Rajiv Goela and Anr. v. Delhi Development Authority (S. Muralidhar, J.)

of the petitioners.

(b) DDA will also grant extension of time later on as per the

relevant policy.

(c) Conversion can only be applied in respect of the built up

property. DDA will process the case of the petitioners as per the

conversion policy as and when the petitioners apply for conversion

after completion of building on the plot in question subject to

fulfillment of all the relevant formalities.

(d) DDA will issue No Objection certificate only on clearance of

all the outstanding dues by the petitioners towards DDA.

3. Counsel for the petitioners, on instructions from Mr. Rajiv

Goela and Mr. Rahul Goela, petitioners, who are present in Court,

submits that petitioners are willing to accept the terms and

conditions as set out by the DDA in para 5 of the counter

affidavit.

4. Accordingly, the present application is allowed. Petitioner shall

deposit the amount, demanded by the DDA, within two weeks.

DDA shall carry out the necessary mutation within a period of

four weeks thereafter and also consider granting extension of

time for carrying out construction. The petitioners shall make

the deposit without prejudice to their rights and contentions and

subject to final outcome of the writ petition.

5. Application stands disposed of.”

9. In terms of the above order, the Petitioners paid the sum demanded

to DDA without prejudice to their rights and contentions.

10. Mr. Sachin Chopra, learned counsel for the Petitioners, relied

upon a Circular dated 16th August, 2005 whereby the DDA issued

guidelines for computing UEI. In para 1 of the Circular, it was stated that

the crucial date for determining the market rate for calculation of UEI

would be the date of the transaction, “whether in the form of sale/

transfer/transfer of shares etc......” It is submitted that the date of

transaction should be taken to be the date of the agreement to sell.

Instead, the DDA has taken the date of the trial court decree to be the

relevant date for determining the UEI. The DDA could not possibly go

against its own guidelines and dispute the agreement to sell, the validity

of which has been affirmed up to the Supreme Court.

11. The stand of Mr. Rajiv Bansal, learned counsel appearing for

the DDA is that up to the time of the judgment and decree of the trial

court dated 31st March, 1987, the transaction between the parties was

incomplete. It is stated that finality to the transaction was attained only

after the order dated 26th February, 2007 was passed by the Supreme

Court, dismissing the Civil Appeal No.6700/2004. It is submitted that

instead of taking that date to be the relevant date for the purpose of

calculating UEI, the DDA has in fact acted reasonably in taking the

relevant date for that purpose to be 31st March 1987. Consequently, the

sale permission letter dated 15th January 2009 was valid and did not call

for interference. As regards the Circular dated 16th August 2005, it is

stated that since the transaction between the parties was affirmed only

when the trial court decreed the suit for specific performance, the relevant

date should be 31st March, 1987. It is submitted that any noting to the

contrary in the file of the DDA did not amount to the decision of the

DDA. Mr. Bansal submitted that a perusal of the receipt/agreement to sell

would show that the sale was, in fact, not yet complete as no plan has

been submitted to the DDA for its approval.

12. The above submissions have been considered. The idea of

charging UEI is to recover for the DDA a portion of the profit/gain

earned by the allottee of plot by virtue of a sale, which could even be

an illegal sale. Usually, the guideline value or prevalent market rate of

properties in the locality would be considered for determining whether

the sale consideration shown in the agreement to sell reflects the true

market value for the purposes of calculating the UEI. The difference

between the sale consideration calculated at such market value and the

original premium charged for the plot could give an indication of the

profit earned for the purposes of calculation of UEI.

13. It is not possible to accept the contention of the DDA that the

date of transaction in the present case should be taken to be 31st March

1987, the date on which the trial court decreed the suit for specific

performance. No doubt that the sale had to take place within 15 days

from the date of approval of the plan by the DDA. However, without sale

permission being granted, there was no question of the plan submitted by

the Petitioners being approved by the DDA. Therefore, everything hinges

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Indian Law Reports (Delhi) ILR (2011) VI Delhi7 8Rajiv Goela and Anr. v. Delhi Development Authority (S. Muralidhar, J.)

on the sale permission to be granted by the DDA. The sale consideration

appears on the agreement to sell dated 24th March, 1978. For the purpose

of calculation of UEI, the date of transaction has necessarily to be taken

to be the date of 24th March, 1978, which indicates what the sale

consideration is. It is not the DDA’s case that the sale consideration, as

shown in the said document, is less than the prevalent market rate as on

that date. The parties had not agreed to any higher sale consideration. It

is not, therefore, possible to accept the submission that the date of

transaction can get shifted to some other date on which the trial court

decrees the suit for specific performance. The trial court, in doing so,

only affirmed that an agreement to sell was a valid document and that

a sale deed ought to have been executed in terms of such an agreement

to sell.

14. It was argued by Mr. Bansal that the words “sale/transfer/

transfer of shares etc…..” occurring in para 1 of the Circular dated 16th

August, 2005 would not include the date of an agreement to sell since

no transfer had actually taken place by virtue thereof. This militates

against the DDA’s understanding, as is evident from the affidavits filed

by it in the proceedings in the suit for specific performance, which went

up to the Supreme Court. The transfer in case emanates from the

agreement to sell itself as that would have logically led to the execution

of the sale deed for which the Petitioner’s father had to approach the

Civil Court.

15. As regards the sale consideration, although the agreement to sell

itself indicates it to be Rs.85,000/-, the total consideration now stands

increased by virtue of the judgment of the Supreme Court dated 26th

February, 2007. While dismissing the appeal filed by Shri Vishwanath

Sharma, the Supreme Court directed the Petitioners herein to pay a sum

of Rs.5 lacs “as a matter of good gesture”. It was argued by Mr. Sachin

Chopra, learned counsel for the Petitioners that this was not meant to

enhance the sale consideration but was an additional sum paid by the

Petitioners by way of a good gesture. However, it is in this case that

there cannot be an execution of the sale deed in terms of the decree for

specific performance without the Petitioners paying the aforementioned

additional sum of Rs.5 lacs to Shri Vishwanath Sharma. For all practical

purposes, therefore, the sale consideration should be taken to be Rs.85,000/

- plus Rs.5 lacs, i.e., Rs.5,85,000/-.

16. The DDA would, therefore, be justified in calculating the unearned

increase on the basis that the sale consideration for the property in

question is Rs.5,85,000/-.

17. Consequently, it is directed that the DDA will now issue a

revised sale permission by issuing the demand of unearned increase

calculated on the basis of the sale consideration being Rs.5,85,000/- with

interest and other charges calculated as per the DDA’s policy.

18. The Petitioners have already made a deposit of the amount of

Rs.53,39,816/- together with interest. The balance amount, if any, after

calculating the unearned increase payable by them in terms of this order,

will be refunded to the Petitioners by the DDA together with simple

interest @ 6% per annum on the differential amount, within a period of

four weeks from today.

19. The writ petition is disposed of with the above directions.


CS (OS)

FITZEE LTD. ....PLAINTIFF

VERSUS

BRILLIANT TUTORIALS (P.) LTD. ....DEFENDANT

(V.K. JAIN, J.)

CS (OS) NO. : 661/2005 DATE OF DECISION: 28.02.2011

Code of Civil Procedure, 1908—Order XXXIX, Rule 1 &

2—Suit for permanent injunction for restraining

defendant no.1 from poaching faculty members of

defendant no. 1 or from instigating them to quit the

plaintiff company and join them—Defendant objected

that injunction claimed would have the effect of

curtailing the freedom given to its employees to


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9 10Fitzee Ltd. v. Brilliant Tutorials (P.) LTd. (V.K. Jain, J.)

improve their future prospects and service

conditions—Held—There is no contract between the

plaintiff company and defendant no. 1 company not to

poach on the employees of each other—In the absence

of any such contract, nothing in law prevented

defendant no. 1 company from approaching the

employees of plaintiff company and offering better

service conditions to them—Therefore, it cannot be

said that any legal injury was caused to the plaintiff-

company by the alleged poaching or any legal right,

vesting in the plaintiff-company, was violated by

defendant No.1 company—Suit dismissed with cost.

Assuming that defendant No.1-company had approached

the employees of the plaintiff-company and offered better

salaries to them, no legal right of the plaintiff-company has

been violated by defendant No.1-company by such an act

on its part. There is no contract between the plaintiff-

company and defendant No.1-company not to pouch on the

employees of each other. In the absence of any such

contract, nothing in law prevented defendant No.1-company

from approaching the employees of the plaintiff-company

and offering better service conditions to them. Therefore, it

cannot be said that any legal injury was caused to the

plaintiff-company by the alleged poaching or any legal right,

vesting in the plaintiff-company, was violated by defendant

No.1-company. (Para 13)

[Vi Ba]

APPEARANCES:

FOR THE PLAINTIFF : None.

FOR THE DEFENDANT : Mr. K.K. Rohtagi, for Defendant No.

1.

CASES REFERRED TO:

1. Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee (2009)

9 SCC 221.

2. Narbada Devi Gupta vs. Birendra Kumar Jaiswal (2003)8

SCC 745.

3. Superintendence Company of India vs. Krishan Murgai

(1981) 2 SCC 246.

4. Niranjan Shankar Golikari vs. The Century Spinning and

Mfg. Co., (1967) 2 SCR 378.

5. Judah vs. Isolyne Bose, AIR 1945 PC174.

6. W.H. Milsted and Son Ltd. vs. Hamp: (1921) 2 AC 158.

RESULT: Suit is dismissed with cost.

V.K. JAIN, J.

1. This is a suit for permanent injunction.

2. The plaintiff company is engaged in imparting specialized coaching

to students for the purpose of enabling them to get through JEE

examination conducted by various IITs all over the country. The plaintiff

claims to have attained immense goodwill and reputation on account of

constant good results in the aforesaid examination. The plaintiff company

has been appointing faculty members for conducting class room training

and coaching of students. It is claimed that the faculty members are

given training so as to maintain uniform standard of teaching, culture

etc., which is imparted on regular basis. It is further claimed that the

training to the faculty members includes lectures by the persons possessing

high skill and expertise, who give teaching tips to the faculty members,

and is imparted for a minimum period of three months. The plaintiff

company claims to be incurring substantial expenditure on the aforesaid

training.

3. Defendant No.1 is also a company engaged in coaching the

students, who want to appear in JEE examination conducted by IITs.

Defendant No.1 also imparts coaching to students for other competitive

examinations such as IIT-JEE, AIEEE, MBBS, IAS etc. It has been

alleged by the plaintiff that defendant No.1 has infrastructure to train

faculty and is dependent on the trained faculty members of the plaintiff

company and, therefore, it has been indulging in poaching so as to take

away trained faculty members of the plaintiff company in the middle of

sessions leaving the students in a lurch and causing immense loss to the

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Indian Law Reports (Delhi) ILR (2011) VI Delhi11 12Fitzee Ltd. v. Brilliant Tutorials (P.) LTd. (V.K. Jain, J.)

plaintiff company. It is alleged that besides offering lucrative salary package

and other monetary benefits, defendant No.1 also represents the faculty

members of the plaintiff that their chances of growth are minimal with

the plaintiff company.

It is also alleged that defendant No.2 was targeted by defendant

No.1 for this purpose but he refused to accept the unethical offer given

to him and he was compelled to write a letter to the plaintiff company

informing him about the disturbance created by defendant No.1. It is

further alleged that defendant No.3 was also approached by defendant

No.1 in the similar manner with the object of getting trained faculty

members without imparting training to them.

4. The plaintiff has sought permanent injunction restraining defendant

No.1 from poaching the factually members of the plaintiff company

including defendant Nos. 2 and 3, or from instigating them to quit the

plaintiff company and join them. It has also sought injunction restraining

defendant Nos. 2 and 3, from joining defendant No.1 in the act of

poaching triggered by defendant No.1.

5. Defendant No.1 has contested the suit. It has taken a preliminary

objection that since the injunction claimed by the plaintiff would have the

effect of curtailing the freedom given to its employees to improve their

future prospects and service conditions by changing their employment,

no such injunction can be granted to the plaintiff. On merits, defendant

No.1 has denied that the plaintiff company is imparting any training to

its faculty members. Defendant No.1 has denied the alleged poaching and

having caused any loss to the plaintiff company.

6. Defendant No.2 was proceeded ex-parte vide order dated 25th

February, 2009 whereas the name of defendant No.3 was deleted from

the array of defendants vide order dated 9th April, 2009.

7. The following issues were framed on the pleadings of the parties:-

“1. Whether the plaintiff has any right to injunct the defendant

from poaching its faculty members? OPP.

2. Whether the plaintiff has trained its faculty & incurred any

costs in training, if so to what effect? OPP.

3. Relief.”

Issues No. 1 and 2

8. The plaintiff has filed the affidavit of Col. K.C. Oberoi (Retd.),

Senior Manager (HRD) by way of evidence whereas defendant No.1 has

filed the affidavit of his Manager (HRD), Mr. D.K. Gupta by way of

evidence.

9. In his affidavit by way of evidence, Mr K.C. Oberoi has stated

that all faculty members and staff of the plaintiff-company are required

to undergo training to maintain uniform standard of teaching, philosophy

of the company and to work cohesively as a team. The training is

imparted in terms of manual Ex.P-4. He has further stated that substantial

expenditure involved in training the faculty members so that success rate

of students is remarkably good with more chances of success. He has

also stated that the defendant-company indulges in taking away their

trained faculty members, by enticing them and by offering a little more

salary perks, etc. According to him, this is done in the middle of the

session, thereby leaving the students in a lurch. He has further stated that

defendant No.2 was approached by defendant No. 1, but he refused to

accept the offer given to him and wrote a letter Ex.P-5 in this regard.

According to him, Ex.P-7 is the letter which defendant No. 3 had written

to the plaintiff-company.

10. In rebuttal, Mr D.K. Gupta of defendant No.1-company has

stated that defendants 2 and 3 are not the faculty members of the

plaintiff-company and, in fact, they do not exist. He has further stated

that defendant No.1-company never approached either defendant No. 2

or defendant No. 3 with any offer, for any purpose. He has also stated

that two false and frivolous cases have been filed by the plaintiff-company

against defendant No. 1 before MRTP Commission with a view to destroy

the energies of defendant No. 1-company and to harass it.

11. The first question which comes up for consideration in this

regard is as to whether the plaintiff has been able to prove that defendant

No. 1 had made any attempt to instigate or entice its employees, to quit

the service of plaintiff and join defendant No. 1-company. No employee

has been produced by the plaintiff-company to prove that any officer/

official of defendant No. 1-company had approached him and offered

employment with defendant No. 1-company. The case of the plaintiff in

this regard is based wholly upon three documents Ex.P-5, Ex.P-6, Ex.P-


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13 14Fitzee Ltd. v. Brilliant Tutorials (P.) LTd. (V.K. Jain, J.)

7. Ex.P-5 is the letter purporting to be written by defendant No. 2 to Mr

Partha Haldar, Centre In-charge (NW) of the plaintiff-company, whereas

Ex.P-6 is the letter purporting to be written by Mr Partha Haldar to the

Chairman of the plaintiff-company. Ex.P-7 is the letter purporting to be

written by defendant No. 3 to the Managing Director of the plaintiff-

company. The letter Ex.P-6 only refers to the offer alleged to have been

made by defendant No. 1-company to defendant No. 2 Ateet Mittal, to

join defendant No.1-company on a big salary. No offer is alleged to have

been made by defendant No.1-company to Mr Partha Haldar himself, nor

does he claim to be a witness to Mr Ateet Mittal, being approached by

defendant No.1-company to join its service on a higher salary. Therefore,

this document does not prove the alleged pouching by defendant No.1.

As regards the letters Ex.P-5 and P-7, neither Mr Ateet Mittal, who

purports to have been written the letter Ex.P-5, nor Dr P. K. Sharma,

who purports to have been written the letter Ex.P-7, have not been

produced in the witness-box. Even if it is assumed that the documents

Exs.P-5 and P-7 have been duly proved by the plaintiff-company, that by

itself, does not amount to proving the contents of these documents. It

is a settled proposition of law that mere proving a document does not

prove its contents and a document by itself is not an evidence of the

facts stated therein. The fact in issue before the Court cannot be proved

merely by proving the signature and handwriting on a document since the

document, by itself, does not constitute truthfulness of its contents. The

truthfulness or otherwise of the contents of a document can be proved

only by legally admissible evidence, i.e., the evidence of a person who

is in a position to vouchsafe for the truthfulness of those contents.

12. In Judah v. Isolyne Bose, AIR 1945 PC174, the issue before

the Court was whether the testatrix was so seriously ill as would result

in impairment of her testamentary capacity. To substantiate the degree of

illness, a letter and two telegrams written by a nurse were tendered in

evidence. The question was whether in the absence of any independent

evidence about the testamentary capacity of the testatrix the contents of

the letter could be utilized to prove want of testamentary capacity. In

these circumstances, the Privy Council observed that the fact that a letter

and two telegrams were sent by itself would not prove the truth of the

contents of the letter and, therefore, the contents of the letter bearing on

the question of lack of testamentary capacity would not be substantive

evidence. It was held that the contents of the letter and telegram were

not the evidence of the facts therein and mere proof of handwriting of

a document would not tantamount to proof of all the contents or the

facts stated in the document therein.

In Malay Kumar Ganguly v. Dr. Sukumar Mukherjee (2009) 9

SCC 221, Supreme Court observed that a document becomes admissible

in evidence unless its author is examined and that the contents of a

document cannot be said to have been proved unless he is examined and

subjected to cross-examination in a Court of law.

In Narbada Devi Gupta v. Birendra Kumar Jaiswal (2003)8

SCC 745, Supreme Court, inter alia, observed as under:

‘‘The legal position is not in dispute that mere production and

marking of a document as exhibit by the court cannot be held,

to be a due proof of its contents. Its execution has to be proved

by admissible evidence that is by the evidence of those persons

who can vouchsafe for the truth of the facts in issue.‘

In the absence of production of the author of Exs.P-5 and P-7 in

the witness-box, the allegations of poaching contained in these documents,

cannot be said to have been proved by the plaintiff-company. It is,

therefore, difficult to dispute that no evidence has been led by the plaintiff-

company to prove the alleged pouching.

13. Assuming that defendant No.1-company had approached the

employees of the plaintiff-company and offered better salaries to them,

no legal right of the plaintiff-company has been violated by defendant

No.1-company by such an act on its part. There is no contract between

the plaintiff-company and defendant No.1-company not to pouch on the

employees of each other. In the absence of any such contract, nothing

in law prevented defendant No.1-company from approaching the

employees of the plaintiff-company and offering better service conditions

to them. Therefore, it cannot be said that any legal injury was caused to

the plaintiff-company by the alleged poaching or any legal right, vesting

in the plaintiff-company, was violated by defendant No.1-company.

14. Coming to the relief sought against defendant No.2 (defendant

No.3 has already been deleted from the array of defendants), no employer

can perpetually prevent its employee from quitting its service and joining

another employer. If, however, the employment is for a specified period

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Indian Law Reports (Delhi) ILR (2011) VI Delhi15 16Fitzee Ltd. v. Brilliant Tutorials (P.) LTd. (V.K. Jain, J.)

and there is an agreement between the employer and the employee,

whereby the employee undertakes to serve the employer during that

period and not to join the services of any other employer during that

period, it would be permissible in law for the employer to seek enforcement

of the negative agreement. Even if such a term is agreed by an employee,

it would be wholly unconscionable and cannot be enforced. The plaintiff-

company does not claim that the employment of defendant No.2 was for

a specific period and it had an agreement with him not to leave the

services of the plaintiff-company during that period.

15. If there is a covenant between the employer and the employee,

whereby the employee is required to serve the employer in perpetuity,

such a restraint on the right of the employee to engage in any trade of

his choice would be wholly unreasonable and unnecessary for the protection

of the employer. To press a negative covenant not to leave the services

or not to serve any other employer would be wholly unlawful if it is not

restricted to a specified reasonable period and would constitute an

unreasonable and unconscionable restraint on his legal right to engage

himself into any trade, business or employment. The contract to serve

a particular employer either in perpetuity or for a specified period cannot

be enforced by a Court.

The negative agreement between the employer and the employee,

whereby the employee undertakes not to serve any other employer during

the period of his employment provided it is a specified and reasonable

period as also not to join any other employer engaged in a competing

business would be valid and enforceable so long as it is for a specified

period which is not found to be unreasonable or excessively harsh.

In Superintendence Company Of India (supra), the Supreme

Court, inter alia, observed as under:

“A contract in restraint of trade is one by which a party restricts

his future liberty to carry on his trade, business or profession in

such manner and with such persons as he chooses. A contract

of this class is prima facie void, but is becomes binding upon

proof that the restriction is justifiable in the circumstances as

being reasonable from the point of view of the parties themselves

and also of the community.”

16. In Niranjan Shankar Golikari vs The Century Spinning

and Mfg. Co., (1967) 2 SCR 378, there was a contract of employment

for five years. The employee Niranjan Shankar left the services of the

respondent-company four years before the expiry of the contract,

whereupon the respondent-company filed a suit for enforcing the negative

covenant which restrained him from engaging in or carrying on competing

business or serving in any capacity with an employer engaged in competing

business. The injunction sought by the plaintiff was confined to the

period ending 15th March, 1968 which was the last day of the five year

term of the contract. Supreme Court was of the view that restraints

during the period of contract are generally not regarded as restraints on

trade and, therefore, are outside the purview of Section 27 of the Contract

Act. It was also of the view that the restrictions operating from the term

of the contract may be void if they are excessively harsh or

unconscionable.

17. In Superintendence Company of India vs Krishan Murgai

(1981) 2 SCC 246, Supreme Court had an occasion to deal with a post

service restraint. Clause 10 of the Contract of employment placed the

employee Krishna Murgai under post-service restraint that he shall not

serve in any other competing firm for two years at the place of his last

posting. Clause 10 was operative for a period of two years after the

employee leaving the company. The services of the employee were

terminated by the employer. Supreme Court held that the negative covenant

against working during the term of the contract is not in restraint of trade

and that the doctrine of restraint on trade never applies during the

continuance of the contract. In W.H. Milsted and Son Ltd. v. Hamp:

(1921) 2 AC 158, the contract of service was terminable only by notice

of the employer. The contract was held to be bad in law on account of

being wholly one sided.

18. The plaintiff, therefore, is not entitled to any injunction even

against defendant No.2. In any case, this is not the case of the plaintiff

that defendant No.2 was likely to join the service of defendant No.1. The

case of the plaintiff is other way round and according to the plaintiff-

company, defendant No.2 firmly declined the offer made by defendant

No.1 to join its services. Therefore, the plaintiff had no cause of action

to file the present suit against defendant No.2. The issues are decided

against the plaintiff and in favour of the defendants.


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17 18Mr. K.L. Chandak v. Mr. Jai Chand & Ors. (Indermeet Kaur, J.)

Issue No. 3

In view of my findings on issue No. 1 and 2, the plaintiff is not

entitled to any relief.

ORDER

For the reasons given in the preceding paragraphs, the suit is

dismissed with costs. I am satisfied that the suit was false and vexatious

to the knowledge of the plaintiff and the plaintiff had no legal right to

claim the relief sought in this suit and it appears that the suit was filed

only with a view to harass a competitor and drag it into litigation. Defendant

No.1, therefore, is entitled to compensatory costs in terms of Section

35A of the Code of Civil Procedure. In view of the provisions contained

in sub-Section (2) of Section 35A of CPC, the amount of compensatory

costs cannot exceed Rs 3,000/-. I, therefore, in addition to usual costs o

the suit, also award compensatory costs amounting to Rs 3,000/- t

defendant No.1.

Decree sheet be prepared accordingly.


RSA

MR. K.L. CHANDAK ....APPELLANT

VERSUS

MR. JAI CHAND & ORS. ....RESPONDENTS

(INDERMEET KAUR, J.)

RSA NO. : 85/2004 AND DATE OF DECISION: 01.03.2011

CMS. NO. : 4643/2004 &

10869/2004

Code of Civil Procedure, 1908 (CPC)—Order XLI Rule

4—Maintainability of Appeal if all the legal

representatives are not impleaded—Respondent’s suit

for possession—Decreed—Appeal filed by only one

legal representative without impleading other legal

representatives was allowed by the Appellate Court—

Same challenged in second appeal. Held—Order XLI

Rule 4 of the Code permits one of the several plaintiffs

or one of the several defendants to obtain a reversal

of the whole decree—Therefore even assuming that

the decree was against all the legal representatives—

Appeal filed by one legal was competent—Further

under Rule 33—Appellate Court has wide powers to

pass any decree and to make any order

notwithstanding that the appeal has been filed only by

one person—Decree can be passed against those

respondents as well who have not filed any appeal or

objection—Condition being that they must be parties

to the suit.

Order XLI Rule 4 of the Code reads as under:-

‘‘4. One of several plaintiffs or defendants may

obtain reversal of whole decree where it

proceeds on ground common to all- Where there

are more plaintiffs or more defendants then one in a

suit, and the decree appealed from proceeds on any

ground common to all the plaintiffs or to all the

defendants, any one of the plaintiffs or of the

defendants may appeal from the whole decree, and

thereupon the Appellate Court may reverse or vary

the decree in favour of all the plaintiffs or defendants,

as the case may be.”

Order XLI Rule 4 of the Code thus permits one of the

several plaintiffs or one of the several defendants to obtain

a reversal of the whole decree. Even assuming that the

decree of dismissal (dated 18.09.1995) was a decree against

all the legal representatives of Bhani Ram, the appeal filed

by one legal representative namely Jai Chand was competent.

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Rule 33 of the said Order is relevant. It reads as under:-

‘‘Power of Court of Appeal.-The Appellate Court shall

have power to pass any decree and make any order which

ought to have been passed or made and to pass or make

such further or other decree or order as the case may

require, and this power may be exercised by the Court

notwithstanding that the appeal is as to part only of the

decree and may be exercised in favour of all or any of the

respondents or parties, although such respondents or parties

may not have filed any appeal or objection, [and may, where

there have been decrees in cross-suits or where two or

more decrees are passed in one suit, be exercised in

respect of all or any of the decrees, although an appeal may

not have been filed against such decrees]:´

Rule 33 of this Order give wide powers to the appellate

court to pass any decree and to make any order

notwithstanding that the appeal has been filed only by one

person; decree can be passed against those respondents

as well who have not filed any appeal or objection; condition

being that they must be parties to the suit. This provision is

based on the salutary principle that the appellate Court

should have the powers to do complete justice between the

parties. It confer a wide discretionary power on the appellate

court notwithstanding the fact that the appeal is with regard

to a part of a decree or that the parties in whose favour the

power is proposed to be exercised has not filed any appeal

or cross-objection. The words “as the case may require” in

fact has been given the widest power to the appellate Court

to pass any order or decree to meet the ends of justice.

Order XLI Rule 4 of the Code has to be read in conjunction

with Order XLI Rule 33 of the Code which thus empowers

the appellate court to do complete justice between the

parties by passing such an order which ought to have been

passed or made although none of the parties affected of the

decree have appealed against it. The judgments relied upon

by learned counsel for the appellant on this score are all

inapplicable to the facts of the instant case. These are on

the issue of abatement and if & when it arises; each case

is distinct. In 33 (1987) DLT 363 Chander Bhan and

Others Vs. Pehlad and Others a Bench of this Court had

held that where one of the original defendants had died and

his legal heirs had not been brought on record, appeal filed

by the co-defendant when the case of both the defendant

was common was maintainable; it had not abated. In 1980

RLR 440 Banarsi Das etc. Vs. Mewa Devi it was held that

where an eviction order is made against more than one

tenant and all the tenants do not appeal or are made

respondents even then eviction order can be got set aside

by one of the tenants by filing an appeal. (Para 9)

Important Issue Involved: Order XLI Rule 4 of the Code

thus permits one of the several plaintiff’s or one of the

several defendants to obtain a reversal of the whole decree.

Even assuming that the decree of dismissal was against all

the legal representatives, the appeal filed by one legal

representative was competent.

[Sa Gh]

APPEARANCES:

FOR THE APPELLANT : Mr. Vinod Tyagi, Advocates.

FOR THE RESPONDENTS : Mr. D.K. Rustagi & Mr. B.S. Bagga,

Advocates.

CASES REFERRED TO:

1. Budh Ram & Others vs. Bansi & Others JT 2010 (8) SC

115.

2. Mahant Dhangir & Another vs. Shri Madan Mohan &

Others. AIR 1988 SC 54.

3. Suns Majhi vs. Bhairab Prasad Bahera, AIR 1978 Orissa

91.

4. Chander Bhan and Others vs. Pehlad and Others 33 (1987)

DLT 363.


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5. Vasant Appanna Mang. & Others vs. Gangadhar

Madhavarao Inamdar & Others, AIR 1983 NOC 119

(KANT).

6. Banarsi Das etc. vs. Mewa Devi 1980 RLR 440.

7. Fakirmohan Rana & others vs. Sri Basanti Debi

Thakurani & Others, AIR 1978 Orissa 224.

8. Prem Singh vs. Smt. Raj Rani Devi, AIR 1977 HP 56.

9. Rshmabai & Others vs. Sona Puna Patil & Another, AIR

1974 Bombay 118.

10. Nathu & Others vs. Laxmi Narani & others, AIR 1974

Rajasthan 152.

11. Rajabibi & Others vs. S. Ameerali & Another AIR 1974

Karanatak 115.

12. Jamal Uddin & another vs. Mosque at Mashakganj &

others. AIR 1973 Allahabad 328.

13. Ramagya Prasad Gupta & Others vs. Murli Prasad &

Others, AIR 1972 SC 1181.

14. Mahabir Prasad vs. Jage Ram & Others 1971 (1) SCC

265.

15. Aswini Kumar Roy & Another vs. Kshitish Chandra Sen

Gupta & Others, AIR 1971 Canclutta 252.

16. Ch. Surat Singh & Others vs. Manohar Lal & Others,

AIR 1971 SC 240.

17. Dev Raj Anand vs. Bhagwandas & Another, AIR 1971

SC 241.

18. Union of India vs. Shree Ram Bohra & Others, AIR 1965

SC 1531.

19. Badri Narain & Others vs. East Indian Railway &

Another, AIR 1927 Patna 23.

RESULT: Appeal dismissed.

INDERMEET KAUR, J.

1. This appeal has impugned the judgment and decree dated

02.01.2004 which had reversed the findings of the trial Judge dated

18.09.1995. Vide the judgment and decree dated 18.09.1995, the suit

filed by the plaintiff Jai Chand seeking possession of the suit property i.e.

property bearing Plot No. G-36, Shakarpur, Shahdara Delhi measuring

100 square yards had been dismissed. Vide the judgment and decree

dated 02.01.2004, this finding was reversed; the suit of the plaintiff stood

decreed.

2. The factual matrix is as follows:-

(i) The plaintiff claimed to be the owner of the aforenoted suit

premises. He had purchased it vide sale deed dated 14.08.1985 (Ex. PW-

1/2). The possession of the plot had been delivered to him. He had

constructed one room along with a kitchen.

(ii) Defendant sometime in the year 1980 had tress-passed into the

suit property and raised an unauthorized construction therein. Inspite of

requests, the defendant had failed to deliver the vacant possession of the

suit land to the plaintiff. Suit was accordingly filed.

(iii) In the written statement, the preliminary objection was that the

suit has not been properly valued for the purpose of court fee and

jurisdiction; plaintiff has no right/title in the property. Defendant is the

lawful owner of the suit premises which he had purchased from Santosh

Rani who in turn had purchased it from Mohan Lal and Mohan Lal had

purchased the said property from Inderjeet Singh. Inderjeet Singh was

the owner by virtue of a sale deed dated 13.02.1970 (Ex. DW-3/1). In

the alternative, the defendant had also set up a plea of adverse possession.

(iv) On the pleadings of the parties, the following seven issues were

framed:-

‘‘1. Whether the suit has not been properly valued for the

purposes of court fee and jurisdiction? OPD

2. Whether the suit is bad for non-joinder for necessary

parties? OPD

3. Whether the suit has not been signed by the competent

person? OPP

4. Whether the suit is barred by time? OPD

5. Whether the plaintiff is the owner of the suit premises?

OPP

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6. Whether the plaintiff is entitled to the decree of permanent

injunction as asked for in the plaint? OPP

7. Relief.”

(v) Two additional issues were also framed thereafter. Oral and

documentary evidence was led by the respective parties which included

two witnesses on behalf of the plaintiff and nine witnesses on behalf of

the defendant.

(vi) Issues No. 1 to 4 were decided in favour of the plaintiff; issues

No. 5 & 6 were decided against the plaintiff. Trial Court was of the view

that the plaintiff has not been able to establish his ownership in the suit

property; per contra oral and documentary evidence adduced by the

defendant established that he is in possession of the suit land since 1980;

balance of convenience was in favour of the defendant. Suit was dismissed.

The additional issues had been left open by the trial court. No positive

finding was returned on this count.

(vii) The impugned judgment had not challenged the findings on

issues No. 1 to 4 for the reason they had been returned in favour of the

plaintiff. On issues No. 5 & 6, the Court was of the view that the

plaintiff had established that he is the owner of 100 square yards of plot

No. G-36; the contention of the defendant that although he had purchased

75 square yards of suit land bearing No. G-33-A, he had failed to show

that G-33-A had thereafter been converted to G-36. This contention of

the defendant had been repelled; the identity of the suit property was

established; it was held that the defendant was in occupation of 100

square yards of land whereas he had purchased 75 square yards of land.

He was held to be in illegal and unlawful possession of the plot of land

owned by the plaintiff. Suit of the plaintiff was decreed. Additional issues

framed qua adverse possession had also been decided against the plaintiff;

the finding returned was that the plea of adverse possession set up by

the defendant had not been established.

3. This is a second appeal. After its admission on 26.08.2008, the

following four substantial questions of law have been formulated. They

read as under:-

‘‘1. Whether a decree passed by trial court in a suit for possession

and injunction dismissing that suit is joint and indivisible qua six legal

representatives of a sole plaintiff who died during pendency of the suit

substituted under Order XXII of the Code of Civil Procedure?

2. Whether first appeal is maintainable if all legal representatives of

a deceased plaintiff are not impleaded therein while such decree appealed

from is joint and indivisible?

3. Whether courts have rightly decided the question of limitation?

4. Whether the learned first Appellate Court has erred in law in

expanding the scope of first appeal by adjudicating the additional issues

Nos. 1 and 2 which were not decided by the learned trial court and the

respondent No. 1 himself not having prayed for the adjudication thereof

by the learned Additional District Judge?”

4. On substantial questions of law No. 1 & 2, learned counsel for

the appellant has submitted that the appeal is not maintainable. The suit

had been filed by Bhani Ram through his legal representatives. There

were six legal representatives namely his one widow, two sons and three

daughters. This suit had been dismissed on 18.09.1995 which was a

decree against all the plaintiffs. It is pointed out that the appeal has been

filed before the first appellate Court only by one legal representative

namely Jai Chand without impleading the other legal representatives. The

impugned judgment had decreed the suit of the plaintiff on 02.01.2004;

result of this decree is that the suit stands decreed qua Jai Chand but qua

other legal representatives of the deceased Bhani Ram, the suit stood

dismissed on 18.09.1995 which judgment has since attained a finality.

The judgment of the first appellate court reversing that decree qua one

legal representative alone would be inconsistent with the decree of

18.09.1995; such inconsistent decrees cannot be allowed to stand. To

substantiate this proposition, learned counsel for the appellant has placed

reliance upon AIR 1988 SC 54 Mahant Dhangir & Another Vs. Shri

Madan Mohan & Others. It is contended that the parties before the

lower court should be represented before the appellate court in the absence

of which if there are two inconsistent decrees, they cannot be permitted

to operate. For the same proposition reliance has also been placed upon

AIR 1971 SC 240 Ch. Surat Singh & Others Vs. Manohar Lal &

Others, AIR 1971 SC 241 Dev Raj Anand Vs. Bhagwandas & Another,

AIR 1972 SC 1181 Ramagya Prasad Gupta & Others Vs. Murli

Prasad & Others, AIR 1965 SC 1531 Union of India Vs. Shree Ram


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Bohra & Others, AIR 1983 NOC 119 (KANT) Vasant Appanna Mang.

& Others Vs. Gangadhar Madhavarao Inamdar & Others, AIR 1978

Orissa 91 Suns Majhi Vs. Bhairab Prasad Bahera, AIR 1978 Orissa

224 Fakirmohan Rana & others Vs. Sri Basanti Debi Thakurani &

Others, AIR 1974 Bombay 118 Rshmabai & Others Vs. Sona Puna

Patil & Another, AIR 1977 HP 56 Prem Singh Vs. Smt. Raj Rani

Devi, AIR 1974 Rajasthan 152 Nathu & Others Vs. Laxmi Narani &

others, AIR 1971 Canclutta 252 Aswini Kumar Roy & Another Vs.

Kshitish Chandra Sen Gupta & Others, AIR 1927 Patna 23 Badri

Narain & Others Vs. East Indian Railway & Another, AIR 1974

Karanatak 115 Rajabibi & Others Vs. S. Ameerali & Another and

AIR 1973 Allahabad 328 Jamal Uddin & another Vs. Mosque at

Mashakganj & others. Reliance has also been placed upon JT 2010 (8)

SC 115 Budh Ram & Others Vs. Bansi & Others. It is pointed out

that the suit was even otherwise barred by limitation; Article 65 of the

First Schedule of the Limitation Act , 1963 prescribes a period of 12

years for filing a suit for possession and this period of 12 years has to

be counted from the date when the possession of the defendant becomes

adverse. It is submitted that the defendant was in adverse possession

through his predecessor namely Smt. Santosh Rani who in turn had

purchased this property from Mohal Lal who in turn had purchased it

from Inderjeet Singh in 1970 and as such the adverse possession of the

defendant stood established from 1970. The suit filed by the plaintiff in

1984 was beyond this period of 12 years; it was barred by limitation and

this has not been correctly construed by the trial court or in the impugned

judgment. On the last substantial question of law, it has been urged that

the additional issues i.e. question of adverse possession has been decided

by the first appellate court when no argument had been urged on this

score; it is pointed out that these issues had been left open by the trial

court and the first appellate court has committed an error in deciding the

additional issues when neither party had pressed them. It has lastly been

urged that this Court is a Court of equitable jurisdiction and admittedly

since both the parties had alleged that they had purchased the suit property

from their respective purchasers through registered documents, it would

be proper if this Court orders demarcation of the property to be effected

through the appointment of a Local Commissioner; the controversy could

be rested.

5. Arguments have been countered. Learned counsel for the

respondents has placed reliance upon 1971 (1) SCC 265 Mahabir Prasad

Vs. Jage Ram & Others to substantiate his contention that in view of

provisions of Order 41 Rule 4 of the Code of Civil Procedure (hereinafter

referred to as the “Code”) even if one single plaintiff or defendant is

joined in appeal proceedings, the appeal is competent. It is submitted that

in this case a relinquishment deed of June, 1994 had been executed by

the remaining five legal heirs in favour of the present respondent namely

Jai Chand thereby relinquishing their shares in the suit property in his

favour; it was in these circumstances that the appeal came to be filed by

the appellant alone. The appeal was well competent and does not suffer

from any infirmity. Even otherwise this plea was never raised before the

first appellate court. It is pointed out that the plea of limitation now set

up before this appellate Court is a mixed question of fact and law and

cannot be gone into as no cross appeal had been filed by the appellant

before the first appellate court challenging the findings of the trial Judge

on the question of limitation which had been returned in favour of the

plaintiff/ respondent. This submission cannot now be adverted to. It is

further submitted that the question of adverse possession was rightly

decided by the impugned judgment. The findings on no score call for any

interference.

6. Record has been perused. The substantial questions of law as

formulated and noted hereinabove shows that the appellant has not

challenged the impugned judgment on its merit. He is not aggrieved by

the findings returned on issues No. 5 & 6 whereby the impugned judgment

had noted that the plaintiff by virtue of his sale deed Ex. PW-1/2 was

the owner of the suit land; this measured 100 square yards and had

municipal No. G-36; the claim of the defendant that G-36 had become

G-33A had been rejected; the suit land in possession of the defendant

was also 100 square yards; case set up but the defendant was that in

terms of Ex. DW-3/1 which was the first sale document in favour of his

predecessor Inderjeet Singh was for 75 square yards; suit land comprised

of 100 square yards; the defendant was held to be an unauthorized

occupant of 100 square yards which was owned by the plaintiff; suit for

possession was accordingly decreed. This fact finding returned in the

impugned judgment has not been assailed as is evident from the substantial

questions of law formulated by this Court.

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7. Admittedly suit had been filed by Bhani Ram. During the course

of the trial, he had expired and his six legal representatives including his

one widow, two sons and three daughters had been impleaded. Trial

Judge had dismissed the suit of the plaintiff (who were then represented

through his six legal representatives) on 18.09.1995. This was a dismissal

against all the legal representatives of the plaintiff who were a collective

body and the representatives of deceased Bhani Ram. Appeal had been

filed by Jai Chand alone. The other legal representatives had not joined

the proceedings in the appellate court. The contention before the first

appellate court was that the other legal representatives in terms of a

registered relinquishment deed dated June, 1994 (admitted document)

had relinquished their shares in favour of Jai Chand. This document is

prior in time to the date of dismissal of the suit which was on 18.09.1995.

In terms of this relinquishment deed Jai Chand alone was the owner of

the suit land. This relinquishment deed although had seen the light of the

day before the first appellate court yet this being an admitted document

clearly prescribes that in June, 1994 Jai Chand was the owner of the suit

land; he alone was the interested party. The decree of dismissal of the

suit on 18.09.1995 was thus a decree against Jai Chand alone. It did not

affect the other legal representatives as they had no right or title left in

the property at that time.

8. The first appellate Court had reversed this finding of the trial

court on 01.02.2004. It had decreed the suit of Jai Chand. The question

of an inconsistency in the two decrees does not arise; rights of Jai Chand

alone had been affected. The first judgment dismissing his suit on

18.09.1995 was a dismissal of the rights of Jai Chand alone; before the

appellate Court the suit of Jai Chand alone was decreed. The other legal

representatives having relinquished their rights in favour of Jai Chand had

no interest left in the suit property. Even before the first appellate court,

no such objection was taken; no cross-appeal or cross objections were

filed.

9. Order XLI Rule 4 of the Code reads as under:-

‘‘4. One of several plaintiffs or defendants may obtain

reversal of whole decree where it proceeds on ground

common to all- Where there are more plaintiffs or more

defendants then one in a suit, and the decree appealed from

proceeds on any ground common to all the plaintiffs or to all the

defendants, any one of the plaintiffs or of the defendants may

appeal from the whole decree, and thereupon the Appellate Court

may reverse or vary the decree in favour of all the plaintiffs or

defendants, as the case may be.”

Order XLI Rule 4 of the Code thus permits one of the several

plaintiffs or one of the several defendants to obtain a reversal of the

whole decree. Even assuming that the decree of dismissal (dated

18.09.1995) was a decree against all the legal representatives of Bhani

Ram, the appeal filed by one legal representative namely Jai Chand was

competent. Rule 33 of the said Order is relevant. It reads as under:-

‘‘Power of Court of Appeal.-The Appellate Court shall have

power to pass any decree and make any order which ought to

have been passed or made and to pass or make such further or

other decree or order as the case may require, and this power

may be exercised by the Court notwithstanding that the appeal

is as to part only of the decree and may be exercised in favour

of all or any of the respondents or parties, although such

respondents or parties may not have filed any appeal or objection,

[and may, where there have been decrees in cross-suits or where

two or more decrees are passed in one suit, be exercised in

respect of all or any of the decrees, although an appeal may not

have been filed against such decrees]:”

Rule 33 of this Order give wide powers to the appellate court to

pass any decree and to make any order notwithstanding that the appeal

has been filed only by one person; decree can be passed against those

respondents as well who have not filed any appeal or objection; condition

being that they must be parties to the suit. This provision is based on the

salutary principle that the appellate Court should have the powers to do

complete justice between the parties. It confer a wide discretionary power

on the appellate court notwithstanding the fact that the appeal is with

regard to a part of a decree or that the parties in whose favour the power

is proposed to be exercised has not filed any appeal or cross-objection.

The words “as the case may require” in fact has been given the widest

power to the appellate Court to pass any order or decree to meet the ends

of justice. Order XLI Rule 4 of the Code has to be read in conjunction

with Order XLI Rule 33 of the Code which thus empowers the appellate


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court to do complete justice between the parties by passing such an

order which ought to have been passed or made although none of the

parties affected of the decree have appealed against it. The judgments

relied upon by learned counsel for the appellant on this score are all

inapplicable to the facts of the instant case. These are on the issue of

abatement and if & when it arises; each case is distinct. In 33 (1987)

DLT 363 Chander Bhan and Others Vs. Pehlad and Others a Bench

of this Court had held that where one of the original defendants had died

and his legal heirs had not been brought on record, appeal filed by the

co-defendant when the case of both the defendant was common was

maintainable; it had not abated. In 1980 RLR 440 Banarsi Das etc. Vs.

Mewa Devi it was held that where an eviction order is made against

more than one tenant and all the tenants do not appeal or are made

respondents even then eviction order can be got set aside by one of the

tenants by filing an appeal.

10. Substantial questions of law No. 1 & 2 are answered accordingly.

11. Substantial questions of law 3 & 4 are bordered on issue of

limitation. Issue No. 3 had been framed by the trial court on this point.

This issue had been decided in favour of the plaintiff. Obviously, the

plaintiff was not aggrieved by this finding; he had restricted his appeal

only on the findings of the trial Judge on issues no. 5 & 6. Issue No.

3 was never his grievance. No cross-appeal or cross-objection had been

filed by the defendant/appellant. The appellant cannot now raise this issue

in second appeal. Even otherwise this was a mixed question of fact and

law; it was not question of law alone. Facts have necessarily to be gone

into to answer the plea as to whether the suit was within limitation or

outside limitation.

12. At this stage, it would also be relevant to state that additional

issues which related to adverse possession had been left open by the trial

Judge. The impugned judgment had returned a finding that the defence

set up by the defendant of adverse possession is negatived; it had been

rejected. The impugned judgment had nowhere faulted in arriving at this

conclusion. This finding had been returned in the last but one para of the

impugned judgment. It reads as follows:-

‘‘The respondent-defendant has set up ownership on the basis of

title documents, against the claim of the appellant-plaintiff having purchased

the suit property on 25.04.1981 and further has disputed the identity of

the property and thus, the plea of adverse possession is not available to

the respondent-defendant. Moreover, the respondent-defendant has traced

his possession over the suit property from Mrs. Santosh Rani, who had

come in possession of the suit property only in the year 1979 vide GPA

‘Mark-I’ and thus the possession of the respondent-defendant has not

matured to the status of being adverse to the appellant-plaintiff. Therefore,

it cannot be said that the respondent-defendant has become the owner of

the suit property by adverse possession.

In view of the aforesaid discussion, the judgment and decree dated

18.09.1995 of the ld. trial court is set aside and the suit of the appellant-

plaintiff is decree and the appellant- plaintiff shall be the possession of

the property bearing No. G-36, Laxmi Nagar, Shakarpur, Shahdara, Delhi-

110092 and the respondent defendant is restrained from creating any

third party interest in the suit property.”

13. The submission of learned counsel for the appellant that these

additional issues could not have been decided when the appellant had not

assailed is a plea bereft of any merit. A first appellate court is duty bound

to reappreciate and re-examine the pleas taken by the respective parties

including the re-appreciation and re-examination of the evidence both oral

and documentary. It is not the case of the appellant that the evidence

before the first appellate court to decide these additional issues was

insufficient or some other evidence had to be led by the defendant. No

perversity has been pointed out on the merits of this finding; only contention

being that these additional issues could not have been decided in the

absence of any plea in this behalf. There is no merit in this contention.

Plea of adverse possession set up by the defendant having being negatived,

the question of limitation by adverting to the provisions of Article 65 do

not have to be gone into. Article 65 deals with recovery of immoveable

property where the defendant sets up the claim of adverse possession.

This claim has been rejected.

14. The case set up by the plaintiff is that he is the owner of the

suit property and he claimed his possession from the defendant who is

an unauthorized occupant. The defendant had also set up a counter claim

of ownership; he having purchased it from Santosh Rani who in turn had

purchased it from Mohan Lal who had vide Ex.DW-3/1 purchased it

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Indian Law Reports (Delhi) ILR (2011) VI Delhi31 32 Susan Leigh Beer v. India Tourism Development Corp. Ltd. (Badar Durrez Ahmed, J.)

from Inderjeet Singh. In one breath the defendant was claiming ownership

in his own right and in the second breath he was claiming adverse

possession. This plea of adverse possession tracing it back to the first

purchaser i.e. Inderjeet Singh is absolutely absurd; plea of adverse

possession was available to the defendant; Inderjeet Singh is nowhere in

the said category. These are even otherwise two inconsistent pleas and

cannot be taken.

15. The plea of equity set up by the appellant also has no force.

Suit had been filed on 21.02.1984. The documentary evidence relied

upon by the defendant i.e. Ex. DW-1/1, Ex.DW-2/1 & Ex. DW-2/2 were

all documents which were after the date of filing of the suit; contention

of the respondent is that these documents had been created; they were

forged; they were rejected on this count; under these circumstance equity

does also not lie in favour of such a party.

16. The substantial questions of law 3 & 4 are answered against the

appellant.

17. There is no merit in this appeal.

18. Appeal as also pending applications are dismissed.


CS (OS)

SUSAN LEIGH BEER ....PLAINTIFF

VERSUS

INDIA TOURISM DEVELOPMENT ....DEFENDANT

CORPORATION LTD.

(BADAR DURREZ AHMED, J.)

CS (OS) NO. : 1298/1982. DATE OF DECISION: 03.03.2011.

(A) Code of Civil Procedure, 1908—Order XXXIII, Suit as

an indigent person seeking damages—Plaintiff injured

while jumping and slipping into swimming pool of

hotel managed and maintained by Defendant—Said

injury resulted in Plaintiff becoming a quadriplegic—

Injury allegedly due to negligence of Defendant in

maintenance of Swimming Pool—Tiles of floor of

swimming pool slippery because of algae formation—

Plaintiff jumped in, feet slipped on floor and head hit

wall of pool—Hence instant suit filed for damages of

Rs. 2 crores, Held;

(B) Suit filed by duly authorised person—Power of attorney

granted to Plaintiff's father—Suit instituted as indigent

person—Application presented by father of Plaintiff—

Plaintiff exempted from presentation of application in

person vide order dated 22.01.1992—Plaintiff's father’s

statement recorded—Admitted that he holds power of

attorney—Admittedly power of attorney not filed along

with plaint due to inadvertent error—Same filed on

25.11.1991 vide application which was allowed—

Plaintiff's testimony amounted to clear ratification—

Procedural defects which do not go to the root of the

matter should not be permitted to defeat just cause—

Ratio of Naresh Kumar relied upon—Suit filed by duly

authorised person.

From the above, it is clear that in the plaint itself it has been

stated that the same was being signed, verified and instituted

by Mr G. L. Beer on behalf of his daughter on the basis of

the power of attorney dated 15.01.1982. Inadvertently, that

power of attorney had not been filed along with the plaint

and was subsequently filed on 25.11.1991 by virtue of an

application being IA 12075/1991 which was allowed and the

power of attorney was taken on record. Apart from this, the

plaintiff has clearly testified that the contents of the plaint

were correct and that the same had been instituted by her

father on her instructions. There is, thus, a clear ratification

on her part. It is not a case where a person has instituted


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33 34 Susan Leigh Beer v. India Tourism Development Corp. Ltd. (Badar Durrez Ahmed, J.)

a suit representing himself to be an authorized agent and

where the principal has refuted the claim. Mr G. L. Beer,

undoubtedly, verified and filed the plaint as an agent of the

plaintiff. This fact has been confirmed by the plaintiff herself.

The Supreme Court in the case of United Bank of India v.

Naresh Kumar (supra) clearly held that the procedural

defects which do not go to the root of the matter should not

be permitted to defeat a just cause and that there is

sufficient power in the Courts, under the Code of Civil

Procedure, to ensure that injustice is not done to any party

who has a just cause. The Supreme Court further observed

that as far as possible a substantive right should not be

allowed to be defeated on account of a procedural irregularity

which is curable. In the case before the Supreme Court, the

issue arose with regard to the authority of a person to sign

the pleadings on behalf of a company. The Court observed

that a person may be expressly authorized to sign pleadings

on behalf of a company, for example by the Board of

Directors passing a resolution to that effect or by a power

of attorney being executed in favour of any individual. It was

specifically observed that even in the absence of such a

resolution or a power of attorney, in cases where pleadings

have been signed by one of its officers, a Corporation could

ratify the said action of its officer in signing the pleadings

and that such ratification could be expressed or implied. It

was further held that the Court could, on the basis of the

evidence on record, after taking into account all the

circumstances of the case, especially with regard to the

conduct of the trial, come to the conclusion that the

corporation had ratified the act of signing of the pleading by

its officer. In the present case, I find that it has come in

evidence that the plaintiff had decided to commence the

action for compensation when her treatment ended and she

realized that she would not recover any further. She had

clearly stated that she had asked her father to institute the

present suit and had even authorized him by executing the

power of attorney dated 15.01.1982. The present suit had

been instituted by her father as her authorized attorney.

Even if I do not go into the matter of admissibility of the

document of power of attorney, the action of the plaintiff‘s

father in signing, verifying and filing the plaint stands fully

ratified by the plaintiff. Therefore, the only conclusion that

can be arrived at is that the suit had been filed by a duly

authorized person and this issue is accordingly decided in

favour of the plaintiff and against the defendant.

(Para 25)

(C) Nature of injuries—Evidence led—Nature of injuries

were such which resulted in fracture of cervical

vertebrae—Resulted in Plaintiff becoming a

quadriplegic—Plaintiff represented school in

swimming—Member of State teams for water polo—

Member of Queensland Team—Plaintiff admittedly

jumped into shallow end of pool—Feet Slid forward—

Head struck side of pool—Plaintiff remembered bottom

of pool to be slippery—Nature of injuries stand

determined.

This part of her testimony has gone unchallenged. From the

above evidence, it is clear that the plaintiff has been able to

establish that she had gone to take a swim along with her

family members in the swimming pool at Akbar Hotel at

about 5 pm on 05.05.1978. That when she jumped into the

pool from the shallow end, her feet, on touching the floor of

the pool, slid forward as the same was slippery. Because of

this, her head hit the side of the swimming pool. Consequent

thereupon, she suffered the injuries to her cervical spine

and the lacerated injury on her head. The injury caused to

the cervical spine and particularly the 6th and 7th vertebra,

as indicated above, resulted in her ultimately becoming a

quadriplegic, i.e., not having any sensation below her neck.

In layman‘s language, she was paralyzed neck downwards.

It is also clear from the testimony of PW4 Dr J. A. Smith that

there was no chance of her recovery and the injury sustained

by her was for life. (Para 34)

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Thus the nature of the injuries stand determined.

(Para 35)

(D) Cause of injuries—In written statement, Defendant did

not plead that Plaintiff dived into pool—Only in course

of cross-examination and arguments it was urged that

Plaintiff did not jump but dived into pool—Unless fact

pleaded, no evidence led can cure defect—Plaintiff

contended that she jumped into shallow end of pool,

slipped and suffered injuries—Fully supported by

medical evidence—Theory propounded by lifeguard

also rejected as unreliable and practicably not possible.

From the testimony of the plaintiff‘s mother PW19 Mrs P. J.

Beer also, the plaintiff‘s version of the manner in which she

suffered the injury is fully corroborated. Although, all the

three witnesses namely, the plaintiff, her father Mr G. L.

Beer and her mother Mrs P. J. Beer were subjected to

lengthy cross-examination, nothing has been elicited from

these witnesses in the course of such cross-examination so

as to cast any doubt on their testimonies with regard to the

exact manner in which the incident occurred.

It may be noted that in the written statement, the defendant

did not plead that the plaintiff had dived into the pool. Yet,

in the course of cross-examining the witnesses and in the

course of arguments, it was strongly urged on behalf of the

defendant that the plaintiff did not jump into the pool from

the shallow end but dived into the pool. It is an established

principle that unless a fact is pleaded, no amount of evidence

led in respect of that alleged fact can cure the defect. The

plaintiff‘s case that she jumped into the pool at the shallow

end and that her feet slipped on the slippery floor of the

pool as a result of which she hit her head and sustained

injuries is fully supported by the medical evidence on record.

Both PW4 Dr J.A. Smith and PW22 Dr Arjun Dass Sehgal

have opined that the injury caused to the plaintiff was

largely a flexion injury and not a compression injury, which

would have resulted in a burst fracture. These opinions are

clearly in corroboration of the testimonies of the plaintiff, her

father Mr G. L. Beer and her mother Mrs P. J. Beer. It has

come in evidence that a flexion injury of the kind suffered by

the plaintiff could not have been caused by the head hitting

the floor of the pool as a result of a vertical or near vertical

dive. In that eventuality the injury would have been a burst

fracture or a serious compression injury. It would not have

been a flexion injury. In the present case the evidence

indicates that the injury was a flexion injury caused by the

sudden forward hinging of the head on account of the head

hitting the wall of the swimming pool. This injury is entirely

consistent with the plaintiff‘s case and is completely

contraindicated if the version of the defendant, of the

plaintiff diving into the pool and thereafter hitting the head

on the floor of the pool, is to be accepted. Clearly, the

cause of injury was as narrated by the plaintiff, that is, by

jumping into the pool and not as suggested by the learned

counsel for the defendant, that is, by diving. The counsel for

the defendant was at pains to cross-examine the doctors

and particularly PW4 Dr J. A. Smith and PW22 Dr Arjun

Dass Sehgal with regard to the injury caused to the plaintiff

being a compression injury or a flexion injury. According to

the defendant, the plaintiff suffered a burst fracture and a

compression injury which was consistent with the plaintiff

having dived into the pool and hit her head on the floor of

the pool. On the other hand, the plaintiff‘s case was that she

had suffered a flexion injury where the head hinges forward

with great force. (Para 45)

As mentioned above, both Dr J. A. Smith and Dr Arjun Dass

Sehgal were subjected to extensive cross-examination on

the point as to whether the injury was a flexion injury or a

compression injury. From the testimonies of both these

witnesses, it is apparent that they have not been shaken

from their stand that the injury was a flexion injury caused

by forward hinging of the head. In such a situation, the


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The witness produced on behalf of the defendant to testify

as to the maintenance of the pool was DW2 Mr Balram

Verma. I have already indicated above that this witness is

not reliable. However, assuming that what he says is correct,

let me examine as to whether his testimony reveals that the

pool was properly maintained. DW2 Mr Balram Verma stated

that he was appointed as a lifeguard at Akbar Hotel and he

holds a degree in physical education. He stated that the

duty of a lifeguard at Akbar Hotel was first to see on arrival

at the pool that the pool was clean. Thereafter, his duty was

to sit there to ensure that the life of any guest swimming in

the pool was not at risk. He stated that the procedure for

cleaning of the pool is that in the evening bleaching powder

and alum are put into the water which makes the dust settle

at the bottom of the pool. Next day, in the morning, the

brush which is attached to the suction cleans the dust on

the bottom of the pool and the dirty water is pumped out of

the pool. The housemen also mop the entire area around

the swimming pool starting from the change room before

any guest is allowed to enter the swimming pool. He stated

that the board at the swimming pool displays ‘pool closed’ in

the morning and the same is removed only after the cleaning

has been done and after he has checked the pool. He

further stated that the engineer of the hotel had given him

strips of paper in order to check the chemicals in the water

of the pool. The strip of paper had a number of colours on

its upper part and lower part. After dipping the same into the

water of the pool, he used to match the colour of the strip

with the colours shown on the upper part of the strip. In case

the colour of the paper strip dipped into the water of the

pool matched the colour at serial No. 7 or 8 of the upper

part of the strip, it implied that the water had been properly

chlorinated. However, this witness in his cross-examination

does not appear to know anything about algae. When he

was asked as to under what circumstances algae get

deposited on the floor of the swimming pool, he stated that

he did not know. With regard to the photographs which were

hypothesis of the plaintiff having dived into the pool is

clearly contraindicated. (Para 47)

As a result of the aforesaid discussion, it has been

established on the part of the plaintiff that the cause of

injury was the fact that the plaintiff jumped into the pool at

the shallow end and that her feet slid forward on account of

the bottom of the pool being slippery. This resulted in her

head hitting the side of the pool which ultimately resulted in

her becoming a quadriplegic. The theory and hypothesis of

diving into the pool which had been put forward by the

learned counsel for the defendant, both in the course of

cross-examination of the plaintiff‘s witnesses as well as by

the defendant‘s witnesses and in the course of arguments

before this Court, is clearly not established. It is not

established on account of the evidence on record nor is it

established on account of probabilities. The plaintiff,

admittedly, was an expert swimmer. She would not have

dived into the pool vertically downwards at the shallow end

knowing the water to be only 2-1/2 to 3 feet deep. In any

case, even if she had dived into the pool, she could have

avoided impact on her head by pushing away with her

hands which are normally extended in the case of a dive.

There is evidence of her swimming coach to indicate that

she was well trained in all swimming manoeuvres which

include diving and if she were to dive, she would have

adopted the correct posture, namely, with the hands extended

ahead to protect from the impact of the water. All these

factors clearly establish that the assertion made by the

plaintiff with regard to the manner in which the injury was

caused, stands established and the hypothesis propounded

by the defendant stands disproved. (Para 54)

(E) Maintenance of pool tiles—Evidence led—Glazed tiles

inherently slippery—This would be further accentuated

by present of algal material—Growth occurs first in

shallow end—Initial stages of algae growth, water may

remain clear.

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shown to him, which clearly indicate algae growth and

deposits, the said witness stated that the photographs were

taken when the pool had been closed and in winter time.

(Para 64)

(F) Res ipsa loquitur—Employed when no direct material

on particular aspect—Things speak for themselves—

Three conditions—Incident of this kind could only

occur on account of slippery floor—Accident caused

by agency or instrumentality within exclusive control

of Defendant—Third, accident not caused by any

voluntary contribution on part of plaintiff—All three

conditions met—Res lpsa Loquitur applicable—Burden

shifts to Defendant—Defendants failed to provide

plausible explanation for injury—Failed to meet burden

of proof—Hence injury sustained on account of

negligence of Defendant.

This witness, I have already indicated, cannot be believed.

In any event, he does not have any specialized knowledge

with regard to management of algal growth in the swimming

pool. The fact of the matter is that there is evidence to

indicate that the floor of the swimming pool was slippery and

it is because of that the plaintiff suffered the injury. The floor

of the swimming pool would not have been slippery had the

pool been properly maintained. It is at this juncture that the

principle of res ipsa loquitur can also be employed. That is

a rule of evidence which is employed when there is otherwise

no direct material on a particular aspect of the matter. Since

the floor of the swimming pool was not examined on the date

of the incident itself and samples were not taken on that

date, there is no direct evidence to indicate that there was

algal growth in the pool or that there was other slimy

material on the floor of the pool. It is in circumstances such

as this that the principle of res ipsa loquitur is applied as a

rule of evidence, because the things speak for themselves.

Res ipsa loquitur is a Latin phrase which is defined in

Black's Law Dictionary in the following words: “The thing

speaks for itself”. The doctrine of res ipsa loquitur is

described in detail in a decision of this Court in Klaus

Mittelbachert v East India Hotels Ltd : 65 (1997) DLT

428, which reads as under:-

“Under the doctrine of res ipsa loquitur a plaintiff

establishes a prima facie case of negligence where

(1) it is not possible for him to prove precisely what

was the relevant act or omission which set in train the

events leading to the accident, and (2) on the evidence

as it stands at the relevant time it is more likely than

not that the effective cause of the accident was some

act or omission of the defendant or of someone for

whom the defendant is responsible, which act or

omission constitutes a failure to take proper care for

the plaintiff’s safety. There must be reasonable

evidence of negligence. However, where the thing

which causes the accident is shown to be under the

management of the defendant or his employees, and

the accident is such as in the ordinary course of

things does not happen if those who have the

management use proper care, it affords reasonable

evidence, in the absence of explanation by the

defendant, that the accident arose from want of care.

Three conditions must be satisfied to attract

applicability of res ipsa loquitur: (i) the accident must

be of a kind which does not ordinarily occur in the

absence of someone's negligence; (ii) it must be

caused by an agency or instrumentality within the

exclusive control of the defendant; (iii) it must not

have been due to any voluntary action or contribution

on the part of the plaintiff. (See Ratanlal & Dhirajlal

on Law of Torts , edited by Justice G.P. Singh, 22nd

edition 1992, pp 499-501 and the Law of Negligence

by Dr Chakraborti, 1996 edition, pp 191-192.).

In the light of the aforesaid decision, it needs to be examined


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as to whether the above conditions apply to the present

case. First of all, it has to be determined as to whether the

accident is of a kind which does not ordinarily occur in the

absence of someone‘s negligence. It is common knowledge

that people and most particularly younger persons jump into

the swimming pool. Unless and until there is some negligence,

the injury of the kind indicated in the present case would not

ordinarily occur. When one jumps into the swimming pool in

the shallow end, one does not expect that on the feet

reaching the floor of the swimming pool, the same would slip

on account of the floor being slippery. Ordinarily, when one

jumps into the swimming pool, at the shallow end, the feet

do hit the floor of the pool but they remain firmly grounded.

The incident of the kind involved in the present case could

only occur on account of the slippery floor. This takes me to

the second aspect and that is that the accident must have

been caused by an agency or instrumentality within the

exclusive control of the defendant. The defendant was

entirely responsible for the maintenance and operation of

the same and therefore this condition is also satisfied. The

third condition is that the accident must not have been

caused by any voluntary action or contribution on the part

of the plaintiff. Here, again, I find that there was no

contributory negligence on the part of the plaintiff. The

plaintiff merely jumped into the swimming pool in the shallow

end as she may have done on hundreds of occasions being

a person more than accustomed to swimming and one who

spent many hundreds of hours in and around the swimming

pool. (Para 65)

It is, therefore, clear that all the three conditions necessary

for application of the doctrine of res ipsa loquitur stand

satisfied. (Para 66)

Once this happens, the burden shifts to the defendant to

rebut the evidence of negligence. In Municipal Corporation

of Delhi v. Subhagwanti & Ors: AIR 1966 SC 1750, the

Supreme Court described the shifting of the burden, relying

on Halsbury's Laws of England, 2nd Ed., Vol. 23, as

under:-

“An exception to the general rule that the burden of

proof of the alleged negligence is in the first instance

on the plaintiff occurs wherever the facts already

established are such that the proper and natural

inference immediately arising from them is that the

injury complained of was caused by the defendant's

negligence, or where the event charged as negligence

‘tells its own story’ of negligence on the part of the

defendant, the story so told being clear and

unambiguous. To these cases the maxim res ipsa

loquitur applies. Where the doctrine applies, a

presumption of fault is raised against the defendant,

which if he is to succeed in his defence, must be

overcome by contrary evidence, the burden on the

defendant being to show how the act complained of

could reasonably happen without negligence on his

part.”

The defendant has not provided any plausible

explanation as to how the plaintiff could have suffered

the injury that she did. Consequently, the defendant

has failed to meet its burden of proof in showing as

to how the plaintiff came to be injured without their

negligence. Such burden not having been discharged,

by employing the doctrine of res ipsa loquitur, it is

clear that it was on account of the defendant‘s

negligence that the floor of the swimming pool was

slippery on account of which the injury was sustained

by the plaintiff. (Para 67)

(G) Damages—Plaintiff awarded Rs. 5 lacs for expenditure

incurred under head of medical treatment—Rs. 50

Lacs awarded on account of physical and mental

anguish—Loss of earnings—Qunatified at Rs. 1 crore

and twenty seven lacs—Plaintiff entitled to total sum

Rs.1,82,00,000/- alongwith simple interest with effect

from 22.01.1982.

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Important Issue Involved: Res ipsa loquitur is employed

when no direct material on particular aspect—Things speak

for themselves—Three conditions—Incident of this kind could

only occur on account of slippery floor—Accident caused

by agency or instrumentality within exclusive control of

Defendant—Third, accident not caused by any voluntary

contribution on part of Plaintiff—All three conditions met—

Res Ipsa Loquitur applicable—Burden shifts to Defendant—

Defendants failed to provide plausible explanation for injury—

Failed to meet burden of proof—Hence injury sustained on

account of negligence of Defendant.

[Sa Gh]

APPEARANCES:

FOR THE PLAINTIFF : Mr. Madan Bhatia, Sr. Advocate with

Mr. Anup Kumar Sinha Advocate.

FOR THE DEFENDANT : Mr. K.T.S. Tulsi Sr. Advocate with

Mr. Amitabh Marwah, Mr. R.S.

Mathur & Ms. Evneet Uppal,

Advocate.

CASES REFERRED TO:

1. Klaus Mittelbachert vs. East India Hotels Ltd : 65 (1997)

DLT 428.

2. United Bank of India vs. Naresh Kumar: 1996 (6) SCC

660.

3. Municipal Corporation of Delhi vs. Subhagwanti & Ors:

AIR 1966 SC 1750.

RESULT: Suit Decreed in favour of the Plaintiff.

BADAR DURREZ AHMED, J.

1. The plaintiff has prayed for a decree of Rs. 2,00,00,000/- (rupees

two crores) by way of damages as also interest at the rate of 18% p.a.

on the said amount from the date of presentation of the plaint till actual

payment. The plaintiff has made the said claim on the basis of an incident

which happened on 05.05.1978 in the swimming pool of Akbar Hotel

which was managed and maintained by the defendant —India Tourism

Development Corporation Limited. The plaintiff, who was staying in the

said hotel along with her parents and brother, was injured in the said

swimming pool as a result of which she became a quadriplegic. According

to the plaintiff, the injury which had been caused to her was on account

of the negligence on the part of the defendant in the maintenance of the

swimming pool. Insofar as the defendant is concerned, while the fact

that the plaintiff received the injury on 05.05.1978 in the said swimming

pool is not denied, it has been contended that the injury was a result of

the plaintiff‘s own negligence and the defendant cannot be held liable for

the same.

2. Briefly put, the case hinges upon three facets. The first being

that according to the plaintiff the injury was caused when she jumped

into the swimming pool at the shallow end and her feet slipped on the

tiled floor of the swimming pool. As a result, she hit her head on the

vertical wall of the swimming pool and incurred the injury which led to

her becoming a quadriplegic. On the other hand, the defendant contends

that the plaintiff received the injury as a result of diving at the shallow

end and not as a result of jumping. Consequently, no negligence could

be attributed to the defendant. The second facet, which is connected

with the first, is the issue as to whether the tiles of the floor of the

swimming pool were slippery because of algae formation? It is the plaintiff‘s

case that they were and, therefore, there was clear negligence on the part

of the defendant inasmuch as the swimming pool had not been properly

maintained and kept safe for the residents of the hotel. The defendant,

on the other hand, contended that the swimming pool was properly

maintained and that, in any event, the injury which resulted was because

of the plaintiff diving into the pool and not because of her jumping as

suggested by the plaintiff. The third facet is that, in case there is a

finding in favour of the plaintiff that the injury caused to her was because

of the defendant’s negligence, the quantum of compensation is to be

determined. These are the broad parameters of this case.

Averments in the Plaint:

3. In the plaint, it is alleged that in May, 1978, the plaintiff was on

vacation in India along with her parents and stayed in Akbar hotel situated

at New Delhi which was being run and managed by the defendant. On


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05.05.1978, during her stay in the hotel, the plaintiff went to the swimming

pool at about 5:15 pm for a swim. It is stated that the plaintiff was an

experienced swimmer, having been a Queensland (Australia) underage

champion and was also a member of the Queensland Women’s Water

Polo Team for a number of years. It is averred that in the beginning of

1978, the plaintiff had also been invited to join the Australian Women‘s

Water Polo Team and was expected to travel to Germany with the

Australian Team in August, 1979.

4. On the fateful day, that is, on 05.05.1978, at about 5:15 pm, the

plaintiff jumped into the swimming pool from the shallow end, opposite

the diving board. According to the plaint, the plaintiff had reason to

believe that the bottom of the pool was not slippery and had been kept

clean of all slimy material which otherwise accumulates if the pool is not

properly cleaned. According to the plaintiff, it is an implied representation

by the owner of the swimming pool that the floor of the pool is not

slippery and is safe for persons using the pool to stand on the floor of

the pool without slipping. According to the plaintiff, the defendant had

been extremely negligent in covering the floor of the pool with glazed

tiles which were very slippery and also in not cleaning and maintaining

the floor sufficiently, resulting in the growth and accumulation of slime

on the tiles. Because of this, as soon as the plaintiff jumped into the

water and her feet touched the floor of the pool, they slipped, resulting

in loss of control by the plaintiff and the plaintiff fell backwards and her

head hit against the wall of the pool.

5. It is further averred that as a result of the aforesaid fall, the

plaintiff suffered serious head and back injuries and was unable to swim

out of the pool. The plaintiff’s father and brother sensing that the plaintiff

had been injured and on noticing blood in the water, immediately swam

to the plaintiff‘s assistance and lifted her out of the pool carefully.

Subsequently, the plaintiff was removed by ambulance to the Holy Family

Hospital, Okhla, New Delhi where she was treated by Dr Arjun Sehgal

and Professor Ramamurthi, who had come from Madras. As per the

plaint, the said Dr Sehgal diagnosed that the plaintiff had suffered a head

injury with fracture dislocation of the cervical dorsal column causing

paralysis of the four limbs and loss of sphincter control. It is stated that

Dr Sehgal later advised that the plaintiff should be transported to her

home in Brisbane, Australia. After a prolonged hospitalization in Delhi,

accompanied by a neurosurgeon and another doctor, the plaintiff was

flown to Australia. From 16.06.1978 to 27.10.1978 the plaintiff remained

admitted in the Spinal Unit of Princess Alexandra Hospital, Brisbane and

from 13.11.1978 to 18.11.1978 in the Spinal Unit of Royal North Shore

Hospital, Sydney, Australia. It is further stated in the plaint that despite

sustained medical treatment, the plaintiff has not been able to recover

from the spinal injuries which are of a permanent character and have

physically incapacitated the plaintiff for the rest of her life. She is now

permanently confined to a wheel chair, being a quadriplegic.

6. It is alleged in the plaint that apart from the physical agony and

mental anguish which the plaintiff underwent during her treatment, the

plaintiff also suffered emotional and psychological pain which will live

with her as long as she lives. According to the plaintiff, she had a very

bright and fruitful future ahead of her but the same was cut-short by the

said permanent disability suffered by the plaintiff on account of utter

negligence and carelessness of the defendant, its employees, servants and

agents. It is alleged that the defendant was under a duty to keep its

swimming pool safe for the purposes of swimming. According to the

plaintiff, the incident speaks for itself and the plaintiff is entitled to the

benefit of the maxim of res ipsa loquitur. The sum of Rs. 2 crores which

has been claimed by the plaintiff by way of damages has been computed

as under:-

(i) Expenses incurred by the

plaintiff on medical treatment

and care in India and Australia - Rs. 20,00,000.00

(ii) Damages on account of physical

pain, mental anguish and psychological

anguish and loss of education - Rs. 50,00,000.00

(iii) Damages on account of loss of earnings

for the rest of her life - Rs. 1,30,00,000.00

Total - Rs. 2,00,00,000.00

Consequently, a decree of Rs. 2 crores along with interest at the rate of

18% p.a. from the date of presentation of the plaint till realization has

been prayed for by the plaintiff.

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Averments in the Written Statement:

7. A preliminary objection was taken by the defendant that the

plaint was not filed by a duly authorized person. According to the

ˇdefendant, the plaint has been signed and verified by Mr Geoffrey Beer

as the alleged attorney of Ms Susan Leigh Beer but the alleged power of

attorney has neither been filed with the plaint nor is there any list of

documents / reliance filed with the plaint making a reference to the same.

8. The defendant also took the plea that the suit is liable to be

dismissed for non-joinder of a necessary party. According to the defendant,

while it is admitted that the defendant had been running a five-star hotel

known as Akbar Hotel, the defendant was only a lessee from the New

Delhi Municipal Committee, which is the owner of the building and the

premises including the swimming pool. According to the defendant the

NDMC was, therefore, a necessary party. Since the plaintiff had not

impleaded the NDMC as a party to the suit, the same was liable to be

rejected for non-joinder of a necessary party.

9. As per the written statement, Mr Geoffrey Beer and the plaintiff

stayed at the hotel as alleged. However, it is further stated that the guests

registered at the hotel could use the swimming pool entirely at their risk

and responsibility and that there was no express or implied obligation on

the part of the hotel in this behalf. According to the defendant, the hotel

merely permits the guests to swim if they so choose at their absolute

volition without any charge for the same or consideration whatsoever. It

was even contended that, therefore, merely because a guest may choose

to swim at the swimming pool, it cannot create a contract or fall within

the ambit of any contractual relationship in this regard and no question

of any breach of contract arose at all. It was stated that any guest, who

uses the swimming pool, does so on an .as is. basis. It is further stated

that insofar as the children of guests are concerned, the parents are

entirely responsible for the safety of the children in the pool and that even

otherwise, according to the rules, the defendant does not accept any

responsibility for any accident. It was also contended that as regards the

construction of the swimming pool, the same had been done by the

NDMC and that it conformed to the well accepted and well recognized

standards.

10. The defendant further stated that the plaintiff did not observe

the rules with regard to the use of the swimming pool and was herself

wholly negligent and, in any event, no claim would lie against ITDC.

11. The defendant further stated in the written statement that the

plaintiff should not have jumped into the pool from the shallow end and

that swimmers have necessarily to use the diving board and dive into the

deep end of the swimming pool. According to the defendant, the jumping

or diving at the shallow side by the plaintiff was wholly wrong, negligent

and contrary to the well accepted norms of swimming and in violation

of the laid down rules. It was further alleged that there are fixed stairs

built into the swimming pool for going into the swimming pool and

obviously the plaintiff did not enter the swimming pool through the stairs,

which was a wholly negligent act on her part. According to the defendant,

the plaintiff had been negligent in jumping into the pool from the shallow

end even assuming, without admitting that she had jumped into the pool

as alleged by her. The defendant stated that the incident happened otherwise

than what was alleged. The defendant denied that the bottom of the pool

was slippery and also denied that the plaintiff slipped in the swimming

pool as alleged. It was also contended that the plaintiff had not even

jumped into the swimming pool as alleged by her. The defendant stated

that the swimming pool was cleaned according to the well recognized

standards and on the date of the incident also the swimming pool had

been cleaned. Accordingly, it was not slippery. The defendant stated that

as a matter of fact, the injury to the plaintiff could not have been suffered

as a result of the plaintiff jumping and slipping in the swimming pool as

alleged.

12. The defendant stated that swimming pools with glazed tiles are

well accepted. It was again denied that the tiles covering the floor of the

pool at the said hotel were slippery as alleged or otherwise and that the

defendant did not keep the floor of the pool clean or did not properly

maintain the same.

13. In the written statement it is further stated that as a matter of

fact, the plaintiff and her brother were playing in and around the swimming

pool and all of a sudden the accident happened. The defendant denied the

averments and allegations in the plaint to the effect that her feet had

touched the floor of the pool and that they slipped resulting in the loss

of control of the plaintiff and that her head hit against the wall of the

pool. It was further averred in the written statement that the injury


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caused to the plaintiff did not permit her to remember correctly anything

of what had actually happened. According to the defendant, even the

parents and brother of the plaintiff could not describe the accident when

the defendant made enquiries in this behalf from them after the accident

and before they left the hotel. The defendant further stated that there was

a lifeguard in attendance who had immediately gone to rescue the plaintiff

after seeing the sudden accident and that the pool was well marked

indicating the depth of water at different places. The plaintiff was entirely

responsible for the incident.

14. In paragraph 11 of the written statement, it is admitted that the

plaintiff, after having suffered the injury, did not swim out of the pool.

However, it is stated that it was an employee of the defendant, who was

the attendant at the swimming pool, who was responsible for bringing

the plaintiff out of the water. As per the written statement, the parents

of the plaintiff were not close to the pool but were at a distance relaxing

in the chairs. The plaintiff’s brother, however, was close to the pool but

he was dazed at that point of time and could not say as to what happened.

The defendant denied that the parents of the plaintiff had seen the incident

or that they had rescued the plaintiff as alleged in the plaint.

15. Interestingly, in the written statement the defendant has denied

that the plaintiff had suffered any spinal injuries or any injuries of a

permanent character. It was denied that the plaintiff was in any way

physically incapacitated.

16. The insensitivity of the defendant is disclosed by the following

averment in the written statement:-

“It is clear that the injuries whatever they were, did not affect

the mobility of the plaintiff which is evident also from the fact

that she had been found fit to travel soon after the accident and

she could have travelled even earlier than she did.”

17. The defendant has also stated that it had a daily routine for

cleaning of the swimming pool according to standard procedure and

processes, before the swimming pool is opened for use every day. Thus,

according to the defendant, there was neither any chance at all of the

swimming pool being slippery or unsafe nor was it slippery or unsafe.

According to the defendant, it had provided the help and assistance of

a lifeguard, notified the conditions subject to which the pool could be

used as licencees, displayed information regarding different depths of the

water at different places by markings in bold English letters. The defendant

stated that the incident was the result of violations of the conditions for

use of the pool on the part of the plaintiff and because of the utter

negligence on the part of the plaintiff. The defendant denied that the

principle of res ipsa loquitur would apply. The defendant also denied that

any damages or losses, as claimed, were caused to the plaintiff.

Consequently, the defendant contended that the suit be dismissed with

costs.

Issues:

18. On the basis of the averments made in the plaint and the written

statement, the following nine issues were framed:-

1. Whether the suit has been filed by duly authorized person?

2. Whether New Delhi Municipal Committee was owner of

the building of Akbar Hotel and was a necessary party?

3. Whether the tiles covering the floor of the swimming pool

were slippery?

4. Whether the floor of the swimming pool was not clean

and had not been properly maintained, resulting in the

growth and accumulation of slime on the tiles?

5. Whether the plaintiff suffered injuries on account of the

nature and condition of the bottom of the pool and due to

ˇnegligence of the hotel? If so, what injuries were suffered

by her?

6. Whether the plaintiff was required to observe any rules in

the use of swimming pool and she did not observe the

said rules and was herself negligent for the injuries suffered,

if any?

7. Whether the swimming in the pool was at the risk and

responsibility of the plaintiff (the guest) and there was no

obligation on the hotel in this behalf?

8. Whether the defendant was in legal duty to keep the

swimming pool safe for swimming of guests and the

plaintiff was entitled to the benefit of the maxim res ipsa

loquitur?

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9. To what amount, if any, the plaintiff is entitled?

As many as 22 witnesses have been examined on behalf of the

plaintiff. Of these the most important are PW1 (the plaintiff herself),

PW2 Mr G.L. Beer (the plaintiff’s father), PW4 Dr J. A. Smith

(Neurosurgeon— expert witness), PW8 Mr G. L. McDonald (expert

witness), PW14 Mr K. R. Dobson (expert witness), PW18 Mr L. I. Sly

(expert witness), PW19 Mrs P. J. Beer (the plaintiff‘s mother) and

PW22 Dr Arjun Dass Sehgal (the doctor who initially treated the plaintiff

at Holy Family Hospital). It appears that there is some error in the

assigning of numbers to these witnesses. The error is that Mrs P. J.

Beer, who is shown at serial No. 19 of the list of witnesses, has been

assigned the number ‘PW19’. However, Dr Arjun Dass Sehgal, who is

shown at serial No. 22 of the list of witnesses, has also been assigned

the number ‘PW19’. Therefore, for the purposes of this suit, I would

treat Mrs P. J. Beer as PW19 and Dr Arjun Dass Sehgal as PW22. This

anomaly has probably appeared because 21 witnesses were examined in

Australia and one witness, that is, Dr Arjun Dass Sehgal was examined

in Delhi. The defendant examined two witnesses, namely, DW1 Dr G.

G. Manshramani and DW2 Balram Verma (the lifeguard at Akbar Hotel).

Issue No. 1:

19. It has been contended by the defendant that the suit has not

been filed by a duly authorized person. It is an admitted position that the

plaint was filed on 21.01.1982 and the same purports to have been filed

by the plaintiff through her attorney (Geoffrey Beer), who was appointed

as the attorney by the plaintiff by virtue of a power of attorney dated

15.01.1982. The said Geoffrey Beer is the plaintiff‘s father. He had

signed and verified the plaint in New Delhi on 21.01.1982 claiming to be

the attorney of the plaintiff as per the said power of attorney dated

15.01.1982.

20. According to the defendant, the power of attorney dated

15.01.1982 did not accompany the plaint and that it was filed for the first

time on 15.11.1991, after almost 10 years. It was also contended that the

said power of attorney cannot be regarded as valid or authentic as it is

allegedly not executed in the presence of a notary nor has it been

authenticated by a notary. It was also contended that the plaintiff, despite

ample opportunity, failed to get the power of attorney duly proved and

exhibited. Consequently, it has been argued that Mr G. L. Beer cannot

be regarded as an authorized agent under Order 3 Rule 2 CPC and,

therefore, the suit was not properly verified, signed or instituted and,

therefore, the same is liable to be dismissed on this ground.

21. On behalf of the plaintiff, it was urged that the suit had been

instituted by a duly authorized person. The plaintiff had authorized her

father Mr G. L. Beer by virtue of the said power of attorney dated

15.01.1982 and even otherwise to institute the suit as also to sign and

verify the plaint on her behalf. It is clear that the plaintiff had become

virtually immovable because she had become a quadriplegic on account

of the said incident. It was, therefore, extremely difficult, if not impossible,

for her to travel to New Delhi from Australia to present the plaint. It is

in these circumstances that the plaintiff had authorized her father Mr G.

L. Beer to sign, verify and file the plaint. She had also executed a power

of attorney dated 15.01.1982. It was also contended on behalf of the

plaintiff that, in any event, the plaintiff has clearly testified that she had

authorized Mr G. L. Beer to institute the present suit. Thus, in any event,

there was a clear ratification on her part. The learned counsel for the

plaintiff also placed reliance on the judgment of the Supreme Court in the

case of United Bank of India v. Naresh Kumar: 1996 (6) SCC 660

wherein it was, inter alia, held that ratification can be proved later and

that a mere irregularity in procedure should not defeat a substantive right

of an individual.

22. The present suit was instituted as an indigent person‘s application

being IPA 1/1982. The order passed in IPA 1/1982 on 22.01.1982 clearly

records that the application was presented by the father who held a

power of attorney from the applicant who was stated to be paralyzed and

was in Australia. By virtue of the said order dated 22.01.1982, the

applicant (the plaintiff herein) was exempted from presentation of the

application in person and the father of the applicant (plaintiff) was allowed

to do the same. It was also directed as under:-

“Let the authorized agent and father of the plaintiff be examined.”

Thereafter, on 22.01.1982 itself, the statement of Mr Geoffrey Beer (the

plaintiff‘s father) was recorded on solemn affirmation and was, inter

alia, to the following effect:-


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“plaintiff is my daughter. I hold power of attorney from the

plaintiff in my favour to file the present petition. She does not

own any immovable property…………… She is completely

paralyzed and unable to work. She is, therefore, unemployed.

She has no source of income other than the pension given to her

by Australian Government........ She is unable to pay the court

fees on the claim………… I am fully aware of the matter in

controversy in this suit. The claim is correct and well-founded.

I am able to answer all material questions..

Subsequently, by an order dated 24.09.1982, IPA 1/1982 was directed

to be numbered and registered as a suit. From this, it is clear that the

plaintiff‘s father Mr G. L. Beer had appeared before this Court on

22.01.1982 and had categorically stated that he held a power of attorney

from the applicant. The plaint also indicated that it had been signed by

Mr G. L. Beer as the attorney of the plaintiff on the basis of a power

of attorney dated 15.01.1982.

23. The plaintiff came to the witness box as PW1 and, in response

to the question as to whether she felt she was going to recover after the

treatment at Melbourne in 1980-1981, she answered:-

“I think at the end of this treatment I realized that I was not

going to recover any more mobility or sensation and we decided

by that time to commence this court action for compensation.”

A further question was put to her as to whether in 1981 she decided to

file this action herself. She answered in the affirmative. She also stated

that the suit was filed at her instance in early 1982 and that she had

authorized her father to file the suit. She also stated that she had executed

a power of attorney in his favour for this purpose. As there was some

controversy before the court examiner in Australia with regard to whether

the power of attorney should be marked as an exhibit or simply marked,

the said examiner marked the document both as Exhibit PW1/17 and as

Mark ‘A’. Of course, the plaintiff PW1 admitted her signature on the said

document of power of attorney. In her testimony, the plaintiff (PW1)

also stated that whatever has been stated in the plaint is correct.

24. I also noticed from the record that an application (IA 12075/

1991) had been filed for placing the power of attorney of the plaintiff in

favour of her father on the record of the case. Along with the application

was an affidavit of one Mr Mohan Lal, who was the clerk of Mr Madan

Bhatia, who was the Advocate on behalf of the plaintiff. In the said

affidavit dated 15.01.1991, it is stated that the plaintiff‘s father Mr G. L.

Beer had handed over the power of attorney in his favour for being filed

in this Court when the suit had been filed. It is further stated that he had

been informed that when the evidence was being recorded in Brisbane,

Australia it was discovered that the said power of attorney was not on

the record of the case. When the counsel for the plaintiff returned to

India, the said clerk checked the personal files lying in the office of the

said counsel and discovered that the power of attorney was in those files.

The said clerk further stated that the said power of attorney had not been

filed on account of inadvertence and because of an accidental slip. On

the said application No. 12075/1991, this Court, by an order dated

25.11.1991, directed that the power of attorney executed by the plaintiff

in favour of her father, which had been filed along with the application,

be kept on record.

25. From the above, it is clear that in the plaint itself it has been

stated that the same was being signed, verified and instituted by Mr G.

L. Beer on behalf of his daughter on the basis of the power of attorney

dated 15.01.1982. Inadvertently, that power of attorney had not been

filed along with the plaint and was subsequently filed on 25.11.1991 by

virtue of an application being IA 12075/1991 which was allowed and the

power of attorney was taken on record. Apart from this, the plaintiff has

clearly testified that the contents of the plaint were correct and that the

same had been instituted by her father on her instructions. There is, thus,

a clear ratification on her part. It is not a case where a person has

instituted a suit representing himself to be an authorized agent and where

the principal has refuted the claim. Mr G. L. Beer, undoubtedly, verified

and filed the plaint as an agent of the plaintiff. This fact has been

confirmed by the plaintiff herself. The Supreme Court in the case of

United Bank of India v. Naresh Kumar (supra) clearly held that the

procedural defects which do not go to the root of the matter should not

be permitted to defeat a just cause and that there is sufficient power in

the Courts, under the Code of Civil Procedure, to ensure that injustice

is not done to any party who has a just cause. The Supreme Court

further observed that as far as possible a substantive right should not be

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allowed to be defeated on account of a procedural irregularity which is

curable. In the case before the Supreme Court, the issue arose with

regard to the authority of a person to sign the pleadings on behalf of a

company. The Court observed that a person may be expressly authorized

to sign pleadings on behalf of a company, for example by the Board of

Directors passing a resolution to that effect or by a power of attorney

being executed in favour of any individual. It was specifically observed

that even in the absence of such a resolution or a power of attorney, in

cases where pleadings have been signed by one of its officers, a

Corporation could ratify the said action of its officer in signing the

pleadings and that such ratification could be expressed or implied. It was

further held that the Court could, on the basis of the evidence on record,

after taking into account all the circumstances of the case, especially

with regard to the conduct of the trial, come to the conclusion that the

corporation had ratified the act of signing of the pleading by its officer.

In the present case, I find that it has come in evidence that the plaintiff

had decided to commence the action for compensation when her treatment

ended and she realized that she would not recover any further. She had

clearly stated that she had asked her father to institute the present suit

and had even authorized him by executing the power of attorney dated

15.01.1982. The present suit had been instituted by her father as her

authorized attorney. Even if I do not go into the matter of admissibility

of the document of power of attorney, the action of the plaintiff‘s father

in signing, verifying and filing the plaint stands fully ratified by the

plaintiff. Therefore, the only conclusion that can be arrived at is that the

suit had been filed by a duly authorized person and this issue is accordingly

decided in favour of the plaintiff and against the defendant.

Issue No. 2:

26. This issue, although framed, was not pressed by the learned

counsel for the defendant at the time of hearing and, therefore, the same

is not being dealt with.

Issue Nos. 3-8:

27. These issues are being discussed together as they are all

inextricably linked with each other. Essentially these issues require the

Court to determine the following:-

(1) Nature of the injuries suffered by the plaintiff (issue No.5);

(2) Cause of the injury; whether caused by jumping as alleged

by the plaintiff or diving as propounded by the defendant

(issue No.5);

(3) It is obvious that if the cause of injuries is diving, the

plaintiff‘s case falls to the ground. In case the injuries

have been caused by jumping into the pool, the plaintiff

has to further establish:-

(i) that the tiles at the floor of the swimming pool were

slippery, as they were not properly maintained (issue

Nos. 3, 4 & 8); and

(ii) that the plaintiff was herself not negligent (issues 6 & 7)

Nature of injuries:

28. With regard to the nature of the injuries suffered by the plaintiff,

the testimony of PW22 Dr Arjun Dass Sehgal, who treated the plaintiff,

is most material. According to Dr Sehgal, the plaintiff‘s X-ray showed

that there was a fracture of cervical-7 vertebra. She also had a lacerated

wound on the top of her head going to the left of the midline. According

to him, she suffered a compression fracture of the cervical seventh

vertebra. According to him, that was a flexion injury. He further stated

that the plaintiff had a permanent disability and because of the injury, her

legs, bowel and bladder were paralyzed. She had permanent disability and

she had no sensation of pain or touch or temperature below the cervical

column. He stated that the plaintiff was admitted on 05.05.1978 and was

transferred to Australia on 13.06.1978 and that he had accompanied the

plaintiff to Australia. He further stated that the X-rays were taken on his

advice and they are exhibited as Exhibits PW1/7 to PW1/16.

29. PW4 Dr J. A. Smith, who specialized in neurosurgery, stated

that the plaintiff had consulted her. He stated that he had seen the X-rays

of her spinal injury and had also examined her. He categorically stated

that after seeing the plaintiff and seeing her X-rays, there was no possibility

of a recovery from the spinal injury which she had sustained. He stated

that her injury was permanent. In fact, he had given a report which has

been marked as Exhibit PW4/1. He re-affirmed what he stated in the said

report. Dr Smith stated that a compression injury would be different

from a flexion injury of the cervical spine. But, he clarified that one


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would have to define the ways in which the injuries are to be described.

According to him, if one considers a flexion injury then there was some

degree of compression occurring in that type of injury and that a degree

of compression is usually in the anterior portions of the vertebral bodies.

Thus, according to the said witness, it cannot always be said that ‘it is

this sort of injury or that sort of injury’. However, Dr Smith stated that

it is a matter of describing what one sees on the X-rays in relation to

what happened clinically. He stated that he tried to clarify by stating that

if the present case was a true vertical compression injury, then one might

expect that the features would be that of a burst fracture. And, according

to Dr Smith, the present case is not one of burst fracture.

30. Exhibit PW2/33 indicates the external injury to be a contusion

lacerated wound about 1 inch long in the left parietal area just along the

mid line. Exhibit PW19/1 which is the admission and discharge report at

Holy Family Hospital, New Delhi, indicates the diagnosis of the plaintiff

to be “Quadriplegia Š # C6-7

”. Exhibit PW19/3, which is the case summary

and discharge record at Holy Family Hospital, indicates the investigation

to reveal that the plaintiff‘s injury caused “quadriplegia Š # cervical

spine”. The X-rays were shown to indicate a fracture in the cervical

spine at C6-7

. There was no fracture in the skull. The X-ray report which

forms part of Exhibit PW19/3 indicates .no fracture shown in skull,

fracture C6 &

7 with slight ant. sliding of C

7 under C

6”.

31. From the above evidence, it is abundantly clear that the nature

of the injuries were such which resulted in the fracture of the 6th and

7th cervical vertebrae with slight anterior sliding of the 7th vertebra

under the 6th vertebra. This resulted in the plaintiff becoming a quadriplegic.

32. At this juncture, it would be relevant to examine the testimony

of the plaintiff, who was examined as PW1. She stated that she represented

her school in swimming every year of her high school life. She attended

the Queensland State Championship for under-10s in the butterfly stroke

and she was a member of many State teams for water polo as well. She

also represented the under-18 team and the open women’s team of her

State. She had travelled to Tasmania and to New Zealand and on those

occasions her team had won the gold medal. She had also been invited

into the Australian team to tour the United States but she had previously

been committed to travel to New Zealand so she chose to travel to New

Zealand. She stated that she was a member of the Queensland team and

was a co-captain of the team which travelled to New Zealand.

33. The plaintiff further stated in her testimony that she had gone

to take a swim on 05.05.1978 in the swimming pool at Akbar Hotel at

about 5 O‘clock. According to her, it had been a hot day and they had

gone down to the pool; her father, mother, her younger brother and

herself. When they got to the pool side area, her father, brother and

mother went ahead to get into the pool and she stopped at the edge of

the pool to take off her robe and her sandals. Thereafter, she stated that

she remembered that her hair got tangled in the strap of her swimming

costume. She took time to fix that up and to untangle it. Then she walked

over to the shallow end of the pool and she jumped into the pool. She

stated that when she jumped in the pool she felt that her feet touched the

bottom of the pool and immediately they slid forward throwing her

backwards against the side of the pool. She felt her head strike the side

of the pool. Then her brother and father came over and supported her

in the pool and they, with the help of another person, whom she did not

know, lifted her on to the side of the pool. She stated that she remembered

that her father was being very careful in lifting her and he supported her

very gently but very strongly and her head was very stable in the lifting.

She stated that when her feet touched the bottom of the pool, she found

it to be very slippery and immediately both her feet slid forward. She

stated that her body was tingling at that time, right from her shoulders

down to her feet. And, then her body started to go numb. She stated that

she also had a small cut on the back of her head where it struck the side

of the pool and there was a bit of blood in the water of the pool. She

stated that while they were waiting for the ambulance, they transported

her on a stretcher-like thing to the manager‘s room where they waited

for about two hours. Thereafter, she was transported to Holy Family

Hospital in the said ambulance. Dr Arjun Sehgal was present at Holy

Family Hospital and he took charge of the case. He arranged to have the

X-rays taken etc.

34. This part of her testimony has gone unchallenged. From the

above evidence, it is clear that the plaintiff has been able to establish that

she had gone to take a swim along with her family members in the

swimming pool at Akbar Hotel at about 5 pm on 05.05.1978. That when

she jumped into the pool from the shallow end, her feet, on touching the

floor of the pool, slid forward as the same was slippery. Because of this,

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her head hit the side of the swimming pool. Consequent thereupon, she

suffered the injuries to her cervical spine and the lacerated injury on her

head. The injury caused to the cervical spine and particularly the 6th and

7th vertebra, as indicated above, resulted in her ultimately becoming a

quadriplegic, i.e., not having any sensation below her neck. In layman‘s

language, she was paralyzed neck downwards. It is also clear from the

testimony of PW4 Dr J. A. Smith that there was no chance of her

recovery and the injury sustained by her was for life.

35. Thus the nature of the injuries stand determined.

Cause of injuries:

36. It is now to be seen, what is the exact cause of the injuries.

The plaintiff‘s version has already been referred to above. According to

her, she jumped from the shallow end of the pool and her feet touched

the bottom of the pool. The floor of the pool was very slippery as a

result of which her feet slid forward and her head struck the side of the

pool. In the course of cross-examination, she was asked as to whether

she entered the pool from the same side as her parents. She answered

by stating that her mother entered the pool using the ladder and that her

father entered from the same side as her and she thought her brother

went around to the right side of the pool. When she was asked as to how

she knew that she had entered the pool from the shallow end, she

answered, because it looked shallow. The counsel for the defendant

remarked and questioned — “It looked shallow. And, how many different

pools would you have done swimming by then?” The answer ˇgiven by

the plaintiff was that she would have swam in many hundreds of pools

in her life. Then she was asked a question as to what is the difference

between a jump and a dive? She answered that a dive is when you dive

into the water and when you have your hands out ahead to break the

impact of the water on your face or on your head and a jump is when

you jump feet first into the pool. The counsel for the defendant questioned

the plaintiff that the place of the head injury could not have been caused

by striking against the wall of the pool. To this, the plaintiff answered

that she was injured in the way that she remembered and the way that

she had deposed earlier. She jumped in and her feet slipped on the bottom

of the pool and she fell back striking her head against the side of the

pool. She further stated that whether it was actually the edge of the pool

or side of the pool, she was not in a position to say with certainty,

because it happened in a fraction of a second. The counsel for the

defendant also put it to her that she could have only sustained the injury

if she had struck her head against the bottom of the pool. To this, her

pointed answer was “my head was nowhere near the bottom of the pool.

I jumped in feet first”.

37. A different situation was put to the plaintiff by the learned

counsel for the defendant. He questioned that with regard to the likelihood

of the injury having been received on the face, after one dives into the

pool, was it not possible that on account of some misjudgment, when

one is about to strike the bottom of the pool, in order to save one‘s face,

one would turn one‘s head towards the water to push oneself upwards.

The plaintiff answered that that is not possible at all. If such a thing were

to happen, she would have merely used her hands to push her head away

from the bottom of the pool. Then, the learned defence counsel suggested

that “if your hands are unable to stop then to save your face you would

turn your head towards the bottom of the pool”. To this, also, the

plaintiff replied that she could not imagine any circumstance where she

would turn her head towards the bottom of the pool. She stated that she

would have lifted her head away from the bottom of the pool and that

would be a natural reaction— “to turn your head away rather than

towards something being hit”.

38. From the above, it is clear that the effort of the defendant‘s

counsel was to propound an alternate theory for the cause of the plaintiff‘s

injury. The first alternative was that the plaintiff took a dive in the

shallow end of the pool and hit her head on the bottom of the pool. The

second alternative propounded was that the plaintiff took a dive in the

shallow end of the pool and seeing that she had miscalculated her dive

as she was fast approaching the bottom of the pool, she turned her head

and thereby got injured on the back of her head. Both these alternative

hypotheses were clearly rejected by the plaintiff, who stood firm with

her initial statement that she sustained the injury when she jumped into

the pool from the shallow end and the floor of the pool being slippery,

her feet slid forward and her head hit the side wall of the pool.

39. PW2 Mr G. L. Beer stated in his examination-in-chief that he

had represented his school in swimming. As a soldier in World War II,

he was the backstroke champion of the 2nd 9th Regiment. He also stated


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to be a backstroke champion of the Fourth Brigade of the AAF and that

he was a member of the Scuba Association and that he was a diver. Mr

G. L. Beer stated that the angle at which one would dive from the edge

of a pool, not from a racing block but from the edge of the pool, would

be 15 degrees. On being asked the question as to when somebody was

to dive into the pool from the shallow end of the pool, what would be

the angle of the dive, Mr G. L. Beer answered—15 degrees. He further

stated that from the starting blocks since they are higher than the edge

of the pool, the angle of the dive would be close to 30 degrees.

40. With regard to the manner in which the incident took place,

PW2 Mr G. L. Beer stated that his son entered the pool just before his

wife and himself. His wife entered through the ladder because she did not

like immersing quickly. He walked past the ladder and as he had an

injured knee at that time and was on a crutch, he sat on the edge of the

pool and then slipped into the water so as to avoid any jar to his knee,

which would be caused by jumping in. He stated that the plaintiff entered

the pool after them. He said that she removed her gown and sandals

while his wife and he swam to the centre of the pool and their son was

possibly half way from the centre of the pool. He stated that they

watched the plaintiff walk down the edge of the path where she had

draped her gown and sandals. She came straight from the bottom of the

path at the shallow section and jumped into the water from the edge of

the pool. The water was about 2’ 6’’ deep at that point. He then saw her

slip backwards and disappear under the water. He believed that she may

have struck her head. Then, he stated that his wife was obviously also

watching because she called out “Sue’s hurt”. He then immediately swam

where the plaintiff was. His son Nicholas had also obviously seen the

incident and he reached the plaintiff before him (Mr G. L. Beer). The said

witness positively stated that he saw the plaintiff slipping backwards. He

stated that although he did not see her head striking against anything, but

she disappeared under the water and he feared that she struck her head

under the wave trap.

41. He further stated that when he reached the place where the

plaintiff was, his son Nicholas was supporting her. She was on her back,

face upwards and she had a small cut on the top of her head which he

estimated was between half and three quarters of an inch long. He stated

that there was a little bit of blood coming out of the cut and it is then

that he realized that she had struck her head on the edge of the pool.

42. PW2 Mr G. L. Beer further stated that the plaintiff was quite

conscious, but dazed and he went around the other side of her. His son

Nicholas was on that side. He asked a bystander to help him lift her from

the pool. With great care they lifted her and slid her over the edge of the

pool. He stated that he was conscious that his foot slipped on the glazed

tiles on the floor of the pool. He knelt beside her and she said “Oh no

please”. He asked her to gently move her toes and fingers and found to

his horror that she could not move them. He then asked a bystander to

get the manager of the hotel and a doctor. It is further stated by the said

witness that after some time two men arrived, one with a portmanteau

and he turned out to be Dr Chowdhry and the other, he presumed, was

the manager of the hotel. The said witness was angered by the fact that

the said doctor merely said that the plaintiff was suffering from concussion

and that she should be taken to the hospital for the night in the hotel car.

He demanded that an ambulance be called with a specialist doctor. The

manger suggested that the plaintiff be lifted but the witness Mr G. L.

Beer absolutely refused to allow her to be moved. However, they gently

moved her on to a lylo because it was very hot at the pool side. According

to this witness the ambulance took about two hours to arrive which was

an incredibly long time. Thereafter, she was taken to Holy Family Hospital.

A doctor was attending, whose name was later found to be Dr Arjun

Sehgal. He required X-rays to be taken. The doctor told him that her

daughter had suffered a spinal injury and she was paralyzed from the

chin down.

43. From the testimony of PW2 Mr G. L. Beer also it is apparent

that the plaintiff suffered the injury in the manner indicated by her, that

is, when she jumped into the pool in the shallow end, her feet slipped on

the floor of the pool and slid forward and in the process she hit the back/

top of her head on the side of the pool which ultimately resulted in the

fracture of her cervical column around the 6th /7th cervical vertebra.

This is what caused her to be paralyzed from chin down.

44. PW19 Mrs P. J. Beer, the plaintiff‘s mother also indicated the

manner in which the incident took place on 05.05.1978. She said that

approximately at 5 pm the four of them went to the pool. They had come

down in the elevator and walked from the ramp to the pool. According

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to her, the plaintiff stopped to take off her robe and her sandals. Her son

Nicholas went on ahead a little further near the ladder and dived into the

pool. Her husband and she followed. Her husband sat on the side of the

pool because he had bad knee injury and slowly slipped into the water

and swam to the centre of the pool. She climbed down the ladder. She

stated that when she swam to the centre of the pool her husband was

there and her son was a little further closer to the edge. She turned

around to see if the plaintiff was following her and saw her at the edge

of the pool. She jumped into the water, slipped and hit her head. She

disappeared under the water then she surfaced again and was lying on

her back. She stated that her feet slipped in the pool and she slipped

backwards and she called to her husband “Sue has been hurt”. She stated

that her son had seen the accident and was already swimming towards

her and then her husband also swam towards her. She swam back to the

ladder to get out of the pool as quickly as possible. Her son Nicholas was

supporting the plaintiff when her husband arrived and he helped to support

her. A stranger came along, whom they did not see before or after, who

helped in lifting the plaintiff out of the pool very-very carefully. She

stated that thereafter the manager of the hotel and a doctor arrived. The

doctor said that she had a concussion and that there was no serious

injury to the top of her head and he suggested that she be put in a car

and taken to a hospital for observation overnight. She was distressed and

she was sitting beside her daughter at the pool and the cement was very

hot because it was an extremely hot day. She tried to sprinkle water over

the plaintiff so that she did not burn on the concrete. She enquired from

the plaintiff as to whether she was alright and the plaintiff stated .my

hands and my legs are going numb. They are tingling and going numb..

Mrs P. J. Beer further stated that the hotel manager suggested that the

plaintiff be taken to hospital in a hotel car but her husband objected very

strongly and said that she must go in an ambulance.

45. From the testimony of the plaintiff‘s mother PW19 Mrs P. J.

Beer also, the plaintiff‘s version of the manner in which she suffered the

injury is fully corroborated. Although, all the three witnesses namely, the

plaintiff, her father Mr G. L. Beer and her mother Mrs P. J. Beer were

subjected to lengthy cross-examination, nothing has been elicited from

these witnesses in the course of such cross-examination so as to cast

any doubt on their testimonies with regard to the exact manner in which

the incident occurred.

It may be noted that in the written statement, the defendant did not

plead that the plaintiff had dived into the pool. Yet, in the course of

cross-examining the witnesses and in the course of arguments, it was

strongly urged on behalf of the defendant that the plaintiff did not jump

into the pool from the shallow end but dived into the pool. It is an

established principle that unless a fact is pleaded, no amount of evidence

led in respect of that alleged fact can cure the defect. The plaintiff‘s case

that she jumped into the pool at the shallow end and that her feet slipped

on the slippery floor of the pool as a result of which she hit her head

and sustained injuries is fully supported by the medical evidence on

record. Both PW4 Dr J.A. Smith and PW22 Dr Arjun Dass Sehgal have

opined that the injury caused to the plaintiff was largely a flexion injury

and not a compression injury, which would have resulted in a burst

fracture. These opinions are clearly in corroboration of the testimonies

of the plaintiff, her father Mr G. L. Beer and her mother Mrs P. J. Beer.

It has come in evidence that a flexion injury of the kind suffered by the

plaintiff could not have been caused by the head hitting the floor of the

pool as a result of a vertical or near vertical dive. In that eventuality the

injury would have been a burst fracture or a serious compression injury.

It would not have been a flexion injury. In the present case the evidence

indicates that the injury was a flexion injury caused by the sudden forward

hinging of the head on account of the head hitting the wall of the

swimming pool. This injury is entirely consistent with the plaintiff‘s case

and is completely contraindicated if the version of the defendant, of the

plaintiff diving into the pool and thereafter hitting the head on the floor

of the pool, is to be accepted. Clearly, the cause of injury was as

narrated by the plaintiff, that is, by jumping into the pool and not as

suggested by the learned counsel for the defendant, that is, by diving.

The counsel for the defendant was at pains to cross-examine the doctors

and particularly PW4 Dr J. A. Smith and PW22 Dr Arjun Dass Sehgal

with regard to the injury caused to the plaintiff being a compression

injury or a flexion injury. According to the defendant, the plaintiff suffered

a burst fracture and a compression injury which was consistent with the

plaintiff having dived into the pool and hit her head on the floor of the

pool. On the other hand, the plaintiff‘s case was that she had suffered

a flexion injury where the head hinges forward with great force.

46. I have already set out what PW4 Dr J. A. Smith stated in his

testimony. He categorically stated that the injury caused to the plaintiff


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office where first-aid articles were kept and then he applied ice and

bandage on the head of that girl. He stated that he as well as the girl‘s

father asked her to shake her leg but she was not able to move her leg

and she started weeping.

49. If this witness is to be believed, the plaintiff took a vertical dive

in the shallow portion of the swimming pool. In his cross-examination,

he was asked as to what was the distance between the wall of the pool

and the place on the floor where the girl struck her head. His answer was

— ‘two feet’. I am straightaway inclined to agree with Mr Madan Bhatia,

the learned senior counsel who appeared on behalf of the plaintiff, that

this would be a virtual impossibility. From the edge of a pool at the

shallow end where the water was only 2’ 6’’ to 2’ 9’’ deep, it would

be impossible for any person to take a vertical dive and hit his or her

head within two feet of the wall. According to the evidence on record,

the plaintiff was about 5’ 6’’ in height. If she was standing on the edge

of the pool in a stationary position, she would probably have to jump six

feet into the air to enable her body to turn so that it could make a vertical

impact with the water in the pool. This could not have been done and

in fact was not done as no witness has testified to this. Apart from that,

Mr Verma stated that the girl and boy were running and they were

playing the game of catching each other and it was then that she took

a vertical dive in the shallow portion of the swimming pool. When a

person is in motion, it would be impossible for that person to have hit

his head on the floor of the swimming pool within two feet of the edge.

The momentum would take that person much ahead. Therefore, the

theory propounded by this witness is only to be stated to be rejected.

50. This witness cannot be believed also because he stated that

there was a bump in the middle of the head of the girl and it had become

reddish. There is no such evidence. Apart from this, he stated that he had

bandaged the head of the girl. There is no corroborative evidence of this

either. He stated that the father of the girl had not entered the swimming

pool and he was near the counter. But, in the written statement in

paragraph 11, it is stated that the parents were at a distance relaxing in

the chairs. Again, this witness states that the plaintiff‘s father was

accompanied only by his son and daughter (the plaintiff). In fact, it was

suggested to the witness that Mr Beer was accompanied not only by his

one son and one daughter but also his wife. The witness stated that this

was not a burst fracture which is indicative of a compression injury.

According to PW4 Dr J. A Smith, a burst fracture would be caused

when a weight falls on the body or the body with weight falls to the

ground in a vertical position. He stated that when a body strikes the

object in an inclined angle and not at a 90 degree angle, it would cause

a combination of flexion along with compression. The said witness stated

that the injury in the present case was certainly one of flexion. He,

however, clarified that when we know what happens to the anterior part

of the vertebrae in a flexion injury then, there is a degree of compression

occurring there. He, however, reiterated that the fracture in the instant

case was a flexion fracture. The injury in the present case was described

by the said witness as one where the head moves forward and the chin

almost touches the chest. This is what is known as forward hinging.

47. As mentioned above, both Dr J. A. Smith and Dr Arjun Dass

Sehgal were subjected to extensive cross-examination on the point as to

whether the injury was a flexion injury or a compression injury. From

the testimonies of both these witnesses, it is apparent that they have not

been shaken from their stand that the injury was a flexion injury caused

by forward hinging of the head. In such a situation, the hypothesis of

the plaintiff having dived into the pool is clearly contraindicated.

48. In an attempt to support the hypothesis that the plaintiff dived

into the pool, the defendant also produced DW2 Mr Balram Verma in the

witness box. DW2 Mr Balram Verma was stated to have been posted at

Akbar Hotel as a lifeguard. According to him, he had joined ITDC on

10.03.1978. Mr Verma stated that on 05.05.1978 he was present at the

swimming pool in his lifeguard gear and the manager was sitting with

him. One elderly man accompanied by two children, one of whom was

a boy and the other was a girl, came to the pool, in a playful mood and

they kept their towels near the very first umbrella on the pool. The boy

and the girl were playing the game of catching each other. While doing

so, the girl suddenly took a vertical dive in the shallow portion of the

swimming pool. According to this witness, he immediately ran on seeing

this incident and the other guests also shouted. The other guests, who

were from Aeroflot, also helped him in holding the girl. According to

him, he placed the girl on the floor on the edge of the pool and he found

that there was a bump on the middle of the head of that girl and it had

become reddish. He stated that he obtained ice and bandage from his

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was wrong and he was accompanied only by his son and ˇdaughter.

This statement also contradicts what is stated in the written statement

where it is admitted that the parents were at a distance relaxing in the

chairs. This witness has also stated that the girl had stretched her hands

while diving into the pool. But, again, there is no injury caused to the

hands of the plaintiff. The testimony of this witness cannot be believed

for two reasons. The first being that he is unreliable and is not telling the

truth and the second being that his version of the incident is practicably

not possible.

51. This leaves me to discuss the testimony of DW1 Dr G.G.

Manshramani. This witness has tried to assist the defendant by stating

that the external injury caused to the plaintiff on the head could never

have been caused when a person falls backwards. This witness has

apparently contradicted himself at various places in the course of his

cross-examination. For example, a question was put to him that when a

person dives into the pool and his head hits the bottom of the pool but

his head does not hinge forward, would there still be force of flexion?

He answered—yes. Then a question was put to him what force is flexion?

He answered—when the head hinges forward? So this witness says in

answer to the first question that even when the head does not hinge

forward, there will still be force of flexion and in answer to the second

question, he says that the force of flexion is there when the head hinges

forward. The witness was then asked that if a person jumps into the

pool, slips and falls backward and his head hits a wall at the back with

great force, his head may suffer both flexion and compression injuries?

To this, the witness answered—it will mainly be flexion injury. In other

words, even from this witness it has been elicited in cross-examination

that the injury caused by jumping and slipping and then hitting the head

on the wall of the pool would be a flexion injury.

52. However, this witness, according to me, cannot be relied upon

and is an interested witness. He had accompanied the counsel for the

defendant to Australia and even played a role in helping the learned

counsel for the defendant in cross-examining the plaintiff‘s witnesses in

Australia. Furthermore, he is not an expert in the sense that he is not

even a surgeon, what to speak of being a neurosurgeon. He has no

experience with regard to spinal injuries and has admitted to only having

taught neurology as a part of medicine and not as a speciality. He has

admitted that he was engaged by ITDC to go to Brisbane, Australia and

had actively assisted the counsel for the defendant.

53. The learned counsel for the defendant drew my attention to the

medical record of the Holy Family Hospital, New Delhi. He submitted

that Exhibit PW19/2 is the MLC pertaining to the plaintiff. The history

indicated in the MLC reads as under:-

“H/o sustained injury when Pt. dived into swimming pool at

about 6:45 pm today………”

He then referred to Exhibit PW19/3 which is the case summary and

discharge record, which again indicates the alleged history to be that the

patient sustained injury “after diving into swimming pool”. Exhibit PW19/

4 is the history sheet of the plaintiff at Holy Family Hospital, New Delhi.

In this document also it is indicated that the .patient dived into pool in

Akbar Hotel, hit her head on the floor of the pool and sustained injury

over the head………….. Exhibit PW19/6, which is the consultation record

of the same hospital, also indicates “dived in swimming pool”. Exhibit

PW19/5, which is part of the consultation record, again refers to .diving..

This noting is apparently signed by Dr A. D. Sehgal. However, Exhibit

PW2/34, which is another document from the hospital record, indicates

that the plaintiff “jumped into pool”. From the aforesaid documents barring

Exhibit PW2/34, the learned counsel for the defendant, submitted that it

was apparent that it was a diving incident and not a jumping incident as

alleged by the plaintiff. However, what is important to remember is that

the first document in the series of documents is Exhibit PW19/2, which

is the MLC which was prepared at the hospital. Dr B.B Middha, who

prepared the said MLC, has not been examined as a witness and, therefore,

it cannot be determined as to who told him about the history of the

patient. All the other documents from the hospital record are merely

reproductions of what was first recorded in the MLC Exhibit PW19/2.

When the source itself is unclear, these documents would not be

determinative of whether the plaintiff dived into the swimming pool or

jumped into the swimming pool. In fact, Exhibit PW2/34, which is in Dr

Seghal’s hand, records that the plaintiff jumped into the pool. In cross-

examination of Dr Sehgal, this aspect of the matter has not been

questioned. In any event, I agree with the submission made by the

learned counsel for the plaintiff that the exact manner in which the


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Susan Leigh Beer v. India Tourism Development Corp. Ltd. (Badar Durrez Ahmed, J.)

incident took place, in other words, whether it was the result of a dive

or jump, was not of much consequence to the doctor and they were

concentrating on and were merely concerned in treating the patient. Even

the record of the hospital in Australia, as indicated in Dr Davies‘s report

shows the same history as that of having sustained the injury in a dive.

But, that again is merely a reproduction of the hospital record at Holy

Family Hospital. In fact, Dr Davies‘s report shows that the injury is 6.

long lacerated wound. This is ex facie wrong inasmuch as the admitted

position is that wound on her head was a one inch long contused lacerated

wound. Consequently, not much reliance, if at all, can be placed on Dr

Davies‘s report. It is, therefore, clear that the hospital record referred to

above cannot be relied upon to establish as to whether the plaintiff dived

into the pool or jumped into the pool. I have already indicated that, based

upon the testimonies of the plaintiff, PW2 Mr G. L. Beer and PW19 Mrs

P. J. Beer as well as the evidence given by the doctors — PW4 Dr J.A

Smith and PW22 Dr Arjun Dass Sehgal, the manner in which the injury

was caused, stands established. The injury was caused by the fact that

the plaintiff’s feet slipped on the floor of the swimming pool when she

jumped into the pool in the shallow end.

54. As a result of the aforesaid discussion, it has been established

on the part of the plaintiff that the cause of injury was the fact that the

plaintiff jumped into the pool at the shallow end and that her feet slid

forward on account of the bottom of the pool being slippery. This

resulted in her head hitting the side of the pool which ultimately resulted

in her becoming a quadriplegic. The theory and hypothesis of diving into

the pool which had been put forward by the learned counsel for the

defendant, both in the course of cross-examination of the plaintiff‘s

witnesses as well as by the defendant‘s witnesses and in the course of

arguments before this Court, is clearly not established. It is not established

on account of the evidence on record nor is it established on account of

probabilities. The plaintiff, admittedly, was an expert swimmer. She would

not have dived into the pool vertically downwards at the shallow end

knowing the water to be only 2-1/2 to 3 feet deep. In any case, even if

she had dived into the pool, she could have avoided impact on her head

by pushing away with her hands which are normally extended in the case

of a dive. There is evidence of her swimming coach to indicate that she

was well trained in all swimming manoeuvres which include diving and

if she were to dive, she would have adopted the correct posture, namely,

with the hands extended ahead to protect from the impact of the water.

All these factors clearly establish that the assertion made by the plaintiff

with regard to the manner in which the injury was caused, stands

established and the hypothesis propounded by the defendant stands

disproved.

Were the tiles slippery and the pool not properly maintained?

55. The plaintiff‘s case is that glazed tiles were used in the swimming

pool. This fact has not been denied by the defendant. The plaintiff‘s case

further is that not only were glazed tiles used in the swimming pool but

that those tiles had become slippery on account of slime accumulating

thereon as a result of algae growth because the pool was not properly

maintained by the defendant. The defendant, however, has denied that

the pool was not properly maintained. The defendant also denied that the

tiles were slippery.

56. Certain photographs of the pool were taken after some months

and they have been placed on record. Those photographs were taken in

the winter months when the pool was not operational and there was no

water in it. There is no doubt that those photographs do indicate

accumulation of dirt in the grouting which could possibly include algae

also. But, these photographs cannot be used by the plaintiff inasmuch as

they do not pertain to the period when the pool was operational, that is,

during the summer months. The incident took place on 05.05.1978 when

the pool was fully operational. The question of the pool floor being

slippery on account of poor maintenance has to be examined keeping this

in mind.

57. PW14 K. R. Dobson has been brought to the witness box by

the plaintiff as an expert on swimming pool maintenance. The said witness

has a Bachelor of Applied Sciences degree in Applied Chemistry from the

Queensland Institute of Technology. He is also a member of the Royal

Australian Chemical Institute and a member of Clean Air Society of

Australia. In his role as Chief Chemist of the Department of Chemical

Engineering at the University, he stated that he acts as a consultant for

the university in a number of enquiries for the past 13 years or so. He

stated that in connection with problems that people meet in maintaining

swimming pools, he has been consulted. According to him, the more

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Indian Law Reports (Delhi) ILR (2011) VI Delhi Susan Leigh Beer v. India Tourism Development Corp. Ltd. (Badar Durrez Ahmed, J.)

common occurrence in maintenance of the swimming pool is algal growth

or growth of organisms in the pool. He stated that his main area of

specialization was the manner in which certain chemicals affect algal

growth in pools. According to him, algal growth would occur in almost

all pools at some level. He stated that there are a number of techniques

for maintenance of pools and the most common technique is that of the

maintenance of levels of hypochloride or chlorine. He further submitted

that for proper maintenance of a pool, the growth of the algal material

is not per se checked but what is checked are the levels of chemicals

which are maintained in the pool to keep the algal level at bay.

58. PW14 Mr K. R. Dobson submitted that there are three aspects

which are associated with the maintenance of a pool to keep algal growth

at bay. The first is the measurement and maintenance of chlorine levels

in the pool. The second is filtration of water. Most swimming pools have

a pump and a filter associated with it to filter out any growth or particles

that may be present in the water. The third is brushing of the surface

of the pool. It is at the surfaces where algal growth occurs.

59. The said witness further stated that it was possible for algal

growth to occur in a pool even though the water might be clear. He

stated that in the early stages of algal growth, when the algae are first

starting to grow on the surface of the pool, the water will still appear

clear whilst the algae are growing. Those parameters are usually met if

the chlorine levels drop to a low level. This can either happen because

of allowing the chlorine levels to drop, or in some cases in warm climates

there is a cycle in the levels of chlorine associated with the maintenance

of the pool. He further stated that this might also happen on account of

inadequate brushing of the surface of the pool. Mr Dobson reiterated that

the three issues associated with the maintenance of the swimming pool

are maintenance of chlorine level, filtration and brushing. The correct

maintenance of a swimming pool incorporates the combination of all

three of those techniques and failure to observe the correct maintenance

procedures in all those three areas could lead to problems with algal

growth.

60. He also submitted that chlorine chemistry is complex and that

one of the parameters affecting the maintenance of levels of chlorine in

a swimming pool, is temperature. The higher the temperature the faster

chlorine will be consumed. He stated that at temperatures greater than

25°C, it would be strongly advisable that chlorine levels be checked

twice daily. The witness further stated that the most common colour of

algae is green. Though, in various cases the colour can be darker almost

to a black colour and the intensity of the colour can vary with the strain

of algal growth that is present and the severity of the growth. Importantly,

he stated that in many cases in the early stages of algal growth, it may

not be in fact visible through the water. He also stated that, as a rule,

at the shallow end algal growth will generally occur before it will in the

deeper end.

61. The testimony of Mr Lindsay Ian Sly also indicates that the

algal growth takes place because of sunlight. Mr G. L. McDonald stated

that ceramic tiles were inherently prone to accidents as they are slippery

and growth of algae would increase the possibility of slipping. He also

stated that usually glazed tiles are not used for Olympic size pools.

62. From the above evidence, it is apparent that glazed tiles are

inherently slippery and this would be further accentuated by the presence

of algal material. The growth of algae in the swimming pool occurs first

in the shallow end and later at the deep end. The growth of algae is

controlled by proper pool maintenance procedures. The procedures include:

(i) maintaining a proper chlorine level; (ii) filtration of water; and (iii)

brushing of the pool surface. If there is any deficiency in any of the three

measures, then growth of algae would result particularly in wimming

pools which are exposed to bright sunlight such as in India in the month

of May. It is also indicated that in the initial stages when there is growth

of algae in the swimming pool, it may not even be visible and the water

may be clear but the surface of the swimming pool which includes the

tiles on the floor would become slippery. Mr K. R. Dobson stated that

initially it is the grouting area which is first affected by the algal growth.

It is important to remember that Mr Dobson said that in temperatures

which exceed 25°C, the chlorine level should be checked at least twice

a day because chlorine gets consumed much faster in higher temperatures.

63. All these factors coupled with the testimony of the plaintiff and

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that of her father Mr G.L. Beer and her mother Mrs P.J. Beer, point in

the direction of the tiles in the floor of the swimming pool being slippery

on account of improper maintenance of the swimming pool. This could,

of course, be countered by the defendant by leading evidence to establish

and show that the pool was properly maintained.

64. The witness produced on behalf of the defendant to testify as

to the maintenance of the pool was DW2 Mr Balram Verma. I have

already indicated above that this witness is not reliable. However, assuming

that what he says is correct, let me examine as to whether his testimony

reveals that the pool was properly maintained. DW2 Mr Balram Verma

stated that he was appointed as a lifeguard at Akbar Hotel and he holds

a degree in physical education. He stated that the duty of a lifeguard at

Akbar Hotel was first to see on arrival at the pool that the pool was clean.

Thereafter, his duty was to sit there to ensure that the life of any guest

swimming in the pool was not at risk. He stated that the procedure for

cleaning of the pool is that in the evening bleaching powder and alum are

put into the water which makes the dust settle at the bottom of the pool.

Next day, in the morning, the brush which is attached to the suction

cleans the dust on the bottom of the pool and the dirty water is pumped

out of the pool. The housemen also mop the entire area around the

swimming pool starting from the change room before any guest is allowed

to enter the swimming pool. He stated that the board at the swimming

pool displays ‘pool closed’ in the morning and the same is removed only

after the cleaning has been done and after he has checked the pool. He

further stated that the engineer of the hotel had given him strips of paper

in order to check the chemicals in the water of the pool. The strip of

paper had a number of colours on its upper part and lower part. After

dipping the same into the water of the pool, he used to match the colour

of the strip with the colours shown on the upper part of the strip. In case

the colour of the paper strip dipped into the water of the pool matched

the colour at serial No. 7 or 8 of the upper part of the strip, it implied

that the water had been properly chlorinated. However, this witness in

his cross-examination does not appear to know anything about algae.

When he was asked as to under what circumstances algae get deposited

on the floor of the swimming pool, he stated that he did not know. With

regard to the photographs which were shown to him, which clearly

indicate algae growth and deposits, the said witness stated that the

photographs were taken when the pool had been closed and in winter

time.

65. This witness, I have already indicated, cannot be believed. In

any event, he does not have any specialized knowledge with regard to

management of algal growth in the swimming pool. The fact of the

matter is that there is evidence to indicate that the floor of the swimming

pool was slippery and it is because of that the plaintiff suffered the

injury. The floor of the swimming pool would not have been slippery had

the pool been properly maintained. It is at this juncture that the principle

of res ipsa loquitur can also be employed. That is a rule of evidence

which is employed when there is otherwise no direct material on a

particular aspect of the matter. Since the floor of the swimming pool was

not examined on the date of the incident itself and samples were not

taken on that date, there is no direct evidence to indicate that there was

algal growth in the pool or that there was other slimy material on the

floor of the pool. It is in circumstances such as this that the principle

of res ipsa loquitur is applied as a rule of evidence, because the things

speak for themselves. Res ipsa loquitur is a Latin phrase which is defined

in Black's Law Dictionary in the following words: “The thing speaks for

itself”. The doctrine of res ipsa loquitur is described in detail in a decision

of this Court in Klaus Mittelbachert v East India Hotels Ltd : 65

(1997) DLT 428, which reads as under:-

“Under the doctrine of res ipsa loquitur a plaintiff establishes a

prima facie case of negligence where (1) it is not possible for

him to prove precisely what was the relevant act or omission

which set in train the events leading to the accident, and (2) on

the evidence as it stands at the relevant time it is more likely than

not that the effective cause of the accident was some act or

omission of the defendant or of someone for whom the defendant

is responsible, which act or omission constitutes a failure to take

proper care for the plaintiff’s safety. There must be reasonable

evidence of negligence. However, where the thing which causes

the accident is shown to be under the management of the

defendant or his employees, and the accident is such as in the

ordinary course of things does not happen if those who have the

management use proper care, it affords reasonable evidence, in

the absence of explanation by the defendant, that the accident

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arose from want of care. Three conditions must be satisfied to

attract applicability of res ipsa loquitur: (i) the accident must be

of a kind which does not ordinarily occur in the absence of

someone's negligence; (ii) it must be caused by an agency or

instrumentality within the exclusive control of the defendant; (iii)

it must not have been due to any voluntary action or contribution

on the part of the plaintiff. (See Ratanlal & Dhirajlal on Law

of Torts , edited by Justice G.P. Singh, 22nd edition 1992, pp

499-501 and the Law of Negligence by Dr Chakraborti, 1996

edition, pp 191-192.).

In the light of the aforesaid decision, it needs to be examined as to

whether the above conditions apply to the present case. First of all, it has

to be determined as to whether the accident is of a kind which does not

ordinarily occur in the absence of someone‘s negligence. It is common

knowledge that people and most particularly younger persons jump into

the swimming pool. Unless and until there is some negligence, the injury

of the kind indicated in the present case would not ordinarily occur.

When one jumps into the swimming pool in the shallow end, one does

not expect that on the feet reaching the floor of the swimming pool, the

same would slip on account of the floor being slippery. Ordinarily, when

one jumps into the swimming pool, at the shallow end, the feet do hit

the floor of the pool but they remain firmly grounded. The incident of

the kind involved in the present case could only occur on account of the

slippery floor. This takes me to the second aspect and that is that the

accident must have been caused by an agency or instrumentality within

the exclusive control of the defendant. The defendant was entirely

responsible for the maintenance and operation of the same and therefore

this condition is also satisfied. The third condition is that the accident

must not have been caused by any voluntary action or contribution on

the part of the plaintiff. Here, again, I find that there was no contributory

negligence on the part of the plaintiff. The plaintiff merely jumped into

the swimming pool in the shallow end as she may have done on hundreds

of occasions being a person more than accustomed to swimming and

one who spent many hundreds of hours in and around the swimming

pool.

66. It is, therefore, clear that all the three conditions necessary for

application of the doctrine of res ipsa loquitur stand satisfied.

67. Once this happens, the burden shifts to the defendant to rebut

the evidence of negligence. In Municipal Corporation of Delhi v

Subhagwanti & Ors: AIR 1966 SC 1750, the Supreme Court described

the shifting of the burden, relying on Halsbury's Laws of England, 2nd

Ed., Vol. 23, as under:-

“An exception to the general rule that the burden of proof of the

alleged negligence is in the first instance on the plaintiff occurs

wherever the facts already established are such that the proper

and natural inference immediately arising from them is that the

injury complained of was caused by the defendant's negligence,

or where the event charged as negligence ‘tells its own story’ of

negligence on the part of the defendant, the story so told being

clear and unambiguous. To these cases the maxim res ipsa

loquitur applies. Where the doctrine applies, a presumption of

fault is raised against the defendant, which if he is to succeed

in his defence, must be overcome by contrary evidence, the

burden on the defendant being to show how the act complained

of could reasonably happen without negligence on his part.”

The defendant has not provided any plausible explanation as to how the

plaintiff could have suffered the injury that she did. Consequently, the

defendant has failed to meet its burden of proof in showing as to how

the plaintiff came to be injured without their negligence. Such burden not

having been discharged, by employing the doctrine of res ipsa loquitur,

it is clear that it was on account of the defendant‘s negligence that the

floor of the swimming pool was slippery on account of which the injury

was sustained by the plaintiff.

68. In view of the foregoing discussion, issues No. 3-8 are decided

in favour of the plaintiff and against the defendant.

Issue No. 9:

69. This issue is concerned with the computation of the damages

to which the plaintiff is entitled. The plaintiff has claimed a decree in the

sum of Rs. 2,00,00,000/- (rupees two crores) along with interest at the

rate of 18% per annum on the said amount from the date of presentation

of the plaint till its realization in favour of the plaintiff and against the

defendant. The said amount of Rs. 2,00,00,000/- has been claimed by the

plaintiff on the following basis:-


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(i) Expenses incurred by the plaintiff

on medical treatment and care in

India and Australia - Rs. 20,00,000.00

(ii) Damages on account of physical

pain, mental anguish and psychological

anguish and loss of education - Rs. 50,00,000.00

(iii) Damages on account of loss of

earnings for the rest of her life - Rs. 1,30,00,000.00

Total - Rs. 2,00,00,000.00

Insofar as the expenses incurred on the medical treatment and care in

India and Australia are concerned, certain bills and receipts have been

produced in evidence. They are as follows:-

Sl. Exhibit Detail Amount

No. No. AUD/Rs.

1. PW18/2 Medical aids and equipment $ 814.50

supplied to plaintiff through

Queensland Department of

Health- to be reimbursed

2. PW18/1 - Do - $ 1011.50

3. PW2/3 Dr B. N Chopr Rs. 60/-

4. PW2/4 Dr B. Ramamurthi Rs. 4250/-

5. PW2/8 Holy Family Hospital No. Rs. 4042.50

53121

6. PW2/10 - Do - Rs. 2847.25

Receipt No. 53627

7. PW2/11 - Do - Rs. 2459.60

Receipt No. 53907

8. PW2/12 - Do - Rs. 2285

Receipt dated 13.6.78

9. PW2/14 - Do - Rs. 90.50

10. PW2/16 Receipt dated 22.08.78 Rs. 2925

11. PW2/17 Receipt dated 22.08.78 Rs. 2925

12. PW2/19 Dr Arjun Sehgal Rs. 10500



15. PW2/24 Dr (Mrs) Sehgal Rs. 8000

16. PW2/25 Ticket (Airline charges) Rs. 7134

17. PW2/26 Chemist bill dated 3.6.78 Rs. 39.20

18. PW2/27 Medical equipment dated 7.6.78 Rs. 435

19. PW2/28 Hired refrigerator for hospital Rs. 340

room on 10.5.78

20. PW2/29 Accommodation and meals $ 57.80

for Dr Arjun Sehgal in Brisbane

21. PW2/30 Ambulance service on 21.7.78 $ 50

22. PW2/31 - Do - $ 50

23. PW2/32 Ambulance service on 26.6.78 $ 30

24. PW2/35 Various receipts for $3500 (approx.)

physiotherapy and Chiropractor

charges in 1978 and 1979.

TOTAL in Indian rupees Rs. 125000 (approx.)

[after converting AUD [Rs. 74249.05 +

into INR at the exchange $ 5513.80

rate of 1 AUD = Rs. 9 (=Rs. 49,624.2)

(approx.) in 1982 = Rs. 123873.25]

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The total of which comes to approximately Rs. 1,25,000/-. It may

be noted that the amounts paid in Australian Dollars have been converted

to Indian rupees at the exchange rate of Rs. 9 (approximately) = 1

Australian Dollar (AUD), which is the equivalent exchange rate prevalent

in 1982. It may also be pointed out that the payment for Australian

Dollars have been made during the year 1979-1984 and, therefore, the

rate as applicable in the year 1982 has been taken as an average. However,

the amount claimed in the plaint under the head of expenses incurred for

medical treatment and care in India and Australia is to the extent of Rs.

20,00,000/- (rupees twenty lacs). I may also note that PW1 (S. L. Beer)

as well as PW2 (Mr G. L. Beer) have deposed with regard to the

expenses incurred by them. PW2 Mr G. L. Beer has stated that he

incurred medical expenses of Holy Family Hospital as well as of Dr

Sehgal and the attendant charges. He stated that Dr Sehgal‘s air fare to

and fro Australia was also paid by him and he had to incur the additional

expense of seats in Thai International Airways because of the stretcher

on which his daughter (the plaintiff) was to be transported from New

Delhi to Australia. There were other expenses attached to the transfer in

Sydney and their stay there as well as ambulance transport. Expenses

were incurred on account of visiting English Neurosurgeon, Dr Wilson

and other expenses for doctor / Chiropractor in Brisbane. He also had to

make several alterations to his house, such as alteration to the toilet,

widening of doorways, placing of protective covers over sections of

carpet because of the wheelchair which was used by his daughter. He

also had to incur the expense of building all the physiotherapy equipment

and of prosthetic appliances. He also had to establish a specialized carport

and had to construct ramps so that the plaintiff could enter and exit the

car. Because of the treatment, which his daughter was receiving, he had

to maintain himself and his son in Brisbane and his wife and daughter in

Melbourne. He stated that the expenditure incurred by him up to 1982,

when he filed the suit, on medical expenditure under various heads and

other expenditure for the care of the plaintiff would amount to

approximately Australian Dollars 1,50,000. Thus, according to the

testimony of PW2 (Mr G. L. Beer), an amount of approximately Rs.

13,50,000/- (as per the said exchange rate of Rs. 9 = 1 AUD) was

incurred under the head of expenses incurred for medical treatment and

care in India and Australia. However, I find that the amount mentioned

in the bills and receipts, which have been exhibited, is only Rs.1,25,000/

-. Considering the fact that not all bills and receipts may have been kept,

I feel that the expenditure incurred under the head medical treatment and

care in India and Australia ought to be assessed at about Rs. 5,00,000/

- (rupees five lacs) instead of what is claimed in the plaint.

70. With regard to the quantification of damages on account of

physical pain, mental anguish and psychological anguish as well as loss

of education, I feel that the figure of Rs. 50,00,000/- (rupees fifty lacs),

which has been quantified and claimed by the plaintiff, is a reasonable

figure and, therefore, the same ought to be allowed.

71. I am left with quantifying the damages on account of loss of

earnings for the rest of her life. It has come in the evidence of both the

plaintiff as PW1 and her father Mr G. L. Beer (PW2) that under normal

circumstances, the plaintiff would have entered the workforce at the age

of about 21 years. However, because of the incident, her education was

derailed, which she was able to complete much later and that she started

work at the age of 26 years. Thus, there was a clear loss of income for

five years between the ages 21 and 26. Apart from this, the plaintiff has

deposed that on the date of her deposition in 1991 she was earning about

Australian Dollars 30,000 per annum. It has also come in evidence that

had she not suffered the severe handicap of being a quadriplegic, her

income would have been between Australian Dollars 45,000 to 50,000

per annum. It has also been stated in her deposition that because of the

fact that she was a quadriplegic, her work life would, in all likelihood,

not extend beyond the age of 45 years whereas, normally, she would

have worked up to the age of 65 years. Exhibit PW6/1 is a life expectancy

certificate which indicates that in Australia a female born on 24.01.1961

would be expected to live up to the age of approximately 80 years. This

means that once she retires from work, she would have to spend many

years on pension alone which would, according to her testimony, not be

sufficient to enable her to live independently because as per her testimony,

she would also require somebody to provide house-keeping services as

well have a live-in attendant to see to her day-to-day needs. Consequently,

the figure of Rs. 1,30,00,000/- was claimed as damages on account of

loss of earnings for the rest of her life.

72. Assuming that on an average the plaintiff would earn 45,000

Australian Dollars per annum throughout her period of employment, her


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total earnings, under normal circumstances, would have been 45,000 x

44 = 19,80,000 Australian Dollars. The period of 44 years has been taken

on the assumption that she would start work at the age of 21 years and

continue to work, under normal circumstances, till the age of 65 years.

She has stated that she was earning 30,000 Australian Dollars and that

she has been working since the age of 26 years and would be expected

to continue to work till she attained the age of 45 years. Thus, during

these 19 years, she would have earned 19 x 30,000 = 5,70,000 Australian

Dollars. Consequently, the loss of earnings would be 14,10,000 Australian

Dollars (19,80,000 – 5,70,000). The said amount converted into Indian

rupees at the exchange rate of Rs. 9 = 1 AUD as prevalent in 1982 would

amount to Rs. 1,26,90,000/- (rounded off to Rs. 1,27,00,000/-). This

amount very closely matches the amount of damages of Rs. 1,30,00,000/

- (rupees one crore thirty lacs) which the plaintiff has claimed in the

present suit. In the result, the plaintiff is entitled to – (i) Rs. 5,00,000/

- (rupees five lacs) on account of expenses incurred towards medical

treatment and care in India and Australia; (ii) Rs. 50,00,000/- (rupees

fifty lacs) towards damages on account of physical pain, mental anguish

and psychological anguish and loss of education; and (iii) Rs. 1,27,00,000/

- (rupees one crore twenty seven lacs) on account of damages for loss

of earnings for the rest of her life. The total sum of which comes to Rs.

1,82,00,000/- (rupees one crore eighty two lacs) as on the date of the

filing of the suit.

73. Thus, the plaintiff is entitled to a decree in the sum of Rs.

1,82,00,000/- (rupees one crore eighty two lacs) along with simple interest

thereon at the rate of 6% per annum w.e.f 22.01.1982 till the date of the

decree and future simple interest on the said amount at the rate of 10%

per annum till its realization. It is decreed accordingly. The formal decree

be drawn up at the earliest.


CRL. A.

ANIL KUMAR SHARMA @ BOBBY ....APPELLANT

VERSUS

DELHI STATE/NCT DELHI ....RESPONDENT

(S. RAVINDRA BHAT & G.P. MITTAL, JJ.)

CRL. A. NO. : 386/1997 & DATE OF DECISION: 07.03.2011

CRL. A. NO. : 30/1998

India Penal Code, 1860—Section 302/34, 364—Case of

the prosecution that on night of incident, one Chotu

(absconder) went near tent house of PW3 at 9 p.m.

and started urinating—One person (not examined as

witness) objected. Chotu slapped him and left

threatening to “see” him later—Later Chotu returned

at the spot with the two appellants and the three

attacked the deceased—Appellant Anil Kumar held the

deceased by his mouth while appellant Tika Ram caught

hold of him and Chotu hit the deceased with an iron

rod on the head—PW13 and 16 woke up and raised an

alarm on which assailants fled—Trial Court convicted

appellants for offence u/s 302/34—Held, plan or site

map drawn to scale is admissible only if the witnesses

corroborate the draftsman’s statement that they

showed him the places—Unclear if PW 16 could see

the appellants when the deceased was attacked—

From evidence there is no doubt about the presence

of appellants in the assault—To attract common

intention, mere presence of co-accused is not always

sufficient—No universally acceptable formula that in

such instances, the intention to cause death cannot

be attributed to such non-participating co-accused; at

the same time courts has to recognize the need to

exercised caution—Contention of the appellants that

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Indian Law Reports (Delhi) ILR (2011) VI Delhi83 84 Anil Kumar Sharma @ Bobby v. Delhi State/NCT Delhi (S. Ravindra Bhat, J.)

even if they were present, their common intention to

kill deceased could not be proved beyond reasonable

doubt—Evidence established the presence of accused

and PW13 and PW16 having known them—None of the

witnesses deposed that either appellant was armed—

Appellants not present when earlier quarrel had taken

place—The person with whom, the main assailant Chotu

quarrelled was not examined—He was not present at

spot of occurrence and his connection or relationship

with deceased not proved—Weapon of offence (saria)

not described by witnesses and also not produced—

Description given by PW16 about role played by each

appellant not clear—In view of uncertainty as to role

played by each appellant, it would not be possible to

discern a common intention to cause death of

deceased—It can be inferred that they shared the

intention with the co-accused to cause injury enough

to subdue or take care of the deceased i.e. intention

of causing bodily injury as was likely to cause death

amounting to an offence punishable u/s 304 Part I—

Appeals partly allowed—Conviction u/s 302/34 altered

to one u/s 304 Part I/34.

In the present case, the appellants presence has been

proved. Equally, the fact that PW-13 and PW-16 knew them

has been established. However, none of these witnesses

deposed that either of the appellants were armed. The

quarrel alluded to by the prosecution witnesses was a trivial

one, and crucially, the appellants were not present when it

took place. Puzzlingly, Salam, with whom the main assailant

(Chotu) quarrelled, was not examined. He was not at the

spot of occurrence; his connection or relationship with the

deceased, has not been proved. All that has come on

record is that Tika Ram was known to Chotu. Now, if the

prosecution version’s is to be accepted that the two appellants

had known that Chotu was armed with a deadly weapon, i.e.

a Sariya, one could have understood the intention if the

weapon had been described, since concededly it has not

been produced. PW-16’s description about the role played

by each Appellant is not too clear. Anil, he says, held the

deceased by the mouth; and Tika Ram held his hands. The

deposition suggests that one held him from the front, while

the other held him from the back, and further that Chotu

inflicted the injuries on the face and head. If this is an

accurate description, either the assailant must have faced

the deceased directly, or inflicted the blows, sideways. In

either case, he would have taken care to land the blows with

some precision, since one of the accomplices was holding

the lower part of the deceased’s face. That would, in turn

imply, that the accused was either accurate or that the

weapon was a small and compact one, or both. Now in the

state of all these uncertainties as to the role played by each

of the Appellant, it would not be possible to discern a

common intention to cause death of the deceased Moin.

Their presence is undeniable; under the circumstance, it

can be inferred that they shared the intention with the co-

accused, to cause injury enough to subdue or “take care” of

Moin. Under the circumstances, they can be attributed with

the intention of causing bodily injury as was likely to cause

death, amounting to an offence punishable under Section

304 Part I. (Para 28)

Important Issue Involved: (A) Plan or site map drawn to

scale is admissible only if the witnesses corroborate the

draftsman’s statement that they showed him the place.

(B) To attract common intention, mere presence of co-

accused is not always sufficient the sharing of common

intention has to be specifically proved.

[Ad Ch]

APPEARANCES:

FOR THE APPELLANTS : Mr. Bhupesh Narula, amicus Mr.

Madhav Khurana, Advocate.


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85 86 Anil Kumar Sharma @ Bobby v. Delhi State/NCT Delhi (S. Ravindra Bhat, J.)

FOR THE RESPONDENT : Mr. Lovkesh Sawhney, APP.

CASES REFERRED TO:

1. Ramvir vs. State of U.P.(2009) 15 SCC 254.

2. Prakash vs. State of Madhya Pradesh, 2006 (7) SCC

496.

3. Balbir Singh vs. State of Punjab,(2005) 9 SCC 299.

4. Ramesh Singh vs. State of MP 2004 (110) Cr. LJ. 3354.

5. State of Himachal Pradesh vs. Prem Chand 2002 (10)

SCC 518.

6. Raju Trambak Magare vs. State of Maharastra 2001 (10)

SCC 385.

7. Ramashish Yadav and Ors. vs. State of Bihar; 2000 SCC

(Crl.).

8. Badruddin vs. State of U.P., (1998) 7 SCC 300.

9. Mohd. Sagir vs. The State Cr.A. No. 14/1997.

10. Jagdish Narain vs. State of UP 1996 (8) SCC 199).

11. Smt. Tripta vs. State of Haryana [AIR 1993 SC 948].

12. Dajya Moshya Bhil vs. State of Maharashtra, 1984 Supp

SCC 373.

13. Ram Prasad vs. State of U.P., (1976) 1 SCC 406.

14. Godhu & Anr. vs. State of Rajasthan 1975 (3) SCC 241.

15. Tori Singh vs. State of UP 1962 (1) Cri LJ 469.

16. Ramzan Ali vs. King Emperor 1925 Oudh 322.

RESULT: Appeals partly allowed.

S. RAVINDRA BHAT, J.

1. In these two appeals, the common judgment and order of the

Learned Sessions Judge, dated 18.09.1997, in SC No. 45/96 has been

impugned. The appellants were convicted of the offence punishable under

Sections 302/34 IPC, and sentenced to life imprisonment, and fined

Rs.2,000/-; in default, directed to undergo RI for six months. They were,

however acquitted of the charge under Section 364, IPC.

2. The prosecution had alleged that on the night of 14.07.1994, one

Chotu, who was driving tempo No. DBL 2712, went near Roshan Tent

House (owned by Roshan Lal, PW-3) at around 9:00 PM, and started

urinating by the side of a drum, kept near the tent house. Apparently, one

Abdul Salam objected to this; taking offence, Chotu slapped him, and

left, threatening to “see” him, later. It was alleged that later, around 3:15

AM, Chotu returned to the spot, with two accomplices, i.e. the two

appellants in this case. It was alleged that the trio attacked Mohammed

Moin (“the deceased”). Anil Kumar is alleged to have held the deceased

by the mouth, and Tika Ram had caught hold of him. Chotu is alleged

to have hit the deceased with an iron rod on the head. When others, i.e.

PWs-13 and 16 woke up due to the noise, they raised an alarm, at which

Chotu and the appellants are alleged to have fled the spot, in the tempo,

i.e. DBL 2712. PW-13 and PW-16 allegedly woke up PW-3; he in turn

woke up Sanjay, his son PW-4. The latter two witnesses took the deceased

to Safdarjung Hospital. It was alleged that as soon as this information

was received, a Diary entry was made by the police (Ex. PW2/A) and

sent to SI Subhash Chand. The latter moved an application (marked as

Ex. PW-20/A during the trial) to examine the deceased. The doctors

allegedly refused, stating that he was unfit to make a statement. Mohd.

Moin died later, at about 11 AM, the next morning, i.e. 15.07.1994.

3. After considering the postmortem report, and recording the

statements of various witnesses, as well as making recoveries of material

objects, the police submitted its report, pressing charges against the

appellants and Chotu. The appellant Anil Kumar was arrested shortly

after the death of Mohd. Moin; Tika Ram was arrested on 22.12.1994.

Chotu could not be arrested, and was declared an absconder. The Trial

Court framed charges under Sections 364 and 302/34 IPC. However, it

convicted the appellants of charges only under Sections 302/34. For its

conclusions, the impugned judgment relied mainly on the testimonies of

PWs 13 and 16, as well as PW-3 and PW-4.

4. It is argued on behalf of Anil, the appellant in Cr. Ap. 30/1998,

that the impugned judgment is unsustainable since the Trial Court has

drawn erroneous conclusions about the alleged incident. It is contended

that PW-13, one of the eyewitnesses, did not assign any specific role to

Anil, and even stated that he and Tika Ram were beating the deceased,

an allegation falsified by the MLC and the Post Mortem report, which no

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where corroborate that the deceased had suffered any injury other than

the solitary one on the head, which proved fatal. This clearly conflicts

with the deposition of PW-16. Considering that the witness PW-13 was

also an eyewitness, the conflict about the alleged role of Anil, in the

whole episode results in undermining the credibility of the prosecution

story regarding the nature of the alleged incident, and the assault on the

deceased.

5. Mr. Madhav Khurana, Learned amicus for one of the appellants

submitted that apart from the lack of clarity regarding the role attributable

to the appellants Anil and Tika Ram, the prosecution did not even recover

the weapon of offence, i.e. Sariya, used to inflict the solitary lethal blow.

It was argued that the only armed individual, concededly according to the

prosecution allegations, was Chotu; he never did stand trial as he absconded.

In the absence of recovery of the murder weapon, and the lack of any

motive, on the part of Anil, the impugned judgment erroneously concluded

that he was guilty of the offence punishable under Section 302/34 IPC.

6. It is submitted that the entire role of either appellant is unclear,

and the testimonies of the two so called eye witnesses cannot be relied

upon to convict him, under Sections 302/34 IPC. In this context, it was

submitted that whereas PW-13 says earlier quarrel was between Tika

Ram and Salam, PW-16 deposed that the earlier quarrel was between

Chotu and Salam. In any case, there was no enmity between the deceased

and any of the appellants before the Court. This conflict in the two

eyewitness versions, is significant, because mere presence of the appellants,

as alleged accomplices of Chotu in the absence of any motive, and the

fact that the main assailant did not trial, is insufficient to convince a

criminal court to render a finding of guilt on a charge of murder. Similarly,

learned counsel submitted that PW-13 did not furnish any details about

the roles attributed to either appellant, in the alleged assault on the deceased,

but merely stated that all the accused were beating him. However, PW-

16 stated that Anil was holding him, while Chotu gave the deceased

Sariya blows. It was argued that significantly, the Trial Court did not

consider that in the previous, police version of PW16, there was no

mention of PW-13; he however, improved on this aspect, in the testimony

in court.

7. Learned counsel relied on Godhu & Anr v. State of Rajasthan

1975 (3) SCC 241 to say that once in respect of the charge under

Section 364 IPC, acquittal is recorded, the other facts have to be proved.

The Supreme Court had ruled, in the above decision, as follows:

“We have given the matter our consideration and are of the

opinion that the effect of the acquittal of the two accused for the

offence under Section 364 Indian Penal Code is that in arriving

at the conclusion whether the accused are guilty of the offence

of murder or not, we should proceed upon the assumption that

the prosecution allegation that the accused had forcibly taken

Gheru inside Banwari's baithak has not been substantiated. The

prosecution would have to bring the charge home to the accused

independently of that allegation. If, however, the prosecution

establishes the charge against the accused independently of that

allegation, there would be no legal impediment or infirmity in the

conviction of the accused. It needs also to be emphasised that

the fact that an allegation has not been substantiated does not

necessarily go to show that the allegation is false. An allegation

may be correct and still it may not be substantiated at the trial.

The effect of the acquittal of the accused under Section 364

Indian Penal Code would only be, as already mentioned earlier,

that for the charge of murder the prosecution cannot rely upon

the evidence that the deceased was dragged inside Banwari's

baithak by the two accused…”

Such being the position in law, argued the learned counsel, the prosecution

could not rely on evidence to say that the accused had dragged or

restrained the deceased, and was under an obligation to independently

establish the role of each appellant in the killing of the deceased.

8. It was next argued that the charge of common intention to

murder the deceased, by invoking Section 34, was not proved in this

case, as far as the appellants were concerned. Both eyewitnesses clearly

testified about Chotu’s role as the primary aggressor. In view of the

conflicting testimonies of PWs 13 and 16, who did not state a consistent

story as regards such involvement, the prosecution was unable to establish

common intention. The mere circumstance that they accompanied Chotu

could not be held against them, to conclude that they too had the intention

of participating in a murderous assault on the deceased. Reliance was


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placed on Ram Prasad v. State of U.P., (1976) 1 SCC 406, where it

was held that:

“Facts 1, 2 and 3 do not establish the sharing of any common

intention by the appellants of committing the murder of Ram

Chandra. The knowledge of the appellants as recorded in fact 4

that the lathis would be fully and effectively used in the process

of forcibly occupying the land is not sufficient to establish the

common intention of committing a crime punishable under Section

302. This could be a relevant fact if they would have been 5 in

number and would have formed an unlawful assembly the common

object of which was to forcibly occupy the land. Fact 7 also

does not establish any common intention. Facts 5 and 6 are not

accurately recorded. On the doctor’s evidence Ram Chandra had

only 3 injuries — two injuries on the head caused by lathis and

only one at the buttock. In such a situation it is difficult to

attribute common intention of causing the death of Ram Chandra

to appellants Harbans and Kalwa. There is nothing to indicate

that the appellants had arrived at the scene with a preplanned

common intention of causing the death of Ram Chandra. The

manner of assault as deposed to by the prosecution witnesses

does not necessarily lead to the conclusion that all the four

appellants had developed a common intention at the time of the

occurrence. Giving of two lathi blows by the two appellants who

were armed with lathis did not suffice to show the common

intention of the other two appellants….”

9. Reliance was next placed on Dajya Moshya Bhil v. State of

Maharashtra, 1984 Supp SCC 373, where it was held that:

“If the three shared the common intention to commit murder of

Gunjarya as is now contended obviously Appellants 2 and 3

would not come unarmed. It is admitted by the prosecution that

at that time Appellant 1 was armed with a dharya but Appellants

2 and 3 were unarmed. It would be contrary to common sense

to hold that Appellants 2 and 3 accompanied Appellant 1 with the

avowed object of committing murder of Gunjarya yet came

unarmed. Their intention by this very tell-tale circumstance is

contra-indicated. Let it be made clear here that in order to attract

Section 34 it is not sufficient to prove that each of the participating

culprits had the same intention to commit a certain act. What is

the requisite ingredient of Section 34 is that each must share the

intention of the other. Appellants 2 and 3 though they were in the

company of the Appellant 1 were shown to be unarmed. The

High Court has overlooked this most important circumstance.

11. The next question is as to what offence Appellants 2 and 3

have committed. Even though they came unarmed when they

chased Gunjarya with Appellant 1 who was armed with a dharya

a weapon of cutting and pelted stones, an inference of common

intention being formed on the spur of the moment can be made.

The fact that Appellant 1 was armed with a dharya and Appellants

2 and 3 pelted stones causing injuries may permit an inference

that Appellants 2 and 3 could have shared the common intention

with Appellant 1 of causing grievous hurt to deceased Gunjarya.

Therefore in the circumstances of this case the minimum common

intention that can be attributed to Appellants 2 and 3 is one of

causing grievous hurt with a sharp-cutting weapon like a dharya.

Thus Appellants 2 and 3 are shown to have committed an offence

under Section 326 read with Section 34 of the Indian Penal Code

and they should be convicted accordingly. In the facts and

circumstances of this case each of them must be sentenced to

suffer rigorous imprisonment for 3 years.”

Similarly, counsel relied on Ramzan Ali v King Emperor 1925 Oudh

322 to say that even if the prosecution is said to establish that in the facts

of this case, the appellants were present, they could not be said to have

shared the intention of causing Moin’s death, which could have been

harboured by Chotu, since he alone was armed with a sariya.

10. It was submitted further, that the prosecution has several

infirmities, such as the non examination of Abdul Salam, with whom a

quarrel is supposed to have taken place the night previous to the incident,

as well as two policemen, i.e. Constables Sunil Kumar (the duty policeman

who informed the police station about the admission of deceased to the

hospital), Raj Kumar, who is supposed to have delivered a copy of the

DD to the IO, and the photographer who allegedly photographed the

scene of crime. It was further emphasized that both PW-13 and PW-16

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stated that the deceased was wearing a baniyan (vest) at the time of the

incident; yet the CFSL report Ex. PW-18/H revealed that a shirt was also

sent for blood examination. The prosecution failed to explain how that

shirt was recovered, and did not lead any evidence in that regard. Similarly,

there were discrepancies in regard to the raid – evident from the testimony

of PW-8 who stated that Anil was with the raiding party before the raid,

whereas PW-20 stated that he PW-8 joined the raiding party before

Anil’s arrest. Other discrepancies in the prosecution evidence go to the

effect that though PW-14 and PW-20 stated that the rukka was sent to

police station to get the case registered, PW-16 stated that no policeman

was sent to the Police Station from the hospital. Also, PW-16 stated that

no sketch was prepared on the basis of his information, which is contrary

to the version of PW-6. The amicus, Mr. Khurana, thus argued that

having regard to this state of contradictory evidence, and the absence of

the weapon of attack, as well as the assailant, it was unsafe for the Trial

Court to have convicted the appellants Anil Kumar and Tika Ram.

11. Mr. Bhupesh Narula, learned amicus appearing for Anil Kumar,

adopted the submissions made on behalf of Tika Ram. He relied on the

decision of the Supreme Court reported as Ramvir v. State of U.P.(2009)

15 SCC 254, to say that in this case, the appellants could not be fastened

with criminal liability for murder, based on their common intention, by

application of Section 34, as they were unarmed, and could not be

attributed with constructive intention. It was held, by the Supreme Court,

in the said decision, that:

“18. It was next submitted by the counsel appearing for the

appellants that presence of Appellants 2 and 3 should have been

held to be doubtful. It was submitted by the prosecution that

Appellants 2 and 3 caught hold of the deceased Yashpal whereupon

Appellant 1 gave a knife-blow to the deceased Yashpal which

proved to be fatal. We have analysed the said evidence very

carefully and very minutely and also appreciated the contention

raised on behalf of the counsel for Appellants 2 and 3.

19. The evidence adduced to establish the guilt of Appellants 2

and 3 are that Appellant 1 had come to the place of occurrence

along with a knife in his hand and he came out of nearby bushes

whereas the other two accused came from another place. They

allegedly came out of the field, caught hold of the deceased and

embraced him. If Appellants 2 and 3 were embracing the deceased,

a knife-blow could not have been given in that manner by

Appellant 1 on the chest of the deceased. It is not stated by the

prosecution that the said two Accused 2 and 3 were embracing

him from behind. Nature of the evidence adduced and role ascribed

to them appear to us to be highly improbable. They are, therefore,

entitled to benefit of doubt.

20. The aforesaid attack with the help of the knife pierced through

the lung and went through the chest. All the three appellants are

brothers and apparently there was some rivalry between the two

groups in the village. Considering the facts and circumstances of

the case, we find that the story put up by the prosecution

regarding the role of Appellants 2 and 3 is exaggerated and

improbable.

21. There is no allegation that these two persons i.e. Appellants

2 and 3 were carrying any weapon in their hands. It is also

proved that they were coming to the place of occurrence from

another direction. Therefore, the role ascribed to Appellants 2

and 3 is found to be unbelievable. Their presence at the place of

occurrence is also doubtful and therefore we extend benefit of

doubt so far as Appellants 2 and 3 are concerned.”

12. Counsel also relied on the decision reported as Mohd. Sagir v.

The State (Cr.A. No. 14/1997, decided on 27/10/2009 by a Division

Bench of this court), to the following effect:

“In Ramashish Yadav and Ors. v. State of Bihar; 2000 SCC

(Crl.)9 it was observed that the principle of joint liability in doing

of a criminal act under Section 34 of IPC is essentially based in

the existence of common intention animating the accused leading

to the doing of a criminal act in furtherance of such intention.

The distinct feature was stated to be the element of participation

in action and a pre-arranged plan which is proved either from

conduct or from circumstances or from any incriminating facts.

The Supreme Court went on to observe that :

“It requires a pre-arranged plan and it presupposes

prior concert. Therefore, there must be prior meeting of


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minds. The prior concert of meeting of minds may be

determined from the conduct of the offenders unfolding

itself during the course of action and the declaration made

by them just before mounting the attack. It can also be

developed at the spur of the moment but there must be

pre-arrangement or pre-mediated concert.”

14. In the given facts of the case, the accused persons came and

caught hold of the deceased whereafter the other accused came

with a gandasa and gave blows with it and the same was held

not to form a common intention of all the four accused to cause

death of the deceased.

15. We find substance in the plea of the learned counsel for the

appellant though we have no doubt that there was a common

intention formed on the part of the appellant and Kamruddin

when they visited the deceased at 4 A.M. in the morning and the

appellant caught hold of the feet of the deceased while Kamruddin

hit him with a hard object like a wooden paya of a cot. The

question however remains what was this common intention?

16. In our considered view, from the testimony of the witnesses,

we cannot come to the conclusion that the appellant and

Kamruddin shared a common intention to cause death of the

deceased.

17. The role assigned to the appellant is that he held the feet of

the deceased while his co-accused Kamruddin hit the deceased

with a rod or a “paya”. In the absence of user of a dangerous

weapon like knife, pistol or a katta etc., which would normally

be used in such a situation where there is an intention to cause

death of a person, at best what can be inferred from the evidence

is that the appellant shared a common intention with his co-

accused Kamruddin to cause grievous injury to the deceased.”

13. Mr. Narula also relied on the judgment of the Supreme Court,

reported as Balbir Singh v. State of Punjab,(2005) 9 SCC 299, and

Badruddin v. State of U.P., (1998) 7 SCC 300 to the same effect. In

Balbir Singh, it was observed that:

"8. Coming to the nature of the offence committed by the

appellants, there is evidence to the effect that the appellants only

wanted to teach a lesson to Tara Singh. They were aggrieved by

the fact that deceased Tara Singh had purchased the agricultural

land which they expected to get from Gurdial Kaur. Two of the

assailants were armed with axes, but they did not use the sharp

edge of those weapons and the injuries sustained by deceased

Tara Singh would show that there were no deep penetrating

injuries….Appellants Gora Singh and Balbir Singh are not alleged

to have caused any fatal injury to the deceased Tara Singh. Gora

Singh, though armed with a “kulhari” (axe), used the blunt portion

of that axe. Sikandar Singh was armed with a “sotti” (wooden

stick). He caught hold of deceased Tara Singh to enable the

other assailants to cause injury to him and Sikandar Singh himself

gave sotti-blows on the back of the deceased which resulted in

causing fracture of the ribs and, in turn, piercing of the lung

tissues of the deceased Tara Singh. There is no dispute that

these injuries were caused on Tara Singh. It is clear that Sikandar

Singh dealt the fatal blows which ultimately resulted in the death

of the deceased. If the entire prosecution evidence is considered

in the background of the so-called motive alleged, it is very

difficult to discern that these appellants had any common intention

to cause the death of the deceased. The sotti-blows dealt on the

back of deceased Tara Singh proved fatal causing fracture of

ribs which pierced his lung tissues.

9. On careful analysis of the prosecution evidence and the role

played by each one of the appellants, we are of the view that the

evidence does not show that these appellants shared a common

intention to cause the death of the deceased. However, appellant

Sikandar Singh caused injuries on deceased Tara Singh which

proved to be fatal at the end. The act committed by Sikandar

Singh would come within the offence punishable under Section

304 Part I IPC as he could be attributed with the knowledge that

the injury caused by him is likely to cause death. The grievous

injuries caused by other appellants, namely, Gora Singh and Balbir

Singh, would fall within the mischief of Section 326 IPC."

Similarly, in Badruddin it was held that:

“4. The High Court noted that the relations between the deceased

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and the others were strained on account of a dispute with regard

to “sahan” (open yard) of the Mosque of Shah Bhukhari and that

after Friday’s prayer, there was some altercation between the

two groups; the one consisting of the said four persons and the

other consisting of the deceased and PW 1. Thereafter, the

appellant and the said three persons came armed with a knife and

lathis, as noted above, surrounded the deceased near his door

while Nizamuddin dealt blows to him with a knife, Siddiqui beat

him with lathi. PWs 3 and 5 stated that the appellant, Hafiz and

Siddiqui inflicted blows on the said three eyewitnesses with lathis.

From the above facts, it is difficult to sustain the conclusion that

there was common intention between the appellant and other

persons to kill the deceased. Though establishing common

intention is a difficult task for the prosecution, yet, however

difficult it may be, the prosecution has to establish by evidence,

whether direct or circumstantial, that there was a plan or meeting

of mind of all the assailants to commit the offence, be it

prearranged or on the spur of the moment but it must necessarily

be before the commission of the crime. Where direct evidence

is not available, it has to be inferred from the circumstantial

evidence. In the instant case, it is stated that the deceased alone

was assaulted by Nizamuddin with a knife and Siddiqui with a

lathi. The appellant dealt blows with a lathi not to the deceased

but to other witnesses. There is no direct evidence of common

intention. There is no case nor evidence of exhortation by him

or of the fact that with a view to keep the said witnesses away

from interfering and to facilitate Nizamuddin to kill the deceased,

the appellant assaulted the said witnesses. Having regard to the

facts and circumstances of the case, it is not possible to arrive

at the conclusion that the appellant and others shared common

intention to kill the deceased Shaukat Ali. Consequently, we are

unable to sustain the conviction of the appellant for the offence

under Sections 302/34 IPC. However, on the facts, we confirm

the conviction and sentence under Sections 323/34 IPC awarded

by the courts below. As the appellant has already served out the

sentence for the offence convicted, therefore, he is directed to

be released forthwith unless he is required to be detained in any

other case. The appeal is accordingly allowed…”

It is submitted that the prosecution has not proved that Anil had gone to

the spot, at the relevant time, along with the other accused and the

prosecution has also not proved the recovery of tempo and Anil Kumar’s

arrest. In the circumstances, his conviction is unsustainable, and has to

be set aside.

14. Mr. Lovkesh Sawnheny, the learned APP, submitted that the

testimonies of the two eyewitnesses showed that the deceased was sleeping

when he was attacked by the accused; and at that time three persons

came to the site. One was armed with a Sariya. That indicated

preparedness. Though the two eyewitnesses did not attribute any overt

attack to the two appellants before the court, yet their action in restraining

the victim and gagging him, shows intention to fatally injure a helpless

target. Here, stressed the APP, premeditation implied the element of

surprise, due to night attack, to eliminate resistance. The appellants were

aware that their co-accused was armed with a Sariya, with the necessary

intention to launch a murderous assault. Further, there was a single blow,

which was lethal, and was inflicted on a vital part of the victim’s body.

All these disclosed a planned and calculated attack. The appellants Anil

Kumar and Tika Ram went together with this intention, with Chotu; in

the dead of the night. They had seen the Sariya; therefore, submitted the

APP, it was idle for them to argue or fall back on ignorance about the

true intent of the assaulter, who inflicted the lethal blow.

15. It was argued next that the definition of “Murder” in Section

300 (3) and (4) aptly describe the facts of the present case, and the

mental status of the appellants. The said provisions read as follows:

“300 MURDER.

(1) Except in the cases hereinafter excepted, culpable homicide

is murder…

................. .................

(3) If it is done with the intention of causing bodily injury to any

person and the bodily injury intended to be inflicted is sufficient

in the ordinary course of nature to cause death, or

(4) If the person committing the act knows that it is so imminently

dangerous that it must, in all probability, cause death or such


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bodily injury as is likely to cause death, and commits such act

without any excuse for incurring the risk of causing death or

such injury as aforesaid…:

The APP argued that when the appellants accompanied Chotu, they had

seen the Sariya. This showed their awareness. The deadly nature of the

weapon, eliminates any intention other than the one to kill. It was further

contended that the circumstances in this case disclose the common

intention of all the accused, who went armed to the deceased. The time,

3:15 AM was crucial, as it was the time to catch someone sleeping and

defenseless. In these circumstances, knowledge and intention to kill Moin

had to be imputed to the accused appellants.

16. It was urged that PW13 and PW16 were natural witnesses;

they informed the owner of the tent shop, PW-3 and his son, PW-4. The

removal of the injured to hospital, and recording of statement by police,

indicate an integrally connected chain of events. The timing of the rukka

indicated that there was no scope of maneuvering, or cooking up a story.

The assault took place at about 3:15 AM or so, and the injured was

rushed immediately to the hospital. There, the rukka was prepared, and

sent at 4:40 AM. In the circumstances, the testimonies of PW-13 and

PW-16 about Chotu carrying the weapon as well as presence of the two

appellants, is credible. The nature of weapon used, is corroborated by

medical evidence. In addition to the fatal blow, there are bruises in the

eye of the deceased. It was lastly urged that the court cannot be swayed

by minor discrepancies in the testimonies of witnesses, particularly if

they had seen the incident, and that motive (or the lack of it) in such

cases, assumes a secondary position. The APP argued that the shirt

recovered and sent to CFSL, was not used as a circumstance by the trial

judge, to convict the appellants.

17. In this case, the post-mortem report (PW-9/A) discloses the

following injuries, on the deceased’s person, and their cause:

“ The following external injuries were found on the dead body:

1. Right eye was black

2. lacerated wound of size 4x 0.2 x 1 cm present on the

interior part in the midline on top of head. It is

anteroposteriorly placed. Its interior end was 10 cm above

the bridge of nose.

The following internal injuries were found on the dead

body:

1. Effusiol on blood was found in the interior half of the

scalp. Suture separation fracture was present in the

coronal suture. It is present throughout its length. Thick

subdural, haematoma was present all over cerebral

hemisphere.

2. Contuion haemotoma was present on the outer surface

of right temporal lobe. Brain stem haemorrhage was

present. Weight was 1450 gm, oedematus.

Time since death was about 22 hours. The cause of death was

head injury following blunt force impact. Injury no.2 was sufficient

to cause death in the ordinary course of nature. Blood/blood

gauze/ clothes were sealed and handed over to the police.”

18. In the present case, the main witnesses relied on by the

prosecution and the Trial Court are PW-13 and PW-16. PW-13, Mohd.

Manzoor deposed that at about 3.50 he was woken up by some noise and

he saw that Tika Ram, Anil Kumar and Chotu were beating the deceased

(Mohd. Moin). He raised an alarm and these three fled in tempo No.

2712. Tarbaz (PW-16) went and woke up Sanjay (son of the owner) and

he, alongwith Tarbaz and Roshan Lal (owner of tent house) took deceased

to the hospital. He went to the hospital later on and then came back to

the spot with the police. He says that earlier Tika Ram had quarrelled

with another tent house worker, i.e Salam. On cross examination he said

that there were 10-20 other tent house employees, sleeping on the road.

He claimed to be employed in Roshan Tent House since 1984, and also

deposed that PW16 and Salam were working in that tent house for about

7-8 years prior to the day of the incident. He claimed to know accused

Anil Kumar, since he had worked in Roshan Tent House for 2 years but

did not know about Tika Ram and Chotu’s employment. According to

him the distance between where he was sleeping and the place of

occurrence was 30 meters. He did not know, from which portion of the

body Moin was bleeding but knew there was swelling in his eye. . He

reached the hospital at about 4 AM. The Police had recorded his statement

at Roshan Tent House at about 7 AM on the day of the incident. The

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Police met him in the hospital at about 3.15 AM and he was there for

about one hour and then from there went to the house of accused Anil

Kumar with two police officials.

19. PW-16 Tabrez deposed that on 14.07.94 at about 9 PM Chotu

Ram came in Tempo No. DBL 2712 and started urinating in front of the

Tent house, which was objected to, by Salam. Chotu slapped Salam and

threatened him that he would “see” him later on. Then at around 3.15

AM he heard some noise and woke up and saw that Anil Kumar had

pressed the mouth of deceased and Tika Ram had caught hold of Moin

(the deceased) and Chotu gave a blow on the head of deceased (with an

iron rod) and hit him other parts of the body as well. He raised an alarm

at which the accused fled from the spot in Tempo No. DBL 2712. As

per his statement Manzoor too (PW13) woke up. He then went and woke

up the owner and his son and they took the deceased to Safdarjung

Hospital. Police officials came to the hospital and recorded his statement

and later he, along with the police went to the spot. The police seized

a blood stained road metal, sample road metal and shirt. At about 2:45PM

two police officials came and informed, that accused Anil Kumar was in

his house and therefore they went there. Anil Kumar was arrested and

his personal search memo was drawn in his presence. PW-16 says that

he had been working at the Tent House for the past one year and that

Manzoor was working prior to that. The deceased had joined work about

two months prior to him. On cross examination he said that Manzoor

was sleeping in a Tempo and that the place of incidence was about 10

paces from where he was sleeping. He deposes that police officials had

come along with him to the spot at about 7 AM and stated that no police

official was sent to the police station from the hospital. He went on to

say that he had mentioned to the police about the shirt that was found

at the spot was the one that Anil Kumar had pressed the mouth of the

deceased with. However in the cross examination, he admitted that in the

previous statement at Ex.PW16/A, there was no mention of such detail.

He said that the deceased was unconscious and bleeding a lot from his

head. He states that when the shirt was seized from the spot there were

some members of the public present, none of whom were joined at the

time of seizure of the shirt or at the time of arrest of the accused Anil

Kumar.

20. PW 20 Subhash Chander, deposed to, on receiving DD No. 20

A, going, along with Const. Ram Dutt, to Safdarjung Hospital. He was

not permitted to record statement of Moin as doctors said he was not

fit to give statement. He recorded the statements of PW 3, PW 4, PW

13, and PW 16 at the Hospital. He then sent the rukka through a constable

to get the case registered. Then later, he, along with Constable Ram Dutt

and PW 4 and PW 16 came to the spot and got the scene photographed.

He prepared the site plan at the pointing out of PW 16. He also seized

from the spot, blood stained road metal, sample road metal and one shirt

found lying at the spot Ex. P-1 through Memo Ex. PW4/C. He then

formed a raiding party in which Rajeev (PW8) also joined, and went to

accused Anil’s house and arrested him. Thereafter, on the pointing out

of Anil, Tempo No. 2712 was seized from behind the NDSE-I petrol

pump. Further, in cross examination he stated that accused Anil was

arrested at the pointing out of PW-16. He further deposed that PW-16

had not disclosed that Anil had thrown a shirt at the spot and neither had

he disclosed the colour or the description of the shirt seized from the

spot. He said that no witness had mentioned to him about Tika Ram

wearing a shirt. He agreed that no public person was asked to join, (even

though some were present) when the shirt was seized.

21. PW-3 Roshan, the tent owner where PW-13 and PW-16 worked,

corroborated their versions, to the extent of being woken up after the

assault on the deceased; he deposed to having been informed about the

attack, and having taken the deceased, in an injured condition, to the

Safdarjung hospital, in the early hours of the morning, along with his

son, Sanjay (PW-4). PW-4 Sanjay supported the deposition of his father

about the details of the attack, learnt by both of them, from their

employees, and having taken the injured to the hospital. He also supported

the prosecution story about recoveries made. Both PW-3 and PW-4

mentioned that Anil Kumar had worked with them for some time earlier;

they were able to identify him.

22. From the above discussion, it is apparent that the deceased was

attacked at about 3-15 AM in the night intervening 14/15.07.1994. The

prosecution had urged that there was some petty quarrel, the cause of

which was Chotu, (who was driving tempo No. DBL 2712) going near

Roshan Tent House (owned by Roshan Lal, PW-3) at around 9:00 PM,

and urinating nearby. It was alleged that one Abdul Salam objected to

this. Chotu took offence, slapped him, and left the place threatening to


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Anil Kumar Sharma @ Bobby v. Delhi State/NCT Delhi (S. Ravindra Bhat, J.)

“see” him (cause Salam harm), later. According to PW-13, the deceased

was beaten by Chotu, Anil Kumar and Tika Ram. PW-16 stated that Anil

Kumar held the deceased by the mouth, whereas Tika Ram restrained his

hand, and Chotu attacked him with a Sariya. PW-13 witnessed the incident

from a Tempo, in which he had been sleeping, and woke up at the

commotion, and from a distance of about 30 meters from the spot. PW-

16 claims to have witnessed the incident about 20 paces from the place

of occurrence. No doubt, PW-16 did not mention about the presence of

PW-13 in the statement under Section 161 CrPC recorded by the police.

However, what is common in the depositions of the two witnesses is that

they identified both the appellants, whom they knew. No suggestion was

put to them about adequacy or otherwise of light or conditions of visibility,

which means that there is no dispute that they could have seen and

identified the attackers at that hour. Furthermore, a reading of the rukka,

which records the earliest version, discloses that it was dispatched at

4:40 AM. It corroborates the time of attack, by showing it to be 3:15

AM. Initially, the police had registered a case under Section 307 IPC;

Moin’s statement was sought to be recorded. However, the doctor

attending him at the time, declined permission, as he was medically unfit

to make a statement. The statement of PW-16 was recorded then. In

material particulars, what was recorded then was deposed to by him. No

doubt, in that statement, PW-16 did not mention about the rukka being

sent to the police station. However, in the circumstances, that is an

inconsequential detail, since such witnesses may not be expected, normally

to notice or discern such minute facts.

23. PW-16 does not mention, in his deposition, about the presence

of PW-13. Now, although a sketch PW-20/D was sought to be placed

on record, and deposed as having been prepared by PW-20 after

consultation with PW-16 (according to the document, on 15.07.1994),

PW-16 contradicted that version and stated that a sketch was prepared

with his assistance by a draftsman about 2-3 months after the incident.

If that is correct, PW20/D has no evidentiary value, as it is hit by Section

162, Cr. PC. Such a plan or site map drawn to the scale is admissible

only if the witnesses corroborate the draftsman’s statement that they

showed him the places. (Ref. Tori Singh v. State of UP 1962 (1) Cri

LJ 469; State of Himachal Pradesh v. Prem Chand 2002 (10) SCC

518; and Jagdish Narain v. State of UP 1996 (8) SCC 199). Therefore,

it is unclear where PW-13 was sleeping, and whether PW-16 could spot

him at the time when he saw the deceased being attacked.

24. As regards the contradictions sought to be made out by the

appellants counsel regarding the recoveries, or the place and time of

Anil’s arrest the identity of the shirt, and so on, are concerned, they

cannot be termed major discrepancies which can amount to reasonable

doubts about the prosecution version regarding the presence and identity

of the appellants. Therefore, there cannot be any doubt about the presence

and due identification of the appellants in the assault upon the deceased

Moin, by Chotu.

25. It would now be necessary to consider whether the prosecution,

which has successfully proved the presence and identity of the appellants

before the court, was able to prove that they had the common intention

with the aggressor, so as to be criminally responsible for murder. Here,

the contradictions between the versions of PW-13 and PW16 become

important. It is clear enough from PW-16’s evidence that none of the

appellants before the court were armed. They were accomplices, alleges

the prosecution, which also points out at Section 300 (4) IPC, stressing

that they had accompanied one armed with a deadly weapon, which

could have been used only for one purpose, in the dead of the night.

While that contention sounds attractive, the court is also mindful that in

order to attract criminal responsibility, mere presence of the co-accused

is not always sufficient. Section 34 IPC, in cases involving single blow

by an accused, to fasten guilt for murder on co-accused, has engaged

the attention of courts on several occasions. While there is no universally

acceptable formula that in such instances, the intention to cause death

cannot be attributed to such non-participating co-accused, at the same

time, courts have to recognize the need to exercise caution.

26. The rationale for fixing joint responsibility on a co-accused

who does not participate in the actual attack, but might play a covert

role, or might even be a mere by stander, was explained by the Supreme

Court, in the following words, in Ramesh Singh v. State of MP 2004

(110) Cr. LJ. 3354:

“As a general principle in a case of criminal liability it is the

primary responsibility of the person who actually commits the

offence and only that person who has committed the crime can

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be held to guilty. By introducing Section 34 in the penal code

the Legislature laid down the principle of joint liability in doing

a criminal act. The essence of that liability is to be found in the

existence of a common intention connecting the accused leading

to the doing of a criminal act in furtherance of such intention.

Thus, if the act is the result of a common intention then every

person who did the criminal act with that common intention

would be responsible for the offence committed irrespective of

the share which he had in its perpetration. Section 34 IPC

embodies the principles of joint liability in doing the criminal act

based on a common intention. Common intention essentially being

a state of mind it is very difficult to produce direct evidence to

prove such intention. Therefore, in most cases it has to be

inferred from the act like, the conduct of the accused or other

relevant circumstances of the case. The inference can be gathered

by the manner in which the accused arrived at the scene, mounted

the attack, determination and concert with which the attack was

made from the nature of injury caused by one or some of them.

The contributory acts of the persons who are not responsible for

the injury can further be inferred from the subsequent conduct

after the attack. In this regard even an illegal omission on the

part of such accused can indicate the sharing of common

intention. In otherwords, the totality of circumstances must be

taken into consideration in arriving at the conclusion whether the

accused had the common intention to commit an offence of

which they could be convicted. (Noor Mohammad Yusuf

Momin, AIR 1971 SC 855) (1971 Cri LJ 793 : AIR 1971 SC

885).”

27. In this case, the appellants have relied on several judgments of

the Supreme Court, and of this court, to contend that even if they were

present, their common intention to kill the deceased could not be proved

beyond reasonable doubt. The authorities cited by them undoubtedly

support such a proposition. Similarly, in Smt. Tripta v. State of Haryana

[AIR 1993 SC 948] the deceased died after some time of the attack. A

lacerated wound on the left side of scalp was found. The appellant went

to him (the deceased) to question as to why he had transferred his lands.

It was held that the deceased’s response must have irked her, and the

main accused started assaulting him (the deceased). Having regard to the

role played by the appellant, it was held that no case under Section 302/

34 was made out as she had no role to play in causing injuries to other

persons present there, although the main accused had assaulted them. In

Prakash v. State of Madhya Pradesh, 2006 (7) SCC 496, where the

accused, one of the four assailants of the deceased, had hit him on the

leg, and one of the others had inflicted a single fatal blow on the head,

as in the present case, the Supreme Court held that common intention to

cause injury of the kind punishable under Section 304 Part I had been

proved. Likewise, in Raju Trambak Magare v. State of Maharastra

2001 (10) SCC 385 two important facts which weighed with the court

in concluding that the two appellants before the Supreme Court did not

share the common intention of the assailants, to kill the deceased, was

that though their role in dragging him (deceased) was established, it was

unclear from the evidence how they beat him, and further that they were

unarmed, and could not have known that the other two accused would

have inflicted fatal injuries which caused death. In Dajya Moshya Bhil

(supra) the Supreme Court refused to uphold a conviction under Section

302, by attributing common intention, and found that their presence in

the scene of crime was established, but their being unarmed, and no

proof having been led about the injuries inflicted upon the deceased, and

lastly, the absence of motive or common intention, (because of their

absence at the time, in relation to an insult, which was allegedly given

to the principal accused) resulted in their diminished criminal liability. The

conviction was therefore, altered from Section 302 to 326, IPC.

28. In the present case, the appellants presence has been proved.

Equally, the fact that PW-13 and PW-16 knew them has been established.

However, none of these witnesses deposed that either of the appellants

were armed. The quarrel alluded to by the prosecution witnesses was a

trivial one, and crucially, the appellants were not present when it took

place. Puzzlingly, Salam, with whom the main assailant (Chotu) quarrelled,

was not examined. He was not at the spot of occurrence; his connection

or relationship with the deceased, has not been proved. All that has come

on record is that Tika Ram was known to Chotu. Now, if the prosecution

version’s is to be accepted that the two appellants had known that Chotu

was armed with a deadly weapon, i.e a Sariya, one could have understood

the intention if the weapon had been described, since concededly it has


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Anil Kumar Sharma @ Bobby v. Delhi State/NCT Delhi (S. Ravindra Bhat, J.) 105 106

not been produced. PW-16’s description about the role played by each

Appellant is not too clear. Anil, he says, held the deceased by the mouth;

and Tika Ram held his hands. The deposition suggests that one held him

from the front, while the other held him from the back, and further that

Chotu inflicted the injuries on the face and head. If this is an accurate

description, either the assailant must have faced the deceased directly, or

inflicted the blows, sideways. In either case, he would have taken care

to land the blows with some precision, since one of the accomplices was

holding the lower part of the deceased’s face. That would, in turn imply,

that the accused was either accurate or that the weapon was a small and

compact one, or both. Now in the state of all these uncertainties as to

the role played by each of the Appellant, it would not be possible to

discern a common intention to cause death of the deceased Moin. Their

presence is undeniable; under the circumstance, it can be inferred that

they shared the intention with the co-accused, to cause injury enough to

subdue or “take care” of Moin. Under the circumstances, they can be

attributed with the intention of causing bodily injury as was likely to

cause death, amounting to an offence punishable under Section 304 Part

I.

29. In view of the above findings, the two appeals, Crl. A. No. 386/

1997 and Crl. A.No. 30/1998 are partly allowed; the appellants’ conviction

under Section 302/34 is altered to one under Section 304 Part I, read

with Section 34. The appellants shall undergo rigorous imprisonment for

7 years; the sentence of fine, is, however not disturbed.

30. The appellants shall appear before the trial Court after two

weeks on 22.03.2011 and continue remainder of sentence, if any.


WP(C)

RAJESH KR. CHATURVEDI ....PETITIONER

VERSUS

UNION OF INDIA & ORS. ....RESPONDENTS

(PRADEEP NANDRAJOG & SURESH KAIT, JJ.)

WP(C) NO. : 1270/1998 DATE OF DECISION: 15.03.2011

Constitution of India, 1950—Article 226—Writ Petition—

Railway Protection Force (RPF) Rules, 1987—Service

Law—Petitioner constable in RPF attached with a



constable—Deceased Naik Amarjeet Yadav was

murdered at railway station allegedly by petitioner—

Petitioner annoyed with deceased and had an argument

with him—For that reason fired three rounds from his

service rifle at the deceased resulting in instantaneous

death—FIR registered by police u/s 302 IPC against

petitioner—In preliminary inquiry, allegations proved—

Disciplinary authority dismissed petitioner from service

stating that not reasonably practicable to hold a

departmental inquiry—In Appeal, order of disciplinary

authority set aside and regular departmental inquiry

ordered on the charges of gross remissness and

negligence in discharge of duty, willful breach of

discipline and serious misconduct—He was kept under

suspension during the pendency—Charges proved

against him—Again dismissed from service by

disciplinary authority—Filed appeal against the order

before Appellant Authority—During the pendency of

appeal, acquitted by the court due to lack of

evidence—Transpired that all witnesses examined in

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Indian Law Reports (Delhi) ILR (2011) VI Delhi107 108Rajesh Kr. Chaturvedi v. Union of India (Pradeep Nandrajog, J.)

the departmental inquiry not produced in criminal

trial—Represented to the Appellate Authority in view

of acquittal relating to the same incident the

punishment in departmental inquiry be set aside—

Appeal dismissed being time barred—Filed revision

before revisional authority—Revision dismissed—

Preferred writ petition—Contended, in view of the fact

that he has been acquitted in the criminal proceedings

based on same set of allegations which constituted

the gravamen of departmental proceedings the order

of Discriptionary Authority should be quashed—Further


proceedings since he was not paid subsistence

allowance—Held—Departmental inquiry and criminal

proceedings operate in their distinct and mutually

exclusive jurisdictional areas—In a disciplinary

proceedings the area of investigation covers the field

of (a) enforcement of discipline (b) level of integrity

(c) misconduct pertaining to devotion towards duty—

In criminal proceedings the area of investigation

covers the culpability from the point of view of criminal

law—Standard of proof in the two proceedings are

different—In the former, it is preponderance of

probability and in the latter beyond reasonable doubt—

Rule of Evidence Act applicable in the criminal trial;

not applicable in the disciplinary proceedings wherein

any material having logical probative value to prove

or disprove the fact in issue relevant and admissible—

In the case in hand, the scope of departmental inquiry

covering disciplinary aspect wider and different and

accordingly the acquittal of the petitioner in the criminal

proceedings has no effect on the punishment of

dismissal from service imposed on him in the

departmental proceedings—Further requirement of

furnishing a non-employment certificate by the

suspended employee to draw his subsistence

allowance granted on monthly basis to the employee

to sustain himself—If the suspended fails to submit

the certificate, he cannot complain about not getting

the subsistence allowance—Writ Petition Dismissed.

To summarize the legal position, honorable acquittal in the

criminal case is not conclusive in regard to the order of

punishment imposed upon the delinquent officer in a

departmental proceeding in every case and the same

depends upon the fact situation involved in a given case.

The criminal and departmental proceedings operate in their

own distinct and mutually exclusive jurisdictional areas. In a

disciplinary proceeding, the area of investigation covers the

field of (a) enforcement of discipline, (b) level of integrity,

and (c) misconduct pertaining to devotion of duty. In criminal

proceedings, the area of investigation covers the culpability

from the point of view of criminal law. Standard of proof in

the two proceedings is entirely different. In the former it is

“preponderance of probabilities”, in the latter, it is “proof

beyond reasonable doubt”. In a criminal trial, the only

evidence admissible is that which is admissible under the

provisions of the Evidence Act. A tribunal conducting an

enquiry in a disciplinary proceeding is not bound by the

rules of evidence. Any material which has a logically probative

value to prove or disprove the facts in issue is relevant and

admissible. (Para 36)

Important Issue Involved: (A) The acquittal in the criminal

case on the same allegations does not entitle the delinquent

employee exoneration from the disciplinary proceedings.

(B) Departmental inquiry and criminal proceedings operate

in their distinct and mutually exclusive jurisdictional areas in

a disciplinary proceedings the area of investigations covered


(c) misconduct pertaining to devotion of duty; in criminal

proceedings the area of investigations covers the culpability

from the point of view of criminal law.


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109 110Rajesh Kr. Chaturvedi v. Union of India (Pradeep Nandrajog, J.)

(C) Standard of proof in the two proceedings are different

- in the former it is preponderance of probability and in the

latter beyond reasonable doubt.

(D) Rule of evidence act applicable in the criminal trial not

applicable in the disciplinary proceedings wherein any material

having logical probative value to prove or disprove the fact

in issue is relevant and admissible.

[Gu Si]

APPEARANCES:

FOR THE PETITIONER : Mr. Sumeet Sharma, Mr. Harsh Lata

Vats, Advocates for Mr. Prashant

Bhushan, Advocate.

FOR THE RESPONDENTS : Dr. Ashwani Bhardwaj, Advocate.

CASES REFERRED TO:

1. Captain M. Paul Anthony vs. Bharat Gold Mines Ltd

(1999) 3 SCC 679.

2. Ghanshyam Das Shrivastav vs. State of M.P. (1973) 1

SCC 656.

RESULT: Writ Petition Dismissed.

PRADEEP NANDRAJOG, J.

1. On 20.06.1984 the petitioner was appointed as a Constable in

Railway Protection Special Force (hereinafter referred to as “RPSF”). In

the year 1990 the petitioner was attached with detachment of E Coy of

7th Battalion, RPSF, which detachment took over the static guard of

Malsian-Shahkot railway station outpost (herein after referred to as the

“Railway Station”) with effect from 29.06.1990. It be noted here that

following persons attached with the detachment were deployed at the

railway station for static station guarding duty under the command of HC

Rup Singh Bardloi: (i) petitioner; (ii) Naik Amarjit Yadav (herein after

referred to as the deceased); (iii) Naik Govind Shah; (iv) Naik Indresh

Prasad Yadav; (v) Naik Sher Singh; (vi) Const.Sat Pal Singh; (vii)

Const.Birsa Torpo; (viii) Const.Ram Pratap; (ix) Const.Ram Lakhan and

(x) Cook B.B.Ghose.

2. On 08.07.1990 the deceased Nk.Amarjit Yadav was murdered at

the railway station. It was alleged by the other members of the detachment

that the petitioner was annoyed with the deceased as he had an argument

with him due to which reason he fired three rounds from his service rifle

at the deceased which resulted in the instantaneous death of the deceased.

On the said basis, the police registered an FIR No.119/1990 under Section

302 IPC against the petitioner.

3. Inspector Ram Sanehi, Coy Commander of the said detachment,

conducted a preliminary inquiry into the incident during which he recorded

the statements of the members of the detachment. In his report dated

14.07.1990 Inspector Ram Sanehi opined that HC Rup Singh Bardloi,

Naik Sher Singh, Const. Sat Pal Singh and Const.Birsa Torpo had fabricated

a false story and concealed true facts with respect to the role played by

them in preventing the incident and in apprehending the petitioner after

he had murdered the deceased. It was further opined by Inspector Ram

Sanehi that the said persons had shirked from their responsibility inasmuch

as they did not take adequate steps in preventing the incident of the

murder of the deceased and apprehending the petitioner and thus

recommended a departmental action to be taken against them in said

regard. As regards the petitioner, he prima facie opined a case being

made out to proceed against the petitioner in a departmental inquiry.

4. Thereafter the department issued a charge sheet to the petitioner

which reads as under:-

“Gross remissness and negligence in the discharge of duty, willful

breach of discipline and serious misconduct in that Constable

Rajesh Kumar Chaturvedi:-

1. On 8.7.90 at about 21/30 hours, while on guarding duty at

Malsian-Shahkot Railway Station in Punjab he engaged himself in

hot discussion using filthy language with Naik Govind Shah and

subsequently with Naik Amarjit Yadav on his objection and created

ugly scene.

2. He misused the arms and ammunitions issued to him for

safety and security purposes, by opening 3 rounds fire on NK

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Indian Law Reports (Delhi) ILR (2011) VI DelhiRajesh Kr. Chaturvedi v. Union of India (Pradeep Nandrajog, J.) 111 112

Amarjit Yadav, without any reasonable cause, which resulted

into death of the Naik on the spot on 8.7.90 at about 21/30

hours.”

5. Vide order dated 02.11.1990, the Disciplinary Authority held that

it is not reasonably practicable to hold a departmental enquiry against the

petitioner as he is charged with an offence punishable with death and that

the evidence of the members of the detachment present at the railway

station at the time of the occurrence establishes the charges leveled

against the petitioner and inflicted the punishment of dismissal of service

upon the petitioner.

6. Aggrieved by the order dated 02.11.1990 passed by the

Disciplinary Authority, the petitioner filed an appeal under Rule 212 of

Railway Protection Force Rules, 1987 (hereinafter referred to as the

“Rules”) before the Appellate Authority. Holding that the view taken by

the Disciplinary Authority that it is not reasonably practicable to hold a

departmental enquiry against the petitioner as he is charged with an

offence punishable with death is fallacious, vide order dated 19.02.1992,

the Appellate Authority allowed the appeal filed by the petitioner. It was

directed by the Appellate Authority that the petitioner be reinstated in

service but placed under suspension as he is involved in a case registered

in respect of an offence punishable under Section 302 IPC and that the

department may initiate fresh departmental proceedings against the

petitioner.

7. Vide Office Order No.7Bn/E/PF/CT-RKC/92-2164 dated

09.06.1992 issued by the Competent Authority, the petitioner was placed

under suspension with effect from 09.06.1992. On the same date i.e.

09.06.1992 the department issued another office order, the relevant portion

whereof reads as under:-

“The Head quarters of constable Rajesh Kumar Chaturvedi of ‘E’

coy No.7Bn/RPSF/Lumding, who has been placed under vide

Order No.7Bn/E/PF/CT-RKC/92-2164 dated 9.6.92, is fixed at

No.7Bn/RPSF/Lumding for all purposes.

He will draw subsistence allowance during the period of

suspension in terms of Rule-2014 Indian Railway Establishment

Manual to an amount equal to the leave salary which he was

drawn if he had been on leave on half average pay or on half pay

ˇand in addition, dearness allowance on the basis of such leave

salary.

No payment of subsistence allowance will be charged unless

he submit certificate by 15th of the month that he is not engaged

in any other employment, business, profession or vocation.

He will not leave the Bn/HQ/Lumding without permission and

will give his attendance at Bn. HQ Roznamcha daily at 8.00 hrs,

14.00 hrs and 20.00 hrs. He will also attend all normal and

surprise roll calls and fire alarms” (Emphasis Supplied)

8. Vide Office Order No.7Bn/E/DAR/MAJ/J/92-2283 dated

23.06.1992 the department issued a fresh charge sheet to the petitioner

for initiation of departmental proceedings under Section 9(1) of Railway

Protection Force Act, 1957 read with Rule 153 of Railway Protection

Force Rules, 1987 against the petitioner. The charges framed against the

petitioner read as under:-

“Gross remissness and negligence in the discharge of duty, willful

breach of discipline and serious misconduct in that Constable

Rajesh Kumar Chaturvedi:-

1. That on 8.7.90 at about 21.30 hrs while on station guarding

duty at Malsian Shah Kot (Punjab) with Arms and Ammunition

engaged himself in hot discussion by using filthy and un-

parliamentary language with NK Govind Shah and subsequently

with NK Amarjit Yadav. On objection by NK Amarjit Yadav, he

created an ugly scene. Thus, he failed to respect the code of

behavior and maintain an attitude of complete discipline.

2. He misused govt. Arms and Ammunition in that on 8.7.90 at

about 21.45 hrs, he fired 3 rounds from his service rifle

No.4307577 Butt No.996, after one another at his colleague, NK

Amarjit Yadav killing him on the spot, which resulted into the

seizure of Arms/Ammunition by GRPS/JUC vide case No.119/90

dt. 9.7.90.”

9. An Inquiry Officer was appointed who recorded the preliminary

statement of the petitioner wherein he denied the charges leveled against


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him. Thus, the Inquiry Officer proceeded to record the testimony of

various witnesses and we note that the Inquiry Officer has not assigned

a number to the witness in the chronological order in which the witnesses

were examined, but has assigned a number to the witness with reference

to the serial number at which his name found mentioned in the list of

witnesses.

10. Naik Govind Shah PW-4, deposed that on 08.07.1990 a tiff had

taken place between him and the petitioner and they hurled abuses against

each other. At about 09.45 P.M. Head Constable Rup Singh Bardloi

informed him that the petitioner had fired three rounds from his service

rifle at the deceased.

11. On 30.06.1992 the department examined two witnesses namely,

Const.Virsa Torpo PW-6 and Const.Ram Lakhan PW-8.

12. Const.Virsa Torpo PW-6, deposed that on 08.07.1990 at around

09.30 P.M. the petitioner and Naik Govind Shah were arguing with each

other and using indecent language. At that time the deceased came there

and scolded Naik Govind Shah for using indecent language, which greatly

infuriated the petitioner. Thereafter the petitioner and Naik Govind Shah

went outside to eat food; the deceased followed them and also went

outside. After sometime the petitioner went inside the camp and lay down

on the bed. Naik Govind Shah went after the petitioner and counseled

him to eat his food upon which both of them came outside. Immediately

thereafter the petitioner went inside the camp and lay down on his bed.

After sometime he went outside to answer the call of the nature. While

he was coming back to his outpost he saw that the petitioner had loaded

his rifle and that he was coming out of the camp. The petitioner met him

and threatened him to get out of his way. Thereafter he went to the

Guard Commander HC Rup Singh and apprised him with the aforesaid

facts. In the meanwhile he heard a firing sound followed by the scream

of the deceased. He informed HC Rup Singh who was wearing uniform

at that time about the said fact. In the meanwhile, the second round was

fired upon which he again went to HC Rup Singh to apprise him with

the said fact but the door of the camp was shut. He opened the door and

in the meanwhile third round was fired. After sometime Const.Ram

Pratap, Naik Indresh Prasad and Const.Ram Pratap apprehended the

petitioner. That the petitioner did not have his service rifle in his hand

when he was caught. On 09.07.1990 the officials of GRP Jalandhar

came to the spot and seized the service rifle of the petitioner and some

empty and live rounds from the spot. Be it noted here that the petitioner

did not put any question to the witness during the cross-examination that

someone else has used his rifle to murder the deceased.

13. Const.Ram Pratap PW-8, deposed that on 08.07.1990, after

finishing his duty he went to the mess to eat food and that Naik Indresh

Prasad was also eating food in the mess at that time. At that time the

petitioner and Naik Govind Shah were drinking liquor and hurling abuses

at each other. The deceased objected to the use of abusive language by

Naik Govind Shah, which greatly infuriated the petitioner. After sometime

he and Indresh Prasad were sitting on a bench outside the camp when

again an argument took place between the petitioner and the deceased

after which the petitioner went inside the camp. Sometime thereafter he

heard a firing sound followed by the scream of the deceased and he saw

that the petitioner was standing near the gate with his rifle in his hand.

It did not take any time for him to figure out that the petitioner has fired

a shot at the deceased. Immediately thereafter the petitioner fired second

shot at the deceased after which he and Indresh Prasad got up from the

bench. The petitioner ran and fired third shot at the deceased from a

close range. Thereafter he and Indresh Prasad started running towards

Nakodar. After running for some distance he and Indresh Prasad realized

that the petitioner was running behind them and that his rifle was not in

his hand at that time upon which he and Indresh Prasad apprehended the

petitioner and took him inside the camp. Upon receipt of the information

of the incident of the murder of the deceased the officials of GRP

Jalandhar came to the spot and seized the service rifle of the petitioner

and three empty and five live rounds from the spot. Be it noted here that

the petitioner did not put any question to the witness during the cross-

examination that someone else has used his rifle for murdering the

deceased.

14. On 01.07.1992 the department examined two witnesses namely

HC Rup Singh Bardloi PW-2 and Const.Ram Lakhan PW-7.

15. HC Rup Singh Bardloi PW-2, deposed that on 08.07.1990 at

about 09.30 P.M. the petitioner and Naik Govind Shah were arguing with

each other and using indecent language. The deceased objected to the use

of abusive language by Naik Govind Shah, which greatly infuriated the

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petitioner. Thereafter he counseled the petitioner, deceased and Naik

Govind Shah to stay calm and maintain peace in the camp. After sometime

they sat for eating food; that the deceased sat on a bench near the

booking window of the office of Station master and that Indresh Prasad,

Ram Lakhan and Ram Pratap came there and sat with the deceased. At

the same time Naik Govind Shah sat alone on a bench to eat his food

and was joined by the petitioner after sometime. However the petitioner

did not finish his food; threw away his food and lay down on his bed.

Five-seven minutes thereafter the petitioner came outside with his rifle

and fired three rounds at the deceased. Thereafter the petitioner threw his

rifle and started running but was apprehended by the staff. Upon receipt

of the information of the incident of the murder of the deceased the

officials of GRP Jalandhar came to the spot and seized the service rifle

of the petitioner and three empty and five live rounds from the spot. Be

it noted here that the petitioner did not put any question to the witness

during the cross-examination that someone else has used his rifle for

murdering the deceased.

16. Const.Ram Lakhan PW-7, deposed that on 08.07.1990 he was

resting in the camp after finishing his duty when at around 08.30 P.M.

he saw that the petitioner and Naik Govind Shah were drinking liquor and

using indecent language against each other. The deceased objected to the

use of abusive language by Naik Govind Shah, which greatly infuriated

the petitioner. In the meantime he took his food and started eating on the

bench kept outside the camp. While he was eating his food Govind Shah

and the petitioner came there to eat their food but the petitioner did not

finish his food and threw away his tiffin. In the meantime the deceased

also came there and said that the petitioner is in habit of using abusive

language upon which he counseled the deceased to remain calm. The

petitioner threatened the deceased and hurled abuses at the deceased.

Thereafter the petitioner went inside the camp and the deceased was

present outside. He also went inside the camp and came back to the

bench after sometime. At that time, Naik Indresh Prasad, Const. Ram

Pratap and the deceased were sitting on the bench. In the meantime the

petitioner fired a round from his service rifle at the deceased which hit

the right knee of the deceased. Thereafter the petitioner fired two more

shots which hit the stomach and left ear of the deceased. The deceased

had screamed when the first bullet fired by the petitioner hit him. The

petitioner left his service rifle near the bench and started running upon

which he, Const. Ram Pratap and Indresh Prasad apprehended the

petitioner and took him inside the camp. Upon receipt of the information

of the incident of the murder of the deceased the officials of GRP

Jalandhar came to the spot and seized the service rifle of the petitioner

and three empty and five live rounds from the spot. Be it noted here that

the petitioner did not put any question to the witness during the cross-

examination that someone else has used his rifle for murdering the

deceased.

17. Thereafter the petitioner did not appear before the Inquiry Officer

and thus was proceeded ex-parte. Witnesses examined thereafter by the

department, were not cross-examined by the petitioner, for the obvious

reason he did not participate in the enquiry any further.

18. On 27.07.1992 the department examined three witnesses namely

Naik Indresh Prasad PW-3, Const.Satpal Singh PW-5 and ‘Cook’ B.B.

Ghosh PW-9.

19. Indresh Prasad Yadav PW-3, deposed that on 08.07.1990 at

around 09.20 P.M. he along with Const.Ram Pratap went to the mess

to eat food. While he and Const.Ram Pratap were eating food in the mess

he saw that the petitioner and Naik Govind Shah were drinking liquor on

the bed of the petitioner and using abusive language towards each other.

In the meantime the deceased came there and objected to the use of

abusive language by Naik Govind Shah, which greatly infuriated the

petitioner. Thereafter the petitioner went out in anger; Naik Govind Shah

followed him and the deceased lay down on his bed. While he and

Const.Ram Pratap were going out to wash utensils they saw that the

petitioner and Naik Govind Shah were sitting on a bench. In the meantime

the deceased came outside and sat on another bench and he and Const.

Ram Pratap joined the deceased. While eating food the petitioner was

hurling abuses at the deceased which was strongly objected by the

deceased. In the meantime the petitioner went inside the camp and Naik

Govind Shah followed him. After sometime Naik Govind Shah came out

of the camp and sat on a bench. Few minutes thereafter after loading his

rifle the petitioner came out of the camp and fired a shot. At that time

they were sitting outside on a bench. The first shot fired by the petitioner

hit on the right leg of the deceased upon which the deceased screamed.

The petitioner fired second shot at the deceased which hit the right side

of the stomach of the deceased. Thereafter the petitioner fired a third


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shot at the deceased from a close range. Upon firing of the third shot

by the deceased they started running towards Nakodar. After sometime

he saw that the petitioner was coming without rifle in his hand and that

Const. Ram Pratap and Ram Lakhan had apprehended him and taken him

inside the camp. On 09.07.1990 the officials of GRP Jalandhar came to

the spot and seized the service rifle of the petitioner and three empty and

five live rounds from the spot.

20. Const.Satpal Singh PW-5, deposed that on 08.07.1990 at about

09.30 P.M. he went to the mess for eating food. When he came back

to the camp after washing his utensils he saw that the petitioner and Naik

Govind Shah were drinking liquor and using abusive language against

each other. He objected to the use of abusive language by the petitioner

and Naik Govind Shah but they did not listen to him. Thereafter he went

outside the camp to answer the call of nature and was smoking when

he heard sound of firing of three shots. When he went inside the camp

he heard Const.Virsa Torpo informing HC Rup Singh Bardloi that the

petitioner had fired the shots. When he went outside he saw that Naik

Indresh Prasad, Const. Ram Pratap and Const. Ram Lakhan had

apprehended the petitioner. On 09.07.1990 the officials of GRP Jalandhar

came to the spot and seized the service rifle of the petitioner and three

empty and five live rounds from the spot.

21. ‘Cook’ B.B. Ghosh PW-9, deposed that on 08.07.1990 he had

gone to the storeroom of the mess to get some food items when he saw

that the petitioner and Naik Govind Shah were drinking liquor on the bed

of the petitioner and using abusive language against each other. Ten

minutes thereafter the deceased came there and objected to the use of

abusive language by Naik Govind Shah, which greatly infuriated the

petitioner. The deceased went outside and after sometime the petitioner

and Naik Govind Shah also went outside. Around 09.35 P.M. the petitioner

came in the camp and lay down on his bed. Thereafter he started eating

his food. While he was eating his food he heard the sound of firing of

a shot. He left his food and went in the camp. Few minutes thereafter

he heard the sound of firing of two shots. He came out of the camp and

was running towards public library when he was met by the petitioner.

The petitioner told him that he would not harm him and handed his rifle

to him. He handed over the said rifle to HC Rup Singh.

22. On 28.07.1992 the department examined one witness namely,

Inspector Ram Sanehi PW-1.

23. Inspector Ram Sanehi PW-1, deposed that he is working as

Coy Commander of E Coy of 7th Battalion, RPSF and that he had

conducted an inquiry into the incident of murder of the deceased. He

seized the extract of Individual Allotment Register from the department,

which extract records that the rifle seized by the police from the spot of

murder of the deceased was allotted to the petitioner and that the petitioner

had received the said rifle on 23.12.1988. He seized the extract of Daily

Arm/Ammunition Issue and Return Register from the department, which

extract records that the rifle which was seized from the spot of the

murder of the deceased along with fifty rounds were allotted to the

petitioner on 29.06.1990 and that only 42 rounds were recovered from

the petitioner on 09.07.1990.

24. On 22.10.1992 the department examined one witness namely

Const. Sher Singh PW-10 who deposed that on 08.07.1990 he was

performing his duty of guarding the station when at around 09.30 P.M.

he heard the agitated voice of the deceased. On hearing the same he went

away from his outpost and saw that the petitioner was lying on his bed

and that rest of the staff members were sitting outside and that some

were eating food. Thereafter he went back to his outpost. Within few

minutes of his reaching the outpost he heard the sound of firing of a shot

followed by the scream of the deceased. Thereafter he again heard the

sound of firing of a shot upon which he made inquiries from HC Rup

Singh who told him to go back to the outpost. He followed the instructions

of HC Rup Singh and went back to the outpost. HC Rup Singh called

Const. Virsa Torpo and went outside where he sternly instructed the

petitioner to throw his rifle. Immediately thereafter the petitioner fired a

third shot upon which the staff members apprehended him.

25. Vide report dated 12.11.1992, the Inquiry Officer indicted the

petitioner of all the charges framed against him. The relevant portion of

the report of the Enquiry Officer reads as under:-

“…..

Considering the above facts based on oral and documentary

evidence on record:

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(1) It is a fact that Const. Rajesh Kumar Chaturvedi on 8.7.90

at about 21.30 hrs while on static station guarding duty at Malshian

Shah Kot with Arm/Ammn engaged himself in hot discussion by

using filthy and unparliamentary language with NK/Govind Shah

and subsequently with NK/Amarjit Yadav and on objection by the

deceased he (delinquent) created ugly scene.

(2) It is a fact that CT/Rajesh Kumar Chaturvedi failed to respect

the code of conduct of behavior and maintain an attitude of

complete discipline.

(3) It is a fact that CT/Rajesh Kumar Chaturvedi misused Govt’s

Arm/Ammn on 08.07.90 at about 21/45 hrs in that he fired 3

rounds from his service rifle No.4307577 BUT No.996 at NK/

Amarjit Yadav after one another killing him on the spot.

(4) It is a fact that .303 No.4307577 BUT No.996 with 3 empty

rounds and 5 live rounds (4 in magazine and one in chamber)

was seized by SHO/GRPS/JUC on 9.7.90 vides crime No.119/

90 U/S 302 IPC registered against delinquent CT/Rajesh Kumar

Chaturvedi on 9.7.90.

(5) It is a fact that the delinquent CT/Rajesh Kumar Chaturvedi

was arrested in case No.119/90 U/S 302 IPC on 9.7.90.

Reasons and remarks for findings:

The enquiry was conducted without prejudice and the delinquent

CT/Rajesh Kumar Chaturvedi has been afforded a reasonable

opportunity. The delinquent Constable failed to defend his case

miserably. He did not produce any oral or documentary evidence

to defend his case. He deliberately avoided attending enquiry on

his own sweet will on dates fixed by enquiry officer when the

enquiry was in progress.

The delinquent is trained personnel and well acquainted with

the working of RPSF. He should have obeyed orders and

instructions of his senior subordinates on 8.7.90 and avoided his

involvement in such heinous crime in which he used 3 rounds

from his service rifle and fired at his colleague NK/Amarjit Yadav

killing him on the spot.

He was bound to respect the code of behavior and maintain

an attitude of complete discipline while on or off duty, deployed

for static station guarding duty. He should have not used filthy

and unparliamentary language against any staff when he was

with Arm/Ammn under his charge for Govt’s duty. He should

not have expressed his anger or irritation against his co-workers.

The use of Arm/Ammn should always be justified. The

delinquent should have avoided misuse of Govt’s Arm/Ammn by

keeping balance of his mind for good and real purpose.

There is too much aggressive act by Const. R.K. Chaturvedi

in using of Arm/Ammn against NK/Amarjit Yadav which is

intolerable and unjustified. According to departmental Rules of

RPF/Act-1987, the misconduct and indiscipline act resorted to

while working in Armed Force have tarnished the good image of

the Force and the delinquent has also lost his credibility and

integrity in the capacity of the member of the Force.

Findings: On perusal of oral and documentary evidence available

on record from prosecution and defence side and for reasons

and remarks mentioned for findings, the charges leveled against

the delinquent CT/Rajesh Kumar Chaturvedi have been proved

beyond doubt and he is found guilty of charge No.1 & Charge

No.2.”

26. After considering the aforesaid report dated 12.11.1992 submitted

by the Inquiry Officer and the representation filed by the petitioner against

the said report, vide order dated 11.01.1993 the Disciplinary Authority

held that the charges leveled against the petitioner have been proved and

inflicted the punishment of dismissal of service upon the petitioner.

27. Aggrieved by the order dated 11.01.1993 passed by the

Disciplinary Authority, the petitioner filed an appeal before the Appellate

Authority.

28. All this while, the trial in respect of the FIR registered against

the petitioner was in progress before the court of Sessions Judge,

Jalandhar, Punjab. During the course of the trial, the prosecution examined

six witnesses namely, Dr. V.K. Khullar PW-1, Romesh Thapar PW-2,

Const.Ram Lakhan PW-3, Const.Ram Pratap PW-4, Inspector Ram Sanehi


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PW-5 and Inspector Sat Pal PW-6. Vide judgment dated 10.06.1996 the

learned Sessions Judge acquitted the petitioner of the charge of having

committed the murder of the deceased. The reasons which led the learned

Sessions Judge to come to the said conclusion are as follows: - (i) the

circumstance that there was delay in registration of the FIR in the present

case inasmuch as the Investigating Officer reached the spot at about 2.40

A.M. on 09.07.1990 but the FIR was registered on the basis of the

statement of HC Rup Singh at about 6.15 A.M. on 09.07.1990 when seen

in light of the facts that Inspector Ram Sanehi had submitted in his report

dated 14.07.1990 that HC Rup Singh and other staff members had

fabricated a false story to conceal true facts and that there was considerable

delay in sending the copy of the FIR to the Area Magistrate in compliance

of Section 157 Cr.P.C. leads to a very strong presumption that the police

had gained time to contrive evidence against the petitioner; (ii) the account

of eye-witnesses Const.Ram Pratap and Ram Lakhan that the petitioner

did not shoot the deceased on an impulse when he had an argument with

him but that there was a time gap between the periods when the petitioner

had an argument with the deceased and when the petitioner fired shots

at the deceased is improbable inasmuch as passions cool down after

passage of time, more so when seen in the light of deposition of Inspector

Ram Sanehi that there is no place in the post where a staff member could

safely keep his rifle and that rifle of a staff member can easily be picked

up and used by anyone while such staff member is sleeping or has gone

to washroom etc; (iii) the testimonies of eye-witnesses Const.Ram Pratap

and Ram Lakhan do not inspire confidence as they are replete with

contradictions and improvements, which contradictions and variations

though minor assume significance in the facts of the present case (The

contradictions pointed out by the learned Trial Judge in the testimony of

Const.Ram Lakhan and Const.Ram Pratap primarily pertained to the

manner in which ˇthe petitioner threw his rifle after firing shots at the

deceased; the conduct of the staff members immediately after the

commission of the murder of the deceased by the petitioner and

apprehension of the petitioner by the staff members and the circumstances

in which the police seized the rifle and empties found at the spot); (iv)

there is a variation between ocular and medical evidence in the present

case inasmuch as first, third and fifth wounds found on the person of

the deceased were found to be blackened which suggests that the petitioner

had fired shots at the deceased from a close range whereas the eye-

witnesses deposed that the petitioner had fired first two shots at the

deceased from a distance of 8-9 yards; (v) there was considerable delay

in the deposit of the rifle and empties seized by the police from the spot

in the Forensic Science Laboratory; (vi) the report of the ballistic expert

that the empties recovered from the spot were fired from the service rifle

of the petitioner cannot be taken into consideration for the ballistic expert

has given no reasons in support of the conclusion arrived by him and

(vii) the investigation conducted by the police in the present case is

defective inasmuch as the Investigation Officer has omitted to mention

certain details in the inquest report and the site plan prepared by him.

29. On 22.02.1997 the petitioner wrote a letter to the Appellate

Authority wherein he informed the Authority about the factum of pendency

of his appeal and the passing of judgment dated 10.06.1996 by the

criminal court acquitting him of the charge of the murder of the deceased

framed ˇagainst him. Vide order dated 27.08.1997 the Appellate Authority

dismissed the appeal filed by the petitioner on the ground that the appeal

dated 22.02.1997 filed by the petitioner is time-barred in terms of provisions

of RPF Rules, 1987.

30. Aggrieved by the order dated 27.08.1997 passed by the Appellate

Authority, the petitioner filed a revision before the Revisional Authority

inter-alia contending that in view of the fact that the he has been acquitted

in the criminal proceedings based on same set of allegations which

constituted the gravamen of the departmental proceedings instituted against

him the order passed by the Disciplinary Authority dismissing him from

the service should be quashed and that the departmental proceedings

instituted against him stood vitiated for the reason he was not able to

participate in the said proceedings due to the failure of the department to

pay subsistence allowance to him by the department, which revision was

dismissed vide order dated 26.11.1997. On the issue of acquittal of the

petitioner in the departmental proceedings, it was held by the Revisional

Authority that since the charges framed against the petitioner in the

departmental and criminal proceedings were different the acquittal of the

petitioner in the criminal proceedings has no effect on the departmental

proceedings instituted against him. On the issue of non-payment of

subsistence allowance to the petitioner, it was held by the Revisional

Authority that the petitioner did not submit a certificate to the department

to the effect that he is not engaged in any other employment, business,

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profession or vocation as required in terms of the suspension order dated

09.06.1992. It was further held by the Revisional Authority that the

suspension order dated 09.06.1992 required the petitioner to not to leave

the Battalion Headquarters without permission, which condition was also

violated by the petitioner thereby disentitling him for payment of subsistence

allowance.

31. Aggrieved by the orders dated 11.01.1993, 27.08.1997 and

26.11.1997 passed by the Disciplinary Authority, Appellate Authority and

Revisional Authority respectively, the petitioner has filed the present petition.

32. During hearing of the present petition, following two submissions

were advanced by the learned counsel for the petitioner:-

A The first submission advanced by the learned counsel for the

petitioner was that for the same set of facts which constituted

the gravamen of the departmental proceedings against the

petitioner FIR No.119/21990 was registered under Section 302

IPC. Counsel argued that when in the criminal proceedings

predicated upon same set of facts as departmental proceedings

the petitioner stood acquitted on merits, it was incumbent upon

the Appellate/Revisional Authority to attach due weightage to the

finding of innocence arrived at by the criminal court and quash

the order passed by the Disciplinary Authority running contrary

to the decision of the criminal court. In support of the said

submission, strong emphasis was placed by the counsel upon the

decision of the Supreme Court reported as Captain M. Paul

Anthony v Bharat Gold Mines Ltd (1999) 3 SCC 679.

B The second submission advanced by the learned counsel for

the petitioner that in view of the fact that the petitioner was

unable to participate in the disciplinary proceedings due to the

failure of the department to pay subsistence allowance to him the

entire proceedings instituted against the petitioner stood vitiated

and as a necessary consequence thereof the order of punishment

passed by the Disciplinary Authority against the petitioner cannot

be sustained. In support of the said submission, strong emphasis

was placed by the counsel upon the decision of Supreme Court

reported as Ghanshyam Das Shrivastav v State of M.P. (1973)

1 SCC 656. It was further contended by the counsel that the

Revisional Authority failed to note that the petitioner had not

submitted the necessary certificate with the department in the

month of June 1992. It was further argued that the petitioner

was not required to submit the necessary certificate in every

month during the period of the suspension.

33. The questions that whether the criminal and departmental

proceedings launched against a delinquent employee can proceed

simultaneously and that what is the effect of acquittal of a delinquent

employee in the criminal proceedings on the punishment imposed upon

him in the departmental proceedings which crop up perennially in the

service matters has yet again arisen in the present case.

34. The afore-noted questions were examined in great detail by

Supreme Court in Anthony’s case (supra). The facts of the said case

were that the appellant was employed as a Security Officer in the

respondent. On 02.06.1985 a raid was conducted by the police at the

house of the appellant from where a mining sponge gold ball and gold-

bearing sand were recovered. On the same day, an FIR was registered

against the appellant, who was placed under suspension on 03.06.1985.

On the next day i.e. 04.06.1985 a charge sheet was issued to the appellant

proposing a regular departmental enquiry against him with regard to the

recovery of the above articles from his house. The appellant made a

representation to the Disciplinary Authority inter-alia contending that the

departmental proceedings initiated against him be postponed till the

conclusion of the criminal case registered against him, which representation

was rejected. Aggrieved from the aforesaid, the appellant filed a writ

petition before Karnataka High Court seeking a direction to restrain the

respondent from proceeding with the departmental proceedings till the

conclusion of the criminal case. While disposing of the said petition, the

High Court issued a direction to consider deferring the departmental

proceedings if found expedient to do so. The respondent did not defer

the departmental proceedings and continued the same. The appellant did

not participate in the said proceedings and thus was proceeded ex-parte.

On 10.05.1986 the Enquiry Officer submitted his report to the Disciplinary

Authority wherein he held the appellant to be guilty of the charges leveled

against him. The Disciplinary Authority accepted the report of the Enquiry

Officer and inflicted the punishment of dismissal from service upon the

appellant. Aggrieved by the aforesaid, the appellant filed a writ petition


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before a Single Judge of Karnataka High Court, which petition was

allowed by the Single Judge. However in appeal, the Division Bench set

aside the judgment of the Single Judge. Aggrieved thereof, the appellant

filed a special leave petition before the Supreme Court and advanced two

contentions namely, (i) the departmental proceedings instituted against

the appellant ought to have been stayed till the conclusion of the criminal

case registered against him and (ii) the entire disciplinary proceedings

which were held ex-parte stood vitiated for the appellant could not

participate in the said proceedings due to failure of the department to pay

subsistence allowance to him. After examining the entire case-law on the

point, the Court allowed the appeal filed by the appellant. The relevant

portion of the judgment of the Court reads as under:-

12. This question, as observed earlier, is of a perennial nature

and has arisen more often than not in spite of the judicial

pronouncements, specially by this Court, having settled the

question and provided the answer. Still, the problem is raised

either by the employer or by the employee in one or the other

form. In the instant case, the order of dismissal had already been

passed before the decision of the criminal case which ultimately

resulted in the acquittal of the appellant. Whether the acquittal

coupled with other circumstances, specially ex parte

proceedings, of the case, will have the effect of vitiating the

departmental proceedings or the order of dismissal passed against

the appellant, is the question which is to be considered in this

appeal.

13. As we shall presently see, there is a consensus of judicial

opinion amongst the High Courts whose decisions we do not

intend to refer to in this case, and the various pronouncements

of this Court, which shall be copiously referred to, on the basic

principle that proceedings in a criminal case and the departmental

proceedings can proceed simultaneously with a little exception.

As we understand, the basis for this proposition is that

proceedings in a criminal case and the departmental proceedings

operate in distinct and different jurisdictional areas. Whereas in

the departmental proceedings, where a charge relating to

misconduct is being investigated, the factors operating in the

mind of the disciplinary authority may be many such as

enforcement of discipline or to investigate the level of integrity

of the delinquent or the other staff, the standard of proof required

in those proceedings is also different than that required in a

criminal case. While in the departmental proceedings the standard

of proof is one of preponderance of the probabilities, in a criminal

case, the charge has to be proved by the prosecution beyond

reasonable doubt. The little exception may be where the

departmental proceedings and the criminal case are based on the

same set of facts and the evidence in both the proceedings

is common without there being a variance.

…..

22. The conclusions which are deducible from various decisions

of this Court referred to above are:

(i) Departmental proceedings and proceedings in a criminal case

can proceed simultaneously as there is no bar in their being

conducted simultaneously, though separately.

(ii) If the departmental proceedings and the criminal case are

based on identical and similar set of facts and the charge in the

criminal case against the delinquent employee is of a grave nature

which involves complicated questions of law and fact, it would

be desirable to stay the departmental proceedings till the

conclusion of the criminal case.

(iii) Whether the nature of a charge in a criminal case is grave

and whether complicated questions of fact and law are involved

in that case, will depend upon the nature of offence, the nature

of the case launched against the employee on the basis of evidence

and material collected against him during investigation or as

reflected in the charge-sheet.

(iv) The factors mentioned at (ii) and (iii) above cannot be

considered in isolation to stay the departmental proceedings but

due regard has to be given to the fact that the departmental

proceedings cannot be unduly delayed.

(v) If the criminal case does not proceed or its disposal is being

unduly delayed, the departmental proceedings, even if they were

stayed on account of the pendency of the criminal case, can be

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resumed and proceeded with so as to conclude them at an early

date, so that if the employee is found not guilty his honour may

be vindicated and in case he is found guilty, the administration

may get rid of him at the earliest.

…..

34. There is yet another reason for discarding the whole of the

case of the respondents. As pointed out earlier, the criminal case

as also the departmental proceedings were based on identical set

of facts, namely, “the raid conducted at the appellant’s residence

and recovery of incriminating articles therefrom”. The findings

recorded by the enquiry officer, a copy of which has been

placed before us, indicate that the charges framed against the

appellant were sought to be proved by police officers and panch

witnesses, who had raided the house of the appellant and had

effected recovery. They were the only witnesses examined by

the enquiry officer and the enquiry officer, relying upon their

statements, came to the conclusion that the charges were

established against the appellant. The same witnesses were

examined in the criminal case but the Court, on a consideration

of the entire evidence, came to the conclusion that no search

was conducted nor was any recovery made from the residence

of the appellant. The whole case of the prosecution was thrown

out and the appellant was acquitted. In this situation, therefore,

where the appellant is acquitted by a judicial pronouncement

with the finding that the “raid and recovery” at the residence of

the appellant were not proved, it would be unjust, unfair and

rather oppressive to allow the findings recorded at the ex

parte departmental proceedings to stand.

35. Since the facts and the evidence in both the proceedings,

namely, the departmental proceedings and the criminal case were

the same without there being any iota of difference, the distinction,

which is usually drawn as between the departmental proceedings

and the criminal case on the basis of approach and burden of

proof, would not be applicable to the instant case

….” (Emphasis Supplied)

35. The entire case law on the point including its earlier decision

in Anthony’s case (supra) was reviewed by the Supreme Court in the

decision reported as Management, Pandiyan Roadways Corporation

Ltd v N. Balakrishnan (2007) 9 SCC 755 wherein it was held as

under:-

“…..20. However, there is another aspect of the matter which

cannot be lost sight of. The respondent, in the meanwhile, has

been acquitted. The factum of his acquittal has been taken into

consideration by the Division Bench, which was considered to

be an additional factor. Ordinarily, the question as to whether

acquittal in a criminal case will be conclusive in regard to the

order of punishment imposed upon the delinquent officer in a

departmental proceeding is a matter which will again depend

upon the fact situation involved in a given case.

21. There are evidently two lines of decisions of this Court

operating in the field. One being the cases which would come

within the purview of Capt. M. Paul Anthony v. Bharat Gold

Mines Ltd.20 and G.M. Tank v. State of Gujarat21. However,

the second line of decisions show that an honourable acquittal in

the criminal case itself may not be held to be determinative in

respect of order of punishment meted out to the delinquent officer,

inter alia, when: (i) the order of acquittal has not been passed on

the same set of facts or same set of evidence; (ii) the effect of

difference in the standard of proof in a criminal trial and

disciplinary proceeding has not been considered (see Commr. of

Police v. Narender Singh22), or; where the delinquent officer

was charged with something more than the subject-matter of the

criminal case and/or covered by a decision of the civil court (see

G.M. Tank21, Jasbir Singh v. Punjab & Sind Bank23 and

Noida Entrepreneurs’ Assn. v. Noida24, para 18).….” (Emphasis

Supplied)

36. To summarize the legal position, honorable acquittal in the

criminal case is not conclusive in regard to the order of punishment

imposed upon the delinquent officer in a departmental proceeding in

every case and the same depends upon the fact situation involved in a

given case. The criminal and departmental proceedings operate in their

own distinct and mutually exclusive jurisdictional areas. In a disciplinary


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proceeding, the area of investigation covers the field of (a) enforcement

of discipline, (b) level of integrity, and (c) misconduct pertaining to

devotion of duty. In criminal proceedings, the area of investigation covers

the culpability from the point of view of criminal law. Standard of proof

in the two proceedings is entirely different. In the former it is

“preponderance of probabilities”, in the latter, it is “proof beyond reasonable

doubt”. In a criminal trial, the only evidence admissible is that which is

admissible under the provisions of the Evidence Act. A tribunal conducting

an enquiry in a disciplinary proceeding is not bound by the rules of

evidence. Any material which has a logically probative value to prove or

disprove the facts in issue is relevant and admissible.

37. Keeping the afore-noted judicial parameters in mind, we proceed

to examine that whether the instant case comes ˇwithin the purview of

Anthony’s case (supra) or in the second line of decisions noted in

Balakrishan’s case (supra).

38. From the afore-noted conspectus of facts, it is apparent that

the petitioner was facing only one charge in the criminal proceedings of

having committed the murder of the deceased by misusing arms and

ammunitions provided to him by the government. Charges framed in the

departmental proceedings as noted in para 8 above show that in the

departmental proceedings, a much wider area was being covered. Field

of service pertaining to the enforcement of discipline was there in the

departmental proceedings, apart from field of misconduct (based on

commission of murder of the deceased and misuse of governments.

arms and ammunitions). The charge of murder of the deceased was only

one of the charges in the departmental proceedings. The misbehavior of

the petitioner with his colleagues was the other area of the departmental

proceedings. It, therefore, cannot be said that the criminal case and

departmental proceedings were grounded on identical set of facts, though

we may hasten to add that the facts pertaining to both charges were

intertwined and in the context of the motive for the crime, the facts

pertaining to the first charge would fall for consideration at the criminal

trial.

39. Another circumstance which is worth noticing is that in the

instant case, there is a lot of difference between the evidence led before

the Domestic Enquiry and before the Criminal Court. Only two staff

members namely Const.Ram Pratap and Const.Ram Lakhan were

examined at the trial ˇbefore the learned Court of Sessions, whereas in

the Domestic Enquiry, minus the deceased and the petitioner, all the

remaining eight staff members were examined. Thus, the evidence led by

the prosecution in the criminal case was inchoate due to which reason

the criminal court did not get a clear picture of the incident of the murder

of the deceased. Not only that, due to the deficient evidence led by the

prosecution the Criminal Court could not correctly appreciate the import

of the report dated 14.07.1990 of Inspector Ram Sanehi, which report

heavily weighed with the criminal court in coming to the conclusion that

the case set up by the prosecution against the petitioner does not inspire

confidence.

40. In Anthony’s case (supra) a fact which heavily weighed with

the Supreme Court in coming to conclusion that the acquittal of the

employee in said case in the criminal proceedings led to quashing of the

order of punishment passed by the disciplinary authority in the departmental

proceedings was that the employee could not appear in the departmental

enquiry and defend himself due to the failure of the department to pay

subsistence allowance to him. Whereas in the instant case, the petitioner

appeared before the Inquiry Officer till the middle of the enquiry and

thereafter stopped appearing due to no fault of the department as would

be demonstrated by us in the subsequent paras.

41. We must highlight that at the departmental proceedings, a very

vital piece of evidence was brought to light, but for unexplainable reasons,

before the Criminal Court, the prosecution chose not to lead such a vital

piece of evidence. The same was an extract of the Arms and Ammunitions

Register which contained the recordings that one rifle and fifty rounds

were allotted to the petitioner on 29.06.1990 and that only forty two

rounds were recovered from the petitioner on 09.07.1990. The entry in

the register was exhibited at the departmental enquiry. The fact that eight

out of fifty rounds allotted to the petitioner were not accounted for by

the petitioner coupled with the facts that three empty rounds and the said

rifle loaded with five live rounds were seized by the police from the place

of the occurrence leads to a strong presumption that the rifle allotted to

the petitioner was used for murdering the deceased, which fact in turn

speaks volumes about the guilt of the petitioner. Whereas the criminal

court has proceeded on the premise that there is no evidence to establish

that the rifle allotted to the petitioner was used for murdering the deceased,

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a close reading of the judgment dated 10.06.1996 of the criminal court

shows that the aforesaid extract was either not produced by the prosecution

before the criminal court or if the same was produced by the prosecution

it was not noticed by the criminal court for there is no reference to the

said extract in the entire judgment.

42. In view of the aforesaid discussion, it has to be held that the

instant case clearly does not come within the purview of Anthony’s

case (supra) and that acquittal of the petitioner in the criminal proceedings

has no effect on the punishment of dismissal of service imposed upon

the petitioner in the departmental proceedings initiated against him.

43. When a government employee is placed under suspension, the

government is duty bound to pay subsistence allowance to such employee

during the period of the suspension. The subsistence allowance which is

normally less than the pay and allowance which an employee would have

been entitled to get had he not been suspended from service is paid to

an employee to enable him to sustain himself during the period of the

suspension.

44. The question which has really arisen in the present case is that

whether the petitioner was required to submit the necessary certificate to

the department every month during the period of the suspension.

45. In our opinion, the answer to the aforesaid question is in

affirmative. The subsistence allowance is paid to an employee in each of

the month when he is unable to sustain himself during the period of the

suspension. In such circumstances, it was incumbent upon the petitioner

to certify in every month that he is not able to sustain himself in order

to avail payment of subsistence allowance in the said month but the

needful was not done by the petitioner. We thus find no force in the

submission of the petitioner that he was not able to attend the enquiry

due to failure of the department to pay subsistence allowance to him. It

may be highlighted that in the order suspending the petitioner it was

clearly brought to his notice that by the 15th of each month a certificate

of non-employment had to be filed and only then would the subsistence

allowance be released.

46. Having repelled the submissions advanced by the petitioner, we

proceed to determine that whether the findings arrived at by the Inquiry

Officer and accepted by the Disciplinary/Revisional Authority are correct?

47. As already noted herein above, it is recorded in the extract of

Arms and Ammunition produced before the Enquiry Officer that one rifle

and fifty rounds were allotted to the petitioner on 23.06.1990 and that

only forty two rounds were recovered from the petitioner on 09.07.1990.

The fact that eight out of fifty rounds allotted to the petitioner were not

recovered from the petitioner coupled with the facts that three empty

rounds and the said rifle loaded with five live rounds were seized by the

police from the place of the occurrence leads to a very strong presumption

that the rifle allotted to the petitioner was used for murdering the deceased.

Who could use the rifle of the petitioner for murdering the deceased

other than the petitioner himself? No defence was taken by the petitioner

that someone else had used his rifle for murdering the deceased inasmuch

as no questions in said regards were put by the petitioner to the witnesses

cross-examined by him. The fact that the rifle of the petitioner was used

for murdering the deceased lends due corroboration to the depositions of

the staff members examined before the Inquiry Officer that the petitioner

had fired three shots at the deceased. This evidence itself incriminates the

petitioner and if we add on thereto the testimony of the eye-witnesses at

the departmental enquiry, only two of whom were examined before the

Court of Sessions, we find no infirmity in the ˇfindings arrived at by the

Inquiry Officer accepted by the Disciplinary/Revisional Authority.

48. In view of the above discussion, we find no merit in the instant

petition. The same is hereby dismissed.

49. No costs.


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133 134Smt. Chamno Devi v. Smt. Usha & Ors. (Mool Chand Garg, J.)


FAO

SMT. CHAMNO DEVI ....APPELLANT

VERSUS

SMT. USHA & ORS. ....RESPONDENTS

(MOOL CHAND GARG, J.)

FAO NO. : 40/2009 DATE OF DECISION: 28.03.2011

Indian Succession Act, 1925—WILL—Grant of Probate—

Appeal—Deceased, father of respondent no.1 executed

registered Will in regard to self acquired property in

favour of respondent no.1, his daughter excluding

wife and son—Wife and son contested the proceedings

for grant of probate—Filed joint objections inter-alia

Will obtained and procured fraudulently—Respondent

no.1 neither resident with deceased at village nor

looked after him—Right of deceased to bequeath

property through Will challenged—Property not self

acquired, being ancestral—Respondent no.1

contended that deceased filed a suit against objector

wherein admitted execution of Will in favour of

respondent no.1—Deceased was suffering from

cancer—Objector used to harass and torture deceased

during his last days—Deceased executed GPA,

Agreement to sell, Affidavit etc. in her favour and in

favour of her husband out of love and affection—

Respondent no.1 examined herself; attesting

witnesses, officials of sub-registrar—and witnesses to

prove the drafting of Will and attestation of other

documents—Objectors examined themselves—ADJ

observed, none objected that, deceased was not in

sound, disposing mind or was incapable of

understanding consequences of disposition—Attesting

witnesses trustworthy—Execution of Will proved—

Appellant admitted litigations between them and the

deceased—Appellant had filed maintenance

applications against deceased and was living

separately from the deceased—Even filed preventive

proceedings against deceased under Criminal

Procedure Code—ADJ Held—Strained relationship;

pendency of civil and criminal proceedings and living

separately were valid grounds in the mind of deceased

to exclude his son and wife from benefit of his estate—

Conduct not unnatural—Question of property being

ancestral or self acquired left to be decided by civil

court of concerned jurisdiction—Held—Will registered;

proved by clerk; two attesting witnesses proved the

execution of Will—No evidence led by respondent to

prove Will in Question not signed by deceased

testator—Admitted criminal proceedings between

deceased, and his wife and sons—Appeal dismissed.

I have heard the counsel for the parties and have examined

the record. The Will in this case dated 2.9.2002 is a

registered Will. The registration thereof has been proved by

the clerk from the Registrar’s office. It is attested by two

witnesses who both have appeared in the witness box. They

both have filed their affidavits in support of the attestation of

the Will by them and execution of the Will by the deceased

testator. They both have appeared for the cross-examination

but the respondents have not been able to take out anything

which may prove that the affidavits were not filed by them or

that the Will in question was not executed by the deceased.

In fact, the suggestions given by the appellants are only to

the effect that the Will is a forged document which is also a

suggestion given to the propounder of the Will. However, no

evidence has been led by the respondent to prove that Will

in question was not signed by the deceased testator.

(Para 11)

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Indian Law Reports (Delhi) ILR (2011) VI Delhi135 136Smt. Chamno Devi v. Smt. Usha & Ors. (Mool Chand Garg, J.)

deceased Sh. Mahabir, father of respondent No.1/Usha, had executed a

registered Will on 22.05.2003 in respect of his allegedly self acquired

property i.e. agricultural land situated in village Tehri, Daulatpur, Delhi

and one residential house measuring 272 sq. yards situated in old Lal

Dora of 1908-09 of village Hiranki, Delhi in favour of respondent No.1

who was looking after and taking care of him. Soon after the death of

her father, respondent No.1 filed a probate petition before the Additional

District Judge, Tis Hazari on 12.07.2004.

3. The deceased was survived by this wife and son, who contested

the proceedings and filed joint objections. According to them, Will in

question had been obtained and procured fraudulently by respondent

No.1 in collusion with the witnesses as the deceased had no desire to

give away his properties to respondent No.1. It is also stated that

respondent No.1 neither resided in the village with the deceased nor

looked after him at any time. The right of the deceased to bequeath the

property through Will was also challenged on the ground that those were

ancestral properties and not his self acquired properties.

4. Replication was filed by respondent No.1, who relied upon the

contents of Civil Suit No. 662/2002 allegedly filed by the deceased against

the objectors, wherein he admitted the execution of Will in favour of

respondent No.1. She also alleged that the objectors used to harass and

torture the deceased and were not serving him during his last days as he

was suffering from cancer. She also alleged that the deceased also executed

GPA, agreement to sell, affidavit, etc. in her favour and in the favour of

her husband out of love and affection as they were maintaining him and

providing him necessary help for survival.

5. On the pleadings of parties, following issues were framed by the

Additional District Judge:-

“1. Whether late Mahabir had executed a valid and enforceable

Will dated 22.05.2003 as claimed by the petitioner? OPP

2. Whether the petitioner is entitled for grant of Letter of

Administration/Probate in respect of aforesaid Will? OPP

3. Whether the petition is liable to be dismissed for objections

raised by the respondents? OPR

Important Issue Involved: (i) Previous litigations between

the testator and the persons excluded from bequeath are

valid ground for testator to exclude those persons from the

benefit of estate. (ii) The probate court cannot decide the

question of property being self acquired or ancestral property,

it is for the civil court to decide the same.

[Gu Si]

FOR THE APPELLANT : Mr. Ajay Kumar Chopra, Advocate.

FOR THE RESPONDENTS : Mr. D.S. Patial, Advocate for R-1

Mr. U.K. Malik Advocate for R-2.

CASE REFERRED TO:

1. Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas

Kataria, I (2009) SLT 172.

RESULT: Appeal Dismissed.

MOOL CHAND GARG, J.

1. This appeal has been filed by the appellant against the impugned

judgment dated 4.11.2008 passed by the Additional District Judge, Tis

Hazari in Probate Case No.236/06/04 granting probate of the Will Ex.PW1/

2 in favour of Smt.Usha, respondent No.1 subject to her complying with

other formalities. The grant of probate was further made subject to the

following:-

“….the exact measurement and valuation of the land and house

in question shall be got ascertained from the collector concerned

before completion of necessary formalities. An inventory of the

properties of the deceased shall be exhibited in Court within six

months from the date of grant of certificate of Letter of

Administration and the petitioner shall thereafter file a statement

of account within one year. It is clarified that question of right,

title and share in the properties in question as well as legality and

validity of alleged sale transaction though Ex.PW1/4 to 6 is not

decided by this Court.”

2. Briefly stating the facts giving rise to filing of this case are that


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Smt. Chamno Devi v. Smt. Usha & Ors. (Mool Chand Garg, J.)

harass him. The Additional District Judge further observed that, “Deceased

in this plaint of civil suit also mentioned about execution of one Will in

favour of his daughter i.e. petitioner. Though the Will referred in the

plaint is not the present Will but an earlier Will however one thing is clear

from the above facts that the deceased had no cordial relations with the

respondents and he wanted to give his properties to petitioner after

excluding respondents i.e. his wife and son. The strained relationship,

pendency of civil and criminal proceedings and living separately might be

the valid grounds in the mind of the deceased to exclude his own wife

and son form the benefit of his estate. Exclusion of respondents from the

benefits of his estate through the Will in such circumstances cannot be

said as unnatural conduct on the part of the deceased and accordingly

Will in question cannot be seen with any doubt. RW-1 did not even know

that her husband died due to throat cancer whereas RW-2 admitted this

fact. RW-2 admitted that his deceased father used to pay his as well his

mother’s maintenance. RW-1 and 2 also admitted that deceased was

unemployed and was only doing cultivation. I have no ground to disbelieve

the version of the petitioner that despite being married lady she was living

in the village, looking after the deceased, medically treating him, serving

him in his old age as well as also making payments of maintenance of

respondents on behalf of deceased. Husband of the petitioner admittedly

was serving in the Army and used to visit his house after taking leave

from his office once or twice in a year. In that situation, conduct of the

petitioner in not living in her matrimonial house and living in the village

to look after his old father can be said as justified and believable especially

when deceased’s wife and son were living separately. Mere fact that the

petitioner failed to show how much expenses she incurred on the deceased

for his maintenance or medical treatment and failed to produce any

medical bill or from where she paid sale consideration of the property to

the deceased is not a ground to reject the Will in question.”

10. On the other hand, dealing with the testimony of PW-2 and

PW-3, the Additional District Judge has observed that,

“PW-2 and 3 are the attesting witnesses of the Will. Though

their affidavit of examination in chief may not have been attested

strictly as per law but these witnesses had tendered their respective

affidavit at the time of starting of evidence so some lacunas in

attestation of the affidavits is not a sufficient ground to reject the

137 138

4. Relief.”

6. In order to prove her case, Smt.Usha/respondent No.1 examined

six witnesses including herself as PW-1, Sh.Shishan and Sh.Jai Kumar,

attesting witnesses of the Will as PW-2 and PW-3 respectively. She also

examined PW-4 Sh.Jagbir Singh, an official from the office of Sub

Registrar to prove the registration of the Will. Sh.S.K.Rana and

Sh.R.C.Joshi appeared as PW-5 and PW-6 to prove drafting of the Will

and attestation of other documents.

7. On the other hand, both the objectors have stepped in the witness

box and examined themselves as RW-1 and RW-2.

8. The Additional District Judge decided all the issues against the

objectors and in favour of respondent No.1. With regard to the execution

and attestation of the Will left by the deceased, while observing that

nobody has objected that the deceased was not having sound and disposing

mind at the time of executing the Will or he was incapable to understand

the consequences of disposition, the Additional District Judge relying

upon the testimony of two attesting witnesses and propounder of the Will

and other documents executed by the deceased just after the execution

of the Will in favour of the propounder of the Will held that, Will in

question was executed by the deceased in favour of respondent No.1/

Smt.Usha and that the attestation thereof was also proved by the

testimonies of PW-2 and 3, who are trustworthy and unimpeachable

witnesses.

9. On the other hand, the Additional District Judge brushed aside

the statements made by RW-1 and RW-2 inasmuch as there was admission

on the part of the objectors that litigations were going between the

deceased and objectors. RW-1 admitted in her cross-examination that she

had filed a petition for maintenance against the deceased in the court

which was pending since 1982. She also admitted that she and her son

were living separately from the deceased. Even criminal proceedings

under Section 107/151 Cr.P.C. were also initiated two three times against

the deceased by RW-1. Respondent No.1 had placed on record the copy

of the plaint of the suit for injunction filed by the deceased against the

respondents which is Ex.RW1/P-1 and it was not disputed by the objectors.

The contents of the plaint show that the deceased was not happy with

the behaviour and conduct of the respondent who used to torture and

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Indian Law Reports (Delhi) ILR (2011) VI Delhi139 140Smt. Chamno Devi v. Smt. Usha & Ors. (Mool Chand Garg, J.)

same to discard the whole statement of these two witnesses.

PW-2 and 3 proved how and in which manner, the Will was

executed. They while identifying their own signatures also

identified signature and thumb impression of the deceased on the

Will. They also stated that the Will was executed by the deceased

after understanding its contents in Hindi language. In my opinion,

the testimony of PW-2 and 3 have proved the due execution of

the Will and fulfilment of all formalities as required under Section

63 of Indian Succession Act. Nothing in the cross examination

of these two witnesses anything has come on record which

create doubts about the genuineness and the due execution of the

Will in question. The objection raised that Will in question was

procured with collusion of attesting witnesses is liable to be

rejected. PW-2 and 3 are trustworthy and unimpeachable

witnesses. They cannot be termed as interested witnesses because

they have equal and similar relationship with the respondents as

well as that of petitioner. From the statement of PW-2 and 3, it

also appears that Will was executed by the deceased without any

pressure, influence or coercion and it was his voluntarily Will.

Otherwise also, Will was registered and in case of registered

document, a presumption of due execution also arises.

Endorsement of Sub-Registrar on the Will also point out that

deceased had executed the Will voluntarily without any pressure

after understanding the contents and nature of disposition.

There is no dispute of the fact that deceased had some

agricultural lands in the village Tehri. Mere no giving of details

of that land in the Will is not sufficient to reject it. Whatever land

deceased owned can be ascertained from revenue record and its

valuation can be found later on at the time of completion of

necessary formalities. If respondents have any dispute about the

correctness of the quantum of measurement of the land, then

that dispute can be sorted out in civil proceedings but not in the

present case. After considering the merits of the case, I am of

the view that Will Ex.PW1/2 is duly proved the last and duly

executed Will of the deceased and there exist no ground to

decline the relief claimed by the petitioner on basis of this Will.

Accordingly both these issues are decided in favour of the

petitioner and against the respondents.”

11. I have heard the counsel for the parties and have examined the

record. The Will in this case dated 2.9.2002 is a registered Will. The

registration thereof has been proved by the clerk from the Registrar’s

office. It is attested by two witnesses who both have appeared in the

witness box. They both have filed their affidavits in support of the

attestation of the Will by them and execution of the Will by the deceased

testator. They both have appeared for the cross-examination but the

respondents have not been able to take out anything which may prove

that the affidavits were not filed by them or that the Will in question was

not executed by the deceased. In fact, the suggestions given by the

appellants are only to the effect that the Will is a forged document which

is also a suggestion given to the propounder of the Will. However, no

evidence has been led by the respondent to prove that Will in question

was not signed by the deceased testator.

12. It has also been admitted by the appellant that there were

criminal proceedings pending between the deceased, his wife and his

son, which explains the reasons as to why the deceased wife and the son

have not been granted benefit of the estate left by the deceased.

13. As far as the plea of the appellant that the property in question

was not the self-acquired property of the deceased, the Additional District

Judge has taken note thereof and has put a rider to the grant by observing

that the question of right, title and share in the properties in question as

well as legality and validity of the alleged sales transaction through Ex.PW2/

4 to 6 is not decided by the probate court and it has been kept open.

14. The appellant has relied upon a judgment delivered in the case

of Lalitaben Jayantilal Popat Vs. Pragnaben Jamnadas Kataria, I

(2009) SLT 172. Having gone through the contents of the aforesaid

judgment, I do not find anything which may help the appellant in

succeeding in appeal. Consequently, the appeal is dismissed with no

orders as to costs.

15. LCR be sent back along with a copy of this order.

CM No.2221/2009(Stay)

Dismissed as having become infructuous.


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141 142Delhi Development Authority v. Hans Raj Batheja (Sanjiv Khanna, J.)


LPA

DELHI DEVELOPMENT AUTHORITY ....APPELLANT

VERSUS

HANS RAJ BATHEJA ....RESPONDENT

(DIPAK MISRA, CJ. AND SANJIV KHANNA, J.)

LPA NO. : 121/2010 DATE OF DECISION: 30.03.2011

Letters Patent Appeal—The appellant by the present

LPA has impugned the order dated 19.11.2009—

Learned Single Judge has quashed the demand for

misuse charges and interest as well as show cause

notice—Further directed that on paying Rs.6,37,123.73

towards misuse charges to the appellant, the

respondent’s application for conversion of the

property from lease hold to free hold shall be

considered—The property originally allotted to Tara

Singh—Papers including Power of attorney executed

by Tara Singh submitted—Rs.43,337/- on self

assessment and Rs.10,561/- deposited towards

compensation fee pursuant to the letter written by the

appellant—Respondent received unstamped and

unexecuted conveyance deed with direction to get it

stamped from the Collector of Stamps—Respondent

waited for about six years and got the conveyance

deed stamped on payment of Rs.5,655/- and submitted

the document vide receipt dated 30.10.2001—The

property was being misused—In the present case, the

payment towards conversion charges including the

composition fee applicable as in cases of power of

attorney transaction was made on 20th December, 1994.

Thereafter, notice along with conveyance deed was

sent to the respondent on 7th March 1995 with direction

to get it stamped from the collector of Stamps. The

aforesaid exercise was required to be completed

within 45 days, but the respondent had deposited the

original paper after getting the conveyance deed

stamped only on 6th October, 2001—It is held that the

date when the respondent had submitted the

conveyance deed after stamping should be treated as

the date on which the complete application for

conversion was filed—The date on which the

respondent had made the payment or had received

the copy of the conveyance deed for stamping should

be ignored and should not be taken as the relevant

point.

In the present case, the payment towards conversion charges

including the composition fee applicable as in cases of

power of attorney transactions was made on 20th December,

1994. Thereafter, notice along with conveyance deed was

sent to the respondent on 7th March, 1995 with a direction

to get it stamped from the Collector of Stamps. The aforesaid

exercise was required to be completed within 45 days, but

the respondent had deposited the original papers after

getting the conveyance deed stamped only on 6th October,

2001. We are, in these circumstances, inclined to hold that

the date when the respondent had submitted the conveyance

deed after stamping should be treated as the date on which

the complete application for conversion was filed. The date

on which the respondent had made the payment or had

received the copy of the conveyance deed for stamping

should be ignored and should not be taken as the relevant

point. The gap between the date on which the full payment

was made i.e. 20th December, 1994 and when the notice for

conveyance deed for stamping was sent on 7th March, 1995

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and the date on which the stamped conveyance deed was

deposited i.e. 30th October, 2001 is substantial.

(Para 16)

When the respondent had submitted the stamped conveyance

deed, the circular dated 26th June, 2001 was in force and

as per the said circular, misuse charges could be calculated

up to 26th August, 1999 or up to the date of vacation of

misuse, whichever was earlier. As per the appellant, the

misuse was continuing on the said date when conveyance

deed after stamping by Collector of Stamps was deposited.

Nothing prevented the appellant from computing the misuse

charges in terms of the circular dated 26th June, 2001. The

aforesaid circular dated 26th June, 2001 continued and

ruled in the field, till the new circular dated 11th August,

2003 was issued. The time gap between submission of

papers i.e. the stamped conveyance deed on 30th October,

2001 and 11th August, 2003 or the date mentioned therein

17th July, 2003 is substantially long and there is a gap of

nearly 20 months. Nothing stopped the appellant DDA from

raising the demand in terms of the circular dated 26th June,

2001 during this period. Appellant has not explained this

delay. The last inspection was on 4th January, 2002. The

circular dated 26th June, 2001 even applied to the cases

which had been closed and the applications had been

rejected. For the same reasons the 2007 circular will not be

applicable. We have applied principles of equity and fair

play to arrive at the aforesaid conclusion. Conduct of the

both sides has been balanced. While the respondent delayed

submission and presentation of the stamped conveyance

deed, the appellant also took its own time to compute and

calculate the misuse charges. Till the misuse charges were

communicated, obviously the respondent would not have

made payment. This delay and default on the part of

appellant should not prejudice and cast a higher financial

burden on the respondent. (Para 17)

Important Issue Involved: Principles of equity and fair

play require that the conduct of the both sides should be

balanced. While the respondent delayed submission and

presentation of the stamped conveyance deed, the appellant

also took its own time to compute and calculate the misuse

charges. Till the misuse charges were communicated,

obviously the respondent would not have made payment.

This delay and default on the part of appellant should not

prejudice and cast a higher financial burden on the

respondent.

[Ch Sh]

APPEARANCES:

FOR THE APPELLANT : Mr. Ajay Verma, Advocate.

FOR THE RESPONDENT : Mr. Neeraj Jain, Advocate.

CASE REFERRED TO:

1. Hans Raj Bhateja vs. Delhi Development Authority and

Another W.P.(C) No.3631/2008.

RESULT: Appeal is partly allowed.

SANJIV KHANNA, J.

1. The appellant, Delhi Development Authority by the present Letters

Patent Appeal has impugned the order dated 19th November, 2009 passed

in W.P.(C) No.3631/2008, Hans Raj Bhateja Vs. Delhi Development

Authority and Another. By the impugned order, the learned single

Judge has quashed the demand for misuse charges and interest as well

as the show cause notice dated 15th June, 2001. It has been further

directed that on the respondent herein paying Rs. 6,37,123.73/- (Rupees

Six Lakh Thirty Seven Thousand One Hundred Twenty Three and Seventy

Three paise only) towards misuse charges to the appellant, the

respondent’s application for conversion of the property No.9, Saini

Enclave, Delhi-110092 (the property, for short) from lease hold to free

hold shall be considered.

2. The property was originally allotted to one Mr. Tara Singh. By

application dated 16th June, 1994, the respondent applied for conversion


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of the property from lease hold to free hold and had submitted papers

including power of attorney executed by Mr. Tara Singh. The respondent

on self-assessment basis had deposited conversion charges of Rs.43,337/

- (Rupees Forty Three Thousand Three Hundred Thirty Seven only) and

another amount of Rs.10,561/- (Rupees Ten Thousand Five Hundred and

Sixty One only) towards composition fee was deposited on 30th December,

1994 pursuant to the letter dated 20th December, 1994 written by the

appellant. By communication dated 7th March, 1995, the respondent

received unstamped and unexecuted conveyance deed with the direction

to get it stamped from the Collector of Stamps. It is admitted that the

respondent was required to submit the stamped conveyance deed with

the appellant after adjudication by the Collector of Stamps for execution

of the sale/conveyance deed. The respondent waited for about six years

and got the conveyance deed stamped on payment of ˇRs.5,655/- (Rupees

Five Thousand Six Hundred and Fifty Five only) and submitted the said

document vide receipt dated 30th October, 2001.

3. During this period, the appellant issued show cause notice dated

15th June, 2001, wherein it was alleged that contrary to the terms and

conditions of the sub-lease deed, the property was being used for the sale

of bath fittings, tiles etc. i.e., as a showroom or a shop. The respondent,

by letter dated 18th July, 2001 protested and stated that the allegations

were false and baseless and the respondent and his family members were

residing in the premises and no such activity, as stated in the notice was

being carried out and there was no nuisance and disturbance to the

neighbours. It may be noticed here that in one of the columns of the

form for conversion of the property from lease hold to free hold, the

respondent-applicant was required to state whether the property was

being used for residential purpose i.e. the specified purpose mentioned in

the lease deed. The respondent had stated that the property was being

used for residential purpose.

4. As per the case of the appellant, Deputy Director (Enforcement)

vide his letter dated 26th September, 1996 had informed that the property

was being used for other purposes, than the permissible residential purpose.

Junior Engineer (CS) vide his report dated 18th May, 2001 informed that

the premises was being misused for commercial purposes under the

name and style of “Bath Jewellery”, “NITCO Tiles”, “Hans Bath Fittings”

and “Orient Tiles” and it was in these circumstances, the show cause

notice dated 15th June, 2001 was issued for misuse of the property.

5. There is merit in the contention of the appellant that the respondent

had deliberately delayed submission of papers i.e. the stamped conveyance

deed, which was sent by the appellant to the respondent for the purpose

of valuation and stamping by their letter dated 7th May, 1995. The

conveyance deed was submitted after six years on 30th October, 2001.

There is no plausible cause or explanation for this delay as only stamp

duty of Rs.5,655/- (Rupees Five Thousand Six Hundred and Fifty Five

only) was payable. The only plausible explanation for the same is that the

Deputy Director (Enforcement) by his letter dated 26th September, 1996

had informed that the property was being used for other purposes than

the residential purposes and, therefore, once the stamped conveyance

deed was presented, this aspect would be examined. The stamped

conveyance deed as is apparent was filed after six years on 30th October,

2001 i.e., after the show cause notice dated 15th June, 2001 was issued.

6. The appellant tried to inspect the property once again on 21st

December, 2001, but no inspection was allowed by the son of the

respondent. The property was revisited on 4th January, 2002, when the

respondent was present and at that time also it was found that a shop

“Bath Jewellery” was still continuing on the ground floor. The shop area

was measured as 157.4 sq. meters. Inspection of the basement was not

permitted as it was stated that keys were not available with the respondent.

The first floor was being used for residential purpose. It may be noted

that the respondent had informed the appellant by his letter dated 21st

January, 2002 that the field staff of the appellant DDA had visited the

premises in his absence. This letter obviously has to be taken with a

pinch of salt and does not deserve and merit acceptance. The allegation

of misuse should be accepted.

7. The fact that the property was being misused is also affirmed by

the fact that the prosecution was launched against the respondent under

Section 14 of the Delhi Development Authority Act, 1956 for violation

of the Zonal Plan/Master Plan. The respondent was convicted and a fine

of Rs.4,000/- was imposed and paid by the respondent on 6th May,

1998. The contention of the respondent is that he had stopped the misuse

after paying fine of Rs. 4,000/- (Rupees Four Thousand only) on 6th

May, 1998. We are not inclined to accept the said statement and contention.

No such contention is raised or stated in the letter, which was written

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to the DDA in July, 2001 after receipt of notice dated 15th June, 2001.

Thereafter, there is another inspection report of the Junior Engineer (CS)

dated 18th May, 2001 as well as the inspection report dated 4th January,

2002. The appellant was not allowed to inspect the property on 21st

December, 2001.

8. Liability to pay misuse charges in view of the aforesaid facts

cannot be countenanced. The question, which now arises for consideration,

is the period for which misuse charges are leviable and the quantum

thereof. The area under misuse has been calculated and computed as

157.46 sq. meters. This has been calculated on the basis of the site

inspection on 4th January, 2002. There is no ground or basis why this

calculation should be disregarded and should not be accepted. The date

of closure of misuse as taken by the DDA is 24th April, 2003 and on

this basis it is stated as per the policy, a demand of Rs. 34,57,522/-

(Rupees Thirty Four Lakh Fifty Seven Thousand Five Hundred and Twenty

Two only) was raised by the respondent vide letter dated 17th August,

2005, which was subsequently revised vide letter dated 20th February,

2008 to Rs.47,32,483/- (Rupees Forty Seven Lakh Thirty Two Thousand

Four Hundred and Eighty Three only). As noticed above, the learned

single Judge has reduced the said amount to Rs. 6,37,123.73/- (Rupees

Six Lakh Thirty Seven Thousand One Hundred Twenty Three and Seventy

Three paise only). This brings us to the core issue, i.e., which a particular

policy of the appellant is applicable and why should it be applied.

9. Policies/guidelines applicable/framed by the appellant have

undergone repeated and frequent changes. Experimentation and hit and

trial method are sometimes necessary and this may bring about change

of policy/guidelines. At the same time, consistency, certainty and

uniformity are recognized principles of good governance and are checks

on arbitrariness and discrimination.

10. The first policy is dated 28th June, 1999. Clause-6 of the policy

decision dated 28th June, 1999 reads as under:-

“(6) Misuse and Unauthorised Construction It has been decided

that unauthorised construction or misuse of the building

constructed on leased premises ought to be taken care of by

NDMC/MCD/DDA, etc. under their laws/regulations. Accordingly,

the lease administering authorities may permit conversion

of all leased properties irrespective of any building violations

or use violations that may exist. In view of the large scale

misuse of residential premises and unauthorized construction,

DDA and local bodies would take coordinated action to deal with

the situation effectively.

2. In view of the above, lease administering authorities are

requested to make all efforts to clear the pending cases within

the prescribed period of 3 months and take effective steps to

deal with the fresh applications that may be received in future.

Special drives may be launched to dispose of applications for

freehold conversion. The lease administering authorities are

requested to give due publicity to the scheme.

3. It is further clarified that these orders will have prospective

effect and the cases already decided will not be re-opened.”

11. Thus as per this policy nothing was payable but the appellant

was required to take effective steps to stop misuse. On 26th June, 2001,

another circular was issued by the appellant dealing with the misuse. The

said circular reads as under:-

“No.F.4(43)99.Coordn. Dated 26.6.2001

CIRCULAR

In partial modification of Circular No.F.4(43)99/Coordn./L.D.

dt. 3.2.2000 the clarification to the para No. 3 of the Circular

No. F.4(43)99/Coord./L.D. dated 15.7.99 is as follows:

1. All cases of conversion where the past misuse/unauthorized

construction was reported or the misuse is continuing are to be

processed for conversion.

2. The misuse charges would be payable for the period of misuse

from the date of direction of misuse till the date of vacation of

misuse or up to 28.6.1999 whichever is earlier.

3. All the applications for conversion which had been rejected on

account of misuse/unauthorized construction after 28.6.1999 shall

be reopened and processed for conversion after recovering misuse

charges as per para (2), if applicable.


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4. In cases where conversion applications were received and due

to continuing misuse/unauthorised construction leases were

determined, all such cases would be restored and conversion

allowed after recovering misuse charges as per para (2) if

applicable. No restoration charges would be recoverable.

5. Where the conversion has been allowed and misuse/

unauthorized construction still continuing the matter shall be

referred to the concerned Enforcement Agency for further

necessary action.

6. Cases wherein the conversion has already been allowed, misuse

charge already paid shall not be reopened.

This issues with the approval of Vice Chairman, DDA.”

12. Subsequently, another circular dated 11th August, 2003 was

issued, which for the sake of convenience is reproduced below:-

“CIRCULAR

The issue of levy of misuse charges was discussed during the

course of meeting held in the chamber of Vice Chairman DDA

on 17.7.2003 and following decisions were taken.

(a) Misuse charges shall henceforth be levied up to date or actual

date of closure, whichever is earlier. In such cases in which the

lessee GPA has applied for conversion of the property, the misuse

charges shall be levied up to the date of receipt of complete

application for conversion along with all annexure and documents.

It is further clarified that misuse charges will be levied up to the

date of receipt of last installment or up to the date of closure

whichever is earlier in those cases where it has been preferred

by the lessee/GPA to deposit conversion charges in installments.

(b) Generally the misuse charges are levied from the date of

detection as per the survey report/site report etc. However, in

such cases where any proof indicating the misuse of property

from an earlier date is available misuse charges will be charged

from ˇsuch earlier date, irrespective of actual date of detection.

(c) The demand notice for raising the demand of misuse charges

will specifically contain the condition that "if payment is not

received within 30 days of issue of said demand letter the

outstanding amount will attract interest @ 12.5% p.a.

(d) The decision as mentioned above will not be applicable to all

such cases where the payment on account of misuse charges

pursuant to application for conversion has been received by

17.7.03. All other cases where payment has not been received,

revised demand on account of misuse charges may be raised.”

13. Yet another circular dated 9th March, 2007, the circular dated

11th August, 2003 was modified and it was directed as under:-

“Dated: 9/3/07

CIRCULAR

In partial modification of earlier circular of even No.89 dt.

11.8.03, 152 dt. 18.12.03 and circular bearing No.PS/Dir.(RL)/

LD/04/248 dt. 4.6.04, the Lt. Governor, Delhi has been pleased

to approve as under:-

(i) For the conversion applications received upto 31.12.06,

complete in all respect, misuse charges shall be recovered

upto 31.12.06 or closure of misuse whichever is earlier.

(ii) For the conversion applications complete in all respect

received after 31.12.06, in cases of continued misuse, the

misuse charges shall be recovered up to the date of receipt

of conversion application.

2. The cases in which misuse charges as per circular dt.

11.8.03, 18.12.03 & 4.6.04 have already been approved

by the Competent Authority and demand raised shall not

be re-opened.

Other terms and conditions or earlier circulars dt.

11.8.03, 18.12.03 shall remain the same.”

14. As stated above the question, which arises for consideration, is

that which of the circular is applicable in the present case. Clause 6 of

the circulars dated 28th June, 1999 stipulated that the lease administering

authorities i.e., the DDA should convert all leased properties irrespective

of any building violations or use violations. However, this circular does

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the complete application for conversion was filed. The date on which the

respondent had made the payment or had received the copy of the

conveyance deed for stamping should be ignored and should not be taken

as the relevant point. The gap between the date on which the full payment

was made i.e. 20th December, 1994 and when the notice for conveyance

deed for stamping was sent on 7th March, 1995 and the date on which

the stamped conveyance deed was deposited i.e. 30th October, 2001 is

substantial.

17. When the respondent had submitted the stamped conveyance

deed, the circular dated 26th June, 2001 was in force and as per the said

circular, misuse charges could be calculated up to 26th August, 1999 or

up to the date of vacation of misuse, whichever was earlier. As per the

appellant, the misuse was continuing on the said date when conveyance

deed after stamping by Collector of Stamps was deposited. Nothing

prevented the appellant from computing the misuse charges in terms of

the circular dated 26th June, 2001. The aforesaid circular dated 26th

June, 2001 continued and ruled in the field, till the new circular dated

11th August, 2003 was issued. The time gap between submission of

papers i.e. the stamped conveyance deed on 30th October, 2001 and

11th August, 2003 or the date mentioned therein 17th July, 2003 is

substantially long and there is a gap of nearly 20 months. Nothing stopped

the appellant DDA from raising the demand in terms of the circular dated

26th June, 2001 during this period. Appellant has not explained this delay.

The last inspection was on 4th January, 2002. The circular dated 26th

June, 2001 even applied to the cases which had been closed and the

applications had been rejected. For the same reasons the 2007 circular

will not be applicable. We have applied principles of equity and fair play

to arrive at the aforesaid conclusion. Conduct of the both sides has been

balanced. While the respondent delayed submission and presentation of

the stamped conveyance deed, the appellant also took its own time to

compute and calculate the misuse charges. Till the misuse charges were

communicated, obviously the respondent would not have made payment.

This delay and default on the part of appellant should not prejudice and

cast a higher financial burden on the respondent.

18. In view of the aforesaid discussion, the appeal is partly allowed

and it is directed that the respondent will be liable to pay misuse charges

with effect from 26th September, 1996 till 28th June, 1999. This means,

not prescribe or mention about the misuse charges. In any case, we do

not think that the respondent is entitled to benefit of this circular as he

had submitted the stamped conveyance deed on 6th October, 2001 after

the circular dated 26th June, 2001 modifying the earlier policy dated 28th

June, 1999 was issued. As per this circular, the misuse charges were

payable till the vacation of misuse or up to 28th June, 1999, whichever

was earlier. This circular stipulated that all applications for conversion,

which had been rejected on account of misuse/unauthorized construction

after 28.6.1999 shall be reopened and processed for conversion after

recovering misuse charges as per clause 2, if applicable. Clause 5 of the

said circular further stipulated that where application for conversion has

been allowed and misuse/unauthorized construction still continues, the

matter shall be referred to the concerned Enforcement Agency for further

necessary action.

15. Clause (d) of the circular dated 17th July, 2003 clarifies that

the said circular would be applicable to all pending cases except those

ˇcases where payment on account of misuse charges pursuant to an

application for conversion was received by 17th July, 2003. In this

manner the circular dated 11th August, 2003 was made applicable to all

pending applications. Clause (a) states that the misuse charges would be

levied “up to date” or the actual date of closure, whichever was earlier.

The “words up to date’’ were explained in the second part of the clause

(a), as the date on which the application for conversion by the lessee or

the general power of attorney holder complete in all respects with complete

annexures and documents was received. It is further clarified in the said

circular that misuse charges would be levied up to the date of receipt of

last installment or up to the date of closure, whichever was earlier.

16. In the present case, the payment towards conversion charges

including the composition fee applicable as in cases of power of attorney

transactions was made on 20th December, 1994. Thereafter, notice along

with conveyance deed was sent to the respondent on 7th March, 1995

with a direction to get it stamped from the Collector of Stamps. The

aforesaid exercise was required to be completed within 45 days, but the

respondent had deposited the original papers after getting the conveyance

deed stamped only on 6th October, 2001. We are, in these circumstances,

inclined to hold that the date when the respondent had submitted the

conveyance deed after stamping should be treated as the date on which


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153 154M/s Indian Associates v. The State and Others (M.L. Mehta, J.)

the respondent will be liable to pay misuse charges of Rs.1,71,770.29/

- (Rupees One Lakh Seventy One Thousand Seven Hundred Seventy and

Twenty Nine paise only) for the period 26th September, 1996 to 31st

March, 1997, Rs.4,12,438.44/- (Rupees Four Lakh Twelve Thousand

Four Hundred Thirty Eight and forty four paise only) for the period 1st

April, 1997 to 31st March, 1998, Rs.5,36,398.19/- (Rupees Five Lakh

Thirty Six Thousand Three Hundred Ninety Eight and Nineteen paise

only) for the period 1st April, 1998 to 31st March, 1999 and Rs.

1,31,119.53 (Rupees One Lakh Thirty One Thousand One Hundred

Nineteen and Fifty Three paise only) for the period 1st April, 1999 to

28th June, 1999. The respondent is therefore liable to pay misuse charges

of Rs. 12,51,726.45/- (Rupees Twelve Lakh Fifty One Thousand Seven

Hundred Twenty Six and Forty five paise only). The respondent is given

liberty to make the said payment on or before 30th June, 2011 and on

such payment being made, the conveyance deed shall be executed. The

appeal is accordingly disposed of. There will be no order as to costs.


FAO(OS)

M/S INDIAN ASSOCIATES ....APPELLANT

VERSUS

THE STATE AND OTHERS ....RESPONDENTS

(A.K. SIKRI & M.L. MEHTA, JJ.)

FAO(OS) NO. : 641/2009 DATE OF DECISION: 30.03.2011

CM APPL. NO. 18506/2009

Indian Succession Act, 1925—Section 278, 307—Late

Rani Padmawati Devi died intestate on 12.04.1987

leaving behind her husband, Raja Birendra Bahadur

Singh; two sons, namely Shivendra Bahadur Singh

(SBS) and Ravindra Bahadur Singh (RBS) and two

daughters Usha Devi and Sharda Devi—SBS filed Case

No. 43/1987 seeking Letters of Administration under

Section 278 of the Indian Succession Act—The heirs

of Late Rani Padmawati Devi were respondent in the

said petition—Issue was framed on 18.3.1988—Letter

of Administration granted to (LOA) petitioners and

petitioner SBS appointed as administrator—RBS being

the heir of her pre-deceased mother and claiming to

have 1/5th share in the estate, filed application under

Order IX Rule 13 of the CPC being IA No.4065/1988 on

18th July, 1988 setting aside the order dated 10th May,

1988 granting LOA—Pending this application the

petitioner under the authority of LOA negotiated and

entered into a sale transaction with the appellant,

Indian Associates. The purpose of transaction as

claimed by the petitioner as administrator was

utilization of the sale consideration to meet the

liabilities relating to wealth tax and income tax of the

estate—According to appellant the agreement to sell

was entered into on 9th September, 1988 and a sale

deed was executed by the administrator on 11th

October, 1988, but the same was not registered by the

sub-Registrar—Miscellaneous petition filed before

Madhya Pradesh High Court—The said writ petition

came to be dismissed by the Madhya Pradesh High

Court—It is noted that a case regarding excess land

than the prescribed limited under the Urban Land

Ceiling Act was pending against Rani Padmawati Devi

since 1977 before the competent authority at Raipur

(M.P.)—Certain conditions/restriction on use and sale

of land had been imposed on Rani Padmawati Devi by

the concerned authority of Madhya Pradesh

Government—Later, the concerned authority granted

permission to sell the lands—This was challenged by

respondent in Madhya Pradesh High Court by way of

writ—This writ was allowed and order dated 20th

September, 1988 whereby permission was granted to

sell the land was quashed—The absolute power of

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disposal of property conferred on an executor or

administrator as envisaged under sub-section (1) is

subject to sub-section (2) of Section 307 of the Indian

Succession Act. It was madatory to seek permission of

the Court granting the probate or the LOA. as the case

may be, before entering into transaction of disposal of

immovable property as vested in them in their capacity

as executor or the administrator—As per Section 317

of the Act, the administrator was required to exhibit in

the Court the inventory containing full account of the

properties including the creditors and debtors—Mere

agreement to sell would not entitle the appellant to

have much say in the present proceeding—Of course,

the appellant may have the remedy somewhere else

in some other proceedings—Unregistered sale deed

is not a complete sale—No doubt, the sale deed in the

present case was executed and presented before the

Sub-Registrar, but as noted above, same was not

registered because of persistent stay and also because

of Urban Lan Ceiling Act—Section 54 of the Transfer of

Property Act, Stipulates that sale or transfer of

immovable property or other intangible thing is to be

only by way of registered sale deed/instrument—No

ground for inference—Appeal dismissed.

We have also noted that as per Section 317 of the Act, the

administrator was required to exhibit in the Court the inventory

containing full account of the properties including the creditors

and debtors. However, as noticed in the present case, the

administrator SBS presented the statement of account in the

Court after seven months from the grant of administration

and that too when clout had arisen in the transaction and

the application for revocation by respondent/RBS was

pending. We have also noticed that nothing came on record

that the money which was stated to have been received

from the appellant was utilized by administrator SBS towards

the benefit of the estate by clearing liabilities of taxation.

(Para 41)

In any case, what rested with the appellant was only an

Agreement to Sell and not the documents of transfer of title

of the property or possession thereof. Mere Agreement to

Sell would not entitle the appellant to have much say in the

present proceeding. Of course, the appellant may have the

remedy somewhere else in some other proceedings. As per

the judgment of the Supreme Court in S. Kaladevi v. V.R.

Somasundaram and others, 2010 (5) SCC 401,

unregistered sale deed is not a complete sale. No doubt, the

sale deed in the present case was executed and presented

before the Sub-Registrar, but as noted above, same was

not registered because of persistent stay and also because

of Urban Land Ceiling Act. Section 54 of the Transfer of

Property Act clearly stipulates that the sale or transfer of

immovable property or other intangible thing is to be only by

way of registered sale deed/instrument. (Para 42)

[Ch Sh]

APPEARANCES:

FOR THE APPELLANT : Mr. R. Mukherjee and Mr. Jayant

K. Mehta, Advocates.

FOR THE RESPONDENTS : Mr. Lalit Gupta, Advocate for

respondent No.3. Mr. Rahul Gupta,

Advocate for Respondent No. 2, 7,

8.

CASES REFERRED TO:

1. S. Kaladevi vs. V.R. Somasundaram and Others, 2010

(5) SCC 401.

2. Usha Sinha vs. Dina Ram and others, (2008) 7 SCC 144.

3. Crystal Developers vs. Asha Lata Ghosh, 2005 (9) SCC

375.

4. R.K. Mohammad Ubaidullah and others vs. Hajee C.

Abdul Wahab, (2000) 6 SCC 402.

5. Gotiram vs. Sona Bai AIR 1970 Bom 73.

6. Gotiram Nathu Mendre vs. Sonabai w/o Savleram Kahane


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and others, AIR 1970 Bom 73.

7. Union of India vs. Nanak Singh, AIR 1968 SC 1370.

8. P.H. Alphonoso vs. Mrs. Irene Dias & others, 1967 (2)

Mysore LJ 465.

9. Gulabchand Chhotalal Parikh vs. State of Gujarat, AIR

1965 SC 1153.

10. Smt. Babuain Chandrakala Devi vs. Smt. Pokhraj Kuer

and others, AIR 1963 Patna 2.

11. Tincowri Pramanik vs. Narayan Chandra Mukherjee, AIR

1957 CAL 364.

12. G.F.F. Foulkes and others vs. A.S. Suppan Chettiar, AIR

(38) 1951 MAD 296.

13. Adeline Maude Ellanor Catchick Nee Roberison and

another vs. Sunderlal Daga and others, AIR (37) 1950

Calcutta 559.

14. Mathuradas Vassanji vs. Raimal, AIR 1935 Bombay 385.

15. V. Zollikofer and Co. vs. O.A.O.K.R.M. Chettyar Firm,

AIR 1931 Rangoon 277.

16. Namberumal Chetti vs. Veeraperumal Pillai, AIR 1930

MAD 956.

17. Mindnapur Zamindari Co vs. Ram Kanal Singh AIR 1926

Pat 130.

18. Sita Sundari Barmani and another vs. Barada Prosad

Roy Chowdhary and others, AIR 1924 CAL 636.

19. A.L.A.R firm vs. Maung Thwe, AIR 1923 Rangoon 69.

RESULT: Dismissed.

M.L. MEHTA, J.

1. This is an appeal against the order dated 9th October, 2009 of

the learned Single Judge whereby Test Case No.43/1987 and IAs

No.5054/1999, 6581-6582/2005 and 3097/2009 pending therein were

dismissed.

2. During the pendency of the Test Case No.43/1987, there has

been various round of litigation between the parties on different issues

relating to the estate of late Rani Padmawati Devi (hereinafter referred to

as “the estate”). It would be useful to recite relevant facts as referred to

by learned counsel for the parties during the course of arguments in the

present appeal.

3. Late Rani Padmawati Devi died intestate on 12.04.1987 leaving

behind her husband, Raja Birendra Bahadur Singh; two sons, namely,

Shivendra Bahadur Singh (SBS) and Ravindra Bahadur Singh (RBS) and

two daughters, namely, Usha Devi and Sharda Devi. SBS filed Test Case

No.43/1987 seeking Letters of Administration (hereinafter referred to as

“LOA”) under Section 278 of the Indian Succession Act (hereinafter

referred to as “the Act”). The other heirs of late Rani Padmawati Devi

were respondents in the said petition as Respondent No. 2 (Birender

Bahadur Singh), Respondent No. 3 (Usha Devi), Respondent No. 4 (Sharda

Devi) and Respondent No. 5 (RBS). On 18th March, 1988, the following

issue was framed in the aforesaid petition by the learned Single Judge:

“(i) Is the petitioner entitled to and should he be granted the

Letters of Administration exclusively or should the letters

of administration be granted in two or more names in

respect of the estate of the deceased Rani Padmawati

Devi?”

4. Vide order dated 10th May, 1988, the learned Single Judge

granted Letters of Administration appointing the petitioner/SBS as the

administrator of the estate. The said order reads as follows:-

“Pr. 42/97

This is a petition under section 278 of the Indian Succession Act

forgrant of Letters of Administration without will.

Rani Smt. Padmawati Devi, hereinafter referred to as the

deceased, died instestate at Bhopal on 12th April, 1987. She was

the mother of the petitioner and of respondents 3 to 5. It is

alleged that respondents 2 to 4 have executed a power of attorney

in favour of the petitioner in respect of all movable and immovable

properties left by the deceased. It is further alleged that

respondents 2 and 3 have relinquished their rights and

responsibilities in favour of the petitioner.

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The deceased had left behind properties, details of which have

been set out in Schedules B1 and B2. The total value of the

assets comes to approximately Rs.15,40,000/-. Schedule C gives

particulars about the liabilities of the deceased. The total liabilities

mentioned therein come to Rs.36,87,828/-, the liabilities being

only due to the demands raised by the Income-tax and wealth-

tax authorities.

Notice of the application was issued. In the application it is

prayed that as the petitioner is the owner of 3/5th property and

also holds a power of attorney of respondent No.4, letters of

administration should be granted in his favour. It is further

contended that respondent No.5 has weak eye sight and is not

physically or otherwise capable of administering the estate.

Reply has been filed by all the respondents. Respondents 2 to 4

do not oppose the grant of letters of administration in favour of

the petitioner. The opposition to the grant of letters of

administration is only from respondent No.5.

Parties were required to file affidavits by way of evidence. It is

only the petitioner who has filed the affidavit. No affidavit by

way of evidence has been filed by respondent No.5 nor is any

counsel present on his behalf.

The petitioner in this case, as would be evident from what has

been stated by respondents 2 to 4, appears to be the owner of

3/5th of the estate left behind by the deceased. Furthermore, out

of the 5 legal heirs, 4 of them have agreed, including the petitioner,

that the estate should be administered by the petitioner. It is

important to note that one of the legal heirs who has so agreed

is respondent No.2, who was the husband of the deceased and

father of the petitioner and respondent No.5. The petitioner is

also holding an important position in life being a Member of

Parliament and in the absence of any evidence being led by way

of affidavits or otherwise by respondent No.5, I see no reason

as to why the petitioner should not be granted the letters of

administration as prayed for.

I accordingly grant Letters of Administration without will attached

to the petitioner. The formal Letter will be issued in the form set

forth in Schedule 7 after the petitioner has furnished a bond to

the Registrar of this Court with one surety for a sum of Rs.5

lacs.’’

5. RBS (respondent No.5 in the said petition and respondent No. 2

herein) being the heir of her pre-deceased mother and claiming to have

1/5th share in the estate, filed application under Order IX Rule 13 of the

Code of Civil Procedure being IA No.4065/1988 on 18th July, 1988 for

setting aside the order dated 10th May, 1988 granting LOA. This application

came to be heard on 13th August, 1988 when the petitioner’s counsel

appeared and accepted the notice. It is noted that IA No. 4065/1988

under Order IX Rule 13 and IA No.3393/1989 under Section 5 of the

Limitation Act, 1963 of the respondent/RBS remained pending till the

passing of the impugned order. Pending this application, the petitioner

under the authority of LOA negotiated and entered into a sale transaction

with the appellant, Indian Associates. The purpose of transaction as

claimed by the petitioner as administrator was utilisation of the sale

consideration to meet the liabilities relating to wealth tax and income tax

of the estate.

6. According to Indian Associates (appellant herein), the agreement

to sell was entered into on 9th September, 1988 and a sale deed was

executed by the administrator on 11th October, 1988, but the same was

not registered by the sub-Registrar. Since the sub-Registrar, Raipur, did

not register the sale deed in favour of the appellant, the appellant filed a

petition being Miscellaneous Petition No.2173/1989 before the Madhya

Pradesh High Court. The said writ petition came to be dismissed by the

Madhya Pradesh High Court vide Order dated 12th October, 1992. The

relevant portion of the order of the Hon’ble High Court of Madhya

Pradesh is as under:

“7. It cannot also be overlooked that the respondent Sub

Registrar has not so far refused registration and has kept

the matter pending. This Court is of the opinion that, it

was wholly justified. If and when the registration is refused,

the petitioners will have alternative remedy of appeal and

suit provided under the Act. There is therefore no

justification for invoking extraordinary jurisdiction of this

Court under Article 226 of the Constitution.”


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7. Before proceeding further, it is noted that a case regarding excess

land than the prescribed limited under the Urban Land Ceiling Act was

pending against Rani Padmawati Devi since 1977 before the competent

authority at Raipur (M.P.). Vide Order dated 18th May, 1983 certain

conditions/restrictions on use and sale of lands had been imposed on Rani

Padmawati Devi by the concerned authority of Madhya Pradesh

Government. Later, vide Order dated 20th September, 1988, the concerned

authority granted permission to sell the lands. This was challenged by

respondent/(RBS) in Madhya Pradesh High Court by way of writ (No.

3328/1988). This writ was allowed and the order dated 20th September,

1988 whereby permission was granted to sell the land was quashed. It

is noted that this order came to be passed on the submissions made by

the parties that on the death of Rani Padmawati Devi, the property ceased

to be within the prescribed limits of the provisions of Ceiling Act. The

Madhya Pradesh High court, however, did not see any illegality in the

order of 18th May, 1983 of the Government of Madhya Pradesh imposing

conditions/restrictions regarding use and sale of lands. It was held by the

Madhya Pradesh High court vide separate order dated 12th October,

1992 that the order dated 20th September, 1988 granting permission to

sell the land cannot be said to modify the conditions/restrictions imposed

vide order dated 18th May, 1983 on Rani Padmawati Devi. On this

reasoning, the Court held that the administrator/SBS (respondent No. 2

therein) did not have the authority to sell the lands covered by the order

of 18th May, 1983 and to that extent the sale in favour of investors

(Indian Associates) must be held to be illegal and inoperative. From the

decision of Madhya Pradesh High Court, as noted above, it is clear that

the conditions/restrictions regarding use and sale of lands on Rani

Padmawati existed since 18th May, 1983 and that though the permission

to sell was granted on 20th September, 1988, but the conditions/

restrictions regarding sale and use of the lands still continued.

8. On 12th October, 1988, in an application being IA No.8566/1988

filed by RBS, this Court had restrained the administrator/SBS from

transferring, alienating or parting with the possession of the properties,

which formed subject matter of the estate. On 21.12.1988, the

administrator/SBS filed a statement of account in the Court, reflecting the

receipt of Rs.35.00 lakhs by the estate on account of sale of Padma

Bhavan to the appellant by virtue of sale deed dated 11th October, 1988.

9. Against the orders of MP High Court dated 12th October, 1992,

the appellant/Indian Associates and also administrator/SBS filed SLPs

before the Hon’ble Supreme Court being SLP No.1152/1993 and 396-97/

1993. Both the SLPs came to be dismissed by the Hon’ble Supreme

Court vide order dated 10th May, 1993.

10. It appears that the case which was pending since 1977 before

the Court of competent authority of Urban Land Ceiling, Raipur against

Rani Padmawati Devi regarding the excess land than the prescribed limited,

both the administrator and respondent/RBS informed the competent

authority about the death of their mother on 12th April, 1987 and also

of their father Birendra Bahadur Singh. The competent authority accepted

their plea that in the given circumstances by partition of the property into

four shares, i.e., two daughters and two brothers, nobody would be

holding the land in excess to the prescribed limit. In this factual matrix,

the competent authority filed the case listed against Rani Padmawati vide

order dated 14th March, 1997.

11. Now RBS proceeded to sell a part of the property known as

Padma Bhawan (property in question) by a sale deed dated 29th July,

1997 to M/s.Jesper Construction Pvt. Limited (hereinafter referred to as

“Jesper”) for a consideration of Rs.21.00 lakhs. The administrator/SBS

filed application being IA No.10437/1997 wherein learned Single Judge of

this Court vide order dated 19th February, 1998 restrained RBS and other

respondents from alienating, disposing of and/or parting with the possession

of the property in question. The situation took a new turn with the death

of administrator/SBS on 31st December, 1998. The appellant/Indian

Associates filed an application (I.A. No.490/1999) seeking intervention/

impleadment in the pending Test Case and also filed another application

(I.A. No.5054/1999) for appointment of an administrator in place of

deceased administrator/SBS. It appears that the legal heirs of the

administrator/SBS also filed two applications (I.A. No.12147/1999 and

12148/1999) for their substitution in the proceedings and for condonation

of delay.

12. Thereafter the parties to the Test Case, i.e., heirs of Rani

Padmawati and heirs of administrator/SBS filed an application under Order

XXIII Rule 3 CPC (being I.A. No.14812/1999) seeking disposal of this

case on the basis of a Memorandum of Understanding (MOU) dated 26th

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August, 1999 executed amongst themselves.

13. The application of appellant-Indian Associates for intervention/

impleadment (IA No.490/1999) was disposed by the learned Single Judge

vide order dated 17th January, 2002. By the same order, the other

application (IA No.5054/1999) filed for appointment of administrator in

place of deceased administrator/SBS also came to be dismissed. The

appellant/Indian Associates preferred appeal against the order of dismissal

of its application for impleadment. Division Bench disposed of the same

as under:-

“(We)...allow the application (I.A. No. 490/99) to the extent that

the appellant shall be entitled to participate in the proceedings in

order to enable it in safeguarding its interests and that also to the

extent of that part of the estate of Rani Padmavati, which is the

subject matter of the sale deed dated 11.10.1988 as alleged to

have been executed by late Shivendra Bahadur Singh in favor of

the appellant, including the legal capacity of late Shivendra Bahadur

Singh, as an administrator pendent lite to enter into the sale deed

with the appellant, and also in relation to the legal effect of the

said transaction, making it clear that the appellant shall not be

entitled in any manner to intervene or interfere with, or participate

in the pending probate case qua the remaining estate.”

14. The learned counsel for the appellant/Indian Associates challenges

the impugned order on various grounds. He submits that in the aforesaid

facts a very peculiar situation has arisen. The appellant is a bonafide

purchaser for value from the administrator/SBS. The administrator executed

a sale deed in favour of the appellant, which was then presented and

accepted for registration. The administrator also filed detailed accounts

of the transaction in the Court. However, the sale deed of the appellant

was not registered by sub registrar initially on account of certain issues

of the Ceiling Act, which stood resolved by the order dated 14.03.1997

whereby it was ordered that the provisions of the Ceiling Act were not

applicable to the estate after the death of Rani Padmawati Devi in the year

1987. Thereafter, the administrator expired and the respondent/RBS played

a fraud in collusion with other respondents. However, the Ld. Single

Judge has disposed of the proceedings by the impugned Judgment and

Order dated 9.10.2009, without even considering, much less appreciating

the aforesaid circumstances. He submits that the appellant/Indian Associates

is the bonafide purchaser of the property from the administrator under

the authority of grant of LOA by the Court. He argues that at the time

of agreement to sell dated 9th September, 1988, there was no clout on

the authority of the administrator/SBS and so there was no reason for the

appellant/Indian Associate to doubt the authority of administrator more so

when the sale proceeds were to be applied by the administrator to liquidate

the liabilities of the estate. To substantiate his arguments, the learned

counsel relies on Mathuradas Vassanji v. Raimal, AIR 1935 Bombay

385, Tincowri Pramanik v. Narayan Chandra Mukherjee, AIR 1957

CAL 364, Adeline Maude Ellanor Catchick Nee Roberison and another

v. Sunderlal Daga and others, AIR (37) 1950 Calcutta 559.

15. Referring to Sections 211(1), 216, 220, 273 and 307 of the

Act, the learned counsel submits that the administrator is the sole

representative of the deceased and the estate vests in him. The administrator

is possessed with all the rights in relation to the assets of the estate of

the deceased as if he were the owner. The powers of the administrator

u/s 307 are wide and comprehensive and that the LOA granted shall be

conclusive to the representative title and further that the administrator has

absolute power to dispose of the property of the deceased in such

manner as he may deem fit. He submits that the administrator had complete

authority to deal with the property in any manner he deemed most

appropriate and that if for some reason the LOA is revoked, the revocation

has prospective effect, thus saving any intervening transactions. Reliance

is placed on the judgments of A.L.A.R firm v. Maung Thwe, AIR 1923

Rangoon 69, Smt. Babuain Chandrakala Devi v. Smt. Pokhraj Kuer

and others, AIR 1963 PATNA 2, Namberumal Chetti v. Veeraperumal

Pillai, AIR 1930 MAD 956, G.F.F. Foulkes and others v. A.S. Suppan

Chettiar, AIR (38) 1951 MAD 296 and P.H. Alphonoso v. Mrs. Irene

Dias & others, 1967 (2) Mysore LJ 465 and Crystal Developers v.

Asha Lata Ghosh, 2005 (9) SCC 375.

16. Further referring to Section 307 of the Act, learned counsel

submits that this Section authorises validly appointed administrator to

transfer and sell the property of a deceased. He submits that expression

‘‘may’’ in Section 307(2) signifies that there is no bar in the exercise of

such power and the court can be approached for permission. He urges

that the lack of prior permission from the court in a case of such transfer


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does not vitiate the sale but merely renders it voidable, which in turn

means that the party aggrieved has to approach the court of law, to avoid

or challenge such a transaction. The learned counsel relies upon the

cases of Sita Sundari Barmani and another v. Barada Prosad Roy

Chowdhary and others, AIR 1924 CAL 636, Gotiram Nathu Mendre

v. Sonabai w/o Savleram Kahane and others, AIR 1970 Bom 73 and

V. Zollikofer and Co. v. O.A.O.K.R.M. Chettyar Firm, AIR 1931

Rangoon 277. Learned counsel also submits that the sale deed already

having been executed in favour of the appellant/Indian Associates by the

administrator/SBS for a valuable consideration, respondent/RBS was

neither authorised nor competent to sell a part of the property in question

to M/s.Jesper in 1997. The said sale is alleged to be illegal and not

binding on the estate of the deceased.

17. With regard to filing of application under Order IX Rule 13 of

the Code of Civil Procedure by respondent/RBS for recalling the grant of

LOA, learned counsel submits that the pendency of this application did

not amount to any impediment on the part of the administrator, who was

validly appointed by the Court. He argues that this application was neither

argued nor pressed all the while by respondent/RBS and so much so even

no evidence was led.

18. Based on the aforesaid submissions, the learned counsel argues

that in view of these facts and circumstances and developments, this

Court alone has jurisdiction to issue orders pertaining to administration of

estate of late Rani Padmawati Devi and that consequent upon the death

of the validly appointed administrator/SBS, an administrator was required

to be appointed by the court. He further argues that for the proper and

complete administration of the estate, the Court was required to protect

the rights of such third parties who had bonafidely dealt with the

administrator.

19. On the other hand learned counsel appearing for Respondent

Nos. 2 (RBS), 7 and 8 submits that the administrator had no authority

to transfer the property in question without the permission of the Court

in view of mandatory provision under sub-section (2) of Section 307 of

the Act. The learned counsel argues that the transfer made by the

administrator created suspicion, especially when there were other heirs

to the estate and no permission of the Court was obtained. Learned

counsel tries to demonstrate the duties and responsibilities of the

administrator while dealing with the property under the grant of LOA.

The administrator was only in possession as a trustee and is supposed

to deal with the estate in larger interest of the estate and the other heirs.

He submits that when the administrator was aware that the application

for setting aside the order granting him LOA was filed by the respondent/

RBS and notice had also been accepted by him on 13th August, how can

it be said that agreement to sell on 9th September 1988 (with the appellant)

was with bonafide intention. Not only that, no permission was obtained

as contemplated under Section 307(2) of the Act, the administrator even

did not inform the Court about the transaction. The learned counsel

submits that the entire factual matrix and the conduct of the administrator

would lead to a conclusion about his malafide intention adversely affecting

the estate to its interest. The learned counsel for respondents next submits

that the administrator was well aware of the fact that there existed

conditions/restrictions on sale and transfer of the estate of Rani Padmawati

Devi since May 1983. He submits that though by order dated 20th

September, 1988, permission was granted by the Competent Authority,

Madhya Pradesh to sell the land, but the conditions/restrictions as imposed

continued to exist. He emphasis that the administrator knew about the

pendency of Petition No.3328/1988 filed by respondent/RBS against the

order of grant of permission to sell and also about the Sub Registrar,

Raipur, having declined to register the sale deed. He further submits that

the appellant-Indian Associates also knew all this as it had become a

party in the aforesaid petition (No.3328/1988) pending before the Madhya

Pradesh High Court. In this regard he relies on Mindnapur Zamindari

Co v. Ram Kanal Singh AIR 1926 Pat 130, re-Estate of Indrani AIR

1931 All 212, Gotiram v. Sona Bai AIR 1970 Bom 73, R.K. Mohammad

Ubaidullah and others v. Hajee C. Abdul Wahab, (2000) 6 SCC 402

and Usha Sinha v. Dina Ram and others, (2008) 7 SCC 144.

20. The learned counsel next argues that contrary to the assertions,

not only during the lifetime of the administrator, but right upto 1997, the

appellant/Indian Associates did not make any attempt to apprise this

Court about the transaction much less seeking prior permission of the

transaction. He argues that the alleged transaction was void ab initio and

illegal, firstly, because of the fact that there existed restrictions on the

sale and transfer since May 1983; secondly, because of absence of

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dealt with by him with cogent reasons.

24. We may recall that undisputedly the Competent Authority of

Madhya Pradesh had imposed certain conditions/restrictions on the use

and sale of the lands of Rani Padmawati Devi way back in May 1983.

The proceedings under the Urban Land Ceiling Act regarding lands were

pending against Rani Padmawati Devi since 1977. As the conditions were

there at that time the lands in question apparently appeared to be within

the ambit of Ceiling Act, being more than the prescribed limit in the

hands of Rani Padmawati Devi. That is a different issue that after her

death the land devolved in the hands of four legal heirs and thereby came

out of the purview of the Ceiling Act. But, the fact remains that there

existed restrictions on the use and disposal of the lands since May 1983.

The petitioner i.e., administrator/SBS was well aware of those proceed

ngs and also the restrictions. He was appointed LOA in May 1988. Respon

ent/RBS filed an application under Order IX Rule 13 CPC (I.A. No.4065/

1988) on 18th July, 1988 for setting aside the order granting the LOA.

The administrator/SBS was well aware of this application since notice

had already been accepted by him. The said application was pending for

adjudication. In such circumstances, the bonafide of the administrator/

SBS in dealing with the estate becomes doubtful and suspicious since he

took hardly any time to enter into an agreement to sell on 9th September,

1988 with the appellant. In R.K. Mohammad Ubaidullah and others v.

Hajee C. Abdul Wahab, (2000) 6 SCC 402, the Supreme Court has held

that unless a purchaser has made appropriate inquiry, he cannot establish

his bona fides. If such an inquiry is not made, it would mean that the

purchaser willfully refrained from making the inquiry or grossly neglected

to do so. In another case of Usha Sinha v. Dina Ram and others,

(2008) 7 SCC 144, the Supreme Court has observed that a transferee

from judgment debtor is presumed to be aware of the proceedings before

the court of law. He should be careful before he purchases the property

which is the subject matter of litigation.

25. We do not see the relevance of the case of Mathuradas Vassanji

(supra) relied upon by the appellant in the present case. In the cases of

Tincowri Pramanik (supra) and Adeline Maude Ellanor Catchick Nee

Roberison and another (supra), the rights and obligations of alienee

from the executor of a Will came to be considered. It was held that the

alienee from an executor, who is acting as such has right to infer that

permission of the Court under Section 307(2) of the Act and; thirdly,

because of manifest lack of bonafide of the administrator to enter into

this transaction in view of the subsisting objections by respondent/RBS.

He vehemently submits that overall conduct in rushing through the process

of striking a deal on 9th September, 1988 when the notice of setting

aside the LOA was already served on him a few days back, would clearly

demonstrate that the administrator/SBS was not honest in dealing with

the estate.

21. He argues that the question of validity of the sale transaction

was directly involved in the proceedings before MP High Court which

were decided against the administrator/SBS and appellant-Indian Associates

on 12th October 1992 and that SLP filed against it was also dismissed

and thus those decisions are res-judicata against all including the appellant/

Indian Associates. He submits that the same issues are sought to be

reagitated by them in these proceedings. In this regard he relies upon the

case of Gulabchand Chhotalal Parikh v. State of Gujarat, AIR 1965

SC 1153 and Union of India v. Nanak Singh, AIR 1968 SC 1370.

22. Learned counsel appearing for M/s. Jesper (Respondent No. 3

herein) argues that the Division Bench of this Court while dealing with

the applications of the appellant/Indian Associates (IAs No.490/1999 and

5054/1999) vide order dated 17th January, 2002 had allowed the appellant/

Indian Associates only to participate in the proceedings in order to enable

it to safeguard its interest to the extent of that part of the estate which

was the subject matter of the sale deed dated 11th October, 1988 executed

by the administrator/SBS in favour of appellant. In other words, the

submissions are that the requests of the appellants for its impleadment in

place of deceased administrator or for the appointment of some other

person as the administrator in place of deceased administrator were

rejected and they were only permitted to participate in the proceedings

to safeguard their interest. He submits that the said order has become

final and binding on the parties.

23. We have given our thoughtful consideration to the submissions

made by the learned counsel for the parties. For the reasons to be

recorded hereinafter we do not find any infirmity or illegality in the

impugned order of the learned Single Judge. Almost all the submissions,

which have been made before us, by the learned counsel for the parties,

were made before the learned Single Judge and are seen to have been


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the latter is acting fairly; that immunity is, however, lost when the alienee

has notice, actual or constructive, of the fact that the executor is acting

in breach of trust. The alienee is not bound to see to the application of

money. The burden rests upon the persons impeaching the validity of the

transaction to prove the alienee had notice of the facts. From all that we

have discussed above, we have seen that the bonafide of the administrator-

SBS in dealing with estate had become suspicious and the appellant also

knew all about the conditions and restrictions and clout on the authority

of the administrator.

26. The cases of Smt. Babuain Chandrakala Devi (supra),

Namberumal Chetti (supra), G.F.F. Foulkes and others (supra) and

P.H. Alphonoso (supra) relied upon by the appellant deal with the powers

of the executor or administrator and the immunity enjoyed by the bonafide

purchaser in the sense that the sale cannot be questioned so as to defeat

the alienee who had no notice of the fact or the powers of the administrator

or that property could fetch a higher price. There is no dispute with

regard to any of the propositions laid down in this regard as noted

hereinabove.

27. The other case relied upon by the appellant, namely Crystal

Developers (supra) was dealt with by the learned single Judge. This

case also related to a Will for which probate was granted. The third party

had purchased the property bonafide. It was in this context that the

Court had observed that the revocation of probate is prospective and

would not give effect to a third party bonafide and valid transaction. The

learned Single Judge rightly observed that with regard to this proposition

as noted hereinbefore, the facts of Crystal Developers (supra) are quite

different from the present case.

28. The cases of Sita Sundari Barmani and another (supra),

Gotiram Nathu Mendre (supra) and V. Zollikofer and Co. (supra)

were relied upon by the learned counsel for the appellant to substantiate

that the lack of prior permission from the court before entering into

transaction will not vitiate the sale but merely render it voidable. Though

the case of Gotiram Nathu Mendra (supra) relate to a Will, the word

‘restriction’ as used in Section 307(2) was interpreted to cover a total

prohibition of disposal of property. In this regard, it was held as under:

‘‘I am, therefore, of the view, and I also hold, that in Section

307(2) of the Indian Succession Act the word ‘‘restriction’’

includes and covers a total prohibition. The general power of

disposal of property conferred by sub-section (1) is, therefore,

subject to the prohibition on disposal imposed by the will, and a

sale in contravention of such prohibition is voidable at the instance

of a person interested as provided in clause (iii) of sub-section

(2) of Section 307.’’

29. The consequence of a transaction being voidable was to mean

that it could be challenged or objected to by the person interested in the

property. In the present case, RBS not only attempted to impeach the

transaction immediately by filing an application, but also applied for

injunction, which was granted. Since the genesis of the transaction itself

was doubtful and that had been challenged by the RBS and in view of

the fact that subsequently RBS and all other LRs entered into a MOU and

asked for disposal of the proceedings, there appeared to be no need for

filing a separate suit regarding the transaction to be voidable.

30. With regard to the binding effect of the orders of the Madhya

Pradesh High court, the learned Single Judge noted that the correctness

of the orders of the Madhya Pradesh was tested in the Supreme Court,

which dismissed the SLPs. We are in agreement with the learned Single

Judge that though the context of the proceedings and the decisions

before the Madhya Pradesh High Court was different being under the

Ceiling Act, nevertheless those proceedings ended in binding orders. The

finding of the Madhya Pradesh High Court that the administrator/SBS

having no authority to sell the land and to that extent the sale in favour

of investors, Indian Associates, must be held illegal and invalid, has

become final with the dismissal of SLP by the Supreme Court.

31. Though, it was in a different context but it may be noted that

the principal laid down by Hon.ble Supreme Court in the case of Usha

Sinha v. Dina Ram and Others (2008) 7 SCC 144 is that a transferee

should be careful before he purchases a property which is subject matter

of litigation. The doctrine of lis pendens recognized by Section 52 of

Transfer of Property Act prohibits dealing with the property which is the

subject matter of the suit. The lis pendens itself is stated as constructive

notice to the purchaser that he is bound by the outcome of pending

litigation.

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32. It appears that some efforts might have been made by the

administrator/SBS to get an order from the competent authority of Madhya

Pradesh on 20th September, 1988 for seeking permission of sale of the

property. However, in the process it appears he seemed to have forgotten

that there existed restrictions on sale and transfer since 13th May, 1983

and further that the agreement was dated 9th September, 1988 i.e. before

the grant of permission on 20th September, 1988. Another important fact

is that the appellant also knew about all this as having become party in

the writ petition filed by the respondent/RBS. In these circumstances, it

cannot be held that at the time of agreement dated 9th September, 1988,

there was no clout on the authority of the administrator.

33. We shall now proceed to discuss Section 307 of the Act which

reads as under:

‘‘307. Power of executor or administrator to dispose of property.-

(1) Subject to the provisions of sub- section (2), an executor or

administrator has power to dispose of the property of the

deceased, vested in him under section 211, either wholly or in

part, in such manner as he may think fit.

(2) If the deceased was Hindu, Muhammadan, Buddhist, Sikh or

Jaina or an exempted person, the general power conferred by

sub- section (1) shall be subject to the following restrictions and

conditions, namely:—

(i) The power of an executor to dispose of immoveable

property so vested in him is subject to any restriction

which may be imposed in this behalf by the will appointing

him, unless probate has been granted to him and the

Court which granted the probate permits him by an order

in writing, notwithstanding the restriction, to dispose of

any immoveable property specified in the order in a manner

permitted by the order.

(ii) An administrator may not, without the previous permission

of the Court by which the letters of administration were

granted,—

(a) mortgage, charge or transfer by sale, gift, exchange or

otherwise any immoveable property for the time being

vested in him under section 211, or

(b) lease any such property for a term exceeding five years.

(iii) A disposal of property by an executor or administrator in

contravention of clause (i) or clause (ii), as the case may

be, is voidable at the instance of any other person interested

in the property.

(3) Before any probate or letters of administration is or are

granted in such a case, there shall be endorsed thereon or annexed

thereto a copy of sub- section (1) and clauses (i) and (iii) of

sub- section (2) or of sub- section (1) and clauses (ii) and (iii)

of sub- section (2), as the case may be.

(4) A probate or letters of administration shall not be rendered

invalid by reason of the endorsement or annexure required by

sub- section (3) not having been made thereon or attached thereto,

not shall the absence of such an endorsement or annexure

authorise an executor or administrator to act otherwise than in

accordance with the provisions of this section.’’

34. The absolute power of disposal of property conferred on an

executor or administrator as envisaged under sub-section (1) is subject

to sub-section (2) of this Section. The question here for consideration

would be as to whether the administrator would have absolute power to

dispose of the property of the deceased as he may think fit or would he

be subjected to any conditions or restrictions.

35. Clause (i) of sub-section 2 deals with powers of executor to

dispose of immovable property and clause (ii) deals with power of

administrator. Here we are concerned with the power of administrator

and so it would be clause (ii) of sub-section (2) that would be applicable.

As per this clause, an administrator is prohibited to mortgage, charge or

transfer by sale, gift, etc. any immovable property that was vested in

him, for the time being, under Section 211 without the previous permission

of the Court granting Letters of Administration. That being the literal and

plain reading of the provisions, it comes out to be that for effecting any

charge on the property in any of the ways as stipulated in sub clause (a)

of clause (ii), the administrator/SBS was required to seek prior permission

of the court, which granted him LOA. Undisputedly, no such permission

was ever obtained by the administrator/SBS before entering into transaction


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on 9th September, 1988 with the appellant. Not only that, even no

information of this transaction was given by him till such time an application

of restrain was filed against him by the respondent/RBS. It was only then

that he came out to give statement of account of the administration of

estate in December 1988.

36. Further clause (iii) of sub-section (2) provides as to the status

of the transaction entered into by the executor or the administrator in

contravention of clauses (i) or (ii) as the case may be. It provides such

transaction to be voidable at the instance of any other person interested

in the property. It was mandatory to seek permission of the court granting

the probate or the LOA, as the case may be, before entering into transaction

of disposal of immovable property as vested in them in their capacity as

executor or the administrator. In the present case, admittedly the same

having not been done by the administrator, the transaction affecting

disposal of the estate of the deceased was apparently unauthorized.

37. The cases of Smt. Babuain Chandrakala Devi v. Smt.

Pokhraj Kuer and others, AIR 1963 Patna 2 and Namberumal Chetti

v. Veeraperumal Pillai, AIR 1930 MAD 956 relied upon by Appellant

Indian Associates related to will imposing certain restrictions on the

powers of executor to dispose the property of deceased. It was held that

the law does not impose any duty on the purchaser from an executor to

inquire into the necessity of the transfer and that the transfer of property

should be with the permission of the Court which granted the probate.

These cases are not applicable to the facts of the present case. However,

as noted above, even in the case of probate, the executor was required

to seek the permission of the Court to dispose of the property.

38. Similarly, the cases of Tincowri Pramanik v. Narayan Chandra

Mukherjee, AIR 1957 Calcutta 364 and Adeline Maude Ellanor

Catchick Nee Roberison and another v. Sunderlal Daga and others,

AIR (37) 1950 Calcutta 559, also related to probate and not the LOA. In

these cases also, the Will contained limitations on the powers of the

executor. In both these cases it was held that the alienee through executor,

who is acting as such has right to infer that the latter is acting fairly. It

was held that the maxim which applies here is ‘‘let the executors do their

duty and let the authority cease when injustice begins’’.

39. The case of V. Zollikofer and Co. v. O.A.O.K.R.M. Chettyar

Firm, AIR 1931 Rangoon 277 relied upon relates to mortgage by

administrator without the permission of the Court. The main question for

determination was as to whether unsecured creditors were entitled to

avoid the mortgage and whether they were entitled to do so without

making any restitution to the mortgagee to the extent to which mortgagee

had bona fidely advanced money at the instance of administrator/mortgagor

interested in the property. It was held that the right course for the court

to take is to hold that the appellant firm ought either to make restitution

to the respondent/mortgagee to the extent to which the respondent has b

na fide advanced the money for the benefit of the estate as a condition

precedent to avoiding the mortgage, or that the respondent should be

allowed to enforce his mortgage against the estate. In the present case,

in view of the changed circumstances, the parties (legal heirs of deceased

and legal heirs of SBS) entered into a MOU and none accepted the

transaction or chose to get it avoided. During the argument, the respondent

offered not only to restitute the appellants of the sums advanced, but also

offered reasonable compensation, which was outrightly rejected by the

appellants.

40. In any case, the principal of equity cannot be made applicable

in the present proceedings against the provisions of law as contained in

Section 307 of the Act and particularly when the appellants/Indian

Associates declined to be restituted and reasonably compensated. As we

have noted that the appellant having parted with Rs.35,00,000/- to the

administrator/SBS by way of transaction of the estate in the absence of

permission of the Court the appellant-Indian Associates may have its

remedy in some other appropriate proceedings as may be advised.

41. We have also noted that as per Section 317 of the Act, the

administrator was required to exhibit in the Court the inventory containing

full account of the properties including the creditors and debtors. However,

as noticed in the present case, the administrator SBS presented the

statement of account in the Court after seven months from the grant of

administration and that too when clout had arisen in the transaction and

the application for revocation by respondent/RBS was pending. We have

also noticed that nothing came on record that the money which was

stated to have been received from the appellant was utilized by administrator

SBS towards the benefit of the estate by clearing liabilities of taxation.

42. In any case, what rested with the appellant was only an Agreement

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Indian Law Reports (Delhi) ILR (2011) VI Delhi175 176Yogesh Duggal & Ors. v. State & Ors. (Mool Chand Garg, J.)

to Sell and not the documents of transfer of title of the property or

possession thereof. Mere Agreement to Sell would not entitle the appellant

to have much say in the present proceeding. Of course, the appellant

may have the remedy somewhere else in some other proceedings. As per

the judgment of the Supreme Court in S. Kaladevi v. V.R.

Somasundaram and others, 2010 (5) SCC 401, unregistered sale deed

is not a complete sale. No doubt, the sale deed in the present case was

executed and presented before the Sub-Registrar, but as noted above,

same was not registered because of persistent stay and also because of

Urban Land Ceiling Act. Section 54 of the Transfer of Property Act

clearly stipulates that the sale or transfer of immovable property or other

intangible thing is to be only by way of registered sale deed/instrument.

43. For the foregoing discussion, we do not see any reason to

interfere in the findings recorded by the learned Single Judge. Hence,

appeal and the pending applications are dismissed with no order as to

costs.


FAO

YOGESH DUGGAL & ORS. ....APPELLANTS

VERSUS

STATE & ORS. ....RESPONDENTS

(MOOL CHAND GARG, J.)

FAO NO. : 380-82/2005 DATE OF DECISION: 31.03.2011

Indian Succession Act, 1925—Section 63 (c)—WILL—

Indian Registration Act, 1908—Registered Will—Grant

of Probate—Indian Evidence Act, 1872—Section 68—

Attesting witnesses—Limitation Act, 1963—Article 137—

Deceased executed Will dated 12.08.1971; expired on

20.02.1984—Husband pre-deceased her—Survived by

five sons and three daughters—Property in question

comprise of a house in Karol Bagh—Bequeathed the

ground floor in favour son O.P.- first floor in favour of

son V.P.—Not give any share to other children—Will

got registered during her life time on 21.02.1978—All

children of the testatrix except the legal heir of V.P.

had filed no objection to grant of probate—Grant of

probate sought on November 1994—Objections filed

inter-alia-alleging Will not executed by testatrix in

sound and disposing mind—She was completely deaf

in 1971-not possible for anybody to communicate with

her to make her understand the contents of the Will—

Also challenged the execution, validity, contents and

attestations of the Will on the ground testatrix did not

know English language—ADJ observed the testimony

of attesting witness does not inspire confidence—Full

of contradictions on material points—Cast serious

doubt on genuineness of Will—Not explained why Will

got registered after seven years of its execution and

delay of nine years in filing the probate petition—

Dismissed probate petition—Preferred appeal—Held—

While granting the probate, Court is obliged to see

that there was no legal impediment in the grant of

probate—The only attesting witness denied the


examination-in-chief and only on the suggestion in

cross-examination after about two years he

remembered the testatrix signing the Will—Second

attesting witness not examined—The attestation of

Will by second witness not even whispered by attesting

witness—Attesting witness accepted testatrix did not

know English-9 years delay in filing probate petition

not explained—No reason to interfere with the

decision—Appeal Dismissed.

Though it is rightly been stated that an application is for the

court’s permission to perform a legal duty created by a Will

and is a continuous right which can be exercised any time


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177 178Yogesh Duggal & Ors. v. State & Ors. (Mool Chand Garg, J.)

after the death of the deceased but this right can be

exercised as long as it survives. It is also true that that the

application can be filed beyond the period of 3 years but

such delay must be clearly explained. In the instant case,

the appellants had filed the probate petition after 9 years

but had nowhere explained the reason behind such a huge

delay even though opportunity was granted to the appellants.

The relevant extract from Kunvarjeet Singh Khandpur

(Supra) case dealing with the application of Article 137 of

Limitation Act is quoted here under:-

‘‘Two questions need to be addressed in this appeal.

Firstly, about the applicability of Article 137 of the

Limitation Act and secondly, even if it is applicable

whether the petition was within time.

11. In Kerala SEB v. T.P. Kunhaliumma it was inter

alia observed as follows:

‘‘18. The alteration of the division as well as the

change in the collocation of words in Article 137 of the

Limitation Act, 1963 compared with Article 181 of the

1908 Limitation Act shows that applications

contemplated under Article 137 are not applications

confined to the Code of Civil Procedure. In the 1908

Limitation Act there was no division between

applications in specified cases and other applications

as in the 1963 Limitation Act. The words ‘any other

application’ under Article 137 cannot be said on the

principle of ejusdem generis to be applications under

the Civil Procedure Code other than those mentioned

in Part I of the third division. Any other application

under Article 137 would be petition or any application

under any Act. But it has to be an application to a

court for the reason that Sections 4 and 5 of the 1963

Limitation Act speak of expiry of prescribed period

when court is closed and extension of prescribed

period if the applicant or the appellant satisfies the

court that he had sufficient cause for not preferring

the appeal or making the application during such

period.

The conclusion we reach is that Article 137 of the

1963 Limitation Act will apply to any petition or

application filed under any Act to a civil court. With

respect we differ from the view taken by the two-

Judge Bench of this Court in Athani Municipal Council

case3 and hold that Article 137 of the 1963 Limitation

Act is not confined to applications contemplated by or

under the Code of Civil Procedure. The petition in the

present case was to the District Judge as a court. The

petition was one contemplated by the Telegraph Act

for judicial decision. The petition is an application

falling within the scope of Article 137 of the 1963

Limitation Act.’’

In terms of the aforesaid judgment any application to

civil court under the Act is covered by Article 137. The

application is made in terms of Section 264 of the Act

to the District Judge. Section 2(bb) of the Act defines

the District Judge to be the Judge of the Principal Civil

Court.

12. Further in S.S. Rathore v. State of M.P.:-

‘‘5. Appellant’s counsel placed before us the residuary

Article 113 and had referred to a few decisions of

some High Courts where in a situation as here reliance

was placed on that article. It is unnecessary to 467

refer to those decisions as on the authority of the

judgment of this Court in Pierce Leslie & Co. Ltd. v.

Violet Ouchterlony Wapshare5 it must be held that

Article 113 of the Act of 1963, corresponding to

Article 120 of the old Act, is a general one and would

apply to suits to which no other article in the Schedule

applies.’’

13. Article 137 of the Limitation Act reads as follows:

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Indian Law Reports (Delhi) ILR (2011) VI DelhiYogesh Duggal & Ors. v. State & Ors. (Mool Chand Garg, J.) 179 180

‘‘Description of suit Period of limitation Time from

which period begins to run

137. Any other application for which no period of

limitation is provided elsewhere in this Division. Three

years When the right to apply accrues.’’

The crucial expression in the petition (sic Article) is

‘‘right to apply’’. In view of what has been stated by

this Court, Article 137 is clearly applicable to the

petition for grant of letters of administration. As rightly

observed by the High Court in such proceedings the

application merely seeks recognition from the court to

perform a duty and because of the nature of the

proceedings it is a continuing right. The Division

Bench of the Delhi High Court referred to several

decisions. One of them was S. Krishnaswami v. E.

Ramiah6. In para 17 of the said judgment it was

noted as follows:

17. In a proceeding, or in other words, in an application

filed for grant of probate or letters of administration,

no right is asserted or claimed by the applicant. The

applicant only seeks recognition of the court to perform

a duty. Probate or letters of administration issued by

a competent court is conclusive proof of the legal

character throughout the world. An assessment of the

relevant provisions of the Indian Succession Act,

1925 does not convey a meaning that by the

proceedings filed for grant of probate or letters of

administration, no rights of the applicant are settled or

secured in the legal sense. The author of the testament

has cast the duty with regard to the administration of

his estate, and the applicant for probate or letters of

administration only seeks the permission of the court

to perform that duty. There is only a seeking of

recognition from the court to perform the duty. That

duty is only moral and it is not legal. There is no law

which compels the applicant to file the proceedings

for probate or letters of administration. With a view to

discharge the moral duty, the applicant seeks

recognition from the court to perform the duty. It will

be legitimate to conclude that the proceedings filed

for grant of probate or letters of administration is not

an action in law. Hence, it is very difficult to and it will

not be in order to construe the proceedings for grant

of probate or letters of administration as applications

coming within the meaning of an ‘application’ under

Article 137 of the Limitation Act, 1963

Though the nature of the petition has been rightly

described by the High Court, it was not correct in

observing that the application for grant of probate or

letters of administration is not covered by Article 137

of the Limitation Act. Same is not correct in view of

what has been stated in Kerala SEB case2.

15. Similarly reference was made to a decision of the

Bombay High Court in Vasudev Daulatram

Sadarangani v. Sajni Prem Lalwani7. Para 16 reads

as follows: (AIR p. 270)

‘‘16. Rejecting Mr Dalpatrai’s contention, I summarise

my conclusions thus—

(a) under the Limitation Act no period is advisedly

prescribed within which an application for probate,

letters of administration or succession certificate must

be made;

(b) the assumption that under Article 137 the right to

apply necessarily accrues on the date of the death of

the deceased, is unwarranted;

(c) such an application is for the court’s permission to

perform a legal duty created by a will or for recognition

as a testamentary trustee and is a continuous right

which can be exercised any time after the death of the

deceased, as long as the right to do so survives and


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the object of the trust exists or any part of the trust,

if created, remains to be executed;

(d) the right to apply would accrue when it becomes

necessary to apply which may not necessarily be

within 3 years from the date of the deceased’s death;

(e) delay beyond 3 years after the deceased’s death

would arouse suspicion and greater the delay, greater

would be the suspicion;

(f) such delay must be explained, but cannot be

equated with the absolute bar of limitation; and

(g) once execution and attestation are proved,

suspicion of delay no longer operates.’’ Conclusion

(b) is not correct while Conclusion (c) is the correct

position of law.

16. In view of the factual scenario, the right to apply

actually arose on 9-8-1999 when the proceedings

were withdrawn by Smt Nirmal Jeet Kaur. Since the

petition was filed within three years, the same was

within time and therefore the appeal is without merit,

deserves dismissal, which we direct but in the

circumstances without any order as to costs.

(Para 23)

Important Issue Involved: (i) The person seeking probate

of a Will is required to explain the delay in preferring the

probate petition (ii) the period of limitation of three years

shall start running when it becomes necessary to apply

which may not necessarily be within three years from the

date of deceased death (iii) delay beyond three years after

the death of deceased would arouse suspicion; the greater

the delay the greater would be the suspicion.

[Gu Si]

APPEARANCES:

FOR THE APPELLANTS : Mr. K.R. Gupta, Advocate.

FOR THE RESPONDENTS : None.

CASES REFERRED TO:

1. Krishan Kumar Sharma vs. Rajesh Kumar Sharma 2009

(5) Scale 286.

2. Kunvarjeet Singh Khandpur vs. Kirandeep Kaur, (2008)

8 SCC 463.

3. S.S.Lal (Shri) vs. Shri Vishnu Mitter, 2004 V AD (Delhi)

509.

4. Kale vs. Deputy Director, AIR 1976 SC 807.

5. Prithwis Kumar Mitra vs. Bibhuti Bhushan Mitra, (1966)

ILR Calcutta 408(DB).

6. Shashi Kumar Banerjee vs. Subbodh Kumar Banerjee,

AIR 1964 SC 807.

7. Makhan Mal L. Ram Ditta Mal vs. Mst. Pritam Devi,

AIR 1961 Punjab 411 (DB).

8. Naresh Charan vs. Paresh Charan, AIR 1955 SC 363.

9. Sher Muhammad Khan & Ors vs. Depurt Comm. of

Bahraich, AIR 1920 Awadh 87 (DB).

RESULT: Appeal Dismissed.

MOOL CHAND GARG, J.

1. This appeal arises out of an order dated 28.05.2005 passed by

the learned Additional District Judge dismissing the probate petition filed

by the appellants on the ground that the appellants had miserably failed

to prove the due execution, attestation and registration of the Will in

question . Also, they had not explained why the Will was registered after

seven years of its alleged execution and further failed to explain the delay

of more than nine years in filing the probate petition after the death of

the testatrix . The appellants thus being aggrieved by the order has

impugned it before us by way of the present appeal.

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as such were not in need of the house in question and on this ground

her son Mr. Ved Prakash Duggal has been disinherited. However, according

to the respondents, the plot in Safdarjung Enclave did not stand in the

name of Ved Prakash Duggal rather its lease by the Government was in

the name of Mr. Krishan Prakash Duggal, hence the appellants had

deliberately misrepresented this fact to the testatrix.

6. The appellants filed their reply to the objections filed on behalf

of the legal heirs of the predeceased son of the testatrix, Mr. Ved Prakash

Duggal. The appellants have denied all the allegations contained in the

objections and in specific thereto they have reiterated, reasserted and

reaffirmed the averments contained in their petition to be correct.

7. From the pleadings of the parties, following issues were framed

on 12.03.1996

1. Whether Smt. Puran Devi executed a valid Will dated

12.08.1971 in respect of property bearing No 6A/46, WEA,

Karol; Bagh, New Delhi in favour of the petitioners, as

alleged?

2. Whether petition has not been filed in accordance with

law for the reasons particularly disclosed in paras 2,3 and

4 of the preliminary objections of written statement filed

on behalf of the objectors?

3. Whether Smt. PURAN devi was incompetent to execute

the Will in question as alleged in para 3 of reply on merits

of the objections?

4. Relief.

8. The Ld. ADJ also framed following additional issue on 20.12.2003

‘‘Whether the petition is barred by limitation?’’

9. In order to prove the Will in question, four witnesses had been

examined on behalf of the appellants. They were PW-1, Mr Krishan

Kumar Burman, one of the attesting witness of the Will in question, PW-

2 Mr R.C Sharma, a UDC from Record Room (Civil), Tis Hazari Courts,

PW-3 Mr Vijay Prakash Duggal appellant No 2 himself and PW-4 Mr

Surinder Kumar a LDC from the office of Sub Registrar-III, Asaf Ali

Road, New Delhi whose statement remained incomplete as he could not

2. Briefly stating the facts of the case are; the appellants filed a

petition under Section 276 of Indian Succession Act, 1925 in November,

1994 for grant of probate of a Will dated 12.08.1971 of their mother Late

Smt. Puran Devi who expired on 20.02.1984. Her husband predeceased

her. She was survived by five sons and three daughters. The property

bequeathed under the Will in question comprises of a house bearing No.

6-A/46, WEA, Karol Bagh, New Delhi. The said house is a 2½ storey

built house.

3. The testatrix vide her Will dated 12.08.1971 had bequeathed the

ground floor in favour of her son Mr. Om Prakash Duggal, appellant

No.1 who has died and is now being represented by his legal heirs while

the first floor including Barsati Floor had been bequeathed in favour of

her other son appellant No.2, Mr. Vijay Prakash Duggal. The testatrix

had not given any share to her other children. The Will in question was

got registered by the testatrix in the office of Sub-Registrar, Asaf Ali

Road New Delhi during her lifetime on 21.02.1978 vide document No.

269, Book No. 3, Volume No. III on pages 121-122. All the other

children of the deceased testatrix except the legal heirs of her predeceased

son Ved Prakash Duggal had filed their no objections to the grant of

probate in respect of Will dated 12.08.1971 in favour of the appellants.

4. In the objections filed by the legal heirs of Mr. Ved Prakash

Duggal, who are the respondents, it was alleged that the testatrix was not

competent to execute the Will in respect of the property bequeathed

under the said Will as it was a joint family property. It was further

alleged that the Will in question was not executed by the testatrix in a

sound and disposing mind as she was completely deaf in August 1971

and it was not possible for anybody to communicate with her as to make

her understand the Will and its contents.

5. Further, the respondents also challenged the execution, validity,

contents and due attestation of the alleged Will on the ground that the

testatrix did not know English Language and, therefore, could not have

understood the recitals contained in her said Will. Taking advantage of

this fact, the appellants had procured the Will from the testatrix through

misrepresentation as it was also evident from the recitals in the Will

where it was mentioned that Shri Ved Prakash Duggal and Sh. Krishan

Prakash Duggal had become owners of a plot in Safdarjung Enclave and


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produce the summoned record relating to the registration of the Will in

question.

10. On the other hand, the respondents did not produce any evidence

in support of their objections rather after they cross-examined the

appellant’s witnesses extensively, they stopped appearing in the matter

and were proceeded ex-parte. As such there is no evidence in rebuttal

and the only evidence is the cross-examination of the witnesses of the

appellants while no evidences were led by the respondents in support of

their objections.

11. On the basis of the evidence recorded by the appellants, the

learned ADJ gave his findings regarding different issues. As far as issue

No.2 is concerned, it is based upon the pleadings of the respondents/

objector in preliminary objections No. 2, 3 and 4. Considering the

amendment made in the petition with the permission of the Court and

also the factum of property being located in Delhi and testatrix also being

expired in Delhi, the said issue was decided against the objectors.

12. However, regarding limitation as the petition was filed by the

appellants after more than 9 years of the death of the testatrix, the Ld

ADJ had observed that:

‘‘The testatrix had expired on 20.02.1984. The present petition

for probate was filed by the petitioners on 31.03.1993 i.e after

more than 9 years of her death. Article 137 of the Limitation Act

which is residuary article prescribes a limitation of three years

for filing of an application which is to be reckoned from the date

the right to apply accrues to the person propounding the Will.

While framing the additional issue of limitation, my Ld Predecessor

Shri G.P Mittal , ADJ Delhi had observed that the limitation in

the present case is a mixed question of fact and law and therefore

gave an opportunity to the petitioners to lead evidence on this

point. The petitioners have not led any evidence worth the name

to show why they took more than 9 years after the death of the

testatrix in filing the present probate petition particularly when as

per testimony of PW-2 Mr. R.C. Sharma. There was a dispute

between the parties with regard to the Will in question much

prior to the death of the testatrix. This shows that the petitioners

were well aware that there was a dispute regarding the authenticity

of the Will of their deceased mother propounded by them in this

case immediately on the death of their mother on 20.02.1984.

This case on the point of limitation is covered by a judgment of

Hon’ble Delhi High Court in Pamela Man Mohan Singh Vs

State & Ors., 83 (2000) DLT 469. Under the circumstances,

I hold that the present petition is barred by limitation. This issue

is accordingly decided in favour of the objectors and against the

petitioners.

13. As per Issues No 1 & 3, since both were inter connected hence

were dealt together and the relevant observations made by the ld ADJ

were as follows:-

‘‘In the present case the petitioners have examined PW-1

Mr Krishan Kumar Burman, one of the attesting witnesses

of the Will in question. The statement of this witness was

recorded in two installments, firstly on 19.02.1997 and again

on 20.05.1998. There was a gap of about 15 months between

the two dates of recording of his statement. PW-1 Mr. Krishan

Kumar Burman is the son-in-law of the deceased testatrix.

In his statement recorded before the Court on the first date

i.e. 19.02.1997, he categorically deposed that the testatrix

had not signed anywhere on her will in question in his

presence. He had further deposed on that day that he had

not inquired from the testatrix whether she had signed on

the document purported to be her will or not. He also deposed

on 19.02.1997 that the testatrix was of sound disposing mind

at the time of registration of document before the Sub-

Registrar but her mental condition was not sound 7-8 years

prior to her death. He said that he was not in a position to

identify the signatures of the testatrix on her will dated

12.08.1971.

16. The ld. counsel for the petitioners cross examined PW-1 Mr.

Krishan Kumar Burman with the leave of the Court. PW-1 was

cross-examined by him after about 15 months on 12.05.1998.

The petitioners. ld. counsel put the entire case to this witness in

the form of suggestions which he obviously admitted. I am of

the view that the answers given by the witness namely PW-1 in

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reply to the leading suggestions are of no consequence and the

same do not prove the due execution, attestation and registration

of the will in question. I have gone through the contents of the

will Ex.PW1/1 and at page 2 of the said will, there is a handwritten

endorsement in portion between Learned counsel for the appellant

to A2 in the hand of PW-1. There is no date below the signatures

of PW-1 on the said endorsement. PW-1 has deposed before the

Court on 19.02.1997 that he had not drafted the said will Ex.PW1/

1 as mentioned in portion Learned counsel for the appellant to

A2. This statement of PW-1 runs contrary to the intrinsic evidence

provided by the will regarding its drafting contained in Ex.PW1/

1. Although the will Ex.PW1/1 is shown to had been executed

by the deceased testatrix in presence of two attesting witnesses

namely Smt. Kaushalya Devi and Mr. Krishan Kumar Burman

but PW-1 Mr. Krishan Kumar Burman has no where whispered

in the whole of his testimony recorded on 19.02.1997 and

20.05.1998 about the presence of Smt. Kaushilya Devi at the

time of execution of the said will or her signing the said will as

its attesting witness. This shows that PW-1 could not prove the

due attestation of the will as required by Section 63(c) of the

Indian Succession Act, 1925.

17. According to PW-1 Mr. Burman both the petitioners along

with their other two brothers Mr. V.P. Duggal and Mr. K.P.

Duggal were present at the time will in question was allegedly

executed by the testatrix and according to him the will was

prepared on suggestions given by him to the advocate through

whom the will was got prepared. He has deposed in his statement

recorded on 20.05.1998 that he did not remember the date when

the will was written and he also did not know as to who had

drafted the said will. He also could not tell as to who had typed

the will in question. PW-1 Mr. Burman has admitted that the

testatrix was hard of hearing and was undergoing treatment for

that ailment from a Doctor whose name he could not tell. He

also could not tell for how long prior to execution of the will in

question she was undergoing treatment for her deafness. In his

further cross-examination recorded on 20.05.1998, he has

deposed that the writing contained in portion from point Learned

counsel for the appellant to A2 on will Ex.PW1/1 was written by

him in the office of Sub-Registrar, Asaf Ali Road, New Delhi. It

is a matter of record that the will Ex.PW1/1, though it was

allegedly executed by the testatrix on 12.08.1971 but it was got

registered by her on 21.02.1978. The statement of PW-1 that he

had written the writing contained in portion from Learned counsel

for the appellant to A2 in will Ex.PW1/1 in the office of Sub-

Registrar, Asaf Ali Road, New Delhi shows that the said writing

was procured from him after about 7 years of the alleged

execution of the Will. This also creates a doubt on its authenticity.

PW-1 has admitted in his cross that the testatrix did not know

English language. The will Ex.PW1/1 is couched in English

language and there is absolutely no evidence on record to show

as to whether anybody had explained the contents of her will to

her before her signatures were obtained on the said will. This

creates a strong suspicion about the genuineness of the will

propounded by the petitioners particularly as the testatrix was

hard of hearing. It was put to PW-1 Mr. Burman in his cross

examination that the testatrix was not able to hear at all and

could only understand by signs and lip reading of her near and

dear ones. He was asked what he had to say on this point. PW-

1 Mr. Burman replied to this suggestion by stating that the testatrix

could hear but she used to take some time and necessity of

repetition also used to arise. PW-1 could not tell whether the

testatrix had suffered a hip fracture in March/April, 1969 and he

stated that this fact must be known to her family members. PW-

1 Mr. Burman is a son-in-law of the testatrix and it is strange

that he did not know that his mother-in-law had suffered a hip

fracture in March/April, 1969 as admitted by petitioner No.2

(PW-3) in his evidence before the Court.

A careful scanning of the entire evidence of PW-1 Mr. Burman

would show that his testimony hardly inspires confidence of the

Court as it is full of contradictions on material points discussed

hereinabove and the same casts a serious doubt on the genuineness

of the will propounded by the petitioners. It is further evident

from the testimony of Mr. Burman that the testatrix on account

of her deafness/hard of hearing was not capable of understanding


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the nature and extent of disposition made by her in her will in

question and therefore for that reason also the will propounded

by the petitioners cannot be said to be a genuine document. As

per testimony of petitioner No.2 (PW-3) both the petitioners had

played an active role in the alleged execution of will propounded

by them. The testimony of petitioner No.2 (PW-3) is hardly of

any consequence after we ignore the testimony of PW-1 Mr.

Burman, one of the attesting witnesses of the will in question.

18. In view of the above, I have no manner of doubt left in my

mind except to hold that the petitioners have miserably failed to

prove the due execution, attestation and registration of the will

in question. They have not explained why the will was got

registered after seven years of its alleged execution and they

have further failed to explain delay of more than nine years after

the death of the testatrix in filing of the present probate petition.

By no means the will Ex.pW1/1 can be said to be a last will and

testament of the testatrix late Smt. Puran Devi. Both these issues

are decided accordingly against the petitioners.

14. Thus, the learned ADJ dismissed the probate petition both on

the grounds of delay and lacuna in evidence regarding execution and

attestation of the Will in question as per requirement of law and the Will

being shrouded with suspicious circumstances. Hence the present appeal.

15. Before us, the appellants have submitted that the said Will dated

12.08.1971 was a genuine Will, as the father of the respondents and also

one of the sons of the testatrix Late Shri Ved Prakash Duggal had filed

a suit in February, 1974 against the other sons and the testatrix herself

for cancellation of the Will in question for partition of properties No 6A/

46, W.E.A Karol Bagh, New Delhi, and plot No B-4/67, Safdarjung

Extension Residential Area, New Delhi claiming that the said Will was

executed by way of family arrangement but it did not represent true state

of affairs and therefore should be cancelled. The suit was compromised

vide application dated 16.03.1974 under which Ved Prakash Duggal

received Rs 25,000/and he relinquished all his rights, interests and share

in the said two properties.

16. The appellants also submit that the Will was registered during

the life time of testatrix. The attesting witnesses also appeared before the

Sub-Registrar and none of the children objected except the legal heirs of

Late Shri Ved Prakash Duggal who after the closure of the appellant’s

evidence were proceeded ex-parte. Hence in such facts and circumstances

where the Will in question was in knowledge of all the heirs of the

testatrix in her life time itself which was by way of family arrangement

it could not be said that it was suspicious or not a genuine document.

17. As regards to the second attesting witness who was the son-

in-law of the testatrix, Shri K.K.Burman PW-1, it is submitted by the

appellants that his statement was recorded on 19.02.1997 and 20.05.1998/

10.03.1999 and though he was a close relation of all the legal heirs of

the late testatrix but he had neither any interest in the property nor was

he interested in the appellants. Further whenever any family arrangement

takes place, it was not uncommon that the relatives assemble and give

suggestions about settlement, hence any suggestion given by the witness

for drafting the Will which was adopted for settlement of disputes amongst

the heirs of the testatrix would not be considered unnatural. Hence

according to the appellants the witness PW-1 was natural and unbiased

witness.

18. The appellants further submit that in his statement recorded on

the second occasion, PW-1 K.K.Burman stated that the testatrix had

signed on the Will at points X,X-1 andX-2 in his presence after

understanding the contents of the same. On the first occasion, although

he had identified signatures of the testatrix on the said points but had

stated that she had not signed in his presence. Later he explained this

contradiction by stating that the Will was written twenty five years back

approximately and no lawyer had shown him the copy of the Will, The

appellants also submit that PW-1 in his statement on the first occasion

had stated that the testatrix was of sound disposing mind at the time of

the registration of the document before the Sub-Registrar but her mental

condition was not sound 7/8 years prior to her death. There was no

evidence in rebuttal.

19. As regards to the requirement of the attesting witness signing

the Will in the presence of the testatrix, the appellants submit that the

witness PW-1 in his cross-examination stated that his signature at point

A of the petition are his and that he signed it after going through its

contents. The witness’s signature is under head’’ verification by attesting

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witness’’ of the probate petition, reading: ‘‘I, KRISHAN Kumar Burman,

one of the witnesses to the Will and testimonies of the testator, the late

Smt. PURAN Devi mentioned in the above noted petition, declare that I

was present and saw the testator affix her signature thereto and the

witnesses also put signatures in her presence’’, there was no further

cross-examination on this aspect. The contents of this verification, thus

form part of statement of the witness. Moreso, in his entire cross-

examination no question or suggestion was put to PW-1 that Smt. Kaushalya

Devi, the other attesting witness, was not present at the time of execution

of the Will. However, the appellant Vijay Prakash Duggal as PW-2 in his

statement deposed that Smt. Kaushalya Devi had signed on the Will at

point B and she had died in the year 1993. Thus appellants submit that

the requirements of Section 63 of the Indian Succession Act 1925, were

duly satisfied.

20. Further on the issue of limitation, the appellants submit that the

testatrix died on 20.02.1984 and the probate petition was filed on

01.09.1993. The cause of action to apply for probate for the first time

arose on 20.02.1984, the date of death of the testatrix and was a recurring

one. Hence according to the appellants it arose on each day entitling the

appellants to file probate petition during the ensuing three years

continuously. Therefore the petition was filed within time.

21. The appellants have also relied upon following judgments :-

1. Kunvarjeet Singh Khandpur Vs Kirandeep Kaur, (2008)

8 SCC 463

2. Krishan Kumar Sharma Vs Rajesh Kumar Sharma

2009 (5) Scale 286

3. S.S.Lal (Shri) Vs Shri Vishnu Mitter, 2004 V AD

(Delhi) 509

4. Kale Vs Deputy Director, AIR 1976 SC 807

5. Shashi Kumar Banerjee Vs Subbodh Kumar Banerjee,

AIR 1964 SC 807

6. Naresh Charan Vs Paresh Charan, AIR 1955 SC 363

7. Prithwis Kumar Mitra Vs Bibhuti Bhushan Mitra,

(1966) ILR Calcutta 408(DB)

8. Sher Muhammad Khan & Ors Vs Depurt Comm. Of

Bahraich, AIR 1920 Awadh 87 (DB)

9. Makhan Mal L. Ram Ditta Mal Vs Mst. Pritam Devi,

AIR 1961 Punjab 411 (DB)

22. I have heard the learned counsel for the appellant and have gone

through the written submissions filed by them besides perusing the record

of the trial Court. I have also gone through the judgments cited at the

bar. At the very outset I would like to discuss the Kunvarjeet Singh

Khandpur (Supra ) case which has also been cited by the appellants.

The appellants relying upon a part of the judgment have submitted that

right to file the probate petition is a continuing right which can be

exercised at any time after death of the testator/ testatrix. They have also

submitted that the application merely seeks recognition from court to

perform a duty. However, according to me the appellants have

misconstrued the judgment inasmuch as the facts of the above mentioned

judgment were different from the facts of the case in hand. In the

Kunvarjeet Singh Khandpur (Supra) case, the Testator had expired on

5.10.1995 and the petition under Section 278 of the Succession Act 1925

for grant of letters of administration was filed on 7.08.2002. It was

claimed that the probate petition was barred by limitation. However both

the Learned Additional District Judge as well as the High Court held

which was later upheld by the Supreme Court that the cause of action

arose when an earlier probate petition filed in respect of the Will dated

09.09.1991 was withdrawn on 09.08.1999. The probate petition filed on

07.08.2002 was within three years and therefore was within time. Thus

Article 137 of the Limitation Act had clear application.

23. Though it is rightly been stated that an application is for the

court’s permission to perform a legal duty created by a Will and is a

continuous right which can be exercised any time after the death of the

deceased but this right can be exercised as long as it survives. It is also

true that that the application can be filed beyond the period of 3 years

but such delay must be clearly explained. In the instant case, the appellants

had filed the probate petition after 9 years but had nowhere explained the

reason behind such a huge delay even though opportunity was granted

to the appellants. The relevant extract from Kunvarjeet Singh Khandpur

(Supra) case dealing with the application of Article 137 of Limitation Act

is quoted here under:-


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‘‘Two questions need to be addressed in this appeal. Firstly,

about the applicability of Article 137 of the Limitation Act and

secondly, even if it is applicable whether the petition was within

time.

11. In Kerala SEB v. T.P. Kunhaliumma it was inter alia

observed as follows:

‘‘18. The alteration of the division as well as the change in the

collocation of words in Article 137 of the Limitation Act, 1963

compared with Article 181 of the 1908 Limitation Act shows

that applications contemplated under Article 137 are not

applications confined to the Code of Civil Procedure. In the 1908

Limitation Act there was no division between applications in

specified cases and other applications as in the 1963 Limitation

Act. The words ‘any other application’ under Article 137 cannot

be said on the principle of ejusdem generis to be applications

under the Civil Procedure Code other than those mentioned in

Part I of the third division. Any other application under Article

137 would be petition or any application under any Act. But it

has to be an application to a court for the reason that Sections

4 and 5 of the 1963 Limitation Act speak of expiry of prescribed

period when court is closed and extension of prescribed period

if the applicant or the appellant satisfies the court that he had

sufficient cause for not preferring the appeal or making the

application during such period.

The conclusion we reach is that Article 137 of the 1963 Limitation

Act will apply to any petition or application filed under any Act

to a civil court. With respect we differ from the view taken by

the two-Judge Bench of this Court in Athani Municipal Council

case3 and hold that Article 137 of the 1963 Limitation Act is not

confined to applications contemplated by or under the Code of

Civil Procedure. The petition in the present case was to the

District Judge as a court. The petition was one contemplated by

the Telegraph Act for judicial decision. The petition is an application

falling within the scope of Article 137 of the 1963 Limitation

Act.’’

In terms of the aforesaid judgment any application to civil court

under the Act is covered by Article 137. The application is made

in terms of Section 264 of the Act to the District Judge. Section

2(bb) of the Act defines the District Judge to be the Judge of

the Principal Civil Court.

12. Further in S.S. Rathore v. State of M.P.:-

‘‘5. Appellant’s counsel placed before us the residuary Article

113 and had referred to a few decisions of some High Courts

where in a situation as here reliance was placed on that article.

It is unnecessary to 467 refer to those decisions as on the authority

of the judgment of this Court in Pierce Leslie & Co. Ltd. v.

Violet Ouchterlony Wapshare5 it must be held that Article 113

of the Act of 1963, corresponding to Article 120 of the old Act,

is a general one and would apply to suits to which no other

article in the Schedule applies.’’

13. Article 137 of the Limitation Act reads as follows:

‘‘Description of suit Period of limitation Time from which period

begins to run

137. Any other application for which no period of limitation is

provided elsewhere in this Division. Three years When the right

to apply accrues.’’

The crucial expression in the petition (sic Article) is ‘‘right to

apply’’. In view of what has been stated by this Court, Article

137 is clearly applicable to the petition for grant of letters of

administration. As rightly observed by the High Court in such

proceedings the application merely seeks recognition from the

court to perform a duty and because of the nature of the

proceedings it is a continuing right. The Division Bench of the

Delhi High Court referred to several decisions. One of them was

S. Krishnaswami v. E. Ramiah6. In para 17 of the said judgment

it was noted as follows:

17. In a proceeding, or in other words, in an application filed for

grant of probate or letters of administration, no right is asserted

or claimed by the applicant. The applicant only seeks recognition

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of the court to perform a duty. Probate or letters of administration

issued by a competent court is conclusive proof of the legal

character throughout the world. An assessment of the relevant

provisions of the Indian Succession Act, 1925 does not convey

a meaning that by the proceedings filed for grant of probate or

letters of administration, no rights of the applicant are settled or

secured in the legal sense. The author of the testament has cast

the duty with regard to the administration of his estate, and the

applicant for probate or letters of administration only seeks the

permission of the court to perform that duty. There is only a

seeking of recognition from the court to perform the duty. That

duty is only moral and it is not legal. There is no law which

compels the applicant to file the proceedings for probate or

letters of administration. With a view to discharge the moral

duty, the applicant seeks recognition from the court to perform

the duty. It will be legitimate to conclude that the proceedings

filed for grant of probate or letters of administration is not an

action in law. Hence, it is very difficult to and it will not be in

order to construe the proceedings for grant of probate or letters

of administration as applications coming within the meaning of

an ‘application’ under Article 137 of the Limitation Act, 1963

Though the nature of the petition has been rightly described by

the High Court, it was not correct in observing that the application

for grant of probate or letters of administration is not covered

by Article 137 of the Limitation Act. Same is not correct in view

of what has been stated in Kerala SEB case2.

15. Similarly reference was made to a decision of the Bombay

High Court in Vasudev Daulatram Sadarangani v. Sajni Prem

Lalwani7. Para 16 reads as follows: (AIR p. 270)

‘‘16. Rejecting Mr Dalpatrai’s contention, I summarise my

conclusions thus—

(a) under the Limitation Act no period is advisedly prescribed

within which an application for probate, letters of administration

or succession certificate must be made;

(b) the assumption that under Article 137 the right to apply

necessarily accrues on the date of the death of the deceased, is

unwarranted;

(c) such an application is for the court’s permission to perform

a legal duty created by a will or for recognition as a testamentary

trustee and is a continuous right which can be exercised any

time after the death of the deceased, as long as the right to do

so survives and the object of the trust exists or any part of the

trust, if created, remains to be executed;

(d) the right to apply would accrue when it becomes necessary

to apply which may not necessarily be within 3 years from the

date of the deceased’s death;

(e) delay beyond 3 years after the deceased’s death would arouse

suspicion and greater the delay, greater would be the suspicion;

(f) such delay must be explained, but cannot be equated with the

absolute bar of limitation; and

(g) once execution and attestation are proved, suspicion of delay

no longer operates.’’ Conclusion (b) is not correct while

Conclusion (c) is the correct position of law.

16. In view of the factual scenario, the right to apply actually

arose on 9-8-1999 when the proceedings were withdrawn by

Smt Nirmal Jeet Kaur. Since the petition was filed within three

years, the same was within time and therefore the appeal is

without merit, deserves dismissal, which we direct but in the

circumstances without any order as to costs.

24. In view of the aforesaid, the appellants were required to explain

the delay of 9 years which they have filed today. Further the reproduction

of the statement of the witnesses examined by the appellants to prove the

attestation and execution of the Will goes to show that:

(i) The only attesting witness, namely, Sh. K.K. Burman firstly

denied the signatures of the testatrix on the Will itself

when his examination-in-chief was recorded and it is only

on the suggestion given by the appellant during his cross-

examination after about 2 years that he remembered the

testatrix signing the Will in question.


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(ii) The second attesting witness has not been examined by

the appellant, the attestation of the Will by the second

witness has not been even whispered by Sh. K.K. Burman

in his examination- in-chief or in cross-examination which

is an essential requirement to prove attestation in terms of

Section 63(c) of the Indian Succession Act.

(iii) The Will is in English. Admittedly, the testatrix was a deaf

person and there is nothing on record to show as to

whether she knew English language or not. Rather, Sh.

K.K. Burman accepted that the deceased testatrix did not

know English. In these circumstances, it was necessary

for the appellant to prove that the deceased testatrix knew

the contents of the Will and had signed the same after

understanding the contents thereof.

(iv) There is some endorsement on the Will (portion A1 to

A2) which admittedly has been done at the time of the

registration of the Will i.e. 7 years after its execution.

This also was required to be proved in the same manner

as the Will is required to be proved. This again has not

been done.

25. In these circumstances, even though the respondent/objector

had not come in the witness box to support their objections though have

cross-examined the witnesses of the appellant, the Court while granting

the probate is obliged to see that there are no legal impediments in the

grant of the probate. In this case, the delay in filing the probate petition

as well as non-compliance of Section 63(c) of the Indian Succession Act

are good reasons for refusal of the grant of probate petition and, thus,

I do not find any reason to interfere with the decision taken by the

learned ADJ. The appeal is accordingly dismissed with no orders as to

costs.

26. TCR be sent back along with a copy of this order.


FAO

BHARAT VATS ....APPELLANT

VERSUS

GARIMA VATS ....RESPONDENT

(VALMIKI J. MEHTA, J.)

FAO NO. : 177/2011 & DATE OF DECISION: 05.04.2011

CM NO. : 6981/2011

(A) Guardian and Wards Act, 1890—Jurisdiction—Minor

child born on 14.11.2008 in USA—Parents came to

Delhi, resided in house of father—Mother forced to

leave matrimonial home along with minor child due to

ill-treatment—Living in Noida since 04.06.2009—

Appellant filed petition under Section 25 of Guardians

and Wards Act, 1890 for custody of minor—Petition

dismissed for want of territorial jurisdiction—Hence

present appeal—Petition to be filed where minor

ordinarily resides—Minor staying in Noida since

04.06.2009—Petition filed after period of more than

one year from date when wife left matrimonial home

along with minor—Ordinary place of residence to be

Noida—No illegality in impugned order.

I completely agree with the observations of the Trial Court

because this is not the case where the child has been

stealthily removed or kidnapped by the respondent to oust

the jurisdiction of the Court. The entire object of Section 9

of the Guardians and Wards Act, 1890 is to see that welfare

and convenience of the minor child is the most important

aspect and therefore it is at the place where the minor

ordinarily resides that a guardian petition has to be filed. I

therefore do not find any illegality or perversity in the

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Indian Law Reports (Delhi) ILR (2011) VI Delhi199 200Bharat Vats v. Garima Vats (Valmiki J. Mehta, J.)

impugned order which calls for interference by this Court in

this appeal on the ground that the Courts at Delhi had no

territorial jurisdiction. (Para 4)

(B) Guardian and Wards Act, 1890—Section 9—

Jurisdiction—Appellant states that application filed on

similar grounds—Same withdrawn—Hence could not

file similar application—Parties cannot confer

jurisdiction where Court has none—Only convenience

of minor to be seen—No application of res judicata or

issue estoppels with respect to interim applications—

Appeal only filed to harass Respondent and minor

child—Appeal dismissed.

Learned counsel for the appellant then argues that earlier

an application filed on similar grounds was withdrawn and

therefore the respondent could not file the similar application.

At the first blush this argument may appear attractive,

however, parties cannot confer jurisdiction on the Court,

when the Court has none. This is all the more so in the

Guardianship cases where the welfare of the minor is of

prime importance and a specific statutory mandate is

contained in Section 9 that a petition can only be filed where

the minor ordinarily resides. The convenience to be seen is

neither of the mother nor of the father but of the minor child,

in view of the Section 9. In any case, there is no concept of

application of res judicata or issue estoppel with respect to

interim applications, more so on the issue of territorial

jurisdiction. (Para 5)

I find that the present appeal obviously is malafide because

it seeks to harass the respondent and the minor by dragging

them to Delhi although their ordinary residence is at Noida.

Disputes between the ˇparents should not result in the

welfare of the minor child being affected, and which is

probably attempted to be done by means of the subject

petition and the present appeal. (Para 6)

Important Issue Involved: Guardians and Wards Act,

1890—Section 9 object is to see welfare and convenience

of minor child which is most important aspect.

[Sa Gh]

APPEARANCES:

FOR THE APPELLANT : Mr. R.K. Saini with Ms. Aradhna

Mittal, Advocates.

FOR THE RESPONDENT : None.


VALMIKI J. MEHTA, J (ORAL)

CM No.6981/2011(exemption)

Allowed, subject to all just exceptions.

Application stands disposed of.

FAO No.177/2011

1. The challenge by means of this appeal is to the impugned order

dated 19.2.2011 which has dismissed the petition of the petitioner for

want of territorial jurisdiction in view of the Section 9 of the Guardian

and Wards Act, 1890 as per which the petition ought to have been filed

where the minor ordinarily resides, and, the minor was ordinarily found

to be residing with the respondent/mother at Noida in UP.

2. Minor child was born on 14.11.2008 in USA. After the parties

came to India, they resided originally at the house of the petitioner in

Delhi, however subsequently, the mother on account of ill treatment was

forced to leave the matrimonial home along with the minor child and has

thereafter been living in Noida since 4.6.2009.

3. The learned counsel for the appellant contends that the mother

has illegally taken away the child from the matrimonial home at Delhi and

therefore the Court at Delhi has jurisdiction. This aspect has been dealt

with by the Trial Court in the following portion of the impugned judgment:

“The respondent has been staying at her mother’s residence at


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201 202Bharat Vats v. Garima Vats (Valmiki J. Mehta, J.)

Noida continuously since 4.6.2009 along with the minor child

Master Kapil. The child is reported to be aged about 2 ½ years

and studying in Mother’s Pride Play School at Noida. The

respondent has stayed at her matrimonial home for less than one

month due to their constrained relations. The child has been

living in the company of respondent at Noida after the parties

came from U.S.A. The petitioner filed the present petition under

Section 25 of The Guardians and Wards Act for custody of

minor child Kapil Vats on 15.9.2010. The petitioner has given

respondent’s address at Noida in his petition. The petition has

been filed by the petitioner for seeking custody of the minor

child after a period of more than one year from the date when

the respondent finally left her matrimonial home along with the

minor child. It is an admitted case of the parties that the respondent

has been residing at her parental home since February, 2009.

Thus, the ordinary place of residence of minor is Noida and not

Delhi.

This is not the case of the petitioner that the child was stealthily

removed or kidnapped by the respondent in order to oust the

jurisdiction of the court. The respondent has been forced to live

at her parental home due to the constrained relationship with the

petitioner. The respondent is also reported to be working in

Noida. The child has been in the care and custody of the

respondent continuously since 4.6.2009 when the respondent

finally left matrimonial home. On analysis of the pleadings of the

parties and the material brought on record shows that the ordinary

place of residence of the minor child is Noida and not Delhi.”

4. I completely agree with the observations of the Trial Court

because this is not the case where the child has been stealthily removed

or kidnapped by the respondent to oust the jurisdiction of the Court. The

entire object of Section 9 of the Guardians and Wards Act, 1890 is to

see that welfare and convenience of the minor child is the most important

aspect and therefore it is at the place where the minor ordinarily resides

that a guardian petition has to be filed. I therefore do not find any

illegality or perversity in the impugned order which calls for interference

by this Court in this appeal on the ground that the Courts at Delhi had

no territorial jurisdiction.

5. Learned counsel for the appellant then argues that earlier an

application filed on similar grounds was withdrawn and therefore the

respondent could not file the similar application. At the first blush this

argument may appear attractive, however, parties cannot confer jurisdiction

on the Court, when the Court has none. This is all the more so in the

Guardianship cases where the welfare of the minor is of prime importance

and a specific statutory mandate is contained in Section 9 that a petition

can only be filed where the minor ordinarily resides. The convenience to

be seen is neither of the mother nor of the father but of the minor child,

in view of the Section 9. In any case, there is no concept of application

of res judicata or issue estoppel with respect to interim applications,

more so on the issue of territorial jurisdiction.

6. I find that the present appeal obviously is malafide because it

seeks to harass the respondent and the minor by dragging them to Delhi

although their ordinary residence is at Noida. Disputes between the ˇparents

should not result in the welfare of the minor child being affected, and

which is probably attempted to be done by means of the subject petition

and the present appeal.

7. Appeal therefore being without merits is accordingly dismissed.

8. In my opinion, the Trial Court instead of dismissing the petition

ought to have returned the petition for presentation to the appropriate

Court and therefore when I put it to the counsel for the appellant that

I propose to modify the order by directing return of the petition instead

of rejection of the petition, however, counsel for the appellant states that

he is not making any prayer in this regard for modification of the order

which has dismissed the petition. In view of the appeal being devoid of

merits is therefore dismissed, leaving the parties to bear their own costs.

CM No.6980/2011 (for direction)

Since the main appeal has been disposed of, this CM is also disposed

of having become infructuous.

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Indian Law Reports (Delhi) ILR (2011) VI Delhi203 204Comm. of Income Tax v. Mediworld Publications Pvt. Ltd. (A.K. Sikri, J.)


ITA

COMMISSIONER OF INCOME TAX ....APPELLANT

VERSUS

M/S. MEDIWORLD PUBLICATIONS PVT. LTD. ....RESPONDENT


ITA NO. : 549/2011 DATE OF DECISION: 05.04.2011

Income Tax Act, 1961—Section 28 (va), Section 55(2)

(o)—Capital gain and income from business—

Assessee, engaged in business of health care, print

media and electronic media communications, entered

into specified assets transfer agreement with another

company for sale of all its rights. Titles and interest in

specified assets including the business intellectual

property rights alongwith goodwill and all rights etc.

for consideration of Rs. 3,80,02,500/-—Assessing Officer

held that the amount of Rs. 3,80,02,500/- is income and

as such taxable under the head business and

professions instead of being the capital gain as claimed

by the assessee—In appeal, CIT(A) accepted the

contention of the assessee and held that the said

amount was not business income but long term capital

gain on transfer of assets—In further appeal of the

revenue, the ITAT upheld the decision of CITA—Hence,

appeal to the High Court under Section 260(A)(1) Income

Tax Act—High Court held, trademarks/brands, copyright

and goodwill will constitute assets of the business

and are profit earning apparatus and as such, sale

thereof would lead to capital gain.

The CIT (A) as well as ITAT have rightly held that in this

backdrop provisions of Section 28(va) would not apply to

the instant case. In this behalf, it is to be borne in mind that

the clinical trial business which the assessee continues to

carry on was distinct and separate from the business of

Healthcare Journals and Communication. As far as Healthcare

Journal and Communication business is concerned, it had

been given up in entirety in favour of the transferee.

Therefore, the Assessing Officer was wrong in holding that

the assessee had given up only one of the activities in

relation to its business. In such circumstances, the proviso

to Section 28(va) becomes applicable which stipulates that

Section 28 (va) was not applied to any sum received on

account of transfer of right to carry on any business which

is chargeable under the head ‘‘capital gains’’. Section 55 (2)

(a) of the Act has to be read in conjunction with this proviso.

We are in agreement with the following analysis of the CIT

(A) in this behalf:-

‘‘5.2 It is also quite clear that giving up the right to

carry on the Healthcare Journals & Communications

Business was only one part of the agreements. The

main part of the agreements was transfer of all

intangible assets being trademarks, brands, copyrights

and the associated goodwill of its Healthcare Journals

& Communications business. It follows that the

consideration of Rs. 3,80,02,500/- was not received;

only for giving up the right to carry on the Healthcare

Journals & communications business but was mainly

for the transfer of all intangible assets being

trademarks, brands, copyright and the associated

goodwill of the Healthcare Journals & communications

business. As per the law, the consideration for the

transfer of intangible assets being trademarks, brands,

copyrights and the associated good will of Healthcare

Journals & Communications business is also taxable

as long term capital gain by virtue of section 55 (2)

(a) read with clause (i) of the proviso to Section 28

(va). The AR has also relied on the provisions of

section 45 (1) read with 2 (14), 2 (11) 9b), 48 and

Section 55 (2) (ii) of the Act. The combined reading

of the above provisions and of section 28 (va) leaves


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205 206Comm. of Income Tax v. Mediworld Publications Pvt. Ltd. (A.K. Sikri, J.)

no ambiguity that law makers specifically excluded the

income from the purview of main section 28 (va).’’

(Para 11)

It would also be worthwhile to mention that the parties had

entered into agreement dated 10th March, 2006 which was

captioned as ‘‘Specified Asset Transfer Agreement’’. This

agreement defines ‘‘Business’’ to mean the business of

publishing, distributing and selling the periodical and products

as carried on by the seller (assessee). It also termed all

these publications as ‘‘Business Intellectual Property Rights’’

which were treated as ‘Specified assets’. As per clause (2)

of the agreement, all these specified assets were transferred

in the following manner:-

“2. TRANSFER OF SPECIFIED ASSETS

2.1 The Seller shall sell or procure the sale with full

right, title, interest and guarantee and CMP Medica

shall purchase the following assets and with a view to

CMP Medica carrying on the business pertaining to

the Specified Assets as going concern from the seller

with effect from the closing date:

(a) the Periodicals;

(b) the Products;

(c) the Business Intellectual Property Rights alongwith

the Goodwill and all interests and benefits attached

and appurtenant to the Business Intellectual Property

Rights;

(d) the Customer Database;

(e) The Records;

(f) the Editorial Materials; and

(g) the Contracts.

2.2 The Seller as the beneficial owner, agrees to

assign, transfer and convey to CMP Medica all is

rights, title, and interests to the Specified Assets

including other intangible benefits and, or, rights related

to the Specified Assets to the end and intent the CMP

Medica shall be the sole, full and undisputed owner of

the Specified Assets effective as at the close of the

business hours on the Closing Date and entitled as

such effective as at the close of the business hours

on the Closing Date and entitled as such to deal with

the Specified Assets in the manner deemed fit by

CMP Medica without any hindrance, interference or

disturbance or objections from the seller and, or any

person claiming on behalf of or in trust for the Seller

in any manner whatsoever subject to CMP Medica

fulfilling its obligations under Clause 3 hereunder’’.

(Para 12)

Important Issue Involved: Trademarks/brands, copyright

and goodwill will constitute assets of the business and are

profit earning apparatus and as such, sale thereof would

lead to capital gain and not income from business.

[Gi Ka]

APPEARANCES:

FOR THE APPELLANT : Mr. N.P. Sahni, Sr. Standing

Counsel.

FOR THE RESPONDENT : Mr. C.S. Aggarwal, Advocate with

Mr. Prakash Kumar, Advocate.


A.K. SIKRI, J. (ORAL)

1. Present appeal is filed under Section 260 (A) (1) of the Income

Tax Act, 1961 (hereinafter referred to as ‘the Act’), against the impugned

order dated 2nd July, 2010 passed by the ITAT. The following substantial

questions of law are being raised for our consideration:-

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‘‘(a) Whether ITAT was correct in law and on facts in deleting

the additions/disallowance made by the AO amounting to Rs.

3,80, 02, 500/- in respect of the amount received by the assessee

company in pursuance of the Asset Transfer Agreement thereby

treating the same to be assessed as ‘‘Business Income’’?

(b) Whether income arising from Asset Transfer Agreement shall

be taxable under the heads ‘Capital Gains’?’’

2. To recite the genesis of the instant appeal, following facts are

concisely recapitulated herein under:-

The respondent/assessee is a private limited company incorporated

in the year 1995 vide certificate of incorporation issued by ROC, Delhi

& Haryana and is engaged in the business of Healthcare, print media &

electronic media communications. It would be pertinent to mention here,

in order to portray the assessee’s work that the business of print media

communications comprises of publication of regular journals and

customized publications for the industries & professional groups;.

electronic media communication also includes production of customized

audio video healthcare communications. On 10th March 2006, the assessee

company entered into a ‘Specified Assets Transfer Agreement’ with one

M/S CMP MEDICA INDIA PRIVATE LIMITED, Bangalore, for the sale

of all its rights, titles and interest in specified assets of its Healthcare

Journals & Communications business. These assets, as narrated in the

agreement, were (a) the periodicals (b) the products (c) the business

intellectual property rights along with the goodwill and all rights (d) the

customer database (e) the records (f) the editorial materials & (g) the

contracts. Pursuant to aforesaid agreement, wo separate deeds namely

‘Deed of Assignment of Copyrights’ & ‘Deed of Assignment of

Trademarks’ were executed on the same date’. Furthermore, the

respondent company had also assigned the copyrights and trademarks

pertaining to its Healthcare Journals & Communication business, which

they had been running for ten years.

The assessee by the aforementioned ‘Specified Asset Transfer

Agreement also relinquished for six years the right to carry on any

business involving or relating to or competing with the transferred specified

assets. While the entire assets were transferred as above, the assessee

retained a limited & non exclusive right to use the pharmaceuticals

companies solely for the purpose of its clinical trials business and for no

other purpose. In consideration of the above said transfer, the assessee

had received Rs. 3,80,02,500/- from CMP Medical India(P) Ltd.

The assessee filed the return of income for the assessment year

2006-07 on 19.11.2006 declaring its income of ‘ 11,69,453. During the

course of assessment proceedings, it was noticed by Assessing Officer

that the assessee had shown the income from Long Term Capital Gains

@ Rs. 3,80,02,500/-. Moreover, AO observed that this income should be

made taxable under the head ‘Business and Professions’ vis-a-vis ‘Capital

Gain’ as taken by the assessee. Thereafter, AO had taxed the same u/

s 28 (va) of the Income Tax Act, 1961 treating the same as business

income and recomputed the taxable income of the assessee company.

3. We may record that before taking the aforesaid view the AO

asked the assessee company as to why sale shown as long term capital

gain be not treated as business income for the year in question In the

reply submitted by it, the assessee explained that it was publishing the

journals since 1995 onwards, but in all the journals published, the period

of starting the journals was more than three years from the date of

transfer of these assets. Further, all the journals were initiated by the

company itself and were not in existence earlier. These journals are

registered with the Registrar of Newspapers of India (RNI), before

registration, the brand name/titles of journals are approved by the RNI.

Thus, the assessee was the owner of brand name of these journals which

were also registered/indexed with Indian National Scientific Documentation

Centre, Govt. of India (hereinafter referred to as the INSDOC). Thus,

the assessee was exclusively holder of the copyrights in all the journals

and was also the exclusive holder of Trade Marks of all the journals.

These were, therefore, intangible assets within the meaning of Section 55

(2) (a) of the Act. The cost of acquisition of these assets was ‘Nil’ and

the consideration received on the sale of these intangible assets therefore,

should be treated as long term capital gain. The AO, however, did not

accept the aforesaid contention of the assessee. He examined the features

of the agreement entered into between the assessee and the transferee of

the aforesaid assets on the basis of which he noticed as under:-

‘‘a) The assessee has not sold of whole of his business but only


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surrendered his right regarding publication of the journals.

b) As seen from the clause (5) of above, in return CMP Medica

has granted the assessee a royalty free, non-exclusive license to

use the data comprised of the advertisers and pharmaceutical

companies which the assessee shall use in respect of its clinical

trials business.’’

4. On that basis, the AO formed an opinion that the amount received

was business income within the meaning of Section 28 (va) of the Act

which had been notified w.e.f. assessment year 2003-04 and as per

which any sum, received or receivable in cash or kind, under an agreement

for not carrying out any activity in relation to any business or not sharing

any know-how, patent etc. would be treated as business income since

the assessee had received the amount for carrying out any activity in

relation to the business of the assessee as publication of the journal was

only a part of the business of the assessee. The assessee had also

secured a royalty free, non-exclusive license from the transferee to use

the data comprised of the advatizers and pharmaceutical companies its

clinical trial business. The agreement also contained ‘non compete’ clause.

From all these, he concluded that the income received would be treated

as business income as per the provisions of Section 28 (va) of the Act

and passed the assessment order accordingly. The assessee preferred

appeal against this action on the part of the Assessing Officer. The CIT

(A) accepted the contention of the assessee and held that the receipt in

question was not business income but long term capital gain on transfer

of the assets. This decision of the CIT (A) has been upheld by the ITAT

also dismissing the appeal of the Revenue vide impugned order dated

19th December, 2009. The ITAT downrightly observed that assessee

seems to be the elite owner of the Trademark & Copyright of these

publications. Also publications i.e. journals were undeniably capital assets

of the assesee’s business duly registered with the Trademark Authorities.

It was also established by the ITAT that assessee has sold all its intangible

assets like trademarks, brands, copyrights & goodwill. By doing this

exercise, the assessee company has deprived itself of any earnings in the

subsequent years. It was also revealed by ITAT the assessee company

has wholly given up its right to carry on Healthcare Journals and

Communications business for a specified period. The ITAT was of the

clear view that there is no connection between the two businesses i.e.

Business of Healthcare Journals & Communications was clearly a distinct

and separate business as before sale of intangible like trademarks, brands,

copyrights and goodwill. The ITAT further concluded that assessee has

lost the source of income and section 28(va) does not apply.

5. It is under these circumstances, the Revenue has preferred the

present appeal under Section 260-A of the Act.

6. After hearing the counsel for the parties and going through the

orders of the authorities below, we are of the opinion that the view taken

by the CIT (A) as well as ITAT is without any blemish and in the facts

of this case, it is rightly held by these two authorities that a sum of about

Rs. 3.80 crores received as sale of the aforesaid intangible assets amounted

to long term capital gain. It is to be borne in mind that vide agreement

entered into by the assessee in favour of M/s CMP Medica Pvt. Ltd, the

assessee had sold/transferred the rights of trade mark, brands, copyrights

etc. in the journals and publications which the assessee had. All the

journals were registered with RNI. These publications were indexed by

the INSDC and were also published as property of the assessee. The

assessee also had copyrights therein.

7. It cannot be disputed that trademarks/brands, copyright and

good will constitute assets of the business and are profit earning apparatus.

Section 2 (14) of the Act defines ‘‘Capital Asset’’ and Section 2 (11) (b)

of the Act defines ‘‘intangible asset’’. These provisions read as under:-

‘‘Section 2 (14): ‘‘capital asset’’ means property of any kind

held by an assessee, whether or not connected with his business

or profession, but does not include-

(i) Any stock-in-trade, consumable stores or raw materials held

for the purposes of his business or profession;

(ii) Personal effects, that is to say, movable property (including

wearing apparel and furniture) held for personal use by the

assessee or any member of his family dependent on him, but

excludes

(a) Jewellery;

(b) Archeological collections;

(c) Drawings;

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(d) Paintings;

(e) Sculptures; or

(f) Any work of art.

Explanation : For the purposes of this sub-clause, “Jewellery”

includes -

(a) Ornaments made of gold, silver, platinum or any other precious

metal or any alloy containing one or more of such precious

metals, whether or not containing any precious or semi-precious

stone, and whether or not worked or sewn into any wearing appa

el;ı(b) Precious or semi-precious stones, whether or not set in

any furniture, utensil or other article or worked or sewn into a

y wearing apparel;ı(iii) Agricultural land in India, not being

land situate -ı(a) In any area which is comprised within the ju

isdiction of a municipality (whether known as a municipality,

municipal corporation, notified area committee, town area

committee, town committee, or by any other name) or a

cantonment board and which has a population of not less than

ten thousand according to the last preceding census of which

the relevant figures have been published before the 1st day of the

previous year; or

(b) In any area within such distance, not being more than eight

kilometres from the local limits of any municipality or cantonment

board referred to in item (a), as the Central Government may,

having regard to the extent of, and scope for, urbanisation of

that area and other relevant considerations, specify 20 in this

behalf by notification in the Official Gazette;

(iv) 6 1/2 per cent Gold Bonds, 1977, issued by the Central

Government;

(v) Special Bearer Bonds, 1991, issued by the Central Government;

(vi) Gold Deposit Bonds issued under the Gold Deposit Scheme,

1999 notified by the Central Government.”

Section 2 (11): ‘‘block of assets’’ means a group of assets

falling within a class of assets comprising-

(a) ....

(b) Intangible assets, being know-how, patents, copyrights, trade-

marks, licences, franchises or any other business or commercial

rights of similar nature, in respect of which the same percentage

of depreciation is prescribed’’.

8. It can also be said that the ‘right to carry on any business’ has

been recognized by the legislature as capital asset for the purposes of

assessing and computing the capital gains as is clear from the reading of

Section 55 (2) (a) of the Act, which is in the following terms:-

(2) For the purposes of sections 48 and 49, “cost of acquisition”,

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(a) In relation to a capital asset, being goodwill of a business, or

a right to manufacture, produce or process any article or thing,

tenancy rights, stage carriage permits or loom hours, -

(i) In the case of acquisition of such asset by the assessee by

purchase from a previous owner, means the amount of the

purchase price; and

(ii) In any other case [not being a case falling under sub-clauses

(i) to (iv) of sub-section (1) of section 49], shall be taken to be

nil’’

9. This provision clearly provides determining the cost of any relation

to a capital asset being the right to manufacture, produce or process any

article or thing or right to carry on any business.

10. Once we accept the fact that the brand names, trademark,

copyright and good will in the aforesaid journals sold/transfered by the

assessee to the transferee, it would clearly be a case of sale of capital

asset and the gain therefrom would be computed as capital gain. In the

present case, following facts are not in dispute which will clearly establish

that it was a case of sale of capital assets resulting into capital gain:-

(a) That the assessee has sold and transferred permanently

and forever all its existing assets and contracts of the

Healthcare journals and Communication business in terms

of an agreements dated 10th March, 2006.


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(b) That the main part of the agreements was the transfer of

all intangible assets being trademarks, brands, copyrights

and the associated goodwill of its Healthcare Journals &

Communication business.

(c) That the consideration of Rs. 3,80,02,500/- was not

received only for giving up the right to carry on the

Healthcare Journals & Communications business but was

mainly for the transfer of all intangible assets being

trademarks, brands, copyrights and the associated goodwill

of the Healthcare journals & communications business.

(d) That the consideration for the transfer of intangible assets

being trademarks, brands, copyrights and the associated

goodwill of Healthcare journals& communications business

was taxable as long term capital gain. (e) That for the

purposes of journals etc. published by the appellant

company it had to go through the following procedures

which proves the authenticity of the appellant’s claim of

the assets being in the nature of intangible capital assets

of business:-

(i) Statutory Title Clearance for all publications was obtained

prior to the commencement of publication from the office

of the Registrar of Newspapers for India

(ii) All these publications were registered with the RNI.

(iii) The appellant had also filed ‘‘from B” declaration

before the DCP (Licensing), Delhi. (iv) All publications

were indexed by INSDOC. (v) Publications have been

published as property of the appellant company in Trade

Mark Journal No. 1328 Suppl. 4 (vi) All publications have

a copyright declaration.

11. The CIT (A) as well as ITAT have rightly held that in this

backdrop provisions of Section 28(va) would not apply to the instant

case. In this behalf, it is to be borne in mind that the clinical trial business

which the assessee continues to carry on was distinct and separate from

the business of Healthcare Journals and Communication. As far as

Healthcare Journal and Communication business is concerned, it had

been given up in entirety in favour of the transferee. Therefore, the

Assessing Officer was wrong in holding that the assessee had given up

only one of the activities in relation to its business. In such circumstances,

the proviso to Section 28(va) becomes applicable which stipulates that

Section 28 (va) was not applied to any sum received on account of

transfer of right to carry on any business which is chargeable under the

head ‘‘capital gains’’. Section 55 (2) (a) of the Act has to be read in

conjunction with this proviso. We are in agreement with the following

analysis of the CIT (A) in this behalf:-

‘‘5.2 It is also quite clear that giving up the right to carry on the

Healthcare Journals & Communications Business was only one

part of the agreements. The main part of the agreements was

transfer of all intangible assets being trademarks, brands,

copyrights and the associated goodwill of its Healthcare Journals

& Communications business. It follows that the consideration of

Rs. 3,80,02,500/- was not received; only for giving up the right

to carry on the Healthcare Journals & communications business

but was mainly for the transfer of all intangible assets being

trademarks, brands, copyright and the associated goodwill of the

Healthcare Journals & communications business. As per the law,

the consideration for the transfer of intangible assets being

trademarks, brands, copyrights and the associated good will of

Healthcare Journals & Communications business is also taxable

as long term capital gain by virtue of section 55 (2) (a) read with

clause (i) of the proviso to Section 28 (va). The AR has also

relied on the provisions of section 45 (1) read with 2 (14), 2

(11) 9b), 48 and Section 55 (2) (ii) of the Act. The combined

reading of the above provisions and of section 28 (va) leaves no

ambiguity that law makers specifically excluded the income from

the purview of main section 28 (va).’’

12. It would also be worthwhile to mention that the parties had

entered into agreement dated 10th March, 2006 which was captioned as

‘‘Specified Asset Transfer Agreement’’. This agreement defines

‘‘Business’’ to mean the business of publishing, distributing and selling

the periodical and products as carried on by the seller (assessee). It also

termed all these publications as ‘‘Business Intellectual Property Rights’’

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which were treated as ‘Specified assets’. As per clause (2) of the

agreement, all these specified assets were transferred in the following

manner:-

“2.TRANSFER OF SPECIFIED ASSETS

2.1 The Seller shall sell or procure the sale with full right, title,

interest and guarantee and CMP Medica shall purchase the

following assets and with a view to CMP Medica carrying on the

business pertaining to the Specified Assets as going concern

from the seller with effect from the closing date:

(a) the Periodicals;

(b) the Products;

(c) the Business Intellectual Property Rights alongwith the

Goodwill and all interests and benefits attached and appurtenant

to the Business Intellectual Property Rights;

(d) the Customer Database;

(e) The Records;

(f) the Editorial Materials; and

(g) the Contracts.

2.2 The Seller as the beneficial owner, agrees to assign, transfer

and convey to CMP Medica all is rights, title, and interests to the

Specified Assets including other intangible benefits and, or, rights

related to the Specified Assets to the end and intent the CMP

Medica shall be the sole, full and undisputed owner of the Specified

Assets effective as at the close of the business hours on the

Closing Date and entitled as such effective as at the close of the

business hours on the Closing Date and entitled as such to deal

with the Specified Assets in the manner deemed fit by CMP

Medica without any hindrance, interference or disturbance or

objections from the seller and, or any person claiming on behalf

of or in trust for the Seller in any manner whatsoever subject to

CMP Medica fulfilling its obligations under Clause 3 hereunder’’.

13. So much so, the ‘‘Customer Data Base’’ held by the assessee

was also shared with the transferee. Thus, there was a clear transfer of

the exclusive assets and on transfer it is the transferee who had become

the sole and undisputed owner of these assets which were the business

assets of the assessee.

14. We, thus, find no merit in this appeal and dismiss the same as

no substantial question of law arises.


MAT. APP.

FAHEEM AHMED ....APPELLANT

VERSUS

MAVIYA @ LUXMI ....RESPONDENT

(KAILASH GAMBHIR, J.)

MAT. APP. NO. : 13/2009 DATE OF DECISION: 08.04.2011

Special Marriage Act, 1954—Section 7, 8, 13(2), 15(a),

16, 24(2), 25 (iii) (a & b), 39, 40 (c)—Indian Evidence

Act, 1872—Section 4 and 36—Constitution of India,

1950—Article 25 and 26— Respondent filed a petition

for declaring registration of her marriage with appellant

to be of no effect—As per respondent, for membership

of library in Jama Masjid, appellant persuaded

respondent to convert to Islam for this purpose—

Respondent singed certain documents which appellant

claimed to be registration of marriage and conversion

certificate and that by virtue of those respondent

became his wife—Petition allowed by Trial Court—

Order challenged in appeal—Plea taken, trial Court


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Faheem Ahmed v. Maviya @ Luxmi (Kailash Gambhir, J.) 217 218

committed jurisdiction error in entertaining suit of

respondent—Documentary evidence to prove

conversion of respondent from Hindu religion to

Muslim religion ignored by trial Court—Respondent

did not file any objection to registration of marriage—

Per contra, plea taken respondent had never changed

her religion and there is no marriage which can be

said to have taken place between appellant and

respondent—Held—In certain situations one party to

marriage belonging to one religion can take a decision

to embrace religion of other party but such a

conversion should not be undertaken merely to

achieve purpose of marriage—It should be done to

embrace new religion with a will and desire to

completely follow tenets of new religion while

simultaneously forsaking tenets of religion being

professed by a person prior thereto—Respondent got

prepared her conversion certificate to marry

appellant—She feigned to have adopted another

religion for purpose of wordly gain of marriage—Trial

Court rightly held there was no conversion of

respondent from Hinduism to Islam—Except nikahnama

nothing proved on record to establish fact that

essential requirement of offer and acceptance was

made by parties in presence and hearing of

witnesses—Registration of marriage was obtained in

violation of mandatory conditions required for purpose

of registration as parties had never lived together

since their marriage—Marriage certificate is conclusive

evidence to prove its issuance by a proper and

competent marriage officer after following due

procedure prescribed under Act and Rules framed

thereunder—Said conclusive evidence cannot come

in way of parties challenging such a marriage

certificate or marriage itself—No merit in present

appeal.

Thus the legal position which crystallizes from the above

discussion is that it is the right of every individual to choose

or embrace any religion and every person has the complete

liberty to forsake his previous religion and to convert himself

to another religion. There can be various reasons which can

prompt a person to change his/her religion but when one

changes his religion, then such a change should come from

one’s heart based on his change of faith and his

determination to embrace the new religion with complete

faith, belief and consciousness. Conversion from one religion

to another religion in any case is a solemn, pious and noble

act with far reaching consequences and it cannot be seen

as an exercise undertaken by someone as a mere pretence

to achieve some limited objective or purpose. Nobody can

be seen to change his/ her religion just to seek a membership

of a library. There cannot be any divergence of opinion that

in certain situations one of the parties to the marriage

belonging to one religion can take a decision to embrace

the religion of the other party but however such a conversion

should not be undertaken merely to achieve the purpose of

marriage, it should be done to embrace the new religion with

a will and desire to completely follow the tenets of the new

religion while simultaneously forsaking the tenets of the

religion being professed by a person prior thereto.

(Para 17)

First legal essential of a valid Muslim marriage under the

civil contract is a proposal made by or on behalf of the one

of the parties to the marriage and the acceptance of such

proposal by or on behalf of the other party. The other

essential requirement is that such a marriage takes place in

the presence and hearing of two males or one female or

one male or two female witnesses who not only should be

adults but sane as well.

(Para 24)

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Indian Law Reports (Delhi) ILR (2011) VI Delhi219 220Faheem Ahmed v. Maviya @ Luxmi (Kailash Gambhir, J.)

Important Issue Involved: (A) Conversion from one

religion to another religion is a solemn, pious and noble act

with far reaching consequences and it cannot be seen as an

exercise undertaken by someone as a mere pretence to

achieve some limited objective or purpose. It should be

done to embrace the new religion with a will and desire to

completely follow the tenets of the new religion while

simultaneously forsaking the tenets of the religion being

professed by a person prior thereto.

(B) The marriage certificate is conclusive evidence so far it

proves its issuance by a proper and competent marriage

officer after following the due procedure prescribed under

the Act and the Rules framed thereunder. The said conclusive

evidence, however, cannot come in the way of the parties

challenging such a marriage certificate or the marriage itself.

[Ar Bh]

APPEARANCES:

FOR THE APPELLANT : Mr. S.C. Sagar, Advocate.

FOR THE RESPONDENT : Mr. Dharmendra Kumar Vashishta,

Advocate.

CASES REFERRED TO:

1. M. Chandra vs. M. Thangamuthu & Anr.(2010) 9 SCC

712.

2. Lily Thomas vs. Union of India (2000) 6 SCC 224.

3. Kailash Sonkar vs. Smt. Maya Devi AIR 1984 SC 600.

4. S.P. Mittal vs. Union of India AIR 1983 SC 1.

5. Dr. Abdur Rahim Undre vs. Smt. Padma Abdur Rahim

Undre AIR 1982 Bombay 341.

6. Perumal Nadar (dead) by Legal Representative vs.

Ponnuswami Nadar (minor) AIR 1971 SC 2352.

7. Punjabrao vs. D. P. Meshram, : [1965] 1 SCR 849.

8. Narayan Waktu vs. Punjabrao, : AIR 1958 Bom 296.

9. Rakheya Bibi vs. Anil Kumar ILR 1948 Calcutta 119.

RESULT: Dismissed.

KAILASH GAMBHIR, J.

1. By this appeal filed under Section 39 of the Special Marriage Act,

1954, the appellant seeks to challenge the judgment and decree dated

18.11.2008 passed by the learned trial court, whereby the petition filed

by the respondent under Section 24(2) of the Special Marriage Act was

allowed.

2. Brief facts of the case as set out in the petition relevant for

deciding the present appeal are that the parties were friends since college

days and were also subsequently classmates, pursuing a course together

at the Gems Craft Jewellery Institute, Lajpat Nagar, New Delhi. As per

the case of the respondent, she wanted to get the membership of the

library in Jama Masjid and on the assurance of the appellant in helping

her get the same, he persuaded her to convert to Islam for this purpose.

That for this purpose, the respondent signed and executed certain

documents which the appellant claimed to be the registration of marriage

and conversion certificate and that by virtue of those the respondent

became his wife. The respondent hence preferred a petition under section

24(2) of the Special Marriage Act, 1954 for having the registration of the

marriage declared to be of no effect which vide judgment and decree

dated 18.11.08 was decreed in favour of the respondent. Feeling aggrieved

with the same, the appellant has preferred the present appeal.

3. Assailing the impugned judgment and decree, Mr.S.C.Sagar,

learned counsel appearing for the appellant submitted that the learned trial

court committed a jurisdictional error in entertaining the suit of the

respondent under Section 24(2) of the Special Marriage Act. The contention

of counsel for the appellant was that the said suit at best could have been

treated by the learned trial court under Section 25 (iii) (a & b) of the

Special Marriage Act, for which the prescribed period of limitation is one

year from the date of the alleged discovery of fraud by the respondent

and reckoning the said period of one year from the date of the registration

of the marriage i.e. 28.11.2005, the said suit filed by the respondent on

08.05.2007 was clearly barred by time. Counsel for the appellant further


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221 222Faheem Ahmed v. Maviya @ Luxmi (Kailash Gambhir, J.)

submitted that the learned trial court ignored the documentary evidence

which was proved on record by the appellant to prove the conversion of

the respondent from Hindu religion to Muslim religion and also

solemnization of the marriage between the parties according to Muslim

religion. The contention of counsel for the appellant was that the conversion

affidavit dated 22.11.2005 was duly proved on record by the appellant

vide Ex.PW-1/R-9, Nikahnama as Ex.PW-1/R-11 and public notice about

the change of name of the respondent from Luxmi to Maviya vide Ex.PW-

1/R-21. Counsel for the appellant further submitted that even a complaint

in writing dated 09.02.2007 Ex.PW-1/R-12 was addressed by the

respondent to the SHO, P.S. Gandhi Nagar wherein she had disclosed the

fact of her marriage with the appellant and sought her safety from her

parents. Counsel thus contended that these vital documents could not

have been ignored by the learned trial court which clearly establishes the

factum of conversion as well as the marriage between the parties. Counsel

for the appellant further argued that the respondent is a well-educated

lady and she fell in love with the appellant and voluntarily came forward

to agree for the conversion as well as for the said marriage according

to Muslim customs. Counsel further submitted that all the said facts were

well within the knowledge of the parents of the respondent and the same

were duly established during the cross-examination of the witnesses

produced by the respondent. Counsel for the appellant further submitted

that no suggestion was given by the respondent in the cross-examination

of the appellant who examined himself as RW-1 to suggest that he forced

the respondent for the said conversion from Hindu to Muslim religion or

even any fraud was played by him upon the respondent to seek registration

of the marriage. Counsel for the appellant also submitted that the said

marriage was duly proved on record by the appellant through the evidence

of RW-2 Mr.Sadakat Ali, who witnessed the said marriage between the

parties. Counsel also submitted that the registration of the marriage was

also proved by the respondent herself through the evidence of PW-4 Ajit

Kumar, Steno, Additional District Magistrate Office, Saket. Counsel for

the appellant further submitted that no evidence was adduced by the

respondent to prove the alleged fraud on the part of the appellant or on

the part of the staff of the Registrar of Marriages which could establish

any kind of fraud being played by them upon the respondent. Counsel

also submitted that the suit filed by the respondent was not maintainable

on account of non-impleadment of the Registrar of Marriages as a party.

Counsel also submitted that the respondent did not file any objection

under Section 8 read with Section 16 of the Special Marriage Act and

in the absence of the same, the registration of the marriage could not

have been challenged by the respondent.

4. Based on the above submissions, counsel for the appellant

submitted that the appellant successfully proved on record the conversion

of the respondent from Hindu religion to Muslim religion and also the

registration of the marriage in accordance with Section 15 of the Special

Marriage Act and in the face of the documentary and oral evidence led

by the parties there was no room for the learned trial court to have

disbelieved the defence of the appellant and thus there is a clear illegality

and perversity in the findings given by the learned trial court and hence

the impugned judgment deserves to be set aside.

5. Counsel for the respondent, on the other hand, supported the

findings of the learned trial court but, however, took an exception to the

finding arrived at by the learned trial court holding that the respondent

wanted to convert her religion from Hinduism to Islam. The contention

of counsel for the respondent was that the learned trial court inadvertently

overlooked the facts proved on record by the respondent to establish the

fact that as to how the appellant had taken undue advantage of his

proximity with a gullible girl from whom the appellant got signed various

papers. Counsel for the respondent further submitted that the respondent-

petitioner had correctly filed the petition under Section 24(2) of the

Special Marriage Act and not under Section 25(iii) (b) of the Act, as the

case set up by the respondent was that she had never married the

respondent and the marriage registration certificate was obtained by the

appellant in violation of the conditions specified in Section 15(a) of the

Special Marriage Act. Counsel for the respondent also submitted that

since the respondent had filed the petition under Section 24(2) of the

Special Marriage Act, therefore, the bar of limitation of one year would

not arise in the present case. Counsel for the respondent further submitted

that there was no legal requirement to implead the Registrar of Marriages

as a party to the suit under the High Court Rules and, therefore, the

objection raised by the appellant in this regard is not tenable.

6. On merits, counsel for the respondent re-asserted that the

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respondent had never changed her religion from Hinduism to Islam as

she neither had any faith in Islam nor had she given her free consent to

undergo the said change of religion. Counsel thus submitted that once the

respondent had not changed her religion, therefore, there is no marriage

which can be said to have taken place between the appellant and the

respondent under the Special Marriage Act.

7. I have heard the learned counsel for the parties at considerable

length and gone through the records.

8. Based on the pleadings of the parties, the learned trial court

framed the following issues:

(1) Whether there was no valid conversion of the petitioner

from Hinduism to Islam? OPP

(2) Whether there was no proper solemnization of marriage

between the parties? OPP

(3) Whether the parties after the alleged marriage and before

its registration did not live together as husband and wife?

OPP

(4) Whether the registration of the marriage of the parties

was in contravention of the condition specified in Section

15(a) of the Special Marriage Act, 1954. If so its effect?

OPP

(5) Whether the registration of the marriage has been obtained

by fraud? OPP (6) Relief.

9. In support of her case, the respondent-petitioner examined herself

as PW-1 and she had also examined PW-2 Mr.R.K.Singh, Nodal Officer,

Bharti Airtel Ltd., who proved on record the call records of the mobile

phone of the respondent as Ex.PW-2/1 and of the appellant as Ex.PW-

2/2. PW-2 also proved on record the Site ID chart (Tower location) of

the appellant’s mobile phone as Ex.PW-2/3. The respondent also examined

her father Mr.Pitamber Dutt Bhadri as PW-3, Mr.Ajit Kumar, Stenographer

from the Office of the Additional District Magistrate Office, Saket, New

Delhi as PW-4. The respondent also examined her brother Mr.Binod

Bhadri as PW-5 and her friend Ms.Arti Mishra as PW-6. The appellant

on the other hand examined himself as RW-1 and his friend Mr. Sadakat

Ali as RW-2.

10. On issue No.1, the learned trial court did not believe the story

set up by the respondent that to get the membership of the library in

Jama Masjid, she had agreed to convert herself to Islam. The learned trial

court in para-25 of the impugned judgment has observed that it is too

incredible to believe that a city bred and educated girl of 21 years would

fall for the alleged bait of a library membership to convert her religion.

The learned counsel for the respondent raised a dispute about the said

finding of the learned trial court on the ground that the learned trial court

totally failed to appreciate the evidence produced by the respondent to

prove the fact that she was entrapped by the appellant to sign and

execute some documents without coming to know about the sinister

plans of the appellant.

11. Without going into some of the discrepancies pointed out by the

learned counsel for the respondent in the findings of the learned trial

court on issue No.1, I do not find any perversity in the reasoning given

by the learned trial court to disbelieve the story put forth by the respondent

that for taking some membership in a library in Jama Masjid she agreed

to convert herself from Hinduism to Islam. The learned trial court rightly

observed that the claim of the respondent to convert herself to Islam just

for the sake of a library membership has to be tested in the light of the

background, education and also the relationship which she shared with

the appellant. The respondent had also not disclosed the name of the

library in Jama Masjid where she wanted to seek the membership. She

also admitted the fact that she had neither seen that library nor she had

signed the library membership form to seek membership for that library.

The court also found that even post conversion, no attempt was made

by the respondent to seek membership of any such library. The conversion

from one religion to another has to be very well thought and serious

decision in one’s life and it is hard to believe that one would change her

religion just for the sake of seeking a library membership. The said

version of the respondent also gets demolished from the admitted fact

that there was a serious love affair between the respondent and the

appellant and it appears that the respondent with a view to find an escape

route, not only from the said relationship but also from her immature

decision to get herself converted from Hinduism to Islam, devised the

said theory of seeking membership in some library of Jama Masjid. I,

therefore, do not find any infirmity in the said finding of the learned trial


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court holding that the claim of the respondent that she was fraudulently

made to undergo conversion ceremony for the sake of library membership

cannot be believed.

12. So far the question of conversion of the respondent from

Hinduism to Islam is concerned, the learned trial court has returned a

finding against the appellant. As per the defence raised by the appellant

before the learned trial court, the respondent converted herself to Islam

by executing an affidavit dated 22nd November, 2005 which was duly

attested by the SDM and the Notary. The appellant has further taken a

stand that after the said attestation, the respondent had appeared before

the Qazi for the issuance of the conversion certificate and on the conversion

certificate, the respondent herself in her own handwriting stated the fact

that she had converted her religion by her own sweet will and without

any sort of pressure upon her in signing the same. For better appreciation

of the controversy, the said declaration made by the respondent on the

conversion certificate Ex.PW-1/R-10 dated 28.11.05 is reproduced as

under:

‘‘I Luxmi D/o Mr. Pitamber Dutt r/o GB-51 Pul Pehlad Pur New

Delhi-44 am giving my statement on oath that I am a major and

my date of birth is 01.01.1984. I can understand what is good

and bad for me. The law and society allows me to adopt any

religion of my choice. I have seen a lot of goodness and qualities

in Islam and being impressed with the same with the help of

Allah and of my own will without any force or coercion or greed

have become a Muslim and I have kept my islami name Maviya.

In future I should be called by the said name. I have written

these words so that the same may be remembered and used at

the time of need, so also because my mother, father and relatives

do not initiate any legal proceedings against me’’.

13. In the affidavit which was proved on record as Ex.PW1/R9, the

respondent has deposed that as she was impressed with Islam religion,

she had adopted the same of her own sweet will, consent and without

any pressure and also changed her name from Luxmi to Maviya. The

relevant para 3 of the said affidavit is also reproduced as under:

‘‘3. That I have embressed in Islam and I have adopted Islamic

religion with my own sweet, will, consent and without any

pressure, threat or coercion from any corner and also changed

my name from Laxmi to MAVIYA, henceforth I shall be known

as Maviya in future in all respects.’’

A bare perusal of the aforesaid declaration given by the respondent on

the conversion certificate and on the affidavit filed by her before the

Qazi, manifestly shows that the respondent never had the true, honest

and genuine intention of converting herself from Hinduism to Islam religion.

Nowhere the respondent has stated that she was converting herself from

Hinduism to Islam religion because she professed faith in Islam religion

or she had started following the tenets of Islam religion in her day-to-

day life. She has also nowhere stated that she took a conscious and well-

thought out decision to renounce Hindu religion. It also cannot be lost

sight of the fact that the appellant failed to produce the Qazi who could

have been the best witness to prove the fact of conversion undergone by

the respondent and withholding of such a material witness by the appellant

further strengthens the case of the respondent that such a conversion

was a mere farce. In the background of the aforesaid facts, this Court

does not find any infirmity in the finding of the learned trial court taking

a view that the respondent converted herself to Islam religion just with

a view to get married to the appellant, the marriage which was not

acceptable to the family of the respondent.

14. India is a secular country and under Article 25 of the Constitution

of India, right has been given to every citizen to profess, practice or

propagate any religion. The cherished ideal of secularism which is the

hallmark of our Constitution has been expressly recognized under the

said Article 25 of the Constitution of India. The Constitution does not put

any kind of embargo on the right of any person to freely choose any

religion he or she so likes or the religion which one is to adopt and

practice in his or her life. It is well-settled that freedom of conscience

and right to profess a religion implies freedom to change his or her

religion as well. The Constitution of India does not define the word

‘religion. and rightly so, as the framers of the Constitution could not have

perceived to give any exhaustive definition of ‘religion’. The meaning of

word ‘religion., however, has been discussed in number of judgments of

the Supreme Court and it would be appropriate to refer the judgment of

the Constitution Bench in the case of S.P. Mittal v. Union of India AIR

1983 SC 1 where the Apex Court had an occasion to discuss the concept

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of religion at great length. The relevant paras of the same are reproduced

as under:

‘‘In order to appreciate the contentions of the parties, it is

necessary to know the implication of the words ‘‘religion’’ and

‘‘religious denomination”. The word ‘‘religion’’ has not been

defined in the Constitution and indeed it is a term which is hardly

susceptible of any rigid definition.

77. The expression ‘‘Religion’’ has, however, been sought to be

defined in the Words and Phrases, Permanent Edn., 36-A, p. 461

onwards, as given below:

‘‘Religion is morality, with a sanction drawn from a future state

of rewards and punishments.

The term ‘‘religion’’ and ‘‘religious’’ in ordinary usage are not

rigid concepts.

‘Religion’ has reference to one’s views of his relations to his

Creator and to the obligations they impose of reverence for his

being and character, and of obedience to his will.

The word ‘religion’ in its primary sense (from ‘religare’, to

rebind, bind back), imports, as applied to moral questions, only

a recognition of a conscious duty to obey restraining principles

of conduct. In such sense we suppose there is no one who will

admit that he is without religion.

‘Religion’ is bond uniting man to God, and virtue whose purpose

is to render God worship due him as source of all being and

principle of all government of things.

‘Religion’ has reference to man’s relation to divinity; to the

moral obligation of reverence and worship, obedience, and

submission. It is the recognition of God as an object of worship,

love and obedience; right feeling toward God, as highly

apprehended.

‘Religion’ means the service and adoration of God or a God as

expressed in forms of worship; an apprehension, awareness, or

conviction of the existence of a Supreme Being; any system of

faith, doctrine and worship, as the Christian religion, the religions

of the Orient; a particular system of faith or worship.

The term ‘religion’ as used in tax exemption law, simply includes:

(1) a belief, not necessarily referring to supernatural powers; (2)

a cult, involving a gregarious association openly expressing the

belief; (3) a system of moral practice directly resulting from an

adherence to the belief; and (4) an organization within the cult

designed to observe the tenets or belief, the content of such

belief being of no moment.

While ‘religion’ in its broadest sense includes all forms of belief

in the existence of superior beings capable of exercising power

over the human race, as commonly accepted it means the formal

recognition of God, as members of societies and associations,

and the term, ‘a religious purpose’, as used in the constitutional

provision exempting from taxation property used for religious

purposes, means the use of property by a religious society or

body of persons as a place for public worship.

‘Religion’ is squaring human life with superhuman life. Belief in

a superhuman power and such an adjustment of human activities

to the requirements of that power as may enable the individual

believer to exist more happily is common to all ‘religions’. The

term ‘religion’ has reference to one’s views on his relations to

his Creator, and to the obligations they impose of reverence for

His being and character and obedience to his will.

The term ‘religion’ has reference to one’s views of his relations

to his Creator, and to the obligations they impose of reverence

for his being and character, and of obedience to his will. With

man’s relations to his Maker and the obligations he may think

they impose, and the manner in which an expression shall be

made by him of his belief on those subjects, no interference can

be permitted, provided always the laws of society, designed to

secure its peace and prosperity, and the morals of its people, are

not interfered with.’’

78. These terms have also been judicially considered in

Commissioner, Hindu Religious Endowments, Madras v.


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Lakshmindra Thirtha Swamiar of Sri Shirur Mutt1 where in the

following proposition of law have been laid down: ‘‘(1) Religion

means .‘ system of beliefs or doctrines which are regarded by

those who profess that religion as conducive to their spiritual

well-being..

(2) A religion is not merely an opinion, doctrine or belief. It has

its outward expression in acts as well.

(3) Religion need not be theistic.

.............”

Hence, the word ‘religion’ used in Articles 25 and 26 of the Constitution

of India must be construed in its strict and etymological sense. It is a

matter of personal faith and belief of personal relations of an individual

with what he regards as his Maker, Creator or Cosmos and which he

believes, regulates the existence of insentient beings and the forces of the

Universe.

15. The issue of religious conversion has come before the Apex

Court and various High Courts time and again and the courts have tried

to evolve judicial principles for discerning the genuine conversions from

the feigned ones. It would be useful to refer to some of the landmark

decisions in this regard here, one of the earliest being the judgment of

the Bombay High Court in Dr. Abdur Rahim Undre vs. Smt. Padma

Abdur Rahim Undre AIR 1982 Bombay 341, which was also referred

to by the learned trial court wherein it was held that:

‘‘27. It is a well known principle of civil law that a person born

into or following one religion continues to belong to such religion

subject to conversion to another religion. Conversion to another

religion basically requires change of faith. To say the least it is

a matter of conviction. According to Mulla’s Principle of

Mohammedan Law any person who professes Mohammedan

religion that is, he acknowledges that there is but one God and

that Mohammad is his prophet is a Mohammedan. Such a person

may be a Mohammedan by birth or he may be a Mohammedan

by conversion. It is not necessary that he should observe any

particular rites or ceremony to be an orthodox believer in the

religion, no Court can test or gauge sincerity of religious belief.

It is sufficient if he professes Mohammedan religion in the sense

that he accepts prophetic grant of Mohammedan (section 19,

Chapter 2, page 19 of Mulla’s Principles of Mohammedan Law).

Thus the real test is of professing Mohammedan religion. As to

when is the true import of the term profess fell for consideration

of the Supreme Court in Punjabrao V. D. P. Meshram, : [1965]

1 SCR 849 of the said decision the Supreme Court has observed

as under:

“13. What cl. (3) of the Constitution (Scheduled Castes)

Order, 1950 contemplates is that for a person to be treated

as one belonging to a Scheduled Caste within the meaning

of that Order he must be one who professes either Hindu

or Sikh religion. The High Court, following its earlier

decision in Narayan Waktu v. Punjabrao, : AIR 1958

Bom 296 has said that the meaning of the phrase “professes

a religion” in the aforementioned provision is “to enter

publicly in to a religious state” and that for this purpose

a mere declaration by a person that he has ceased to

belong to a particular religion and embraced another religion

would not be sufficient. The meanings of the word

“profess” have been given thus in Webster’s New World

Dictionary: “ to avow publicly, to make an open declaration

of ....... to declare one’s belief in : as to profess Christ.

To accept into a religious order” The meanings given in

the Shorter Oxford Dictionary are more or less the same.

It seems to us that the meaning ‘to declare one’s belief

in : as to profess Christ’ is one which we have to bear

in mind while construing the aforesaid order because it is

this which bears upon religious belief and consequently

also upon a change in religious belief. It would thus follow

that a declaration of one’s belief must necessarily mean a

declaration in such a way that it would be known to those

whom it may interest. Therefore if a public declaration is

made by a person that he has ceased to belong to his old

religion and has accepted another religion he will be taken

as professing the other religion. In the face of such an

open declaration it would be idle to enquire further as to

whether the conversion to another religion was efficacious.

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The word ‘profess’ in the Presidential Order appears to

have been used in the sense an open declaration or practice

by a person of the Hindu for the Sikh religion. Where,

therefore, a person says, on the contrary that he has

ceased to be Hindu he cannot derive any benefit from the

order.”

Thus it appears that for a conversion there should be a declaration

of one’s belief and the said declaration should be in such a way

that is should be known to those whom it may interest. If a

public declaration is made by a person that he has ceased to

belong to one religion and is accepting another religion, he will

be taken as professing the other religion.’’

The learned trial court also relied on the judgment of the Supreme Court

in Lily Thomas vs. Union of India (2000) 6 SCC 224 wherein while

dealing with the issue of feigned conversion by a Hindu to Islam religion,

the court observed that:

‘‘39. Religion is a matter of faith stemming from the depth of

the heart and mind. Religion is a belief which binds the spiritual

nature of man to a super-natural being; it is an object of

conscientious devotion, faith and pietism. Devotion in its fullest

sense is a consecration and denotes an act of worship. Faith in

the strict sense constitutes firm reliance on the truth of religious

doctrines in every system of religion. Religion, faith or devotion

are not easily interchangeable. If the person feigns to have adopted

another religion just for some worldly gain or benefit, it would

be religious bigotry. Looked at from this angle, a person who

mockingly adopts another religion where plurality of marriage is

permitted so as to renounce the previous marriage and desert the

wife, he cannot be permitted to take advantage of his exploitation

as religion is not a commodity to be exploited. The institution of

marriage under every personal law is a sacred institution. Under

Hindu Law, Marriage is a sacrament. Both have to be preserved.’’

In Perumal Nadar (dead) by Legal Representative vs. Ponnuswami

Nadar (minor) AIR 1971 SC 2352 it was by the Apex Court as under:

‘‘A person may be a Hindu by birth or by conversion. A mere

theoretical allegiance to the Hindu faith by a person born in

another faith does not convert him into a Hindu, nor is a bare

declaration that he is a Hindu sufficient to convert him to

Hinduism. But a bona fide intention to be converted to the Hindu

faith, accompanied by conduct unequivocally expressing that

intention may be sufficient evidence of conversion. No formal

ceremony of purification or expiation is necessary to effectuate

conversion.’’

In Kailash Sonkar v. Smt. Maya Devi AIR 1984 SC 600 reiterating the

same approach even for re-conversion, the Apex Court observed that:

‘‘In our opinion, the main test should be a genuine intention of

the reconvert to abjure his new religion and completely dissociate

himself from it. We must hasten to add here that this does not

mean that the reconversion should be only a ruse or a pretext or

a cover to gain mundane worldly benefits so that the reconversion

becomes merely a show for achieving a particular purpose

whereas the real intention may be shrouded in mystery. The

reconvert must exhibit a clear and genuine intention to go back

to his old fold and adopt the customs and practices of the said

fold without any protest from members of his erstwhile caste.

In order to judge this factor, it is not necessary that there should

be a direct or conclusive proof of the expression of the views

of the community of the erstwhile caste and it would be sufficient

compliance of this condition if no exception or protest is lodged

by the community members, in which case the caste would

revive on the reconversion of the person to his old religion.’’

16. In Rakheya Bibi v. Anil Kumar ILR 1948 Calcutta 119, the

Calcutta High Court held that it is open for the Court to go into the

question whether the conversion was a bonafide one or a mere pretence.

In a recent case of M. Chandra v. M. Thangamuthu & Anr.(2010) 9

SCC 712, the Supreme Court laid down the following test to prove

conversion:

‘‘It is a settled principle of law that to prove a conversion from

one religion to another, two elements need to be satisfied. First,

there has to be a conversion and second, acceptance into the

community to which the person converted. It is obvious that the


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need of a conversion cannot be altogether done away with.’’

17. Thus the legal position which crystallizes from the above

discussion is that it is the right of every individual to choose or embrace

any religion and every person has the complete liberty to forsake his

previous religion and to convert himself to another religion. There can be

various reasons which can prompt a person to change his/her religion but

when one changes his religion, then such a change should come from

one’s heart based on his change of faith and his determination to embrace

the new religion with complete faith, belief and consciousness. Conversion

from one religion to another religion in any case is a solemn, pious and

noble act with far reaching consequences and it cannot be seen as an

exercise undertaken by someone as a mere pretence to achieve some

limited objective or purpose. Nobody can be seen to change his/ her

religion just to seek a membership of a library. There cannot be any

divergence of opinion that in certain situations one of the parties to the

marriage belonging to one religion can take a decision to embrace the

religion of the other party but however such a conversion should not be

undertaken merely to achieve the purpose of marriage, it should be done

to embrace the new religion with a will and desire to completely follow

the tenets of the new religion while simultaneously forsaking the tenets

of the religion being professed by a person prior thereto.

18. I had also the occasion to deal with a somewhat similar situation

as has arisen in the case at hand , where a Muslim lady married a Hindu

based on her conversion from Muslim religion to Hindu religion and

invoked the provisions of the Hindu Marriage Act, and it was held:

‘‘Conversion to another religion basically requires change of faith;

it is essentially a matter of conviction. A mere theoretical allegiance

to the Hindu faith by a person born in another faith does not

convert him into a Hindu, nor is a bare declaration that he is a

Hindu sufficient to convert him to Hinduism. The conversion

from one religion to another religion is a very major decision in

one’s life and for proving such a conversion, it is incumbent

upon the appellant to place on record complete facts and

documentary material, if any, to satisfy the court that based on

such facts and supporting material, the appellant had undergone

change of religion. Change of religion cannot be believed merely

on vague oral allegations unsupported by any documentary or

uncorroborated oral evidence.

..........

21. India is a melting pot of the religions of the world maintaining

a delicate balance between its myriad religious communities and

religious tolerance. By virtue of Article 25 of the Constitution of

India everyone is free to practice one’s own religion making

India the most secular country in the world. However, at this

strange point of time, religious conversions have gathered many

eyeballs as it is being increasingly used for anything but the

primary reason for conversion; spiritual advancement. The basic

focus to convert from one religion to another is to seek God

from another platform but unfortunately today proselytization is

increasingly done for reaping benefits and in cases like the present

one, an afterthought to maneuver the law. In number of cases

the Supreme Court has held that religion was not merely a matter

of faith and belief, but also included rituals, ceremonies and

religious practices according to the religious tenets of a religion.

But apostasy produces far reaching results in the relations of

husband and wife, where it is also a ground for divorce under

the Hindu Marriage Act and raises controversies like the present

one demanding a mechanism in place to stop people from fishing

in troubled waters.’’

19. Now analyzing the facts of the case at hand in the backdrop

of the aforesaid legal position, in my considered view the learned trial

court has rightly observed that the respondent got prepared her conversion

certificate because she wanted to marry the appellant and to achieve this

purpose, she did feign to have adopted another religion which was for

the only purpose of worldly gain of marriage. It would be appropriate to

reproduce para 35 of the impugned judgment as under:

‘‘The petitioner got herself the conversion certificate because

she wanted to marry the respondent. In this manner she did

feign to have adopted another religion which was only for the

purpose of the worldly gain of a marriage. Her act had nothing

to do with her faith in Islam. This is confirmed by the respondent

himself in his testimony wherein he has deposed that she

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converted by executing an affidavit expressing her intent to

convert and the Qazi issuing a conversion certificate after seeking

her affidavit expressing her intent to convert. There is no mention

of the Qazi confirming her change in faith or making her utter

the Kalma.’’

20. The learned trial court further found that in the affidavit filed

by the respondent in evidence, she testified that she never had professed

Islam and was a worshipper of Lord Shiva and such a deposition of the

respondent remained unrebutted in the absence of any cross-examination

by the appellant. The learned trial court also found that no suggestion

was given by the appellant to the respondent that she practiced Islam or

read the namaz or kept rozas. The learned trial court further found that

even the families of both the parties were not aware of either the said

conversion or of the marriage. The learned trial court also found that

even the publication of name Maviya by the respondent nowhere proved

the fact that she intended to change her religion from Hinduism to Islam.

21. In view of the above discussion, this Court does not find any

infirmity in the findings of the learned trial court on the Issue No.1 and

it has been rightly held that there was no conversion of the respondent

from Hinduism to Islam.

22. This now brings me to the finding of the learned trial court on

Issue No.2, which concerns the question as to whether there was proper

solemnization of marriage between the parties or not. The appellant has

claimed marriage with the respondent firstly under the Muslim Law

before the Qazi and secondly under Section 15 of the Special Marriage

Act. With the findings of the learned trial court on Issue No.1 having

gone against the appellant, however, still the learned trial court examined

the question as to whether proper marriage according to Muslim customs

took place or not, even assuming the fact that there was a valid conversion

of the respondent from Hindu to Muslim religion.

23. Referring to the essentials of a Muslim marriage, the learned

trial court pointed out that the appellant being a Sunni what was required

was that there should be a proposal of marriage made by or on behalf

of one of the parties to the marriage and an acceptance of the proposal

by or on behalf of the other in the presence and hearing of two males

or one male and two female witnesses, who must be sane and adult

Muslims. It would be appropriate to again reproduce paras 41,43,44 and

45 of the impugned judgment as under:

‘‘41. A Muslim marriage is a civil contract the object of which

is firstly legalization of sexual intercourse and secondly procreation

of children. Although solemnized with recitation of verses from

the Koran it is not a sacrament but purely a civil contract. Also

no ceremonies or rituals are essential for the solemnization of a

Muslim marriage. The essentials of a Muslim marriage are that

there should be a proposal made by or on behalf of one of the

parties to the marriage and an acceptance of the proposal by or

on behalf of the other in the presence and hearing of two males

or one male and two female witnesses, who must be sane and

adult Muslim. While in a Sunni marriage the absence of witnesses

makes the marriage irregular and not void, in a Shia marriage the

witnesses are not necessary. The proposal and acceptance must

both be expressed at one meeting.

43. The respondent is a sunni. There is no mention in the pleadings

or testimony of any of the parties or their witnesses about any

proposal of marriage being made and its acceptance before the

Qazi. The petitioner nowhere admits to the proper sequence of

the essentials of a nikah being followed before the Qazi or the

ceremony of nikah per se being performed, which fact has gone

unchallenged as the respondent had failed to examine the Qazi

who was competent to depose about the sequence of events

proving all necessary ingredients of a valid nikah. The counsel

for the respondent has placed great reliance upon the nikahnama

(Ex. PW1/11) admitted to bearing the signatures of the petitioner,

to stress that there was proper solemnization of the marriage.

Although the petitioner admits her signatures and thumb impression

on the nikahnama (Ex PW1/R11), significantly this document is

printed in Arabic, a language which she does not understand.

Also the nikahnama which is a certificate of marriage amount

and by itself does not prove the essentials of a nikah having been

performed.

44. The respondent has examined himself and one of the two

witnesses to the nikah, Mr. Sadaqat Ali (RW-2) who is his friend


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as his witnesses. The respondent in his examination-inchief has

testified that on 28.11.2005 both parties gave the Qazi their

affidavits expressing their intent to marry in addition the petitioner

gave her affidavit expressing her intent to convert. The marriage

of the parties was solemnized in Jama Masjid and thereafter the

Qazi issued the conversion and marriage certificate. There is no

mention in his pleadings or evidence about the essential

ceremonies of the nikah being performed.

45. Mr. Sadaqat Ali (RW-2) when questioned about what

transpired on the said day before the Qazi only testifies to the

effect that ‘‘the Kazi enquired something from the petitioner and

the respondent and thereafter took my signatures on the nikahnama

and one register’’. Neither the respondent nor his witness (RW-

2) have testified to the proposal for marriage being made by the

respondent or on his behalf and the acceptance of the same by

or on behalf of the petitioner in the presence and hearing of two

males or one male and two female witnesses. This vague statement

of the witness about what transpired itself casts doubt on the

solemnization being proper.’’

It would be thus clear from above that neither the appellant nor his friend

Mr. Sadakat Ali (RW-2) could prove on record that essential ceremonies

of the nikah were performed between the parties.

24. Marriage amongst the Muslims is not a sacrament but purely a

civil contract. There are no rituals or ceremonies which are essential for

solemnization of Muslim marriage. The twin objectives which the Muslim

marriage seeks to achieve are; (i) legalization of sexual intercourse (ii)

procreation of children. The essence of Muslim marriage is mutual consent.

The proposal and acceptance need not be in any particular form. The

essentials of marriage under the Mohammedan law as described under

Section 252 by Mulla at page 256, 7th Edition are as under:

‘‘252. Essentials of a marriage-It is essential to the validity of a

marriage there should be a proposal made by or on behalf of one

of the parties to the marriage, and an acceptance of the proposal

by or on behalf of the other, in the presence and hearing of two

male or one male and two female witnesses, who must be sane

and adult Mohammedans. The proposal and acceptance must

both be expressed at one meeting; a proposal made at one meeting

and an acceptance made at another meeting do not constitute a

valid marriage. Neither writing nor any religious ceremony is

essential.’’

It would be thus manifest that the first legal essential of a valid Muslim

marriage under the civil contract is a proposal made by or on behalf of

the one of the parties to the marriage and the acceptance of such proposal

by or on behalf of the other party. The other essential requirement is that

such a marriage takes place in the presence and hearing of two males or

one female or one male or two female witnesses who not only should

be adults but sane as well.

25. In the present case, although the nikahnama was proved on

record as Ex.PW-1/11 but except the said nikahnama nothing was proved

on record to establish the fact that the essential requirement of offer and

acceptance was made by the parties in the presence and hearing of the

witnesses. The learned trial court in para 44 (reproduced above) has

clearly observed that there was no mention either in the pleadings or in

the evidence about the essential ceremonies of the nikah being performed

between the parties. The learned trial court has also taken note of the two

affidavits filed by the parties before the Marriage Officer which were

executed by them on 9.12.2005 i.e. after a gap of 10 days from the date

of the alleged marriage but the same carried a declaration that ‘‘marriage

would be solemnized in a Masjid at Delhi’’ meaning thereby that the

marriage was yet to be performed between the parties. This court,

therefore, does not find any infirmity in the finding of the learned trial

court on Issue No.2 as well.

26. Now the other argument canvassed by the counsel for the

appellant was that the suit filed by the respondent under Section 24(2)

of the Special Marriage Act was not maintainable due to a jurisdictional

error, as the said suit should have been entertained by the learned trial

court as the one being filed under Section 25 (iii) (a) &(b) of the said

Act. As a sequel to this argument, counsel further submitted that had the

said suit been treated under Section 25(iii) (a) & (b) of the Special

Marriage Act, then the same would have been time barred due to non-

filing of the same within the prescribed period of one year from the date

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of alleged discovery of fraud. Counsel for the respondent, on the other

hand took a stand that Section 25(iii) (a) & (b) of the Special Marriage

Act would be totally inapplicable, as the case set up by the respondent

in the said petition was that she in fact was never married to the appellant

and the registration of the marriage was in clear violation of the conditions

specified under Section 15(a) of the Act. The learned trial court dealt

with the said argument of the appellant under Issue No.4 and in para 61

of the impugned judgment, it observed that since there was no conversion

of the respondent from Hinduism to Islam and therefore there could not

have been any valid marriage between the parties. The learned trial court

further observed that the appellant and the respondent never lived together

as husband and wife after their alleged marriage and prior to the registration

and therefore such a marriage was clearly in contravention of Section 15

(a) of the Special Marriage Act, 1954.

27. Section 24 of the Special Marriage Act, 1954 deals with those

marriages which are null and void while Section 25 deals with voidable

marriages and the present petition was filed by the respondent under

Section 24 (2) of the Special Marriage Act not under Section 25 of the

said Act. Under which provision of law the case of the petitioner would

fall and what relief the petitioner can claim in the facts of the case is for

the petitioner to decide and not for the respondent. In the said suit filed

by the respondent (petitioner before the trial court) the allegations raised

by the respondent were that the conversion of religion gone into by her

was not a valid conversion in the eyes of law as she had no faith in

Muslim religion and she had not professed the tenets of Muslim religion.

The respondent further alleged that the registration of marriage was

obtained in violation of the mandatory conditions required for the purpose

of registration as the parties had never lived together since their marriage.

The respondent also took a stand in the said suit that no valid marriage

was performed between her and the appellant. In the face of these

allegations raised by the respondent, her case was squarely covered

under Section 24 (2) of the Special Marriage Act, 1954, whereunder the

marriage solemnized under the Act shall be null and void if it is in

violation of any of the conditions specified in clauses (a) to (e) of Section

15 of the said Act. The argument raised by the counsel for the appellant

has thus no force and the same is rejected.

28. The other argument raised by the counsel for the appellant that

the marriage certificate became a conclusive evidence under Section

13(2) r/w Section 40(c) of the Act and also r/w Section 4/36 of Indian

Evidence Act is also equally devoid of any merit. The marriage certificate

is conclusive evidence so far it proves its issuance by a proper and

competent Marriage Officer after following the due procedure prescribed

under the Act and the Rules famed thereunder. The said conclusive

evidence, however, cannot come in the way of the parties challenging

such a marriage certificate or the marriage itself.

29. The other argument raised by the counsel for the appellant that

the suit was not maintainable on account of non-impleadment of Registrar

of Marriage and non filing of objection by the respondent under Section

8 r/w Section 16 of the Special Marriage Act also lacks force. Section

8 of the Special Marriage Act would be attracted in a case where objection

is made by any of the parties under Section 7 of the said Act complaining

violation of any one or more conditions specified under Section 4 of the

Act. No such case was set up by the respondent in the said suit. Counsel

for the appellant has not proved that there was any provision requiring

impleadment of Registrar of Marriage in a suit filed under Section 24(2)

of the Special Marriage Act.

30. All other contentions raised by the counsel for the appellant are

also devoid of any merit as this court does not find any illegality or

perversity in the reasoning given by the learned trial court in accepting

the case of the respondent that she had never adopted Islam religion and

there was no proper solemnization of marriage between the parties.

31. At omega, it would be befitting to mention that the Hon.ble

Division Bench of the Kerala High Court in the case of Re: Betsy and

Sadanandan 2009(4) KLT 631 decided on 16th October, 2009, while

dealing with a joint application moved by the parties for dissolution of

marriage under section 13B of the Hindu Marriage Act, 1955, examined

the issue as to how, in the absence of any specific procedure prescribed

under the Hindu law, custom and statute, the Court may hold whether

there has been conversion or re-conversion to Hinduism. The Hon’ble

High Court invited the attention of the Law Commission in order to

address the need for legislation on the issue. This court also when faced

with a similar catch 22 situation in the case of GA Arife@Arti Sharma

(supra) decided on 13.8.2010 seconded the suggestion of the Kerala High


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Court that the need for legislative intervention is imperative to curb the

court battles and controversies arising out of the converts religious status

in matrimonial proceedings. The Law Commission of India thus acting

on the suggestion in its 235th Report published in December, 2010 has

made the following recommendations:

“Recommendations

16. The Law Commission, therefore, proposes to formulate the following

recommendations:

1. Within a month after the date of conversion, the converted

person, if she/he chooses, can send a declaration to the officer

in charge of registration of marriages in the concerned area.

2. The registering official shall exhibit a copy of the declaration

on the Notice Board of the office till the date of confirmation.

3. The said declaration shall contain the requisite details viz., the

particulars of the convert such as date of birth, permanent address,

and the present place of residence, father’s/husband’s name, the

religion to which the convert originally belonged and the religion

to which he or she converted, the date and place of conversion

and nature of the process gone through for conversion.

4. Within 21 days from the date of sending/filing the declaration,

the converted individual can appear before the registering officer,

establish her/his identity and confirm the contents of the

declaration.

5. The Registering officer shall record the factum of declaration

and confirmation in a register maintained for this purpose. If any

objections are notified, he may simply record them i.e., the name

and particulars of objector and the nature of objection.

6. Certified copies of declaration, confirmation and the extracts

from the register shall be furnished to the party who gave the

declaration or the authorized legal representative, on request.

17. Now, the question arises as to how the above recommendations

could be implemented. It is clarified that in whichever State,

there is a law governing conversion such as Freedom of Religion

Act, the above recommendations do not apply. The question then

is whether for implementation of the said recommendations in

other States, the enactment of law by Parliament is necessary.

The Commission is inclined to think that a separate enactment or

amendments to the respective personal laws is not required to

give effect to this simple recommendation having regard to the

fact that it does not go contrary to the existing provisions of law

nor does in any way impinge on the religious freedom or faith

of any person. Matters relating to conversion/reconversion are

governed by the personal laws in respect of which Parliament

has power to make laws. The Central Government can exercise

its executive power under Article 73 to issue appropriate

instructions to the Union Territories. Similar communications

may be addressed by the Central Government to the States (where

there are no laws governing the conversion) to give effect to the

recommendations set out supra. The Governments concerned in

their turn will have to issue necessary orders to the Registration

officers. That can be done by the Governments of UT and State

Governments administratively.

Hence, as it would be manifest from the above, the Law Commission has

recommended that this issue can be tackled by way of executive

instructions. Now the onus is on the Government to steadfastly act on

the same as this is a recurring controversy before the courts adding to

the judicial backlog.

32. In the light of the above discussions, I do not find any merit

in the present appeal and the same is hereby dismissed.

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Indian Law Reports (Delhi) ILR (2011) VI Delhi243 244 Commissioner of Income Tax v. SAS Pharmaceuticals (A.K. Sikri, J.)


ITA

COMMISSIONER OF INCOME TAX ....APPELLANT

VERSUS

M/S. SAS PHARMACEUTICALS ....RESPONDENT


ITA NO. : 1058/2009 DATE OF DECISION: 08.04.2011

Income Tax Act, 1961—Section 271 (1) (c)—This appeal

arises out of the order of the Income Tax Appellate

Tribunal—A survey was carried out at the business

premises and godown of the respondent-assessee on

06.01.2003—In that survey, discrepancies in cash, stock

and renovation were found—The assessee accepted

this difference and surrendered the amount—No

attempt was made by the assessee even after this

surrender to retract therefrom or to explain that there

were no such discrepancies—Assessment also

reflected the surrendered amount in his income tax

returns—Assessing officer initiated separate penalty

proceedings which culiminated in imposition of

penalty—CIT (A) deleted the penalty by holding that

there was no concealment—Tribunal dismissed appeal

filed by Revenue—Instant appeal filed—It is to be kept

in mind that Section 271(1)(c) of the Act is a penal

provision and such a provision has to be strictly

construed. Unless the case falls within the four-corners

of the said provision, penalty cannot be imposed—

The penalty can be imposed only if concealment is

found in the income tax returns—Since the assessee,

may be after being exposed in survey, had made

complete disclosure of his income in his income tax

return and they was no concealment or non-disclosure

of income, no penalty could have been imposed—

Appeal dismissed.

It necessarily follows that concealment of particulars of

income or furnishing of inaccurate particular of income by

the assessee has to be in the income tax return filed by it.

There is sufficient indication of this in the judgment of this

Court in the case of Commissioner of Income Tax, Delhi-

I Vs. Mohan Das Hassa Nand 141 ITR 203 and in

Reliance Petroproducts Pvt. Ltd. (supra), the Supreme

Court has clinched this aspect, viz., the assessee can

furnish the particulars of income in his return and everything

would depend upon the income tax return filed by the

assessee. This view gets supported by Explanation 4 as well

as 5 and 5A of Section 271 of the Act as contended by the

learned counsel for the Respondent. (Para 15)

No doubt, the discrepancies were found during the survey.

This has yielded income from the assessee in the form of

amount surrendered by the assessee. Presently, we are not

concerned with the assessment of income, but the moot

question is to whether this would attract penalty upon the

assessee under the provisions of Section 271(1) (c) of the

Act. Obviously, no penalty can be imposed unless the

conditions stipulated in the said provisions are duly and

unambiguously satisfied. Since the assessee was exposed

during survey, may be, it would have not disclosed the

income but for the said survey. However, there cannot be

any penalty only on surmises, conjectures and possibilities.

Section 271 (1) (c) of the Act has to be construed strictly.

Unless it is found that there is actually a concealment or

non-disclosure of the particulars of income, penalty cannot

be imposed. There is no such concealment or non-disclosure

as the assessee had made a complete disclosure in the

income tax return and offered the surrendered amount for

the purposes of tax. (Para 16)


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245 246 Commissioner of Income Tax v. SAS Pharmaceuticals (A.K. Sikri, J.)

Important Issue Involved: Concealment of particulars of

income or furnishing of inaccurate particular of income by

the assessee has to be in the income tax return filed by it.

Section 271(1)(c) of the Act has to be construed strictly.

Unless it is found that there is actually a concealment or

non-disclosure of the particulars of income, penalty cannot

be imposed.

[Ch Sh]

APPEARANCES:

FOR THE APPELLANT : Mr. Prem Lata Bansal, Sr. Advocate

with Mr. Deepak Anand, Jr. Standing

Counsel.

FOR THE RESPONDENT : Mr. Amar Dave with Mr. Nitin

Mishra, Advocates.

CASES REFERRED TO:

1. Commissioner of Income Tax, Ahmedabad vs. Reliance

Petroproducts Pvt. Ltd. (2010) 3 SCR 510.

2. Commissioner of Income Tax, Delhi-I vs. Mohan Das

Hassa Nand 141 ITR 203.


A.K. SIKRI, J.

1. This appeal arises out of the order of the Income Tax Appellate

Tribunal (‘the Tribunal’ for brevity) vide which it has affirmed the order

of the CIT (A) deleting the penalty of Rs. 32,39,393/- imposed by the

Assessing Officer under the provisions of Section 271(1)(c) of the Income

Tax Act (hereinafter referred to as ‘the Act’). It so happened that a

survey was carried out at the business premises and godown of the

respondent-assessee on 06.01.2003. In that survey, discrepancies in cash,

stock and renovation were found. When the assessee was confronted

with the same, it surrendered the amount of Rs. 88,14,676/- during the

survey. Since the survey was conducted on 06.01.2003, i.e., in the

Financial Year 2002-03 corresponding to the Assessment Year 2003-04,

for that assessment year, the assessee had not filed the income tax return

and naturally the occasion to file the income tax return had not matured.

When the income tax return was ultimately filed by the assessee on

02.12.2003, the assessee declared its income @ Rs. 87,71,580/- including

the amount surrendered by the assessee itself. The assessment was

framed including the surrendered amount. While passing the assessment

order, the AO also decided to initiate penalty proceedings separately on

the ground that the assessee had concealed the income. Show cause

notice was given to which the assessee submitted the reply stating that

the assessee had itself voluntarily surrendered the amount to avoid litigation

and to buy peace of mind and had not concealed any income. This

explanation was not digested by the AO, who had the view that the

surrender was made only when discrepancies were brought to the notice

of the assessee, which were found in cash, stock as well as renovation

of the premises done by the assessee. He, thus, was of the opinion that

had there been no survey, the assessee would have succeeded in concealing

the income and evading tax. On this premise, penalty of Rs. 32,39,393/

- was imposed.

2. The CIT (A) deleted the penalty on the ground that there was

no concealment of income as in the return filed by the assessee, the said

income was duly reflected.

3. The Tribunal has upheld the order of the CIT (A) and dismissed

the appeal of the Revenue. It is in this factual context that the instant

appeal is preferred by the Revenue, which was admitted on the following

substantial questions of law:

‘‘(i) Whether ITAT was correct in law in deleting the penalty

imposed by the Assessing Officer under Section 271(1)(c) of the

Income Tax Act? (ii) Whether ITAT was correct in law in

holding that no concealment was made by the assessee though

the assessee had surrendered the amount of ‘88,14,676/- during

survey on account of discrepancies found in cash, stock and

difference in renovation?’’

4. The facts demonstrated bring forth the position that when the

survey was conducted a couple of months before the close of Financial

Year, i.e., 06.01.2006, definitely discrepancies were found inasmuch as

there was difference in cash, stock as well as renovation expenses are

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Indian Law Reports (Delhi) ILR (2011) VI Delhi247 248 Commissioner of Income Tax v. SAS Pharmaceuticals (A.K. Sikri, J.)

as follows:

“Difference in cash Rs. 22,80,876

Difference in stock Rs. 5,00,200

Renovation difference Rs. 60,33,580

Rs. 88,14,676”

5. The assessee accepted this difference and surrendered the amount.

No attempt was made by the assessee even after this surrender to retract

therefrom or to explain that there were no such discrepancies. In fact,

the position was carried by including this amount even in the income tax

return filed by the assessee. Thus, no doubt, the assessee has surrendered

certain income during the course of survey and discrepancies noticed by

the survey team would suggest that the assessee was not maintaining

proper accounts in respect to cash, stock and renovation expenses, etc.

Therefore, there could be a possibility that but for this survey, the

discrepancies brought to the notice of the assessee and physical verification

of the stock and other accounts would have gone unnoticed and the

assessee might have suppressed in the income tax return as well However,

fact remains that it has disclosed this in the return filed by it.

6. In this context, the question would be as to whether the assessee

can be imposed penalty under Section 271(1)(c) of the Act when the

assessee has shown this income in the income tax return filed by it and

contends that it has voluntarily declared the same in the ‘regular return

filed for the relevant year’.

7. To seek an answer, it would be necessary to look into the

language of Section 271(1)(c) of the Act. This provision reads as under:

“271. Failure to furnish returns, comply with notices,

concealment of income, etc.

(1) If the Assessing Officer or the Commissioner (Appeals) or

the Commissioner in the course of any proceedings under this

Act, is satisfied that any person-

(a)......................

(b) .....................

(c) has concealed the particulars of his income or furnished

inaccurate particulars of such income,”

8. As pointed out above, the contention of the Department is that

the intention of the assessee in maintaining false records relating to cash,

stock and renovation, etc., was manifest, viz., to conceal the particulars

of income and furnished inaccurate particulars of such income. It was

contended that but for the said survey in which the assessee was exposed,

he would have filed the income tax return concealing the said income and

therefore, provisions of Section 271(1)(c) of the act are clearly attracted.

9. The learned counsel for the assessee, on the other hand, contends

that Clause (c) of Section 271(1) of the Act makes it crystal clear that

the act of ‘concealment’ or ‘furnishing inaccurate particulars’ is relatable

only in respect of a return being filed. Therefore, in a case where the

stage of filing return itself had not been reached, there is no question of

invocation of the penal provision of Section 271 of the Act, as is the

position in the present case. In the present case, the return was filed well

within the prescribed time, i.e., on 02.12.2003 and in the said return the

entire amount had been duly shown as income. Therefore, invoking a

penal provision merely on the basis of assumption that the assessee

‘would not have included’ the said amount while filing his return is

completely erroneous and unsustainable. It is a settled position of law as

enunciated in various judicial pronouncements that ‘penalty cannot be

based on presumptions and surmises’. It was also argued that the legislative

intent in connection with Section 271 of the Act is further fortified from

the various Explanations provided in the said provision. In this regard,

Explanation 4 is relevant wherein it is specifically provided as to what

would be included in the expression ‘the amount of tax sought to the

evaded’, which is the basis for imposition of penalty contemplated under

Section 271 (1) (c) of the Act. The perusal of the said Explanation also

clearly establishes the direct nexus between the concealment/inaccurate

particular being furnished with the return filed.

10. To bolster this submission, the learned counsel for the assessee

took refuge of Explanation 5 and Explanation 5A of Section 271 of the

Act and submitted that these Explanations provide that in cases of search

by way of deeming fiction, the liability towards penalty has been prescribed

even in cases where the return of income for such year has not been

furnished before the said date of search. Therefore, wherever the legislature


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intended to impose a penal liability covering a case where return was yet

to be filed, a deeming fiction has been consciously provided. In the

absence of any such deeming fiction imposing penalty in a case of

survey where return is yet to be filed, the penal provision of Section 271

of the Act cannot be invoked as the mandatory ingredients thereof are

not met at all.

11. He also sought to draw sustenance from the judgment of Supreme

Court in the case of Commissioner of Income Tax, Ahmedabad Vs.

Reliance Petroproducts Pvt. Ltd. (2010) 3 SCR 510 wherein inter alia

it has been held that unless the conditions under Section 271 (1)(c) of

the Act exist in a particular case, penalty cannot be imposed and it was

further held that 271 of the Act being a penal provision is required to be

construed strictly. The following observations made in the said judgment

were specifically referred to:

‘‘8. Therefore, it is obvious that it must be shown that the

conditions under Section 271 (1)(c) must exist before the penalty

is imposed. There can be no dispute that everything would depend

upon the return filed because that is the only document, where

the assessee can furnish the particulars of his income. When

such particulars are found to be inaccurate, the liability would

arise.’’

12. After considering the respective submissions of the learned

counsel for the parties, we are of the view that the argument of the

learned counsel for the assessee has to prevail as it carried substantial

weight. It is to be kept in mind that Section 271(1)(c) of the Act is a

penal provision and such a provision has to be strictly construed. Unless

the case falls within the four-corners of the said provision, penalty cannot

be imposed. Sub-section (1) of Section 271 stipulates certain contingencies

on the happening whereof the AO or the Commissioner (Appeals) may

direct payment of penalty by the assessee. We are concerned herewith

the fundamentality provided in Clause (c) of Section 271 (1) of the Act,

which authorizes imposition of penalty when the AO is satisfied that the

assessee has either;

(a) Concealed the particulars of his income; or

(b) Furnished inaccurate particulars of such income.

13. It is not the case of furnishing inaccurate particular of income,

as in the income tax return, particulars of income have been duly furnished

and the surrendered amount of income was duly reflected in the income

tax return. The question is whether the particulars of income were

concealed by the assessee or not. It would depend upon the issue as to

whether this concealment has reference to the income tax return filed by

the assessee, viz., whether concealment is to be found in the income tax

return.

14. We may, first of all, reject the contention of the learned counsel

for the Revenue relying upon the expression ‘in the course of any

proceedings under this Act’ occurring in Sub-section (1) of Section 271

of the Act and contending that even during survey when it was found

that the assessee had concealed the particular of his income, it would

amount concealment in the course of ‘any proceedings’. The words ‘in

the course of any proceedings under this Act’ are prefaced by the

satisfaction of the AO or the Commissioner of Income Tax (Appeals).

When the survey is conducted by a survey team, the question of satisfaction

of AO or the Commissioner (Appeals) or the Commissioner does not

arise. We have to keep in mind that it is the AO who initiated the penalty

proceedings and directed the payment of penalty. He had not recorded

any satisfaction during the course of survey. Decision to initiate penalty

proceedings was taken while making assessment order. It is, thus, obvious

that the expression ‘in the course of any proceedings under this Act’

cannot have the reference to survey proceedings, in this case.

15. It necessarily follows that concealment of particulars of income

or furnishing of inaccurate particular of income by the assessee has to

be in the income tax return filed by it. There is sufficient indication of

this in the judgment of this Court in the case of Commissioner of

Income Tax, Delhi-I Vs. Mohan Das Hassa Nand 141 ITR 203 and

in Reliance Petroproducts Pvt. Ltd. (supra), the Supreme Court has

clinched this aspect, viz., the assessee can furnish the particulars of

income in his return and everything would depend upon the income tax

return filed by the assessee. This view gets supported by Explanation 4

as well as 5 and 5A of Section 271 of the Act as contended by the

learned counsel for the Respondent.

16. No doubt, the discrepancies were found during the survey. This

has yielded income from the assessee in the form of amount surrendered

Commissioner of Income Tax v. SAS Pharmaceuticals (A.K. Sikri, J.) 249 250

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by the assessee. Presently, we are not concerned with the assessment of

income, but the moot question is to whether this would attract penalty

upon the assessee under the provisions of Section 271(1) (c) of the Act.

Obviously, no penalty can be imposed unless the conditions stipulated in

the said provisions are duly and unambiguously satisfied. Since the assessee

was exposed during survey, may be, it would have not disclosed the

income but for the said survey. However, there cannot be any penalty

only on surmises, conjectures and possibilities. Section 271 (1) (c) of the

Act has to be construed strictly. Unless it is found that there is actually

a concealment or non-disclosure of the particulars of income, penalty

cannot be imposed. There is no such concealment or non-disclosure as

the assessee had made a complete disclosure in the income tax return and

offered the surrendered amount for the purposes of tax.

17. We, thus, answer the questions as formulated above, in favour

of the assessee and against the Revenue finding no fault with the decisions

of the CIT (A) as well as the Tribunal. As a result, this appeal is

dismissed.


W.P. (C)

ANAND PRAKASH ....PETITIONER

VERSUS

THE DELHI STATE CO-OPERATIVE ....RESPONDENTS

BANK LTD. & ANR.

(RAJIV SAHAI ENDLAW, J.)

W.P. (C) NO. : 105/2010 DATE OF DECISION: 20.04.2011

(A) Constitution of India, 1950—Article 226—Petition

challenging the enquiry and the proceedings being

violative of service rules applicable to the staff of

respondent—Seeking quashing of order of retirement

and reinstatement into service—Petitioner was

employed with the respondent in 1993 as clerk-cum-

typist—Lastly worked as Manager—Charged with

misconduct of making payments against false credit

entries—Misuse of powers and ignoring the prescribed

Banking rules—Not taking care of interest of the bank

and having tampered with the record of the Bank—

Inquiry conducted—Petitioner found guilty—

Respondent imposed a penalty of compulsory

retirement on the petitioner—Appeal preferred—

Rejected by Board of Directors—Petition—Challenged

on the ground of maintainability—Petitioner alleges

that employees of respondent are governed by Central

Civil Services (Conduct) Rules, 1964 and Central Civil

Services (Classification, Control and Appeal) Rules

1965, which shows that it is State and hence writ

petition is maintainable—Held—Merely, because a

Society adopts the rules applicable to Government

servants to its own employees would not convert the

said Co-opertative Society into Government—Similarly,

merely because the respondent is performing banking

function would also not make the writ petition

maintainable—It is not shown that the function so

performed by the respondent is monopolistic—

According to the document handed over by the

petitioner himself there are as many as 32 Co-opertaive

Societies in Delhi performing the banking functions—

This is besides the other banks operating in Delhi—

Thus the said ground for maintainability of the writ

petition is also rejected—In view of the aforesaid

dicta of the Supreme Court, the reasons given in

rejoinder do not justify the maintainability of the writ

petition not maintainable.

I may notice that the writ petition as filed does not contain

any pleadings whatsoever as to the nature, character or

constitution of the respondent or as to the maintainability of

Anand Prakash v. The Delhi State Co-Operative Bank Ltd. (Rajiv Sahai Endlaw, J.)


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253 254

the writ petition against the respondent and presumes the

writ petition to be maintainable. Upon objection being taken

in the counter affidavit, in rejoinder also, the maintainability

of the writ petition is justified only for the reason of the

control exercised by the Registrar Co-operative Societies

under the Co-operative Societies Act qua the respondent

and the Chairman of the Board of Directors of the Society

being an MLA and the service Rules of the respondent

providing for the applicability of CCS/CCA Rules to employees

of the Society. In view of the aforesaid dicta of the Supreme

Court, the reasons given in rejoinder do not justify the

maintainability of the writ petition. (Para 6)

I have put to the counsel for the petitioner whether, if a

private company instead of framing its own rules adopts the

rules aforesaid applicable to the government servants to its

employees, a writ petition would lie against the private

company also. The counsel for the petitioner has fairly

stated that it would not be. Similarly, merely because a

Society adopts the rules applicable to Government servants

to its own employees would not convert the said Co-

operative Society into Government. The said contention of

the petitioner is thus rejected. (Para 10)

Similarly, merely because the respondent is performing

banking function would also not make the writ petition

maintainable. It is not shown that the function so performed

by the respondent is monopolistic. According to the document

handed over by the petitioner himself there are as many as

32 Co-operative Societies in Delhi performing the banking

functions. This is besides the other banks operating in

Delhi. Thus the said ground for maintainability of the writ

petition is also rejected. (Para 11)

Important Issue Involved: Merely because a co-operative

society adopts the CCS/CCA rules for its own employees

would not convert the society in to Government.

[Vi Ba]

APPEARANCES:

FOR THE PETITIONER : Mr. Ram Narayan Singh, Advocate.

FOR THE RESPONDENTS : Mr Anand Yadav, Advocate.

CASES REFERRED TO:

1. S.S. Rana vs. Registrar, Co-operative Societies (2006) 11

SCC 634.

2. Supriyo Basu vs. West Bengal Housing Board (2005) 6

SCC 289.

3. Pradeep Kumar Biswas vs. Indian Institute of Chemical

Biology MANU/SC/0330/2002.

4. U.P. State Co-operative Land Development Bank Ltd.

vs. Chandra Bhan Dubey (1999) 1 SCC 741.

5. Jagjit Singh Sangwan vs. Union of India 1996 (36) DRJ

(DB).

6. W.B. State Co-operative Bank Ltd. vs. Paritosh Bagchi

(1995) 6 SCC 562.

7. Mohinder Singh vs. D.P. Khatri 51 (1993) DLT 592.

8. The Shamrao Vithal Co-operative Bank Ltd. vs. Padubidri

Pattabhiram Bhat AIR 1993 Bombay 91.

9. Sri Konaseema Co-operative Central Bank Ltd. vs. N.

Seetharama Raju AIR 1990 AP 171.

10. Banabihari Tripathy vs. Registrar of Co-operative Societies

AIR 1989 Orissa 31.

11. P. Bhaskaran vs. Additional Secretary, Agricultural (Co-

operation) Department, Trivendrum AIR 1988 Kerala 75.

12. Babaji Kondaji Garad vs. Nasik Merchants C-operative

Bank Ltd. AIR 1984 SC 192.

13. Ajmer Singh vs. The Registrar, Co-operative Societies,

Punjab AIR 1981 Punjab & Haryana 107.

14. The Nayagarh Co-operative Central Bank Ltd. vs. Narayan

Rath AIR 1977 SC 112.

15. Kulchhinder Singh vs. Hardayal Singh Biar AIR 1976 SC

2216.

Anand Prakash v. The Delhi State Co-Operative Bank Ltd. (Rajiv Sahai Endlaw, J.)

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16. The Bihar State Co-operative Bank Ltd. vs. The Registrar,

Co-operative Societies, Bihar AIR 1975 Patna 187.

17. Deokinandan Prashar vs. The Agra District Co-operative

Bank AIR 1972 SC 2497.

18. Co-operative Central Bank Ltd. vs. Additional Industrial

Tribunal, Andhra Pradesh, Hyderabad AIR 1970 SC 245.

RESULT: Appeal is dismissed.

RAJIV SAHAI ENDLAW, J.

1. The question of maintainability of this writ petition against the

respondent is for consideration.

2. The petitioner claims to have been employed with the respondent,

initially in the year 1993 as a Clerk-cum-Typist and was last working as

a Manager. He was charged with misconduct by way of making payments

against false credit entries, of misuse of his power by way of cash

payment of huge amount, of ignoring of the prescribed banking rules and

having acted in excess of his powers and having not taken care of the

interest of the Bank and having tampered with the record of the Bank.

The inquiry conducted found the petitioner guilty and the competent

authority of the respondent imposed a penalty of compulsory retirement

on the petitioner. The appeal preferred by the petitioner was rejected by

the Board of Directors of the respondent. Aggrieved from the said action

of the respondent, the present writ petition has been filed averring the

inquiry and the proceedings to be violative of the service rules applicable

to the staff of the respondent and seeking quashing of the order of his

compulsory retirement and mandamus against the respondent to reinstate

the petitioner into service.

3. Notice of the petition was issued. The respondent has filed a

counter affidavit inter alia disputing the maintainability of the writ petition.

It is pleaded that the respondent is a Co-operative Society registered

under the Delhi Co-operative Societies Act, 2003, is not an instrumentality

of the State and is not an authority within the meaning of Article 12 of

the Constitution of India; that the service rules governing the conditions

of service of employees of the respondent are framed by the Board of

Directors i.e. the Managing Committee of the Society in exercise of

powers under the bye-laws of the Society and the said service rules /

bye-laws are not statutory and therefore cannot be held to be law or have

the force of law and cannot be enforced through a petition under Article

226. It is further pleaded that the conditions of service between the

respondent and the petitioner are a matter of contract; that the affairs of

the respondent are administered by the Management in accordance with

the democratically expressed will of the members and under Section 30

of the Co-operative Societies Act also, the final authority of a Co-operative

Society vests in the General Body of the members. Rejoinder to the

counter affidavit has been filed by the petitioner stating that since the

Registrar of the Co-operative Societies has the control of the respondent

and who in turn is under the Control of the respondent No.2 Government

of National Capital Territory of Delhi, the writ petition is maintainable. It

is further pleaded that under the service rules aforesaid, the punishment

of compulsory retirement could not have been meeted out to the petitioner

without the approval of the Registrar of Co-operative Societies and which

had not been taken. Yet another reason given for maintainability of the

writ petition is the list of judgments adjudicating writ petitions preferred

against the Co-operative Societies. It is further contended that the service

rules and bye-laws of the respondent are statutory in character. Yet

another reason given for maintainability of the writ petition is that since

the Central Civil Services (Conduct) Rules, 1964 and Central Civil Services

(Classification, Control and Appeal) Rules, 1965 have, under the service

rules, been applied to the petitioner, the writ petition would be maintainable.

Yet further it is pleaded that since the Chairman of the Board of Directors

of the respondent is a MLA, an elected member of the Legislative Assembly

of the respondent No.2 Government of NCT of Delhi, the writ would lie.

It is also suggested that the respondent having been registered under the

Co-operative Societies Act, writ would lie thereagainst. The counsels for

the parties have been heard on the aspect of maintainability of the writ

petition.

4. I may in this regard at the outset notice that the Apex Court in

Supriyo Basu Vs. West Bengal Housing Board (2005) 6 SCC 289 held

that a Co-operative Society is constituted on agreement between members

thereof who had agreed to abide by the provisions of the Co-operative

Societies Act and the Rules framed thereunder or the bye-laws framed

by the Society; that where the society is not a department of the State

and is also not a creature of a statute but merely governed by a statute,

255 256 Anand Prakash v. The Delhi State Co-Operative Bank Ltd. (Rajiv Sahai Endlaw, J.)


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only if it is established that the mandatory provision of a statute has been

violated, would a writ petition be maintainable thereagainst. Referring to

U.P. State Co-operative Land Development Bank Ltd. Vs. Chandra

Bhan Dubey (1999) 1 SCC 741, it was held that the question to be

considered in determining whether a writ petition would lie against a Co-

operative Society is, what is the nature of the statutory duty placed on

it and the Court is to enforce such statutory public duty.

5. Reference may also be made to S.S. Rana Vs. Registrar, Co-

operative Societies (2006) 11 SCC 634 which was also a case of

termination by Kangra Central Co-operative Bank Ltd. constituted under

the Himachal Pradesh Co-operative Societies Act, 1968 of the services

of its Branch Manager. The contention of the Branch Manager in that

case was that the activities of the Co-operative Society being to lend

money to the agriculturists, the same would come within the purview of

Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology

MANU/SC/0330/2002 and the writ petition alleging the termination to be

contrary to rules, bye-laws and principles of natural justice would be

maintainable. The Supreme Court held that where a Society has not been

constituted under an Act and functions like any other Co-operative Society

and is merely regulated by the Co-operative Societies Act and where the

State has no say in the functions of the Society, and where the membership,

acquisition of shares and all other matters are governed by the bye-laws

framed under the Act and the State is not the majority shareholder of the

Society and does not exercise any direct or indirect control over the

affairs of the Society for deep and pervasive control and the State has

only to nominate one Director, it could not be said that the State exercises

any functional control over the affairs of the Society. It was further held

that several other relevant questions required to be considered in deciding

whether writ would lie against the Society are, (i) How the Society was

created; (ii) Whether it enjoys any monopoly character; (iii) Do the

functions of the Society partake to statutory functions or public functions;

and (iv) Can it be characterized as public Authority. The Kangra Central

Co-operative Bank Ltd. was held to be not answering any of the aforesaid

tests. It was held that general regulations like the Companies Act or the

Co-operative Societies Act would not render the activities of a Company

or a Society as subject to control of the State and the purpose of the

provisions of the Companies Act or the Co-operative Societies Act is


only to ensure proper functioning of the Society and the State or the

statutory authorities as the Registrar Co-operative Societies would have

nothing to do with the day-to-day functioning of the Society.

6. I may notice that the writ petition as filed does not contain any

pleadings whatsoever as to the nature, character or constitution of the

respondent or as to the maintainability of the writ petition against the

respondent and presumes the writ petition to be maintainable. Upon

objection being taken in the counter affidavit, in rejoinder also, the

maintainability of the writ petition is justified only for the reason of the

control exercised by the Registrar Co-operative Societies under the Co-

operative Societies Act qua the respondent and the Chairman of the

Board of Directors of the Society being an MLA and the service Rules

of the respondent providing for the applicability of CCS/CCA Rules to

employees of the Society. In view of the aforesaid dicta of the Supreme

Court, the reasons given in rejoinder do not justify the maintainability of

the writ petition.

7. The counsel for the petitioner during the hearing has referred to:

(i) W.B. State Co-operative Bank Ltd. Vs. Paritosh Bagchi

(1995) 6 SCC 562.

(ii) Deokinandan Prashar Vs. The Agra District Co-

operative Bank AIR 1972 SC 2497.

to contend that in those cases writ petitions against the Co-

operative Banks were maintained. However, neither of the two

judgments is found to contain any discussion on the maintainability

of the writ petition. The Supreme Court in the judgment cited by

me above has not ruled out the possibility of maintainability of

a writ petition against a Co-operative Society but has laid down

the tests therefor. It may be that the Co-operative Banks in the

judgments cited by the counsel for the petitioner satisfied the

said tests and thus the issue of maintainability of the writ petition

was not raised. However, merely because writ petitions against

another Co-operative Bank were entertained, would still not justify

the maintainability of the present writ petition without the petitioner

establishing before this Court that the tests are satisfied qua the

respondent and which has not been done by the petitioner inspite

of opportunity.

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8. The counsel for the petitioner has also handed over another list

which appears to have been prepared by the Office of the Registrar of

Co-operative Societies, New Delhi of the 32 Societies found in the Bank

Zone. He has also handed over the Account Opening Form of the

respondent Bank. I fail to see as to how the same can justify the

maintainability of the writ petition. Similarly the counsel has handed over

copy of order dated 29th October, 2010 issuing notice of W.P.(C) No.296/

2010 preferred by one Shikha Verma against the respondent. However

merely because notice has been issued in another writ petition preferred

against the respondent would still not make the present petition maintainable.

The counsel for the respondent clarifies that the objection to maintainability

is also taken in other writ petitions preferred against the respondent. He

further states that the West Bengal State Co-operative Bank Ltd. and The

Agra District Co-operative Bank subject matter of the judgments cited by

the petitioner must be controlled by the respective State Governments

and which is not the case over here. He has rather argued and which has

not been controverted by the counsel for the petitioner that the respondent

Bank was not created by the Government.

9. As far as the argument of the petitioner of the applicability of

CCS /CCA Rules to the employees of the respondent is concerned, Rule

3.1(a) under Chapter III titled ‘‘Conduct, Discipline, Punishment and

Appeals’’ of the Service Rules aforesaid of the respondent provides that

the Central Civil Services (Conduct) Rules, 1964 and Central Civil Services

(Classification, Control and Appeal) Rules, 1965 shall mutatis mutandis

be applicable to the respondent.

10. I have put to the counsel for the petitioner whether, if a private

company instead of framing its own rules adopts the rules aforesaid

applicable to the government servants to its employees, a writ petition

would lie against the private company also. The counsel for the petitioner

has fairly stated that it would not be. Similarly, merely because a Society

adopts the rules applicable to Government servants to its own employees

would not convert the said Co-operative Society into Government. The

said contention of the petitioner is thus rejected.

11. Similarly, merely because the respondent is performing banking

function would also not make the writ petition maintainable. It is not

shown that the function so performed by the respondent is monopolistic.

According to the document handed over by the petitioner himself there

are as many as 32 Co-operative Societies in Delhi performing the banking

functions. This is besides the other banks operating in Delhi. Thus the

said ground for maintainability of the writ petition is also rejected.

12. It is fair to refer to the judgments cited by the counsel for the

respondent also in this regard. He has relied on:

(i) Co-operative Central Bank Ltd. Vs. Additional

Industrial Tribunal, Andhra Pradesh, Hyderabad AIR

1970 SC 245 laying down that bye-laws of Co-operative

Societies framed in pursuance to provisions of the Co-

operative Societies Act cannot be said to have force of

law.

(ii) Sri Konaseema Co-operative Central Bank Ltd. Vs.

N. Seetharama Raju AIR 1990 AP 171 laying down the

obligations of a Co-operative Society qua its employees

are contractual and which cannot be enforced by way of

writ petition; that mandamus, certiorari and prohibition

are public law remedies and not available to enforce private

law rights.

(iii) Jagjit Singh Sangwan Vs. Union of India 1996 (36)

DRJ (DB) where a Division Bench of this Court also held

that the bye-laws of a Co-operative Society do not have

force of law and are meant for internal management of

the Society and merely because the bye-laws have the

approval of Central Government would not make any

difference and breach of the bye-laws cannot be enforced

in exercise of writ jurisdiction by the High Court.

(iv) The Bihar State Co-operative Bank Ltd. Vs. The

Registrar, Co-operative Societies, Bihar AIR 1975 Patna

187 also laying down that the bye-laws of a Co-operative

Society have no force of law or statute.

(v) Kulchhinder Singh Vs. Hardayal Singh Biar AIR 1976

SC 2216 laying down that the remedy of Article 226 is

not available to enforce a contract.

(vi) The Nayagarh Co-operative Central Bank Ltd. Vs.

Narayan Rath AIR 1977 SC 112 though observing a writ

petition to be not maintainable against Co-operative Society,



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but left the question open.

(vi) P. Bhaskaran Vs. Additional Secretary, Agricultural

(Co-operation) Department, Trivendrum AIR 1988

Kerala 75 where a Full Bench of that High Court also held

that Co-operative Societies are not created by the Co-

operative Societies Act and are not statutory bodies and

where Government has no shares in the Co-operative

Society or deep and pervasive control over its management

and affairs, no writ will lie against such society.

(vii) The Shamrao Vithal Co-operative Bank Ltd. Vs.

Padubidri Pattabhiram Bhat AIR 1993 Bombay 91 where

a Full Bench of that High Court also held the Multi-state

Co-operative Bank registered under the Maharashtra Co-

operative Societies Act, 1960 to be not a State within the

meaning of Article 12 even though governed by the Banking

Regulation Act, 1949 and performing public function and

held writ against it to be not maintainable.

(viii) Mohinder Singh Vs. D.P. Khatri 51 (1993) DLT 592

holding the Co-operative Society to be a private body and

a writ to be not maintainable against it even though

governed by the provisions of the statue.

(ix) Ajmer Singh Vs. The Registrar, Co-operative Societies,

Punjab AIR 1981 Punjab & Haryana 107 where the Full

Bench of that High Court also held a Co-operative Society

to be not amenable to writ jurisdiction.

(x) Banabihari Tripathy Vs. Registrar of Co-operative

Societies AIR 1989 Orissa 31 where the Full Bench of

that High Court also took the same view.

(xi) Babaji Kondaji Garad Vs. Nasik Merchants C-operative

Bank Ltd. AIR 1984 SC 192 laying down that bye-laws

of a Co-operative Society can at best have the status of

Articles of Association of a company governed by the

Companies Act, 1956 and cannot be held to be law or

have the force of law.

13. In view of the aforesaid exhaustive exposition of law and in the

face of lack of any pleadings on behalf of the petitioner to constitute the

respondent as a State, need is not felt to observe anything further. The

writ petition is dismissed as not maintainable. I refrain from imposing

costs on the petitioner.


LPA

S.K. MITRA ....APPELLANT

VERSUS

ASST. GENERAL MANAGER ....RESPONDENT

STATE BANK OF INDIA

(DIPAK MISRA, CJ. & SANJIV KHANNA, J.)

LPA NO. : 378/2011 DATE OF DECISION: 25.04.2011

Constitution of India, 1950—Article 226—Industrial

Disputes Act, 1947—Section 17-B—Application under

Section 17-B of the Act by workman claiming that, he

was not gainfully not employed since 1994—Single

Judge observed that the application was filed in 2006

after 12 years—Workman directed to file his statements

of bank accounts from 1994 till date, Telephone bills,

whether he resided in his own premises or rented

premises and also an affidavit in corporating these

facts—Aggrieved, appellant filed Letter Patent Appeal—

The affidavit in terms of Section 17-B clearing stating

that respondent workman was not gainfully employed

already filed—Such inquiry is not permissible under

Section 17-B—Held—It is the duty of the Court to

arrive at a conclusion with regard to the entitlement

of the benefit under Section 17-B of the Act keeping

in view the decisions in Dena Bank (supra), Viveka

Nand Sethi (supra) K.B. Singh & Ors. (supra), Vinod


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Kumar (supra) and Bhagawan Giri (supra)—The writ

court has to see whether the workman received

adequate remunertaion during such period and

whether the respondent-management has produced

ample material to show that the workman had been

really gainfully employed—Mere survival would not be

enough—It will depend upon the factum of adequacy

of amount received—In the case at hand, the learned

Single Judge has erroneously observed that the

workman had filed an application after 12 years as the

same is not factually correct—It is clear that the

appellant filed the application in quite promptitute—

The information that have been directed by the learned

Single Judge to be given by the workman are in the

realm of roving enquiry putting the entire burden on

the workman—Such a roving enquiry, is unwarranted

and, accordingly, the order impugned set aside.

In view of the allegations and counter allegations made, it is

the duty of the Court to arrive at a conclusion with regard

to the entitlement of the benefit under Section 17-B of the

Act keeping in view the decisions in Dena Bank (supra),

Viveka Nand Sethi (supra), K.B. Singh &Ors. (supra),

Vinod Kumar (supra) and Bhagawan Giri (supra). The writ

court has to see whether the workman received adequate

remuneration during such period and whether the

respondent-management has produced ample material to

show that the workman has been really gainfully employed.

Mere survival would not be enough. It will depend upon the

factum of adequacy of amount received. In the case at

hand, as we perceive, the learned Single Judge has

erroneously observed that the workman had filed an

application after 12 years as the same is not factually

correct. It is clear that the appellant filed the application in

quite promptitude. The informations that have been directed

by the learned Single Judge to be given by the workman are

in the realm of roving enquiry putting the entire burden on

the workman. Such a roving enquiry, in our considered

opinion, is unwarranted and, accordingly, the order impugned

has to be set aside. (Para 10)

Important Issue Involved: Under Section 17-B roving

enquiry can not be put to the workman.

[Vi Ba]

APPEARANCES:

FOR THE APPELLANT : Mr. Piyush Sharma, Advocate.

FOR THE RESPONDENT : Mr. Vipin Pillai, Advocate.

CASES REFERRED TO:

1. Union of India vs. Bhagawan Giri and another, 2008-I-

LLJ-925 (Raj.).

2. Administrator, Kamala Nehru Memorial Hospital vs. Vinod

Kumar, AIR 2006 SC 584.

3. Uttaranchal Forest Development Corpn. and another vs.

K.B. Singh and others, (2005) 11 SCC 449.

4. Viveka Nand Sethi vs. Chairman, J & K Bank Ltd. and

others, (2005) 5 SCC 337.

5. Dena Bank vs. Ghanshyam, (2001) 5 SCC 169.

RESULT: Appeal allowed.

DIPAK MISRA, CJ.

1. The present appeal is directed against the order dated 11.1.2011

passed in CM No.6449/2006 in W.P.(C) No.11776/2005 whereby the

learned Single Judge had passed the following order:

‘‘This is an application under Section 17-B of the Industrial

Disputes Act, 1947 by the workman/ respondent no.1. The

workman is said to be not gainfully employed since 1994 but the

application has been filed in the year 2006 i.e. after 12 years.

The respondent no.1/workman is therefore directed to file his

statements of bank accounts from 1994 till date or in any case,

263 264 S.K. Mitra v. Asst. General Manager State Bank of India (Dipak Misra, CJ.)


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as soon as reasonably possible after 1994 till date to show whether

he was having other sources of income during this period from

1994 till 2006. The workman must also file his Election Identity

Card/Ration Card, telephone numbers, both landline and mobile,

if any, and the payments which have been made with respect to

the telephones during this period of 12 years. The respondent/

workman must also state that the period during where he resided

from 1994 to 2006 i.e. in his own premises or he was living on

rent. If the premises belonged to the workman, the workman

must also state that what is the extent of premises and whether

any part of the premises were in any manner let out/licenced out

for earning any income therefrom. An affidavit incorporating the

aforesaid terms and documents be filed within a period of six

weeks from today.

List this CM for further consideration on 21st April, 2011. ’’

2. It is submitted by Mr.Piyush Sharma, learned counsel for the

appellant, that the writ petition was filed in the year 2005 and thereafter

he immediately filed the application under Section 17-B of the Industrial

Disputes Act, 1947 (for short ‘the Act’) and, therefore, the learned

Single has fallen into grave error by opining that the application has been

filed after 12 years. Learned counsel for the petitioner submitted that in

the scheme of things of Section17-B of the Act such inquiry is not

necessary. It is also contended by him that the affidavit as required in

terms of Section 17-B of the Act was filed clearly stating that the

respondent-workman was not gainfully employed and when there was

only a bald denial, the directions which have been issued by the learned

Single Judge would come in the compartment of making a roving enquiry

which is not permissible in law.

3. Resisting the aforesaid submissions, it is contended by Mr.Rajiv

Kapur that the respondent has been gainfully employed as is understood

within the parameters of Section 17-B of the Act and, therefore, he is

not entitled to the benefit of the said section and by finding out the

veracity of the assertions, the learned Single Judge has appositely issued

the directions in the order impugned.

4. To appreciate the submissions raised at the Bar, we think it

appropriate to refer to certain citations in the field. In Dena Bank v.

Ghanshyam, (2001) 5 SCC 169 while dealing with the basic concept

involved under Section 17-B of the Act their Lordships have opined thus:

‘‘8. Section 17-B provides that where the employer prefers any

proceedings against an award directing reinstatement of any

workman, the employer shall be liable to pay such workman,

during the period of pendency of such proceeding in the High

Court or the Supreme Court, full wages last drawn by him

inclusive of any maintenance allowance admissible to him under

any rule if the workman had not been employed in any

establishment during such period and an affidavit by such

workman had been filed to that effect in such Court. The proviso

says that if the High Court or the Supreme Court is satisfied that

the workman had been employed and had been receiving adequate

remuneration during such period or part thereof, the Court shall

order that no wages shall be payable under that section for such

period or part, as the case may be.

9. The Statement of Objects and Reasons for inserting the said

provision indicates that when Labour Court pass awards of

reinstatement, they are often contested by employers in the

Supreme Court and High Courts. To mitigate the hardship that

would be caused due to delay in implementation of the award,

it was proposed to provide for payment of wages last drawn by

the workman concerned from the date of the award till the

dispute between the parties is finally decided in the High Courts

or the Supreme Court. It follows that in the event of an employer

not reinstating the workman and not seeking any interim relief in

respect of the award directing reinstatement of the workman or

in a case where the Court is not inclined to stay such award in

toto the workman has two options, either to initiate proceeding

to enforce the award or be content with receiving the full wages

last drawn by him without prejudice to the result of the

proceedings preferred by the employer against the award till he

is reinstated or proceedings are terminated in his favour, whichever

is earlier. In Dena Bank’s case (1999) 2 SCC 106 this Court

elucidated the expression “full wages last drawn” as follows:

(SCC p.115, para 21)


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‘‘Parliament thought it proper to limit it to the extent of

the wages which were drawn by the workman when he

was in service and when his services were terminated and

therefore used the words ‘full wages last drawn’.’’

10. It may be noticed that Section 17-B o the Act does not

preclude the High Courts or this Court under Articles 226 and

136 of the Constitution respectively from passing appropriate

interlocutory orders, having regard to the facts and circumstances

of the case, in the interests of justice (Dena Bank case). The

High Court or this Court may, while entertaining the employer’s

challenge to the award, in its discretion, in appropriate cases,

stay the operation of the award in its entirety or in regard to

back wages only or in regard to reinstatement without interfering

with payment of back wages or on payment of wages in future

irrespective of the result of the proceedings before it etc. and/

or impose such conditions as to the payment of the salary as on

the date of the order or a part of the back wages and its withdrawal

by the workman as it may deem fit in the interests of justice.

The Court may, depending on the facts of a case, direct payment

of full wages last drawn under Section 17-B of the Act only by

the employer to the workman. The question whether a workman

is entitled to the full wages last drawn or full salary which he

would be entitled to in the event of reinstatement while the

award is under challenge in the High Courts or this Court depends

upon the terms of the order passed by the court, which has to

be determined on interpretation of the order granting relief.’’

5. In Viveka Nand Sethi v. Chairman, J & K Bank Ltd. and

others, (2005) 5 SCC 337 a two-Judge Bench of the Apex Court has

held that filing of an affidavit in support of the contentions as required

under Section 17-B is imperative.

6. In Uttaranchal Forest Development Corpn. and another v.

K.B. Singh and others, (2005) 11 SCC 449, it has been opined that only

such workmen in whose favour there are awards of reinstatement and

who have filed affidavits of their not being in gainful employment, shall

be entitled to be granted reinstatement or in lieu thereof paid wages last

drawn by them on respective dates on their terminations from services

and their entitlement for such wages would be from the respective dates

by filing affidavits by each of them in this Court in compliance with

Section 17-B of the Act.

7. In Administrator, Kamala Nehru Memorial Hospital v. Vinod

Kumar, AIR 2006 SC 584, the Apex Court has held that:

‘‘8. The High Court’s conclusions about entitlement of respondent

under Section 17-B of the Act is relatable to non-employment

and non-receipt of adequate remuneration of the workman. The

appellant had adduced ample material to show that the respondent

was enrolled as an Advocate in 1983 and was a busy practitioner

with decent professional income. It had even given a list of large

number of cases in which the respondent had appeared. Without

any material to support its conclusions, the High Court observed

that “because of the compulsions of unemployment he has no

option but to continue for a short period as a practising Advocate”

(underlined for emphasis). The conclusions are clearly contrary

to material on record. The respondent was not entitled to any

entitlement under Section 17-B of the Act. However if any amount

has already been paid in the peculiar facts of the case, the

respondent shall not be liable to refund the same.’’

8. In this context, we think it appropriate to refer to a passage from

a Division Bench decision of the High Court of Rajasthan in Union of

India v. Bhagawan Giri and another, 2008-I-LLJ-925 (Raj.) wherein

it has been stated thus:

‘‘3. On a plain reading it is manifest that the scope of inquiry,

if any, under Section 17-B is limited to the question as to whether

the employee has been gainfully employed during the period of

pendency of proceeding in the High Court or the Supreme Court

or not. It is enough, so far as the workman is concerned, that

he files an affidavit that he is not gainfully employed elsewhere.

On such affidavit being filed the onus shifts on the employer to

prove that he is gainfully employed. No person can be asked to

prove the non-existence of a fact. The employee cannot be called

upon to prove that he is not gainfully employed. That is whey

filing of affidavit to that effect is treated as sufficient. No such

stand has been taken on behalf of the appellant that the employee

is gainfully employed elsewhere. The only objection is that he is



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out of employment for about two decades and if he could make

his both ends meet during this period, there is jurisdiction to pass

any order for payment of wages. The submission, as observed

above is in teeth of the specific mandate of Section 17-B which

lays down in clear terms that in the event of the award of

Labour Court etc. directing reinstatement being challenged in the

High Court or the Supreme Court, the employer ‘shall’ be liable

to pay full wages last drawn by him. The fact that the employee

has survived for two decades does not mean that he is disentitled

to seek direction for payment of last wages, for such argument

proceeds on the assumption that if a person has been able to

survive, he is not in need of money in the shape of wages which

he is entitled to. Surely, if he dies in the mean time there may

be no occasion to pass any such order in his favour.’’

9. We have referred to the aforesaid authorities for the purpose of

the legislative intendment inhered under Section 17-B of the Act; the

nature of affidavit to be filed by the workman; the meaning of gainful

employment; adequate remuneration and obligation on the part of the

employer to show that there is adequate remuneration being received by

the workman; the concept of onus and such other aspects. As is manifest,

in the case at hand, the workman has filed the affidavit stating, inter alia,

that he was not gainfully employed since the date of his discharge from

the bank. The bank relied on the report of the investigating agency hired

by it that the respondent was working in the shop of iron and steel as

a computer operator-cum-accountant officer and is earning Rs.6500/-

per month and that he owns a Maruti Car, a scooter and a house. The

appellant has disputed the above finding of the bank.

10. In view of the allegations and counter allegations made, it is the

duty of the Court to arrive at a conclusion with regard to the entitlement

of the benefit under Section 17-B of the Act keeping in view the decisions

in Dena Bank (supra), Viveka Nand Sethi (supra), K.B. Singh &Ors.

(supra), Vinod Kumar (supra) and Bhagawan Giri (supra). The writ

court has to see whether the workman received adequate remuneration

during such period and whether the respondent-management has produced

ample material to show that the workman has been really gainfully

employed. Mere survival would not be enough. It will depend upon the

factum of adequacy of amount received. In the case at hand, as we

perceive, the learned Single Judge has erroneously observed that the

workman had filed an application after 12 years as the same is not

factually correct. It is clear that the appellant filed the application in quite

promptitude. The informations that have been directed by the learned

Single Judge to be given by the workman are in the realm of roving

enquiry putting the entire burden on the workman. Such a roving enquiry,

in our considered opinion, is unwarranted and, accordingly, the order

impugned has to be set aside.

11. Consequently, the appeal is allowed and the order passed by the

learned Single Judge is set aside. The learned Single Judge is requested

to dispose of the application preferred under Section 17-B of the Act on

the basis of observations made hereinabove. There shall be no order as

to costs.


R.S.A.

BABU LAL & ORS. ....APPELLANT

VERSUS

MAHAVIR SINGH @ MAHVIR ....RESPONDENT

PRASHAD & ORS.

(INDERMEET KAUR, J.)

R.S.A. NO. : 164/2007 DATE OF DECISION: 29.04.2011

Code of Civil Procedure, 1908—Suit for declaration &

Permanent Injunction—This appeal has impugned the

judgment and decree dated 05.3.2007 which had

endorsed the finding of the trial judge dated 20.7.2005

whereby the suit filed by the plaintiff seeking a

declaration and permanent injunction to the effect

that the plaintiff is the owner of the property and the


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defendant be restrained from interfering in the

peaceful possession of the plaintiff, had been

dismissed—The plaintiff was in possession of the suit

property—She is a plaintiff had married Nek Ram—Nek

Ram’s whereabouts were not known for last 16 years—

Defendant No.1 came in contact with the plaintiff about

15 years ago—The Plaintiff and the defendant No.1

thereafter got married—Defendant no.1 did not

disclose that he was already married to one Satyawati

and had children from the said marriage—The fact

came to the knowledge of the plaintiff only in the year

1981—Defendant No.1 had played a fraud upon her

with an ulterior motive to grab her property—By way

of present suit plaintiff had sought decree of

declaration that the plaintiff is the owner of the suit

property; permanent injunction had also been sought

restraining the defendant from interfering in her

peaceful possession—Defendant had denied the

version of the plaintiff—It was stated that the plaintiff

was tenant of the defendant no.1—The Court had

disbelieved the version set up by the plaintiff; suit

was dismissed—This was endorsed in the first appeal—

Second appeal filed no perversity has been pointed

out—Except two statements no evidence adduced by

appellant to show that property was purchased benami

from her money by defendant No.1 in the name of

defendant No.2—Appeal dismissed.

The case of the plaintiff is that she was married to defendant

no.1; her contention was that two children namely Suresh

and Meena were born from her wedlock from defendant

no.1; however, in the cross-examination she admitted that

the name of the father of Suresh and Meena as per school

record is Nek Ram (her first husband); she further admitted

that even in the voter list the name of her husband was

mentioned as Nek Ram; even in the complaint filed by her

before the Magistrate she had given her husband’s name as

Nek Ram. The suit property was admittedly allotted in the

name of defendant no.2 whereafter it was transferred to

defendant no.3. Before the first appellate court the purported

installments of Rs. 157.51 that were being paid by the

plaintiff and receipt of the same had been produced which

again evidenced that these payments had been made on

behalf of defendant no.2; admittedly the house tax was also

assessed in the name of the defendant no.3. Testimony of

DW-6 and DW-7 was adverted to who had both deposed to

the fact that the plaintiff was a tenant in the suit premises.

The court had noted that the recitals of the plaintiff in her

pleadings as also the testimony on oath were vague; she

did not have any idea about the total cost of the suit

property; how many installments were paid and in what

manner installments were paid; she was totally ignorant of

all dates; she had failed to prove her submission that it was

out of her funds that defendant no.1 had purchased this

property in the name of defendant no.2. Apart from a bald

statement on which no credence was given there was no

other evidence with the plaintiff. The court had also noted

that a complaint had been made by the plaintiff against

Mahavir Singh which had led to the registration of an FIR

under the provisions of Section 323/342 IPC; in this complaint

also although the plaintiff/complainant had averred that she

had paid a sum of Rs.5000/- to Mahavir Singh (defendant

no.1) yet it was not mentioned that this sum of Rs.5000/-

had been paid for the purchase or allotment of the suit

property. All this was duly considered by the first appeal

court to arrive at the finding that the plaintiff having been

failed to prove her case; it was rightly dismissed by the trial

Judge. The claim of benami nowhere stood proved by the

plaintiff. In no manner can it be said that this finding in the

impugned judgment is perverse. Concurrent findings of fact

can be interfered in a second appeal only if there is a

perversity. No such perversity has been pointed out.

Substantial question of law is answered accordingly in favour

of the respondent and against the appellant. Appeal has no

merit. Dismissed. (Para 9)

271 272Babu Lal v. Mahavir Singh @ Mahvir Prashad (Indermeet Kaur, J.)


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Important Issue Involved: Concurrent findings of fact

can be interfered in a second appeal only if there is a

perversity.

[Ch Sh]

APPEARANCES:

FOR THE APPELLANT : Mr. Rohit Kumar, Advocate.

FOR THE RESPONDENT : Mr. O.P. Malviya & Ms. Gitanjali

Malviya, Advocates.

RESULT: Dismissed.

INDERMEET KAUR, J. (Oral)

1. This appeal has impugned the judgment and decree dated

05.3.2007 which had endorsed the finding of the trial judge dated 20.7.2005

whereby the suit filed by the plaintiff Babu Lal seeking a declaration and

permanent injunction to the effect that the plaintiff is the owner of the

property i.e. DDA Flat No.109, Sunlight Colony (hereinafter referred to

as ‘the suit property’) and the defendant be restrained from interfering

in the peaceful possession of the plaintiff had been dismissed.

2. The case of the plaintiff as is evident is that she is in possession

of the aforenoted suit property; she is an illiterate lady; she was a labour

contractor at Tuglakabad Railway Station. Plaintiff had married Nek Ram;

out of the said wedlock seven children had been born. Nek Ram’s

whereabouts were not known for the last 16 years i.e. since 1967.

Defendant no.1 in contact with the plaintiff about 15 years ago i.e. the

year 1968; he being a railway employee influenced the plaintiff and the

parties thereafter got married. At that time defendant no.1 did not disclose

that he was already a married man; he had been married to one Satyawati

and had children from the said marriage. This fact came to the knowledge

of the plaintiff only in the year 1981. Defendant no.1 had played a fraud

upon her with an ulterior motive to grab her property. Plaintiff had given

her cash and ornaments worth Rs. 15000/- to the defendant no.1. Plaintiff

had paid Rs. 5000/- to defendant no.1 in the year 1971-72 for the

purchase of this property and thereafter and Rs. 9000/- at the time when

possession was given i.e. in the year 1974; she has since then been

residing in that property and paying monthly installments of Rs. 157.55.

Defendant no.1 had played a fraud upon the plaintiff and purchased the

aforenoted plot in the name of Hem Lata i.e. her sister-in-law and later

on it was transferred in the name of Kaliash Chand, his brother-in-law;

defendant no.1 even refused to pay back the sum of Rs.15,000/- to the

plaintiff as also her ornaments. He has also refused to look after the

children which had been born out of their marriage. On 11.7.1983 defendant

called the plaintiff for an amicable settlement; on reaching there she was

beaten by the defendant and his first wife. Under threat and coercion the

defendant no.1 obtained the thumb impression of the plaintiff; pursuant

to which a complaint was lodged with the police. By way of the present

suit plaintiff had sought decree of declaration that the plaintiff is the

owner of the suit property; permanent injunction had also been sought

restraining the defendant from interfering in her peaceful possession.

3. Defendants had denied this version of the plaintiff. It was stated

that the plaintiff was a tenant of defendant no.1; she had paid Rs. 5000/

- towards rent as she was a tenant since 06.3.1967 and the sum had been

paid as rent @ Rs. 300/- per month. Defendant no.1 was collecting rent

on behalf of the defendant no.2; plaintiff was a tenant of the defendant

no.2. Since 1980 she had stopped paying rent. On repeated demands this

false and frivolous suit had been filed against the defendant. It is pointed

out that in all records including the ration card of the plaintiff the name

of Nek Ram has been shown as her husband.

4. From the pleadings of the parties, the following six issues were

framed:

‘‘1. Whether the suit is bad for non joinder and mis joinder of

necessary parties.

2. Whether the plaintiff is tenant in suit property as alleged? If

so whether she is barred from claiming declaration as claimed in

Pre.Objection no.3? OPD

3. Whether plaintiff is owner in possession of suit property since

1974? OPP

4. Whether plaintiff invested money in the property? OPP

5. Whether plaintiff is entitled for relief of declaration and


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permanent injunction? OPP

6. Relief.’’

5. Oral and documentary evidence was led between the parties

which included the statement of the plaintiff who had examined herself

as PW-1; seven witnesses were examined on behalf of the defendant.

The court had disbelieved the version set up by the plaintiff; no details

has been given. She was held not entitled for any relief; suit was dismissed.

This was endorsed in first appeal.

6. This is a second appeal. It has been admitted and on 01.12.2010

the following substantial question of law was formulated:

‘‘Whether the findings in the impugned judgment dated 05.03.2007

are perverse? If so, its effect?’’

7. On behalf of the appellant it has been urged that the impugned

judgment suffers from a perversity as the appellant had clearly set up a

case of a benami transaction; the court had failed to take into account

that the plaintiff had made specific averments to the effect that she had

made a payment of Rs.5000/- in the year 1971-72 to defendant no.1

which he had paid as earnest money for the suit property; another sum

of Rs.9000/- was paid by her to defendant no.1 in 1974 at the time of

allotment of the disputed property. These facts have not been considered

in the correct perspective. It is pointed out that the defendants had failed

to adduce evidence to show as to who had made the payment for

allotment of the suit property; the plot although allotted in the name of

defendant no.2 yet it was out of cash proceeds made by the plaintiff to

defendant no.1. The impugned judgment suffers from a perversity. It is

liable to be set aside.

8. Arguments have been rebutted. It is pointed out that on no

account does the judgment calls for any interference. The impugned

judgment had re-appreciated the oral and documentary evidence and had

endorsed the finding of the trial judge.

9. The case of the plaintiff is that she was married to defendant

no.1; her contention was that two children namely Suresh and Meena

were born from her wedlock from defendant no.1; however, in the

cross-examination she admitted that the name of the father of Suresh and

Meena as per school record is Nek Ram (her first husband); she further

admitted that even in the voter list the name of her husband was mentioned

as Nek Ram; even in the complaint filed by her before the Magistrate she

had given her husband’s name as Nek Ram. The suit property was

admittedly allotted in the name of defendant no.2 whereafter it was

transferred to defendant no.3. Before the first appellate court the purported

installments of Rs. 157.51 that were being paid by the plaintiff and

receipt of the same had been produced which again evidenced that these

payments had been made on behalf of defendant no.2; admittedly the

house tax was also assessed in the name of the defendant no.3. Testimony

of DW-6 and DW-7 was adverted to who had both deposed to the fact

that the plaintiff was a tenant in the suit premises. The court had noted

that the recitals of the plaintiff in her pleadings as also the testimony on

oath were vague; she did not have any idea about the total cost of the

suit property; how many installments were paid and in what manner

installments were paid; she was totally ignorant of all dates; she had

failed to prove her submission that it was out of her funds that defendant

no.1 had purchased this property in the name of defendant no.2. Apart

from a bald statement on which no credence was given there was no

other evidence with the plaintiff. The court had also noted that a complaint

had been made by the plaintiff against Mahavir Singh which had led to

the registration of an FIR under the provisions of Section 323/342 IPC;

in this complaint also although the plaintiff/complainant had averred that

she had paid a sum of Rs.5000/- to Mahavir Singh (defendant no.1) yet

it was not mentioned that this sum of Rs.5000/- had been paid for the

purchase or allotment of the suit property. All this was duly considered

by the first appeal court to arrive at the finding that the plaintiff having

been failed to prove her case; it was rightly dismissed by the trial Judge.

The claim of benami nowhere stood proved by the plaintiff. In no manner

can it be said that this finding in the impugned judgment is perverse.

Concurrent findings of fact can be interfered in a second appeal only if

there is a perversity. No such perversity has been pointed out. Substantial

question of law is answered accordingly in favour of the respondent and

against the appellant. Appeal has no merit. Dismissed.



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LETTERS PATENT APPEAL

R.D. GUPTA & ORS. ....APPELLANTS

VERSUS

D.T.C. & ANR. ....RESPONDENTS


LETTERS PATENT DATE OF DECISION: 09.05.2011

APPEAL NO. : 708/2002

Voluntary Retirement Scheme (VRS)—Entitlement to

benefit of pension scheme—Respondent introduced

VRS before the pension scheme became operational—

Appellants contended that they opted for pension

scheme and therefore be paid pension fact that scheme

became operational later-no effect. Held—In LPA

No.1262/2007 dated 5th October, 2007, Delhi Transport

Corporation vs. Kishan Lal Sehgal and Ors. Held-

entitled to pension-in W.P.(C) No. 14027/2009 [DTC Vs.

Madhu Bhushan Anand, 2010 (172) DLT 668] right to

pension was denied as higher ex-gratia was paid-ratio

cannot be reconciled matter referred to larger bench.

In Madhu Bhushan Anand (supra), the Division Bench did

not examine the effect and ratio of LPA No.1262/2007,

Kishan Lal Sehgal (supra). We feel that there is conflict in

the ratio expressed in Kishan Lal Sehgal (supra) and

Madhu Bhushan Anand (supra). The ratio of the two

decisions cannot be reconciled for difference in facts or on

any other ground. In these circumstances, we feel that

matter should be referred to a larger Bench. The following

question is accordingly referred to a larger Bench:-

‘‘What is the effect of receipt of payment including

higher ex-gratia amount and employer’s share of

provident fund to employees who had applied and

opted for voluntary retirement under the VRS 1993,

though the said employees were entitled to pension

as per officer order No.16 dated 27th November,

1992?’’ (Para 13)

Important Issue Involved: The issue whether employees

opted for VRS and pension scheme were entitled to benefits

under pension scheme cannot be reconciled in view of

conflicting ratio in Delhi Transport Corporation vs. Kishan

Lal Sehgal and Ors and DTC Vs. Madhu Bhushan Anand

and therefore referred to larger bench.

[Sa Gh]

APPEARANCES:

FOR THE APPELLANTS : Mr. Shankar Divate, Advocate.

FOR THE RESPONDENTS : Mrs. Avnish Ahlawat with Mr. Nitesh

Kr. Singh, Advocates.

CASES REFERRED TO:

1. DTC vs. Madhu Bhushan Anand, reported in 2010 (172)

DLT 668

2. Delhi Transport Corporation vs. Kishan Lal Sehgal and

Ors., LPA No.1262/2007.

3. DTC Retired Employees’ Assn. vs. Delhi Transport Corpn.,

(2001) 6 SCC 61.

4. DTC vs. Baijnath Bhargava and others - LPA No. 33/

1998.

RESULT: Referred to larger bench.

SANJIV KHANNA, J.:

1. The present Letters Patent Appeal raises a repugnancy in view

of several decisions of this court in which it appears conflicting views

have been expressed. Fortunately for us the blur and indistinctness has

been cleared by a detailed judgment dated 10th August, 2010 in W.P.(C)

277 278R.D. Gupta & Ors. v. D.T.C. & Anr. (Sanjiv Khanna, J.)

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No. 14027/2009 in DTC Vs. Madhu Bhushan Anand, reported in 2010

(172) DLT 668, wherein several judgments on the subject have been

examined and dealt with but there are some aspects on which we find

that repugnancy still exists. Before we advert to facts of this particular

appeal, background relating to filing of present appeal may be noticed.

2. Delhi Transport Corporation (DTC) employees were governed

by Contributory Provident Fund scheme. The employees had filed a writ

petition before the Supreme Court seeking direction against DTC for

introduction of pension scheme. Pursuant to assurance given by the DTC

before the Supreme Court an Office Order No.16 dated 27th November,

1992 was issued. The said office order reads as under :

‘‘DELHI TRANSPORT CORPORATION

(A Government of India Undertaking)

I.P.Estate, New Delhi

No.Adm-I-S(4)/92 Dated 27.11.92

OFFICE ORDER NO.16

Sub : Introduction of Pension Scheme for the employees of

the DTC as applicable to the Central Govt. Employees.

The introduction of Pension Scheme for the employees of the

DTC has been sanctioned by the Central Government and

conveyed by the M.O.S.T. vide letter No.RT-12019/21/88-TAG

dated 23.11.92 as on the same pattern as for the Central

Government employees subject to the following conditions:

1. The pension scheme would be operated by the LIC on

behalf of DTC.

2. The date of effect of pension scheme would be 3.8.81.

3. All the existing employees including those retired w.e.f.

3.8.81 onwards would have the option to opt for the Pension

Scheme or the Employees Contributory Provident Fund as at

present, within 30 days from the date of issue of this O.O. for

the implementation of the Pension Scheme as approved by the

Government of India.

4. The Pension Scheme would be compulsory for all the new

employees joining DTC w.e.f. 23.11.92 the date of sanction of

the scheme.

5. The Pension Scheme would be operated by the LIC on

behalf of DTC. The employees share in the EPF A/C of the DTC

employees, who opt for pension scheme would be transferred to

the LIC, for operating.

6. The employees who have retired on or after 3rd August,

1981 and the existing employees, who have drawn the employer’s

share, under the E.P.F. Act, partly or wholly shall have to refund

the same with interest in the event of their opting for the Pension

Scheme. The total amount to be refunded by the retired

employees/existing employees would be the amount that would

have accrued, had they not withdrawn the employer’s share.

7. Excess amount of gratuity, if already paid to ex-employees

and which is not admissible under the Pension Scheme, will have

to refunded by them before any benefit under the Scheme, is

granted to them.

8. A due and drawn statement would be prepared in respect

of retired employees opting for Pension Scheme and the amount

to the paid/refunded, would be worked out by the concerned

unit, wherefrom the employee had retired from service.

9. If any of the employee of DTC, who does not exercise any

option within the prescribed period of 30 days or quit service or

dies without exercising an option or whose option is incomplete

or conditional or ambiguous. He shall be deemed to have opted

the Pension Scheme Benefits.

Application forms for exercising option would be available

with the unit officers and all employees including retired employees

wishing to exercise option, should do so with the unit of their

present working/where from they retired, within a period of 30

days from the date of issue of this office order.

The unit officers, after receiving the option from the ex-

employees, will take further necessary action for getting the



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necessary forms completed, which will be supplied to them by

the LIC for pension etc. they will also ensure the recovery of

E.P.F. and the Gratuity from the Ex-employees before forwarding

their applications as mentioned above. The cases of all officers

will be dealt with at Headquarters.

The option received from the existing employees for not opting

Pension may be kept in their personal file and entry made in their

Service Book.

Sd/-

(L.C.Goyal)

DY. CHIEF GENERAL MANAGER (P).”

3. The pension scheme was to be operated by the Life Insurance

Corporation on behalf of DTC. The pension scheme however, could not

be implemented for various reasons with which we are not concerned.

Ultimately, the pension scheme became operational only in 1995.

4. While the issue with regard to pension was pending and was

somewhat inchoate, DTC introduced Voluntary Retirement Scheme (VRS,

for short) on 3rd March, 1993. The relevant covenants of the said

scheme read as under :]

“Sub: Voluntary Retirement of Employees of Delhi Transport

Corporation.

The matter pertaining to the introduction of voluntary Retirement

Scheme for the employees has been under the consideration of

Delhi Transport Corporation. Salient Features of the proposed

voluntary Retirement Scheme are as under:

1. Applicability:

The scheme will be applicable to all regular employees of the

corporation i.e. workers and executives who are appointed against

regular vacancies in the corporation.

2. Eligibility:

An employee must have completed ten years of service in this

corporation or completed 40 years of age to qualify for

consideration under the Scheme. For this purpose, period of

deputation/retention of lien in the parent office in lieu of deputation

prior to absorption in the regular service of the Corporation will

be excluded.

3. Conditions covering voluntary retirement.

(a) Voluntary retirement will be normally allowed only in cases

of incumbents of the posts which have been declared surplus or

redundant. However, voluntary retirement Scheme could also be

allowed in other cases depending on the merits of each case and

in the interest of the corporation.

(b) Voluntary retirement cannot be claimed by any employee

as a matter of right. The corporation will have the right not to

grant Voluntary Retirement for reasons to be recorded in writing.

Under no reasons will the relief under this scheme be allowed

from a date earlier than the date of passing the orders.

(c) An employee in whose case any disciplinary case is pending

will not be considered under this scheme until the disposal of the

same.

4. An employee who had taken voluntary retirement will be

eligible to the following refunds/payments:

(a) Balance in his PF Account as per rules of provident fund

applicable to him.

(b) Encashment of refused leave and accumulated earned leave

as per rules of the corporation applicable to him as if he retires

under the normal rules of retirement.

(c) Gratuity as per payment of gratuity act and gratuity Rules

of the corporation applicable to him.

(d) Three month notice pay as is applicable in the individual

case as per the terms of him/her employment.

(e) An Ex-Gratia payment equivalent to 1-1/2 month’s basic

pay plus DA for such completed year of service limited to one

month pay multiplied by the number of whose month of service

left before normal date of retirement.


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(f) Expenses for travelling for the entitled class for the employee

and his/her family comprising his/her spouse and dependent

members from the place of his/her posting to the place where

he/she intends to settle down in India.

(g) Pensionary benefits as per office order No. 16 dt.27.11.92.

All amounts due to the Corporation will be adjusted against the

payments under (d) & (e) above and the employee concerned

should clear any outstanding dues/advances taken before the

date of effect of voluntary retirement.

Employees working on the post of Conductor in the

Corporation are proposed to be covered under the Voluntary

Retirement Scheme in the first instance. Such Conductors who

are desirous of seeking voluntary retirement in the proposed

Scheme may give their option in the prescribed Performa through

proper channel within 15 days to be concerned Unit Officer who

will forward the same to the Secretary, DTC Board. This issue

with the approval of competent authority.’’

5. Thereafter, DTC introduced two more VRSs in the year 1994

and 1995. In the VRS 1994 it was expressly stipulated as under:

‘‘It is also notified for information of all such employees who

opt for VRS that they would not be entitled to join Pension

Scheme if they are allowed retirement under VRS. Other salient

features of the proposed VRS will remain the same as announced

earlier vide this officer circular dated 03.03.1993.’’

6. The VRS 1995 had a similar clause.

7. It is clear that there is a difference between the VRS 1993 and

those introduced and implemented in 1994 and 1995. In the VRS floated

in the year 1994 and 1995 it was expressly stipulated that the employees

who opt for voluntary retirement would not be entitled to join the pension

scheme. The Supreme Court in DTC Retired Employees’ Assn. Vs.

Delhi Transport Corpn., (2001) 6 SCC 61 in view of express stipulation

in the VRS 1994 and 1995 has held that the employees opting for the

voluntary retirement under the said scheme would not be entitled to

benefit of pension scheme. The ratio of said decision is based and edified

on the specific stipulation in the two schemes.

8. In the present case we are concerned with VRS 1993 and not

VRSs 1994 and 1995. Clause 4(g) of VRS 1993 had stipulated that the

pensionary benefit as per the office order No.16 dated 27th November,

1992 would apply. One of the aspects which arises for consideration is

the effect of the said clause. Literally it means that employees who had

opted for VRS under 1993 Scheme would be entitled to pension benefits.

On the other hand, as noticed above, the pension scheme became

operational only in 1995. However, the appellants herein were offered

retirement with effect from 31st May, 1993, but these did not include

pension benefit as the pension scheme became operational in 1995. They

were paid retirement benefit under the Contributory Provident Fund

Scheme. The retirement benefits included higher amount to gratuity,

payment made ex-gratia and employer’s share of provident fund. Even

after 1995 the appellants were not paid pension.

9. The contention of the appellants is that they have opted for

pension scheme therefore, should be paid pension. This, it is submitted,

is in accord with clause 9 of the order dated 27th November, 1992 and

Clause 4(g) of the VRS 1993. Mere fact that the appellants were paid

retirement benefits as the pension scheme was made operational from

1995 makes no difference. In this connection, the appellants have relied

upon decision of Division Bench in LPA No.1262/2007 dated 5th October,

2007, Delhi Transport Corporation vs. Kishan Lal Sehgal and Ors.,

in which it has been held as under:-

‘‘4. On 3rd March, 1993 the appellant notified a voluntary

retirement scheme and the respondents No. 1 to 3 applied for

under the said scheme. They were relieved from their duties on

31st May, 1993, 30th ..(sic) had already opted for pension scheme,

they were entitled to pension on retirement and not covered by

the Provident Fund Scheme. However as they were not paid

pension, in April, 2005 the respondents filed the aforesaid writ

petitions praying for grant of pension on which the aforesaid

order was passed by the learned single judge.

5. The pension scheme was announced on 27th November,

1992, prior to the retirement of the respondents and they had

opted for it. Though the respondents availed the voluntary



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retirement scheme in 1993 and received the employee’s share of

the provident fund in 1996, but later they approached the appellant

for making pension scheme operational in their favour as they

had opted for the said scheme and they were ready to return the

money received by them along with interest. In the legal notice

dated 15th February, 2005 issued by the respondents to the

Chairman-cum-Managing Director of the appellant it was stated

that the respondents had the apprehension that the appellant may

not have implemented the pension scheme and therefore they had

accepted the money.

6. On going through the records we find that the facts of this

case are identical with the case DTC v. Vir Bhan decided by

this Bench on 24th May, 2007. In the said clause also the employee

had availed of the voluntary retirement scheme and was allowed

to retire on 31st May, 2993. He had also taken the ....(sic). In

the said case we have held that though the employee had no

opted for the pension scheme within the prescribed period of

thirty days, but Clause-9 of the office Order dated 27th November,

1992 was applicable to the employee and the subsequent option

exercised by the employee for getting provident fund and gratuity

instead of pension scheme should not have been accepted by the

DTC. We upheld the order of the learned Single judge in that

case holding that the employee was entitled to pension.

7. we may also refer to the judgment of a Division Bench of

this Court in DTC v. Baijnath Bhargava and others - LPA No.

33/1998 decided on 16th March, 200 wherein on the question of

entitlement to ex gratia amount, the Court recorded the statement

of the counsel for the DTC that DTC had decided to not to

contest the said issue as it had already started paying pension to

all eligible employees having 20 years of service even when they

had not refunded the ex gratia amount taken at the time of the

voluntary retirement scheme. The learned Single judge has also

referred to the same in the impugned judgment in the present

case.

8. In view of the delay by the respondents No. 1 to 3 in

approaching the Court, learned Single judge has directed that

pension sha;; be payable to them w.e.f. 1st April, 2005 only and

the respondents have been directed to also refund the employer’s

share/contribution to CPF received with interest at the rates as

applicable’’

10. The respondent, on the other hand, has relied upon Madhu

Bhushan Anand (supra). In this case it was noticed that some of

employees who had opted for voluntary retirement under VRS 1993 had

written letters that they opt out of the pension scheme and be retained

as members under Contributory Provident Fund Scheme. Referring to

these cases, in Madhu Bhushan Anand (supra) has been held as under:-

‘‘35. The claim of the respondents in category 1 and category

2 may be taken up together for the reason whether they exercised

a positive option to be brought under the pension scheme or

having exercised no option whatsoever and hence as deemed

optees being brought under the pension scheme, their status

would be the same as entitled to be brought under the pension

scheme under the notification dated 27.11.1992. Since all these

respondents applied for being voluntarily retired when the scheme

notified on 3.3.1993 was extended from time to time in the year

1993, they certainly would be entitled to pension for the reason

clause 4(g) of the scheme notified on 3.3.1993 clearly stated that

such persons would be entitled to pensionary benefits. But, there

are certain further facts which need to be noted qua them. The

case of the Corporation is that having opted under the pension

scheme or deemed to have opted under the pension scheme, the

said respondents specifically opted out from the pension scheme

and by the time they retired under the Voluntary Retirement

Scheme, the pension scheme had not been formally brought into

effect (as noted above it was formally brought into effect for the

retirees who retired post 1.11.1995), they filed applications

specifically stating that they intend to opt out of the pension

scheme and be retained as members under the Contributory

Provident Fund Scheme and thus on accepting their offers to be

voluntarily retired the Corporation paid over to them not only

their share in the Contributory Provident Fund Account but even

the management’s share, which they accepted without demur

and hence could not rake up the issue after 12 to 15 years i.e.


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when they filed either writ petitions in this Court which were

transferred to the Central Administrative Tribunal or filed Original

Applications before the Central Administrative Tribunal.

36. Qua these respondents, it may be noted that the respondent

of W.P.(C) No.14027/2009 submitted a letter dated 2.3.1995

specifically stating that he does not want to opt for the pension

scheme and desires his dues to be paid as per his CPF Account.

The respondent of W.P.(C) No.565/2010 likewise submitted a

letter on 12.7.1995. The respondent of W.P.(C) No.598/2010

likewise submitted a letter in the year 1994 and reaffirmed the

said fact in the letter dated 5.11.1998. The respondent of W.P.(C)

No.754/2010 likewise submitted a letter on 20.4.1995. The

respondent of W.P.(C) No.1902/2010 likewise submitted a letter

on 14.7.1995. The 3 respondents of W.P.(C) No.2274/2010

likewise submitted letters on 11.3.1994, 15.3.1994 and 9.6.1995

respectively. The respondent of W.P.(C) No.3919/2010 likewise

submitted a letter on 22.7.1996. The respondent of W.P.(C)


respondent of W.P.(C) No.756/2010 likewise submitted a letter

on 15.3.1994 as claimed by the DTC but denied by said

respondent. We note that DTC has produced said letter and

additionally has relied upon a list prepared on 12.4.1994 where

the name of said respondent is at serial No.113 and notes his

opting out for pension. The respondent of W.P.(C) No.832/2010

likewise submitted a letter on 5.9.1995. The respondent of W.P.(C)


respondent of W.P.(C) No.401/2010 also opted out of the pension

scheme, though the date when he did so is not on record.’’

11. In Madhu Bhushan Anand (supra), the Division Bench also

considered cases of employees who were granted voluntary retirement

under 1993 VRS but were not paid pension benefits and were covered

by clause 9 of the office order No.16 dated 27th November, 1992 or had

opted for pension scheme. However, these persons have not been paid

pensionary benefits but were paid higher ex-gratia and employers share

of provident fund. Right to pension in these cases was denied by the

Division Bench for the following reasons:-

‘‘30. Pertaining to the remaining 18 writ petitions, we may

divide the same into 3 further categories which emerge from the

facts noted by us in para 6 and 8 above. The said 18 writ

petitions are divided: Category 1- Respondents of W.P.(C)

Nos.14027/2009, 401/2010, 565/2010, 598/2010, 754/2010, 1902/

2010, 2274/2010 and 3919/2010 who specifically opted for the

pension schemes when they submitted their offer for being

voluntarily retired as per the terms and conditions notified in the

VRS Scheme notified on 3.3.1993 which was made applicable

by reference to the subsequent schemes notified in the year

1993. Category 2- Respondents of W.P.(C) Nos.423/2010, 756/

2010, 832/2010, 752/2010, 793/2010, 1384/2010, 1386/2010 and

2051/2010 who having not submitted any options have to be

treated as deemed optees for the pension scheme when they

submitted their offer for being voluntarily retired as per the terms

and conditions notified in the VRS Scheme notified on 3.3.1993

which was made applicable by reference to the subsequent

schemes notified in the year 1993. Category 3- Respondents of

W.P.(C) No.4906/2010 and the writ petitioner of W.P.(C)

No.4689/2010 who specifically opted to be retained in the

Contributory Provident Fund Scheme.

31. We take category 3 first. Surprisingly, one claimant being

the respondent of W.P.(C) No.4906/2010 has succeeded before

the Tribunal and the other i.e. the petitioner of W.P.(C) No.4689/

2010 has lost, notwithstanding their cases being identical.’’

12. One of the contentions raised by the employees, who had opted

under VRS 1993, was compulsion and coercion as it was uncertain when

the pension scheme would come into effect. The said contention was

also rejected by the Division Bench in following paragraphs:-

‘‘43. The compulsion alleged by them is the uncertainty of

pension being released. As noted hereinabove the pension scheme

notified on 27.11.1992 could not take off because LIC did not

fund the scheme as envisaged and later on the Central Government

agreed to fund the scheme on 31.10.1995 and indisputably those

who retired after 1.11.1995 were paid pension. Thus, the

compulsion resulting as the consequence of the uncertainty of

pension being released, which may have been uncertain when the



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said respondents opted out to receive pension and reverted to

receive benefit under CPF, came to an end on 1.11.1995. The

silence of these respondents for periods ranging from 12 to 15

years when they took recourse to legal action is clearly indicative

of there being no compulsion. The silence of these respondents

speaks for itself. It is apparent that with the passage of time

these respondents became clever by a dozen and thought why

not take the benefit of a few who likewise went to Court and

obtained relief, by pulling wool over the eyes of the Court by

pleading that their act of subsequently opting out of the pension

scheme was meaningless because the contract stood concluded,

a submission which was accepted by the Courts without

considering the further issue of contract being novated.

44. In our opinion these respondents have no claim whatsoever

to receive pension. They novated the contract by volition when

they subsequently opted out of the pension scheme and DTC

accepted the same and paid to them even the management’s

share in the CPF account. Their claims are hit by delay, laches

and limitation. They are not entitled to plead that right to receive

pension is a continuous cause of action, for the reason, in law

either pension can be received or benefit under the CPF account.

If the management forces down the gullet of an employee payment

under the CPF Scheme and the employee desires pension he has

to approach the Court or the Tribunal within a maximum period

of 3 years being the limitation prescribed to file a suit.

45. That apart, if it was the case of the respondents that they

were compelled to opt out of pension scheme on account of the

uncertainty in the implementation of the pension scheme, they

ought to have sought a declaration that their act of opting out of

the pension scheme be declared null and void, being out of

compulsion and for said prayer they ought to have made the

requisite pleadings entitling them for such a declaration. Needless

to state an act out of compulsion is a voidable act and not a void

act. The respondents have admittedly not done so. It is only in

the rejoinder filed by them to the reply to their respective OA

that a bald plea has been set forth that they acted out of compulsion

when they opted out of the pension scheme.’’

13. In Madhu Bhushan Anand (supra), the Division Bench did not

examine the effect and ratio of LPA No.1262/2007, Kishan Lal Sehgal

(supra). We feel that there is conflict in the ratio expressed in Kishan L

l Sehgal (supra) and Madhu Bhushan Anand (supra). The ratio of the two decision

cannot be reconciled for difference in facts or on any other ground.

In these circumstances, we feel that matter should be referred to a la

ger Bench. The following question is accordingly referred to a larger

Bench:-

‘‘What is the effect of receipt of payment including higher ex-

gratia amount and employer’s share of provident fund to

employees who had applied and opted for voluntary retirement

under the VRS 1993, though the said employees were entitled to

pension as per officer order No.16 dated 27th November, 1992?’’

14. The matter be placed before the Hon’ble the Chief Justice on

the administrative side for directions and constitution of a larger Bench.


W.P. (C)

DEVENDRA KUMAR ....PETITIONER

VERSUS

GOVT. OF NCT OF DELHI AND ORS. ....RESPONDENTS


W.P. (C) NO. : 5198/2010 DATE OF DECISION: 09.05.2011

W.P. (C) NO. : 1985/2011

Bar Council of Delhi Election Rules, 1968 (Rules)—

Rule 31(A)(ii)—Consitutional Validity—Petitioner

secured maximum number of first preference votes

amongst the unsuccessful candidates in the election

to Bar Council of Delhi—A casual vacancy occurred—


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Petitioner’s representation for co-opting him as

member was rejected—Present writ petition was filed

on grounds that Rule 31(A)(ii) was unconstitutional—

No intelligible differentia between two vacancies,

caused when election is set aside and arising out of

death or resignation- co-option procedure to be

followed to fill both kind of vacancy by candidate who

has secured maximum first preference votes amongst

unsuccessful candidate—Respondents contended that

nature of vacancies are different—Method of co-option

is to aviod re-election—Inclusion of next man in

different circumstances does not invite wrath of

equality clause. Held—Rule 31(A)(ii) is constitutionally

valid—Co-option is a permissible method for filling

casual vacancy the Rule confers power on electoral

college and not all voters to co-opt a member—

Conferment of such power is not arbitrary—

Involvement of larger body for co-option is

unacceptable—Only qualification for being co-opted-

enumerated under Rule 7 and 7A of Rules.

In Chambers 21st Century Dictionary, the word has been

defined to mean happening by chance. Thus understood,

there is a rationale which is in the compartment of intelligible

differentia. Thus, it is possible to treat the two vacancies

separately and prescribe different modes for filling of the

vacancies. The first one, as we have stated, arises because

of disqualification of an elected candidate and the second

one, due to resignation, death or retirement of an elected

member but before the term is over. The purpose in both

the Rules 31(A)(i) and (ii) is to avoid a fresh election. In the

first one, a right is conferred on a candidate on the basis of

reasonable criterion which is based on the obtaining of

maximum first preference votes. In the second-one, the right

has been conferred on the elected members of the Council

to fill up the vacancy by co-option. Thus, the distinction is

discernible on the prism of reason and hence, it does not

invite the frown of discrimination as enshrined under the

291 292Devendra Kumar v. Govt. of NCT of Delhi (Dipak Misra, CJ.)

equality clause of Article 14 of the Constitution. (Para 29)

The next plank of submission fundamentally pertains to the

conferment of unfettered and unbridled power on the

members of the Bar Council, the electoral body, to co-opt a

member ignoring the will of the lawyers community at large.

We may state here with profit that though we have

enumerated the submissions in detail, yet the rest of the

submissions will fall under this compartment. It is settled in

law that the right to vote or contest in an election is not a

fundamental right but a statutory right which has to conform

to the organic law and the fountain of all laws, the Constitution

of India. The said rights can be restricted on the constitutional

parameters. (Para 30)

In the case at hand, the Rule provides for co-option. It does

not provide for a fresh election. The core issue would be

whether every member of the lawyer community should be

allowed to vote or the voting should be restricted and

constricted to the elected members. Appositely appreciated,

the Rule has a sacrosanct purpose. As has been indicated

earlier, it avoids need to hold a fresh election as there

should not be another election to fill up casual vacancies,

when the term of the Council has not expired. It is expected

of the said body to co-opt a person through a democratic

process. The Rule instead of full electorate voting again,

confers the power on the electoral college to co-opt a

member. When there is a statutory body and such power is

conferred, it is difficult to hold that unfettered, unbridled and

uncanalized power is conferred on them. The Bar Council is

a body corporate. It functions in a democratic manner. In a

contingency of this nature when the elected body has been

given the power, such conferment of power cannot be said

to be arbitrary. Merely saying that the same may or should

have been conferred on all the voters does not stand to

reason. Hence, we are disposed to think that the submission

in this regard is unacceptable and accordingly, we repel the

same. (Para 31)


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(f) he is in full-time service or is in such part-time

business or other vocation not permitted in the case

of practising advocates by the rules either of the

State Council concerned or of the Council;

(g) he has intimated voluntary suspension of practice

and has not given intimation of resumption of practice.’’

(Para 37)

When co-option takes place, only a person who is eligible

and not disqualified to be a candidate in an election can be

considered for co-option. It is not necessary or stipulated

that he / she should have been an unsuccessful candidate

in the last election. If he is ineligible under Rules 7 and 7A

of the Rules, he cannot be co-opted. The submission of Mr.

Mittal that the next person who has faced the election has

to be considered for co-option, we are disposed to think, is

not in the scheme of things and, hence, we are unable to

accept the same. The other submission that there should

have been wide publicity is only to be noted to be rejected

for the simon pure reason that the concept of co-option, as

understood in law does not require or prescribe any such

requirement. It is the obligation of the electoral college or

the Council to see that they co-opt a member who is eligible

in law to be elected otherwise. Who should be co-opted as

long as he meets the eligibility norm is for the voters to

decide. It is the voters. wisdom that prevails and is accepted.

In the scheme of co-option, there is no question of any kind

of propagation. The law only mandates that the body or

electoral college should either unanimously co-opt a member

or do it by majority of votes that being the warrant of law.

Thus, the submission raised by the learned counsel for the

petitioner is misconceived. (Para 39)

Ex consequenti, we conclude and hold as follows:

(a) Rule 31(A)(ii) is constitutionally valid and neither

hit by Article 14 of the Constitution of India nor does

it run counter to or contravene any of the provisions


In view of our aforesaid analysis, we conclude and hold that

the Rule 31(A)(ii) is constitutionally valid and not hit by any

of the limbs of Article 14 of the Constitution of India.

(Para 32)

In view of the meaning conferred on the word, in the case

of election, by the members of a body corporate, of a

person to fill up a vacancy, the choice is given to the

electoral body to co-opt a member. Rule 7 of the Rules

provides about the candidate who cannot seek election

unless his name is in the electoral roll. It is appropriate to

reproduce Rules 7 and 7A for the sake of completeness:

7. Candidates: No person shall be entitled to seek

election unless his name is in the election roll.

7(A) No advocate shall be entered on the Electoral

Roll if an information obtained by the Bar Council.

(a) he has at any time been removed or suspended

from practice; provided that this disqualification shall

operate only for a period of five years from the date

of removal or the expiry of the period of suspension.

(b) he has been suspended from practice, provided

that this disqualification shall operate only for a period

of five years from the date of the period of suspension;

(c) He is an undischarged insolvent;

(d) he has been found guilty of an election offence in

regard to an election to the State Council by an

Election Tribunal, provided however, that such

disqualification shall not operate beyond the election

next following after such finding has been made;

(e) he is convicted by a competent court for an

offence involving moral turpitude, provided that this

disqualification shall cease to have effect after a

period of two years has elapsed since his release;

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of the Advocates Act, 1961.

(b) The method of co-option is a permissible mode for

filling up the casual vacancy.

(c) The submission that even for the purpose of co-

option there has to be involvement of the larger body

is unacceptable.

(d) The only qualification for a member to be co-opted

is that he should satisfy the criteria enumerated under

Rules 7 and 7A of the Bar Council of Delhi Election

Rules, 1968.

(e) As the respondent no.4, Sh. Aman Sareen, has

secured the majority of votes of the members voting,

there is no illegality in his co-option as that is the

method of co-option which is permissible in law.

(Para 43)

Important Issue Involved: Rule 31(A)(ii) of the Bar Council

of Delhi Election Rules, 1968 (Rules) is constitutionally valid

and neither hit by Article 14 of the Constitution of India nor

does it run counter to or contravene any of the provisions

of the Advocates Act, 1961. The only qualification for a

member to be co-opted is that he should satisfy the criteria

enumerated under Rules 7 and 7A of the Bar Council of

Delhi Election Rules, 1968.

[Sa Gh]

APPEARANCES:

FOR THE PETITIONER : Mr. Sunil Mittal, Advocate.

FOR THE RESPONDENT : Mr. Nazmi Waziri, Advocate for

Respondent No.1 Mr. Sanjeev

Sachdeva with Mr. Sanjeet Ranjan

and Mr. P. Mehta, Advocates for

Respondent No. 2 Mr. Rakesh Tiku,

Sr. Advocate with Mr. Mrityunjay

Kumar, Advocate for Respondent

No.3 Mr. Aman Lekhi, Sr. Advocate

with Mr. Mohit Gupta, Mr. Rupinder

Pal Singh and Mr. M.A. Hashmi,

Advocates for Respondent No.4 with

Respondent No.4 in person Mr. S.P.

Kalra, Sr. Advocate with Mr.

Mahavir Singh, Advocate for

applicant in CM No. 4239/2011.

CASES REFERRED TO:

1. Transport and Dock Workers Union and Others vs. Mumbai

Port Trust and Another, 2011 AIR SCW 220.

2. National Council for Teacher Education and Others vs.

Shri Shyam Shiksha Prashikshan Sansthan and Others,

2011 (2) SCALE 59.

3. Devender Kumar vs. State (NCT) of Delhi W.P.(C)

No.5198/2010.

4. Smt. Sunita Bugga vs. Director of Education and others

WP(C) No.8663/2008.

5. Virendra Singh Choudhary vs. Union of India & ors.,

AIR 2007 Madhya Pradesh 26.

6. State of Haryana vs. State of Punjab & another, (2004)

12 SCC 673.

7. Union of India vs. E.I.D. Parry (India) Ltd., AIR 2000

SC 831.

8. Additional District Magistrate (Rev.), Delhi Administration

vs. Shri Ram, AIR 2000 SC 2143.

9. Priyambada Debi vs. State of Orissa and Another, AIR

1993 ORISSA 99.

10. General Officer Commanding-in-Chief vs. Dr. Subhash

Chandra Yadav, AIR 1988 SC 876.

11. Shankar Birmiwal vs. Union of India, AIR 1982 Raj 187

(FB).

12. Madhya Pradesh Ration Vikreta Sangh Society and Others



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vs. State of Madhya Pradesh and Another, (1981) 4 SCC

535.

13. Revenue Divisional Officer vs. Pushpam & Ors., AIR

1976 Madras 252.

14. State of Gujarat vs. Ambica Mills, AIR 1974 SC 1300.

15. State of Uttar Pradesh vs. Kartaar Singh, AIR 1964 SC

1135.

16. Gopi Chand vs. Delhi Administration, AIR 1959 SC 609.

17. Ram Krishna Dalmia and Ors. vs. Shri Justice S.R.

Tendolkar and Ors., AIR 1958 SC 538.

RESULT: Writ Petition dismissed.

DIPAK MISRA, CJ.

1. In these two writ petitions, the controversy involved being

common although the nature of challenge is from different spectrums,

namely, one involving the interpretation of Rule 31(A) of the Bar Council

of Delhi Election Rules, 1968 (for short ‘the Rules), while the other

challenging the constitutional validity of Rule 31(A)(ii) of the said Rules,

they were heard together and are being disposed of by a singular order.

For the sake of convenience, we shall first advert to the facts in W.P.(C)

No.1985/2011 where the assail is to the constitutional validity of the

Rules and state the facts as they are common to both the cases and

thereafter proceed to dwell upon the challenge to the action on the

foundation of the interpretation placed upon by the learned counsel for

the parties.

2. Presently to the commonality of the factual score and the grounds

of attack in the backdrop of the constitutional validity of the Rule in

question. The petitioner is a practising Advocate enrolled with the Bar

Council of Delhi and had secured maximum number of first preference

votes amongst the unsuccessful candidates in the election that was held

on 1st and 2nd December, 2009 for electing the members of the Bar

Council of Delhi. His name featured at serial no.27 of the final list just

second to the 25th candidate who was declared elected to the Bar Council

of Delhi by the Election Committee.

3. As a casual vacancy occurred, the petitioner submitted a

representation on 11th August, 2010 to the Bar Council of Delhi for co-

opting him as a member. As there was no response, the petitioner knocked

at the doors of this Court. The writ court in W.P.(C) No.5198/2010

[Devender Kumar vs. State (NCT) of Delhi] only directed that the Bar

Council of Delhi should also consider the representation submitted by the

petitioner at the time of co-option.

4. As set forth, the Bar Council of Delhi in its meeting held on

21.1.2011 resolved to co-opt Mr. Aman Sareen, the respondent no.4

herein, as a member of the Delhi Bar Council and the representation of

the petitioner was rejected.

5. It is apt to note here that the petitioner while praying for declaring

the Rule in question to be violative of Article 14 of the Constitution of

India has also prayed for issue of a writ of mandamus commanding the

respondents to co-opt him as a member of the Bar Council of Delhi as

his name featured at serial no.20 in the list of first preference votes and

at serial no.27 in the final list.

6. We have heard Mr. S.P. Kalra, learned senior counsel and Mr.Sunil

Mittal, learned counsel on behalf of the petitioners, Mr. Nazmi Waziri,

learned counsel for the respondent No.1, Mr. Sanjeev Sachdeva, learned

counsel for the respondent no.2, Mr. Rakesh Tiku, learned senior counsel

for the respondent no.3 and Mr. Aman Lekhi, learned senior counsel for

the respondent no.4.

7. Mr. Kalra, learned senior counsel for the petitioner, has raised

the following contentions:

(a) Rule 31(A)(ii) of the Rules runs counter to the provisions

of the Advocates Act, 1961 (for brevity ‘the Act’) and is

in transgression of the spirit of the Act as there is provision

for co-option in the parent statute and hence, it deserves

to be declared as unconstitutional.

(b) The Rule creates an artificial and irrational distinction

between the two categories of vacancies, namely, a

vacancy caused when an election is set aside by the

competent tribunal and a vacancy arising out of the death

or resignation of a member. There is no intelligible

differentia for treating the two classes of vacancies in a


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separate manner and there is no objective to be achieved

by such distinction. Thus, the Rule invites the frown of

Article 14 of the Constitution.

(c) There is no rationale to fill up the vacancy in case there

is a verdict against a candidate who was elected, by a

candidate who has secured the maximum first preference

votes amongst the unsuccessful candidates and not to

follow the same procedure in case of death or retirement

and to fill it up by co-option.

(d) The concept of co-option is contrary to the will of the

electorate inasmuch as a person who falls short of being

elected by few votes is not chosen when the vacancy

arises because of death or resignation but someone is

imposed upon the lawyers. community at large by the

existing members of the Bar Council. The will of the

electorate is the conceptual essentiality in a democratic set

up but when co-option takes place, the said basic facet

gets atrophied which is absolutely illegal.

(e) The objectives sought to be achieved by the Bar Council

of States and Union Territories under the Act are in the

realm of regulation, control and discipline and, therefore,

it is necessary and obligatory to choose an advocate who

has faced the election and not elected because of small

margin so that there would be proper representation but

the said purpose is nullified by taking recourse to co-

option by a group of elected members.

(f) By introducing the concept of co-option, unfettered and

unbridled power has been given to the rest of the members

which not only violates the spirit of the Act but also

contravenes the basic spirit of Article 14 of the Constitution

which shuns any kind of unfettered discretion.

8. The learned counsel appearing for the respondents, combatting

the aforesaid contentions, have canvassed the following proponements:

(a) There is no specific pleading how the Rule violates any of

the provisions enshrined under the Act and in the absence

of pleadings, the said ground does not deserve to be

adverted to and in any case, the Rule in question does not

contravene any of the provisions of the Act.

(b) The contention relating to the artificial classification without

any rationale or intelligible differentia is devoid of any

substance as the nature of vacancies are absolutely

different.

(c) The basic purpose of the Rule is to avoid a re-election

and, therefore, the Rules have been made for co-option

under certain circumstances and inclusion of the next

man in certain other circumstances and, therefore, it does

not invite the wrath of equality clause.

(d) The principle of co-option is an accepted method prevalent

in associations and statutory bodies and when there is a

set of Rules which is in consonance with the Act governing

the field, the contention that the Rule introduces

unreasonableness or arbitrariness does not merit

consideration.

9. Before we proceed to deal with the respective contentions, we

think it apposite to refer to certain authorities with regard to the nature

of pleadings which are necessitous for the purpose of assailing a statutory

provision as constitutionally invalid.

10. A Division Bench of this Court in WP(C) No.8663/2008 [Smt.

Sunita Bugga v. Director of Education and others] decided on

30.7.2010 has held thus:

‘‘10. It is well settled in law that a person who assails the

constitutional validity of an Act or a notification must specifically

set forth the grounds for such challenge. In this context, we

may refer with profit to certain decisions in the field.

11. In State of Uttar Pradesh v. Kartaar Singh, AIR 1964 SC

1135, while dealing with the constitutional validity of Rule 5 of

the Food Adulteration Rules, 1955, their Lordships opined as

follows:-

‘‘(15)....if the rule has to be struck down as imposing

unreasonable or discriminatory standards, it could not be



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done merely on any a priori reasoning but only as a result

of materials placed before the Court by way of scientific

analysis. It is obvious that this can be done only when the

party invoking the protection of Art. 14 makes averments

with details to sustain such a plea and leads evidence to

establish his allegations. That where a party seeks to

impeach the validity of a rule made by a competent authority

on the ground that the rules offend Art. 14 the burden is

on him to plead and prove the infirmity is too well

established to need elaboration.’’

12. In State of Andhra Pradesh and another v. K. Jayaraman

and others, AIR 1975 SC 633, it has been stated thus:-

‘‘3. It is clear that, if there had been an averment, on

behalf of the petitioners, that the rule was invalid for

violating Articles 14 and 16 of the Constitution, relevant

facts showing how it was discriminatory ought to have

been set out.’’

13. In Union of India v. E.I.D. Parry (India) Ltd., AIR 2000

SC 831, a two Judge Bench of the Apex Court has expressed

thus:-

‘‘There was no pleading that the Rule upon which the

reliance was placed by the respondent was ultra vires the

Railways Act, 1890. In the absence of the pleading to that

effect, the trial Court did not frame any issue on that

question. The High Court of its own proceeded to consider

the validity of the Rule and ultimately held that it was not

in consonance with the relevant provisions of the Railways

Act, 1890 and consequently held that it was ultra vires.

This view is contrary to the settled law...’’

14. In State of Haryana v. State of Punjab & another, (2004)

12 SCC 673, a two Judge Bench of the Apex Court has expressed

thus:-

‘‘82.... It is well established that constitutional invalidity

(presumably that is what Punjab means when it uses the

word ‘‘unsustainable’’) of a statutory provision can be

made either on the basis of legislative incompetence or

because the statute is otherwise violative of the provisions

of the Constitution. Neither the reason for the particular

enactment nor the fact that the reason for the legislation

has become redundant, would justify the striking down of

the legislation or for holding that a statute or statutory

provision is ultra vires. Yet these are the grounds pleaded

in sub-paragraphs (i), (iv), (v), (vi) and (vii) to declare

Section 14 invalid. Furthermore, merely saying that a

particular provision is legislatively incompetent [ground

(ii)] or discriminatory [ground (iii)] will not do. At least

prima facie acceptable grounds in support have to be

pleaded to sustain the challenge. In the absence of any

such pleading the challenge to the constitutional validity of

a statute or statutory provision is liable to be rejected in

limine.’’

11. In Virendra Singh Choudhary v. Union of India & ors., AIR

2007 Madhya Pradesh 26, it has been observed that:

‘‘The next spectrum of assail relates to violation of Articles 14,

16, 19 and 21 of the Constitution of India. As far as Articles 16,

19 and 21 are concerned, we are afraid, we may state here that

there is no assertion how the provisions offend those provisions

of the Constitution. It is well settled in law that a person who

assails a provision to be ultra vires must plead the same in proper

perspective.’’

12. We have referred to the said authorities as we find that in this

petition, there is really no pleading as to how the Rule violates the

provisions of the Act or violates Article 14 of the Constitution. In spite

of the absence of pleading, we still intend to advert to the provisions of

the Act and the nature of the Rule in question.

13. The Act was enacted to amend and consolidate the law relating

to legal practitioners and to provide for the constitution of the Bar Councils

in States and an apex body the Bar Council of India. Section 2(d) defines

‘‘Bar Council’’ to mean a Bar Council constituted under the Act. Section

2(e) defines ‘‘Bar Council of India’’ to mean the Bar Council constituted

under Section 4 for the territories to which the Act extends. Section

2(m) defines the ‘‘State Bar Council’’ to mean a Bar Council constituted

under Section 3. Section 3(2) provides who shall constitute the members.

Section 3(2)(b) which deals with election reads as under:


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‘‘2(b) in the case of a State Bar Council with an electorate not

exceeding five thousand, fifteen members, in the case of a State

Bar Council with an electorate exceeding five thousand but not

exceeding ten thousand, twenty members, and in the case of a

State Bar Council with an electorate exceeding ten thousand,

twenty-five members, elected in accordance with the system of

proportional representation by means of the single transferable

vote from amongst advocates on the electoral roll of the State

Bar Council.

Provided that as nearly as possible one-half of such elected

members shall, subject to any rules that may be made by the Bar

Council of India be persons who have for at least ten years been

advocates on a State roll, and in computing the said period of ten

years in relation to such person, there shall be included any

period during which the person has been an advocate enrolled

under the Indian Bar Councils Act, 1926.’’

14. Section 15 of the Act confers on a Bar Council the power to

frame rules to carry out the purposes of Chapter II which deals with Bar

Council. Sections 15(2)(a) and (2)(f) read as follows:

‘‘(2)(a) the election of members of the Bar Council by secret

ballot including the conditions subject to which persons can

exercise the right to vote by postal ballot, the preparation and

revision of electoral rolls and the manner in which the results of

election shall be published;

X X X X

(2)(f) the filling of casual vacancies in the Bar Council’’

15. In this context, we may also reproduce with profit Rule (2)(d)

which is as follows:

‘‘(2)(d) the manner in which and the authority by which doubts

and disputes as to the validity of an election to the Bar Council

or to the office of the Chairman or Vice-Chairman shall be finally

decided.’’

16. On a perusal of the aforesaid provisions, it is quite vivid that

the Bar Councils have been conferred with the power to stipulate /

provide the manner and the authority which will decide the disputes as

to the validity of election to the Bar Council or to the office of the

Chairman or Vice-Chairman and further how to fill up any casual vacancy

in the Bar Council.

17. Presently, we shall proceed to reproduce the Rules that have

been framed by the Bar Council of Delhi. In this regard, Rule 31(A) is

reproduced below:

‘‘31.(A) Filling of last Vacancies.

(i) In case of the verdict of the Tribunal being that a candidate

was not validly elected, the vacancy thus caused shall be filled

in by the candidate who secured the maximum First Preference

Votes amongst the unsuccessful candidates.

(ii) Any vacancy caused in the Council because of the resignation,

death or retirement, in any manner, of a member before his term

of office has come to an end, shall be treated as casual vacancy

and shall be filled in by co-option.

(iii) A member co-opted to fill a casual vacancy shall serve for

the remainder of his predecessor’s term of office.’’

18. If we understand the Rules on the anvil of the conferment of

power by the Act, we do not perceive that there is any kind of

transgression of the Act or attempt to travel beyond the scope of the Act.

It needs no special emphasis to state that if a Rule goes beyond the rule

making power conferred by the statute, the same has to be declared ultra

vires. If a Rule supplants any provision for which power has not been

conferred, it becomes ultra vires. The basic test is to determine and

consider the source of power which is relatable to the rule. Similarly, a

Rule must be in accord with the parent statute, as it cannot travel beyond

it. In this context, we may refer with profit to the decision in General

Officer Commanding-in-Chief v. Dr. Subhash Chandra Yadav, AIR

1988 SC 876 wherein it has been held as follows:-

‘‘....Before a rule can have the effect of a statutory provision,

two conditions must be fulfilled, namely (1) it must conform to

the provisions of the statute under which it is framed; and (2)

it must also come within the scope and purview of the rule



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making power of the authority framing the rule. If either of these

two conditions is not fulfilled, the rule so framed would be

void.’’

19. In Additional District Magistrate (Rev.), Delhi Administration

v. Shri Ram, AIR 2000 SC 2143, it has been ruled that it is a well

recognized principle that conferment of rule making power by an Act

does not enable the rule making authority to make a rule which travels

eyond the scope of the enabling Act or which is inconsistent therew

th or repugnant thereto.

20. In the present case, as we find that the Act confers the power,

it can be stated with certitude that there is no transgression or supplanting

and, hence, the submission raised on that score deserves to be repelled

and we do so.

21. The second limb of submission is that the Rule invites the vice

of discrimination as there is irrational distinction between the two categories

of vacancies and, therefore, it invites the frown of Article 14. It is urged

that there is no intelligible differentia for such classification.

22. It is well settled in law that Article 14 is not averse to classification

but there must be intelligible differentia to show that the classification is

valid. The doctrine of classification is fundamentally based on a

classification with reason and circumstances dealing with one set of

facts and the situation or circumstances relating to different set of facts.

In this context, we may refer to certain authorities how the facet of

classification has been understood by the Apex Court. In Madhya Pradesh

Ration Vikreta Sangh Society and Others versus State of Madhya

Pradesh and Another, (1981) 4 SCC 535, the issue raised before the

Apex Court was whether preference given to cooperative societies under

the Madhya Pradesh Foodstuffs (Civil Supplies Public Distribution) Scheme

1981 replacing the earlier scheme of running such fair price shop was

violative of Article 14 of the Constitution of India. While dealing with the

concept of equality before law, the Apex Court opined thus:

‘‘8. The wider concept of equality before the law and the equal

protection of laws is that there shall be equality among equals.

Even among equals there can be unequal treatment based on an

intelligible differentia having a rational relation to the objects

sought to be achieved. Consumers’ cooperative societies form a

distinct class by themselves. Benefits and concessions granted to

them ultimately benefit persons of small means and promote

social justice in accordance with the directive principles. There

is an intelligible differentia between the retail dealers who are

nothing but traders and consumers’ cooperative societies....”

23. In National Council for Teacher Education and Others versus

Shri Shyam Shiksha Prashikshan Sansthan and Others, 2011 (2)

SCALE 59, the Apex Court has opined thus:

‘‘16. Article 14 forbids class legislation but permits reasonable

classification provided that it is founded on an intelligible differentia

which distinguishes persons or things that are grouped together

from those that are left out of the group and the differentia has

a rational nexus to the object sought to be achieved by the

legislation in question. In re the Special Courts Bill, 1978 (1979)

1 SCC 380, Chandrachud, C.J., speaking for majority of the

Court adverted to large number of judicial precedents involving

interpretation of Article 14 and culled out several propositions

including the following:

‘‘(2) The State, in the exercise of its governmental power,

has of necessity to make laws operating differently on

different groups or classes of persons within its territory

to attain particular ends in giving effect to its policies, and

it must possess for that purpose large powers of

distinguishing and classifying persons or things to be

subjected to such laws.

(3) The constitutional command to the State to afford

equal protection of its laws sets a goal not attainable by

the invention and application of a precise formula.

Therefore, classification need not be constituted by an

exact or scientific exclusion or inclusion of persons or

things. The courts should not insist on delusive exactness

or apply doctrinaire tests for determining the validity of

classification in any given case. Classification is justified

if it is not palpably arbitrary.

(4) The principle underlying the guarantee of Article 14 is


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not that the same rules of law should be applicable to all

persons within the Indian territory or that the same

remedies should be made available to them irrespective of

differences of circumstances. It only means that all persons

similarly circumstanced shall be treated alike both in

privileges conferred and liabilities imposed. Equal laws

would have to be applied to all in the same situation, and

there should be no discrimination between one person and

another if as regards the subject-matter of the legislation

their position is substantially the same.

(5) By the process of classification, the State has the

power of determining who should be regarded as a class

for purposes of legislation and in relation to a law enacted

on a particular subject. This power, no doubt, in some

degree is likely to produce some inequality; but if a law

deals with the liberties of a number of well defined classes,

it is not open to the charge of denial of equal protection

on the ground that it has no application to other persons.

Classification thus means segregation in classes which

have a systematic relation, usually found in common

properties and characteristics. It postulates a rational basis

and does not mean herding together of certain persons

and classes arbitrarily.

(6) The law can make and set apart the classes according

to the needs and exigencies of the society and as suggested

by experience. It can recognize even degree of evil, but

the classification should never be arbitrary, artificial or

evasive.

(7) The classification must not be arbitrary but must be

rational, that is to say, it must not only be based on some

qualities or characteristics which are to be found in all the

persons grouped together and not in others who are left

out but those qualities or characteristics must have a

reasonable relation to the object of the legislation. In order

to pass the test, two conditions must be fulfilled, namely,

(1) that the classification must be founded on an intelligible

differentia which distinguishes those that are grouped

together from others and (2) that that differentia must

have a rational relation to the object sought to be achieved

by the Act.’’

24. In Transport and Dock Workers Union and Others versus

Mumbai Port Trust and Another, 2011 AIR SCW 220, it has been

stated thus:

‘‘21. It has been repeatedly held by this Court that Article 14

does not prohibit reasonable classification for the purpose of

legislation or for the purposes of adoption of a policy of the

legislature or the executive, provided the policy takes care to

reasonably classify persons for achieving the purpose of the

policy and it deals equally with all persons belonging to a well

defined class. It is not open to the charge of denial of equal

protection on the ground that the new policy does not apply to

other persons. In order, however, to pass the test of permissible

classification, as has been laid down by the Supreme Court in

the catena of its decisions, two conditions must be fulfilled; (1)

that the classification must be founded on an intelligible differentia

which distinguishes persons or things that are grouped together

from others left out of the group and (2) that the differentia

must have a rational relation to the object ought to be achieved

by the statute in question, vide Gopi Chand v. Delhi

Administration, AIR 1959 SC 609 (see also Basu’s ‘Shorter

Constitution of India, fourteenth edition 2009 page 81).

22. Thus the classification would not violate the equality provision

contained in Article 14 of the Constitution if it has a rational or

reasonable basis.’’

25. In this context, we may also profitably produce a passage from

Priyambada Debi versus State of Orissa and Another, AIR 1993

ORISSA 99:

‘‘5. ....a classification made by a statute which is under-inclusive,

in the sense that while giving benefit some persons who are

similarly situated are left out, would be tolerated more by the

Courts than one which is over-inclusive (i.e., including not only

those who are similarly situated but others who are not so situated),



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as a legislative authority acting within its field is not bound to

extend its regulation to all cases which it might possibly reach;

and a legislature is free to recognize the degrees of necessities

and it may confine the provision to those classes of cases where

the need seems to be clearest. (See paragraphs 54 and 60 of

State of Gujarat v. Ambica Mills, AIR 1974 SC 1300, and

paragraph 12 of Shankar Birmiwal v. Union of India, AIR

1982 Raj 187 (FB).’’

26. In Ram Krishna Dalmia and Ors. v. Shri Justice S.R.

Tendolkar and Ors., AIR 1958 SC 538, the Apex Court laid down many

a principle pertaining to class legislation and also the presumption of

constitutionality. Looking at the role of a court while dealing with the

presumption of constitutionality, the two principles which are relevant

for the present purpose are reproduced below:

‘‘(e) that in order to sustain the presumption of constitutionality

the Court may take into consideration matters of common

knowledge, matters of common report, the history of times and

may assume every state of facts which can be conceived existing

at the time of legislation; and

(f) that while good faith and knowledge of the existing conditions

on the part of a Legislature are to be resumed, if there is nothing

on the face of the law or the surrounding circumstances brought

to the notice of the Court on which the classification may

reasonably be regarded as based, the presumption of

constitutionality cannot be carried to the extent of always holding

that there must be some undisclosed and unknown reasons for

subjecting certain individuals or corporations to hostile or

discriminating legislation.’’

27. In the case at hand, the submission of the learned counsel for

the petitioner is that though vacancy for a member occurs, yet two

different modes have been provided for filling up the same without any

fathomable and acceptable reason and hence, it is discriminatory. It is

further submitted that the Rule creates a classification in respect of the

vacancies putting them in two compartments though the genus is

‘vacancy’ and there is no justification for such classification. On a first

blush, the aforesaid submission may look quite attractive but on a keener

scrutiny, the same has to pale into insignificance. As far as the first

category of vacancy is concerned, there is a challenge to the election of

an elected candidate before the tribunal and when the tribunal gives a

verdict that the candidate was not validly elected, the said vacancy is to

be filled up by the candidate who secures the maximum first preference

votes amongst the unsuccessful candidates. Thus, the vacancy is caused

only after the election of the elected candidate is declared invalid. The

election of the elected candidate is the subject matter of dispute and his

election is declared as bad / void / illegal. The right to contest an election

in any field is basically a statutory right and is controlled by the statute.

The reason for providing such a provision is that the candidate who has

been declared elected faces a verdict that he was not validly elected and

the vacancy thus caused is of a different nature. True it is, it is a

vacancy, nonetheless, the vacancy has a different character. The elected

candidate is eliminated from the list of elected candidates. Once there is

elimination, the person who secured the maximum first preference votes

amongst the unsuccessful candidates is declared elected. Causation of

such a vacancy is different from the other category of vacancy which

is a casual vacancy occurring because of death, resignation or retirement

of a member.

28. The term ‘casual’ has its own connotation. In Black’s Law

Dictionary, ‘casual’ has been defined thus:

‘‘Occurring without regularity; occasional; impermanent, as

employment for irregular periods.

Happening or coming to pass without design and without being

foreseen or expected; unforeseen; uncertain; unpremeditated.’’

29. In Chambers 21st Century Dictionary, the word has been defined

to mean happening by chance. Thus understood, there is a rationale

which is in the compartment of intelligible differentia. Thus, it is possible

to treat the two vacancies separately and prescribe different modes for

filling of the vacancies. The first one, as we have stated, arises because

of disqualification of an elected candidate and the second one, due to

resignation, death or retirement of an elected member but before the term

is over. The purpose in both the Rules 31(A)(i) and (ii) is to avoid a fresh

election. In the first one, a right is conferred on a candidate on the basis

of reasonable criterion which is based on the obtaining of maximum first


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preference votes. In the second-one, the right has been conferred on the

elected members of the Council to fill up the vacancy by co-option.

Thus, the distinction is discernible on the prism of reason and hence, it

does not invite the frown of discrimination as enshrined under the equality

clause of Article 14 of the Constitution.

30. The next plank of submission fundamentally pertains to the

conferment of unfettered and unbridled power on the members of the

Bar Council, the electoral body, to co-opt a member ignoring the will of

the lawyers community at large. We may state here with profit that

though we have enumerated the submissions in detail, yet the rest of the

submissions will fall under this compartment. It is settled in law that the

right to vote or contest in an election is not a fundamental right but a

statutory right which has to conform to the organic law and the fountain

of all laws, the Constitution of India. The said rights can be restricted

on the constitutional parameters.

31. In the case at hand, the Rule provides for co-option. It does not

provide for a fresh election. The core issue would be whether every

member of the lawyer community should be allowed to vote or the

voting should be restricted and constricted to the elected members.

Appositely appreciated, the Rule has a sacrosanct purpose. As has been

indicated earlier, it avoids need to hold a fresh election as there should

not be another election to fill up casual vacancies, when the term of the

Council has not expired. It is expected of the said body to co-opt a

person through a democratic process. The Rule instead of full electorate

voting again, confers the power on the electoral college to co-opt a

member. When there is a statutory body and such power is conferred,

it is difficult to hold that unfettered, unbridled and uncanalized power is

conferred on them. The Bar Council is a body corporate. It functions in

a democratic manner. In a contingency of this nature when the elected

body has been given the power, such conferment of power cannot be

said to be arbitrary. Merely saying that the same may or should have

been conferred on all the voters does not stand to reason. Hence, we are

disposed to think that the submission in this regard is unacceptable and

accordingly, we repel the same.

32. In view of our aforesaid analysis, we conclude and hold that

the Rule 31(A)(ii) is constitutionally valid and not hit by any of the limbs

of Article 14 of the Constitution of India.

33. Presently, we shall proceed to deal with whether the method

adopted by the members of the Bar Council while exercising the power

of co-option is unjustified and vulnerable. Mr. Mittal, leaned counsel for

the petitioner in W.P.(C) NO.5198/2010, has submitted that even in the

matter of co-option, adequate publicity has to be given so that the members

can submit their applications for co-option. It is his further submission

that the Bar Council did not keep in view the direction given in paragraph

15 of W.P. No.5198/2010 decided on 4.8.2010. The said paragraph

reads as under:

‘‘This court would like the BCD itself, in the first instance, to

consider what should be the norms or rules that are required to

be followed / framed for considering who should be eligible for

being co-opted as a member to fill up a casual vacancy in the

BCD.’’

34. It is also urged by him that only the names of the persons who

had contested the election and faced the electorate at large can be

considered for co-option.

35. In this context, we may first appreciate the term ‘co-opt’

which means to elect an additional member by the votes of the existing

members. Black’s Law Dictionary defines the term ‘co-optation’ as follows:

“a concurring choice; the election, by the members of a close

corporation, of a person to fill a vacancy”

36. In Revenue Divisional Officer v. Pushpam & Ors., AIR

1976 Madras 252, the learned Chief Justice, while considering the co-

option of a woman member to a Panchayat under the provisions of the

Tamil Nadu Panchayats Act (XXXV of 1958), construed the word ‘co-

option’ in the following manner:

‘‘When it speaks of panchayat’s entitlement to co-opt, to our

mind, it at once implies the consensus of the members in their

entirety, or of the majority of those members, which is ascertained

by a process of vote taking. That is what precisely the word

“co-option” means ordinarily. For instance the Concise Oxford

Dictionary says that co-opt means elect in to a body by votes of



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existing members. The word is derived from opt which means

choose and the choice necessarily involves ascertaining the wishes

of each of the members of the panchayat already elected into the

body politic.’’

37. In view of the meaning conferred on the word, in the case of

election, by the members of a body corporate, of a person to fill up a

vacancy, the choice is given to the electoral body to co-opt a member.

Rule 7 of the Rules provides about the candidate who cannot seek

election unless his name is in the electoral roll. It is appropriate to

reproduce Rules 7 and 7A for the sake of completeness:

7. Candidates: No person shall be entitled to seek election unless

his name is in the election roll.

7(A) No advocate shall be entered on the Electoral Roll if an

information obtained by the Bar Council.

(a) he has at any time been removed or suspended from practice;

provided that this disqualification shall operate only for a period

of five years from the date of removal or the expiry of the period

of suspension.

(b) he has been suspended from practice, provided that this

disqualification shall operate only for a period of five years from

the date of the period of suspension;

(c) He is an undischarged insolvent;

(d) he has been found guilty of an election offence in regard to

an election to the State Council by an Election Tribunal, provided

however, that such disqualification shall not operate beyond the

election next following after such finding has been made;

(e) he is convicted by a competent court for an offence involving

moral turpitude, provided that this disqualification shall cease to

have effect after a period of two years has elapsed since his

release;

(f) he is in full-time service or is in such part-time business or

other vocation not permitted in the case of practising advocates

by the rules either of the State Council concerned or of the

Council;

(g) he has intimated voluntary suspension of practice and has

not given intimation of resumption of practice.’’

38. In this context, it may be stated that co-option and nomination

of a member in a democratic set up is not a new phenomenon. Article

171 of the Constitution provides for nomination of members having

special knowledge or practical experience in certain fields such as

literature, science, cooperative movement and social science. Thus, in

the said Article, there is a specific criterion stipulated for nomination. In

the case at hand, as we perceive, the only qualification for nomination

has to be that the person is entitled to be elected as per Rules. No special

or other qualification is necessary.

39. When co-option takes place, only a person who is eligible and

not disqualified to be a candidate in an election can be considered for co-

option. It is not necessary or stipulated that he / she should have been

an unsuccessful candidate in the last election. If he is ineligible under

Rules 7 and 7A of the Rules, he cannot be co-opted. The submission of

Mr. Mittal that the next person who has faced the election has to be

considered for co-option, we are disposed to think, is not in the scheme

of things and, hence, we are unable to accept the same. The other

submission that there should have been wide publicity is only to be noted

to be rejected for the simon pure reason that the concept of co-option,

as understood in law does not require or prescribe any such requirement.

It is the obligation of the electoral college or the Council to see that they

co-opt a member who is eligible in law to be elected otherwise. Who

should be co-opted as long as he meets the eligibility norm is for the

voters to decide. It is the voters. wisdom that prevails and is accepted.

In the scheme of co-option, there is no question of any kind of propagation.

The law only mandates that the body or electoral college should either

unanimously co-opt a member or do it by majority of votes that being

the warrant of law. Thus, the submission raised by the learned counsel

for the petitioner is misconceived.

40. At this juncture, we may note that in the earlier writ petition,

the learned Single Judge had directed the Bar Council of Delhi to consider

the norms or rules that are required to be followed / framed for considering

the eligibility of a person for being co-opted as a member to fill up a

Devendra Kumar v. Govt. of NCT of Delhi (Dipak Misra, CJ.) 313 314

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casual vacancy in the Council. Certain correspondences have been brought

on record to show that suggestions were given by certain members that

the next to the last elected person should be co-opted due to the demise

of late K.K. Sareen, the elected member. A notice was circulated for the

following purposes:

‘‘(i) To consider the procedure to be followed/adopted by Delhi

Bar Council in the matter of co-option to fill up any casual

vacancy;

(ii) To discuss and determine the eligibility criterion for choosing

a person for co-option to fill up any casual vacancy;

(iii) To discuss and consider the representation dated 19.07.2010

of Sh. Devendra Kumar Sharma (Copy enclosed) regarding his

co-option to fill up the casual vacancy occurred due to the said

demise of Sh. K.K. Sareen; and

(iv) To fill the casual vacancy occurred due to the said demise

of Sh.K.K. Sareen.’’

41. The proceeding that took place has been brought on record

which we think apt to reproduce in toto:

‘‘Minutes of the meeting of Bar Council of Delhi held in the

office of the Council at 1-F, Lawyers. Chamber, Delhi High

Court, New Delhi on 21.01.2011.

The present meeting was called to consider the representation

made by Sh.Vijender Singh Mann regarding his request for co-

option, and also for making compliance of the order dated

04.08.2010 and 04.10.2011 of Hon’ble High Court of Delhi, as

passed in the Writ Petition titled Devendra Kumar Vs. the

State, being Writ Petition No.5198/2010.

The aforesaid orders were circulated amongst the Hon’ble

members and they were requested to give their views on the

same. The matter was discussed and debated thoroughly in the

Council’s meeting, and as a result of the said discussion, three

options had emerged.

The first option was to follow the past precedents as regards the

procedure of co-option of a member to fill up the casual vacancy.

It is on record that in the immediate past, the co-option of a

members to the Council was done the basis of the majority

decision of the Council, and as such any advocate who was

otherwise eligible to be elected as a member of Bar Council of

Delhi in terms of the relevant rules, could be co-opted as a

members, provided the majority of the members of the Council

were to vote in his/her favour. This norm was followed in the

past in the case of Sh. Sunil Mittal, Advocate, Sh.Rakesh

Sherawat, Advocate and Sh.R.K. Kochar, Advocate all of whom

were co-opted in the past by adopting the aforesaid norm. Thus,

there are precedents of following the said norm regarding the

co-option of a member to fill up the casual vacancy.

The second option which emerged was having a specific rules

to be made and incorporated in this existing rule providing for a

co-option of the candidate who contested the election and who

was next to the person last elected as a member of the Bar

Council. Earlier a representation was also made in this regard by

Sh. D.K. Sharma, Advocate who was also heard earlier by the

Council.

The third option was to have a specific rule whereby the candidate

who had secured maximum number of first preference voters

next to the least person so elected as a member of the council

in the last election could be co-opted.

The majority of the members consisting of Chairman Rakehs

Tiku, Sh. Nitin Hlawat, Hony. Secretary, Sh. O.P. Faizi, Ms.

Sarla Kaushik, Sh. Ramesh Gupta, Sh. Ved Prakash Sharma, Sh.

Rakesh Kochar, Sh. Vijay Kumar Sondhi, Sh. Puneet Mittal, Sh.

Amit Sharma, Sh. Abhay Kumar Verma and Sh. Rajesh Mishra,

supported the first option i.e. to follow the past precedents and

co-opt an advocate as a member by adopting the norm of co-

option on the basis of recommendations of the majority of the

members of the Council. Thus, majority of the members voted

for the above option. The said course of action would fall within

the scope and ambit of clause 15 of the aforesaid judgment dt.

04.08.2010, wherein the Hon’ble Court had itself directed that



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‘‘BCD itself in the first instance, to consider what should be the

norms or rules that are required to be followed / framed for

considering who should be eligible for being co-opted as a member

to fill up a casual vacancy in the BCD.’’

According, the aforesaid majority of members of the Council

have recommended that the Council should follow the norm of

recommending the name of an eligible advocate to be co-opted

as a member. In this view of the said decision / recommendation

of the majority of the members, the latter who options were not

accepted by the majority of the members of the Council.

Accordingly, the representation of Sh. D.K. Sharma and Sh.

Vijender Mann were turned down.

Besides the aforesaid members, the other members of the Council

who also supported the said option included S/Sh. Surya Prakash

Khatri, K.K. Manan, R.S. Goswami, Rakesh Sherawat, Murari

Tiwari. However, the other members namely Jaibir Singh Nagar,

Vice Chairman, Sh. R.S. Chauhan, Ms. Rana Parween Siddiqui,

Sh. Rajiv Khosla and Sh. Jagdev, were not in agreement with the

following of the aforesaid option.

According the name of Sh.Aman Sareen, Advocate was proposed

by Sh. Puneet Mittal and seconded by Sh. Rajesh Mishra, and

the majority of the members present and voting, approved of the

same.

Considering the recommendation of the majority of the members

as mentioned above, the following resolution was passed:

‘‘Resolved that Mr.Aman Sareen, S/o Late Sh.K.K. Sareen,

Advocate, be and is hereby co-opted as a member of the

Bar Council of Delhi to fill up the casual vacancy which

had arisen on account of untimely demise of the former

Chairman Late Sh. K.K. Sareen, and consequently, his

name be forwarded to the Govt. of NCT of Delhi for

issuing appropriate notification in that regard at the earliest,

and the Hony. Secretary of the Council is requested to

sign and forward necessary documents, letters etc. in that

regard for the concerned authorities.’’

A copy of these minutes may also be filed before the Hon.ble

High Court in the aforesaid pending Writ Petition.

No other agenda was discussed and the meeting ended with a

vote of thanks to the Chair.’’

[Underlining is ours]

42. From the aforesaid factual depiction, it is clear as crystal that

the respondent no.4, Sh. Aman Sareen, was co-opted on the basis of the

majority of votes cast by the members present. Hence, we perceive no

illegality in the method of co-option.

43. Ex consequenti, we conclude and hold as follows:

(a) Rule 31(A)(ii) is constitutionally valid and neither hit by

Article 14 of the Constitution of India nor does it run

counter to or contravene any of the provisions of the

Advocates Act, 1961.

(b) The method of co-option is a permissible mode for filling

up the casual vacancy.

(c) The submission that even for the purpose of co-option

there has to be involvement of the larger body is

unacceptable.

(d) The only qualification for a member to be co-opted is that

he should satisfy the criteria enumerated under Rules 7

and 7A of the Bar Council of Delhi Election Rules, 1968.

(e) As the respondent no.4, Sh. Aman Sareen, has secured

the majority of votes of the members voting, there is no

illegality in his co-option as that is the method of co-

option which is permissible in law.

44. In the result, both the writ petitions, being sans substratum,

stand dismissed without any order as to costs.


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CS (OS)

ARTI JETHANI ....PLAINTIFF

VERSUS

DAEHSAN TRADING (INDIA) ....DEFENDANTS

PVT LTD. & ORS.

(V.K. JAIN, J.)

CS(OS) NO. : 1296/2010 DATE OF DECISION: 16.05.2011

Arbitration and Conciliation Act, 1996—Section 8—

Petition filed by defendant for referring disputes raised

by plaintiff for arbitration after four weeks of filing

Written Statement—Plea taken, defendant had already

pleaded in written statement that there is arbitration

agreement between parties and this Court has no

jurisdiction to adjudicate instant suit—Applicants did

not submit to jurisdiction of Civil Court and application

is maintainable even after filing of written statement—

Held—Defendants have already filed their Written

Statement and have disclosed their entire defence in

main proceedings and not in supplemental

proceedings—Application for referring disputes for

Arbitration would be maintainable if applicant had not

filed his first statement on substance of dispute—But

when Written Statement is filed, it can hardly be

disputed that applicant has submitted not only first

but whole of his statement on dispute between parties.

Mere disclosure of arbitration agreement in Written

Statement and claiming civil Court has no jurisdiction

to try suit would be of no consequence unless Written

Statement itself contains a prayer for referring dispute

for arbitration—Jurisdiction of Civil Court is not ousted

on account of arbitration agreement between parties—

It is ousted because of application filed under Section

8 of Act, provided it otherwise confirms to requirements

laid down in Section.

In my view, if the Court accepts the contention that an

application under Section 8 of the Act can be filed even

after the first statement on substance of the dispute between

the parties has already been filed, this would not only be

contrary to the express provisions of law but, would also

defeat the very purpose behind stipulating that such an

application needs to be filed not later than submitting the

first statement on the substance of the dispute. If such an

application is entertained after filing of the first statement, it

would be possible for a party to the suit to first allow the trial

to proceed by not filing the application by the stage stipulated

in the Act and then come to the Court at a much later stage

when the trial is substantially complete and seek reference

of the dispute to arbitration. It is true that in the case before

this Court the trial has not commenced as yet, but if the

interpretation sought to be given by the learned Counsel for

the applicants/defendants is accepted, it would be open to

a party to the suit to file such an application even after the

trial has commenced. (Para 7)

Important Issue Involved: (A) Mere disclosure of

arbitration agreement in the written statement and claiming

that Civil Court has no jurisdiction to try the suit would be

of no consequence unless the Written Statement itself

contains a prayer for referring the dispute for arbitration.

(B) The jurisdiction of the Civil Court is not ousted on

account of an arbitration agreement between the parties. It

is ousted because of an application filed under Section 8 of

the Act provided it otherwise confirms to the requirements

laid down in the Section.

[Ar Bh]

319 320Arti Jethani v. Daehsan Trading (India) Pvt Ltd. (V.K. Jain, J.)


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APPEARANCES:

FOR THE PLAINTIFF : Mr. Sharad Chandra, Advocate.

FOR THE DEFENDANTS : Mr. Sanjay Kr. Ghosh and Ms. Rupali

S. Ghosh, Advocates.

CASES REFERRED TO:

1. Agri Gold Exims Ltd. vs. Sri Lakshmi Knits & Wovens &

Ors. (2007) 3 SCC 686.

2. Rashtriya Ispat Nigam Ltd. & Anr. vs. Verma Transport

Co. (2006) 7 SCC 275.

3. K.Jayakumaran Nai vs. Vertex Securities Ltd. AIR 2005

Ker. 294.

4. Bengal State Electricity Board and Ors. vs. Shanti

Conductors Private Ltd. AIR 2004 Gau 70.

5. Sukanya Holdings Pvt. Ltd. vs. Jayesh H. Pandya and

Anr. AIR 2003 SC 2252.

6. Hindustan Petroleum Corporation Ltd. vs. Pinkcity Midway

Petroleums (2003) 6 SCC 503.

7. M/s Everest Electric Works vs. M/s Himachal Futuristics

Communications Ltd. IA No. 4438/2003 in CS(OS) No.

2400/2001.

8. Food Corporation of India vs. Yadav Engineer &

Contractor (1982) 2 SC 499.

RESULT: Dismissed.

V.K. JAIN, J.

IA No.4272/2011 (u/S. 8 of Arbitration and Conciliation Act)

1. This is a petition under Section 8 of Arbitration and Conciliation

Act, 1996 (hereinafter referred to as the Act) for referring the disputes

raised by the plaintiff for arbitration, in terms of the arbitration agreement

between the parties.

2. A perusal of the record would show that on suit summons being

served on them, the defendants appeared through counsel on 04th January,

2011 and it was directed that the written statement be filed within the

prescribed period. The matter was adjourned to 02nd May, 2011. The

written statement was filed on 25th January, 2011. Replication to the

written statement was filed on 14th February, 2011. In replication, the

plaintiff relying upon the decision of Supreme Court in Sukanya Holdings

Pvt. Ltd. vs. Jayesh H. Pandya and Anr. AIR 2003 SC 2252, stated

that the defendants having already filed Written Statement and no application

under Section 8 of the Act having been filed, the matter was not required

to be referred to the arbitral tribunal. The application under consideration

came to be filed on 22nd February, 2011.

3. A careful analysis of Section 8 of Arbitration and Conciliation

Act, 1996 would show that the following conditions are required to be

fulfilled before the Court can refer the matter to arbitration;

(a) the dispute between the parties should be subject matter

of an arbitration agreement;

(b) one of the parties to the suit should apply for referring the

parties to arbitration;

(c) the application should be filed on or before submitting

first statement on the substance of the dispute and;

(d) the application should be accompanied by the original

arbitration agreement or its certified copy.

4. In the case before this Court, the application under consideration

having not been filed on or before filing of written statement, but having

been filed about four weeks after the written statement had been filed and

after 8 days of filing of replication, one of the pre-requisite conditions for

referring the parties to arbitration under Section 8 of Arbitration and

Conciliation Act does not stand fulfilled in this case.

5. In Sukanya Holdings (supra), Supreme Court, while interpreting

Section 8 of the Act, inter alia, observed as under:

‘‘Further, the matter is not required to be referred to the arbitral

Tribunal, if-(1) the parties to the arbitration agreement have no

filed any such application for referring the dispute to the arbitrator;

(2) in a pending suit, such application is not filed before submitting

first statement on the substance of the dispute; or (3) such

application is not accompanied by the original arbitration agreement

or duly certified copy thereof.’’

Arti Jethani v. Daehsan Trading (India) Pvt Ltd. (V.K. Jain, J.) 321 322

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It is true that in the above-referred case, the application under

Section 8 of Arbitration and Conciliation Act appears to have been filed

before the written statement was filed and, therefore, the question as to

whether such an application can be filed after the written statement has

already been filed, did not directly come up for consideration in this case,

but, the above-referred observations made by the Court do support the

view that such an application cannot be filed after the first statement on

the substance of the dispute has been filed by the applicant.

6. The contention of the learned counsel for the applicant is that

since the defendant had already pleaded in the written statement that

there is an arbitration agreement between the parties and, therefore, this

Court has no jurisdiction to adjudicate the instant suit, it is evident that

the applicants did not submit to the jurisdiction of the Civil Court and,

therefore, the application is maintainable even after filing of the written

statement.

7. In my view, if the Court accepts the contention that an application

under Section 8 of the Act can be filed even after the first statement on

substance of the dispute between the parties has already been filed, this

would not only be contrary to the express provisions of law but, would

also defeat the very purpose behind stipulating that such an application

needs to be filed not later than submitting the first statement on the

substance of the dispute. If such an application is entertained after filing

of the first statement, it would be possible for a party to the suit to first

allow the trial to proceed by not filing the application by the stage

stipulated in the Act and then come to the Court at a much later stage

when the trial is substantially complete and seek reference of the dispute

to arbitration. It is true that in the case before this Court the trial has not

commenced as yet, but if the interpretation sought to be given by the

learned Counsel for the applicants/defendants is accepted, it would be

open to a party to the suit to file such an application even after the trial

has commenced.

8. The question as to whether a defendant who pleads arbitration

agreement in the Written Statement, but does not file an application under

Section 8 of the Act, on or before filing of the Written Statement has

come up before other High Courts in some cases. In K.Jayakumaran

Nai vs. Vertex Securities Ltd. AIR 2005 Ker. 294, the defendant filed

Written Statement raising a contention that there was an arbitration

agreement between the parties. After framing of issues he filed an

application seeking reference of the dispute for arbitration. The High

Court noted that Section 8 of the Act clearly provides that the application

had to be made not later than submitting the first statement whereas the

application before it had been filed after the issues were framed. The

Court expressly rejected the contention that since the matter had been

raised in the Written Statement that was enough. While doing so the

Court noted that the Written Statement contained no prayer for referring

the matter for arbitration.

In West Bengal State Electricity Board and Ors. Vs. Shanti

Conductors Private Ltd. AIR 2004 Gau 70, the defendants filed Written

Statement indicating that the dispute which had arisen between the parties

and led to institution of the suit, was covered by arbitration clause. After

submitting the Written Statement on 22.9.2000 the defendants filed an

application under Section 8 of the Act on 7.11.2000 seeking reference of

the dispute to the arbitration. The trial Court having rejected the application

the matter was agitated by the defendant before the High Court and it

was contended that in the plaint itself the plaintiff had admitted the

existence of the arbitration clause and the Written Statement also indicated

about its existence and therefore the Court below had taken a misconceived

view of law as to its jurisdiction. Rejecting the contention, the High Court

interalia held as under:

In the case at hand, the application under Section 8 was made

by the defendants after the written statement stood submitted.

Hence, this application was not maintainable. The fact that the

existence of the arbitration clause was admitted in the plaint or

asserted in the written statement is immaterial inasmuch as the

Court, under Section 8, can refer for arbitration a dispute pending

in a civil suit only when the party or parties concerned make

application for getting the dispute referred to arbitration. If despite

existence of arbitration clause, the parties choose to contest the

suit, the powers under Section 8 cannot be invoked.

9. The learned Counsel for the defendants has relied upon the

decision of the Supreme Court in Rashtriya Ispat Nigam Ltd. & Anr.

vs. Verma Transport Co. (2006) 7 SCC 275. In the case before Supreme



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Court, a suit seeking permanent injunction against blacklisting the defendant

or terminating the contract was filed. The trial Court directed the parties

to maintain status quo. The appellants/defendants sought time to file

Written Statement. They also filed a rejoinder to the counter affidavit of

the application for injunction, wherein they took a specific plea that the

subject matter of the suit being covered by arbitration agreement, it was

not maintainable. On 7.6.2002 they filed an application under Section 8

of the Act which was rejected by the trial Court on the ground that the

process of the suit had already begun and the defendants had already

entered into a defence of the suit and had thereby subjected themselves

to the jurisdiction of this Court. A revision application filed by the

defendants having been rejected by the High Court, the matter was taken

to Supreme Court. The Supreme Court noted that under Section 8 of the

Act, the power to refer the dispute for arbitration has to be exercised,

if a party so applies not later than when submitting his first statement on

the substance of the dispute. The Court referred to its decision in Food

Corporation of India v. Yadav Engineer & Contractor (1982) 2 SC

499 where it had opined that interlocutory proceedings are only incidental

proceedings to the main proceedings and therefore any step taken in

interlocutory proceedings does not come within the purview of the main

proceedings. The Court then interalia observed as under:

36. The expression ‘‘first statement on the substance of the

dispute’’ contained in Section 8(1) of the 1996 Act must be

contra distinguished with the expression ‘‘written statement’’. It

employs submission of the party to the jurisdiction of the judicial

authority. What is therefore needed is a finding on the part of the

judicial authority that the party has waived its right to invoke the

arbitration clause. If an application is filed before actually filing

the first statement on the substance of the dispute, in our opinion,

the party cannot be said to have waived its right or acquiesced

itself to the jurisdiction of the court. What is, therefore, material

is as to whether the petitioner has filed his first statement on the

substance of the dispute or not, if not, his application under

Section 8 of the 1996 Act, may not be held wholly unmaintainable.

In paras 38 & 39 of the judgment, the Supreme Court

interalia observed as under:

38. x x x

In view of the changes brought about by the 1996 Act,

we are of the opinion that what is necessary is disclosure

of the entire substance in the main proceeding itself and

not taking part in the supplemental proceeding.

39. By opposing the prayer for interim injunction, the

restriction contained in sub-section (1) of Section 8 was

not attracted. Disclosure of a defence for the purpose of

opposing a prayer for injunction would not necessarily

mean that substance of the dispute has already been

disclosed in the main proceeding. Supplemental and

incidental proceedings are not part of the main proceeding.

They are dealt with separately in the Code of Civil

Procedure itself. Section 94 of the Code of Civil Procedure

deals with supplemental proceedings. Incidental proceedings

are those which arose out of the main proceedings. In

view of the decision of this Court in Food Corporation of

India, the distinction between the main proceeding and

supplemental proceeding must be borne in mind.

In para 42 of the judgment, the Court interalia observed

as under:

42. Waiver of right on the part of a defendant to the lis

must be gathered from the fact situation obtaining in each

case. In the instant case, the court had already passed an

ad interim ex parte injunction. The appellants were bound

to respond to the notice issued by the Court. While doing

so, they raised a specific plea of bar of the suit in view

of the existence of an arbitration agreement. Having regard

to the provisions of the Act, they had thus, shown their

unequivocal intention to question the maintainability of the

suit on the aforementioned ground.

The facts of this case however, are altogether different. In this

case, the defendants have already filed their Written Statement and have

thereby disclosed their entire defence and that has been done in the main

proceedings itself, not in the supplemental proceedings. Of course, the

application under Section 8 of the Act would be maintainable if the

applicant has not filed his first statement on the substance of the dispute,

but when the Written Statement is filed, it can hardly be disputed that the


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applicant has submitted not only the first but whole of his statement on

the dispute between the parties. To hold such an application to be

maintainable, even after filing of the Written Statement would be contrary

to the provisions contained in Section 8 of the Act. Mere disclosure of

arbitration agreement in the Written Statement and claiming that Civil

Court has no jurisdiction to try the suit would be of no consequences

unless the Written Statement itself contains a prayer for referring the

dispute for arbitration. In the case before this Court, though the defendants

claimed that there is arbitration agreement between the parties and Civil

Court has no jurisdiction in the matter, no prayer was made in the

Written Statement to refer the disputes between the parties for arbitration.

10. The learned Counsel for the applicants/defendants has also

referred to Hindustan Petroleum Corporation Ltd. vs. Pinkcity Midway

Petroleums (2003) 6 SCC 503. It appears from para 8 of the judgment

that in this case, the application under Section 8 of the Act along with

a copy of the arbitration agreement, was filed by the appellant/defendant

in reply to the suit summons. There is nothing in the judgment to indicate

that Written Statement had been filed before filing the application under

Section 8 of the Act. Therefore, this judgment is of no help to the

defendants before this Court.

11. No one can dispute that a Civil Court has no jurisdiction to

entertain the suit after application under Section 8 of the Act is filed but

this would be subject to the application otherwise being in conformity

with the requirements of the said Section. The jurisdiction of the Civil

Court is not ousted on account of an arbitration agreement between the

parties. It is ousted because of an application filed under Section 8 of the

Act provided it otherwise confirms to the requirements laid down in the

Section.

12. The learned Counsel for the defendants/applicants also relied

upon Agri Gold Exims Ltd. vs. Sri Lakshmi Knits & Wovens & Ors.

(2007) 3 SCC 686 and decision of this Court in M/s Everest Electric

Works v. M/s Himachal Futuristics Communications Ltd. IA No.

4438/2003 in CS(OS) No. 2400/2001 decided on 11.8.2004. Neither of

these judgments applies to the facts of the case before this Court. In

neither of the cases, the Court was called upon to deal with a situation

where application under Section 8 of the Act is filed after filing of the

Written Statement.

For the reasons given in the preceding paragraphs the application

is hereby dismissed.

CS(OS) No. 1296/2010

The matter be listed before the Joint Registrar on 30th May, 2011

for admission/denial of the documents and before this Court on 16th

November, 2011 for framing of issues.


CRL. A.

AKBARI BEGUM & ORS. ...APPELLANTS

VERSUS

STATE ....RESPONDENT

(BADAR DURREZ AHMED & VEENA BIRBAL, JJ.)

CRL. A. NO. : 371/1997 DATE OF DECISION: 18.05.2011

Indian Penal Code, 1860—Section 302 and 34—

Aggrieved appellants challenged their conviction

under Section 302/34—They urged, prosecution

witnesses i.e. brothers, mother and husband of

deceased turned hostile—Also, dying declaration of

deceased can not be sole basis of conviction as no

fitness certificate given by Doctor either on the dying

declaration or just prior to making dying declaration—

Per contra, prosecution contended appellants being

mother in law, Jethani (wife of husband’s elder

brother), Devrani (wife of husband’s younger brother)

and Nanad (husband’s sister) held guilty for having

burnt deceased alive who received 90% burn injuries—



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Dying declaration of stellar quality and wholly reliable;

therefore it could be made sole basis of conviction

even though some prosecution witnesses turned

hostile—Held:- Endorsement on the dying declaration

“taken in my presence” cannot substitute for a clear

cut certificate of fitness—Moreover, endorsement on

MLC “fit for statement” should bear signatures of the

doctor—Contents of dying declaration do not inspire

much confidence and language in which it was

recorded, was clearly not of deceased but that of a

police officer, so case against appellants not free

from doubt—Appellants acquitted.

Having heard learned counsel for the parties and having

examined the evidence in court in detail, we are clearly of

the view that the case against the appellants is not free from

doubt. The sole basis of conviction by the trial court, in the

present case, is the dying declaration (Ex. PW-8/C). There

are many infirmities which surround this so-called dying

declaration. The first infirmity is that the time of recording of

the dying declaration is not indicated. Secondly, although Dr

R.A. Gautam (PW-7) has made an endorsement on the said

Ex. PW-8/C to the effect - ‘‘taken in my presence’’ —, he has

nowhere stated that the injured Shahjahan was fit for making

a statement. We have already noted the decisions relied

upon by the learned counsel for the appellants that such an

endorsement cannot be a substitute for a clear cut certificate

of fitness. Thirdly, the MLC (Ex. PW-7A) carries a statement

to the effectû‘‘fit for statement’’—but there is no signature

beneath that endorsement nor is there any time or date

given therein. So even if it is taken that some doctor had

written the said words—‘‘fit for statement’’—we cannot

assume as to when the patient Shahjahan was fit for making

a statement. Was it on 31.03.1994 or some other day or

time till her death on 05.04.1994 ? Fourthly, we also find

that both PW-7 Dr R.A. Gautam and PW-8 ASI Jagbir Singh

had stated in court that the condition of the patient Shahjahan

was serious. However, it has not been indicated as to how

serious her condition was. Was it so serious that she could

not have even given her statement? This possibility cannot

be ruled out. We may also point out that from the death

summary, Ex. PW-7D/A, it appears that Shahjahan Begum’s

condition deteriorated in the night intervening 4/5.4.1994.

(Para 12)

There are also contradictions between the testimony of PW-

7 Dr. R.A. Gautam and the facts which emerge from the

other circumstances. For instance, PW-7 Dr R.A. Gautam

stated in his testimony before court that the MLC had been

written in his handwriting, whereas this contradicts his

statement under Section 161 Cr.P.C. where he had stated

that the MLC had been written under his direction by his

junior doctor. The junior doctor has not been produced

before Court by the prosecution. Interestingly, Dr R.A.

Gautam (PW-7) had also testified that no statement of his

was recorded by any police official. However, he was

confronted with the alleged statement under Section 161

Cr.P.C. which had been recorded by PW-8 ASI Jagbir Singh.

Apart from this, Dr R.A. Gutam, who was in the casualty

ward, is stated to have been present when the purported

dying declaration was recorded. But, it is clear from the

death summary (Ex. PW-7/DA) that Shahjahan Begum was

shifted from the Casualty Ward to Ward No.20, which is the

Burns Ward, at 7.53 p.m. and PW-8 ASI Jagbir Singh, in his

testimony before Court, stated that the statement of

Shahjahan was recorded after 8 p.m, may be around 8.05

p.m. or 8.10 p.m. This also casts doubt on the dying

declaration in as much as it is alleged to have been

recorded at a time when Shahjahan Begum had already

been shifted to Ward No.20 and was no longer available in

the Casualty Ward, where Dr R.A. Gautam was stationed!

(Para 13)

Important Issue Involved: Endorsement on the dying

declaration “taken in my presence” cannot substitute for a

clear cut certificate of fitness—Moreover, endorsement on

MLC “fit for statement” should bear signatures of the doctor.

329 330Akbari Begum & Ors. v. State (Badar Durrez Ahmed, J.)

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[Sh Ka]

APPEARANCES:

FOR THE APPELLANTS : Ms. Ritu Gauba.

FOR THE RESPONDENT : Ms. Richa Kapoor.

CASES REFERRED TO:

1. Shaikh Rafiq & Anr. vs. State of Maharashtra: AIR 2008

SC 1362.

2. Meera vs. State of Rajasthan: AIR 2004 Supreme Court

1879.

3. Muneer Khan & Ors. vs. State of M.P.: JT 2002 SC 399.

4. State of Karnataka vs. Aslam @ Aslam Pasha: 2000 Crl.

L.J. 1167.

5. Gulam Hussain and another vs. State of Delhi: AIR 2000

SC 2480.

6. Keshav Ganga Ram Navge and another vs. The State of

Maharashtra: AIR 1971 SC 953.

7. State of Rajasthan vs. Prithvi Raj: 1995 Supp (3) SCC

410.

8. Khurshaid Hussain Salihon Shah and Others vs. Emperor:

AIR 1941 Lahore 368 (DB).


BADAR DURREZ AHMED (ORAL)

1. This appeal is directed against the judgment and / or order dated

06.09.1997 passed by the learned Additional Sessions Judge, Shahdara,

Delhi, in Sessions Case No. 59/96 arising out of FIR No.162/94, registered

under section 302/34 IPC, P.S. Seelampur whereby the appellants have

been held to be guilty of the offence punishable under Section 302/34

IPC. The appellants are also aggrieved by the order on point of sentence

dated 9.9.1997 whereby each of the appellants have been sentenced to

life imprisonment and also to pay a fine of Rs. 5000/- each and, in default

whereof, to undergo RI for a further period of three months each in

respect of the said offence punishable under section 302/34 IPC.

2. The Charge against the appellants, namely, Akbari Begum, Salma

Begum, Shahida Begum and Rabia @ Indra was that on 31.3.94 at 6.30

pm at H. No. 905, G. No. 30/6 Indira Chowk, Jafrabad within the

jurisdiction of P.S. Seelampur, in furtherance of their common intention,

they committed the murder of Shahjahan, w/o Sabu and thus caused her

death and thereby committed an offence punishable u/s 302/34 IPC. The

appellants pleaded not guilty. Consequently, the trial took place which

culminated into the impugned judgment and order on sentence.

3. Akbari Begum is the mother-in-law of the deceased Shahjahan,

w/o Sabu. Salma Begum is the jethani (wife of the husband’s elder

brother) whereas Shahida Begum is the devrani (wife of the husband’s

younger brother) and Rabia @ Indra is the nanad (husband’s sister). It

may be pointed out that Rabia @ Indira was already married at the time

of the incident and was living separately and was in the family way.

4. At the time of the alleged incident i.e. on 31.3.1994, the deceased

Shahjahan had been married for over 15 years with Sabu @ Shahabuddin

and was residing peacefully in her matrimonial house with her husband

and in-laws. Shahjahan was taken to the G.T.B. hospital, Shahdara by the

appellant Akbari Begum (her mother-in-law) at about 7.30 p.m. on

31.3.1994 after she had received severe burn injuries. As per the MLC,

Ex. PW-7A, she had received about 90% burns. Though, initially the

MLC indicated 99% but, the same was subsequently over-written to read

as 90% burns. The burns were stated to be all over her body except her

head. She was stated to be conscious and oriented. The MLC also

indicated that there was an alleged history of burns by in-laws.

5. The prosecution case is that the appellants are responsible for

having burnt Shahjahan by pouring kerosene oil over her and then lighting

her by a burning match stick. The prosecution case essentially rests upon

an alleged dying declaration, Ex. PW-8C which was allegedly recorded

by ASI Jagbir Singh (PW-8) in the hospital in the presence of Dr R.A.

Gautam (PW-7), who was the Chief Medical Officer. The prosecution

sought to place reliance upon PW-3, Chamman (Shahjahan’s brother);

PW-4 Mohd. Iqbal (another brother of Shahjahan); PW-5 Noorjahan

(mother of Shahjahan); PW-6 Sabu (Shahjahan’s husband); PW-7 Dr.

R.A. Gautam; PW-8 ASI Jagbir Singh, who was the investigating officer

till the death of Shahjahan; PW-11 Constable Ravinder Singh, who was

the photographer; PW-12 Dr. A.K. Tyagi, who conducted the postmortem



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examination; and PW-14 Constable Narender who accompanied PW-8

ASI Jagbir Singh to the hospital. Reliance was also placed by the

prosecution on the PW-2, Constable Om Prakash, who accompanied

PW-8 ASI Jagbir Singh, to the scene of the crime on receipt of DD No.9

(Ex. PW-8A) at P.S. Jafarabad at 5.45 pm, to the effect that one woman

had put herself on fire (ek aurat ne aag laga lee hai). The return entry

was DD-10, Ex. PW-8/B, which was recorded by Constable Vijender

Singh wherein it was noted that the injured had been admitted in hospital

by the mother-in-law of the injured.

The English translation of the alleged dying declaration, Ex. PW-

8C, reads as under:-

‘‘Smt. Shahjahan, w/o Sabu, aged 30 years resident of House

No. 905, Gali No. 30/6, Indira Chowk, Jaffarabad, Delhi made

the following statement:-

I reside at the aforesaid address along with my family. Today

in the evening at about 6.30 p.m., I was cleaning rice while

sitting in my house when the son of my sister in-law (nand)

pushed my son Javed into a drain regarding which I complained

to my mother in-law Smt. Akbari that Phaddi, the son of my

sister in-law (nand) pushed my son Javed into a drain whereupon

my mother in-law instead, scolded me and on that the quarrel

escalated. Thereupon my mother in-law Akbari, Jethani Salma,

dewrani Shahida, sister in-law (nand) Rabia alias Indira jointly

poured kerosene oil on me from behind and my mother in-law

Akbari lit me with a match-stick as a result my entire body

sustained burns. Appropriate action may please be taken against

them.

I have heard the statement and the same is correct.

Thumb

Impression

L.T.I. Shahjahan

Attested

Sd/- Jagbir Singh

(In English)

Assistant Sub-Inspector

31/3/94

Taken in my presence.

Sd/- 31.3.1994

(Doctor R.K. GAUTAM)”

The alleged dying declaration had been recorded in Hindi. Therefore, it

would be instructive to examine its transliteration, which reads as under:-

“Byan Ajaane Shahjahan, w/o Shabu, r/o Gali No. 30/6, House

No. 905, Indira Chowk , Jaffarbad, Delhi Ba Umar 30 saal

Byan Kiya ki mein pata uprokt par seh parivar ke rehti hoon. Aaj

waqt qarib 6/30 baje sham ko apne ghar mei baithe chawal been

rahi thi toh mera ladka javed ko meri nanad ke ladke ne naley mei

dal diya tha jo mainey apne saas akbari se kaha ki mere ladke

javed ko nanad ke ladke faddi ne nalhey main dhakel diya hai jo

mere saas ne mujhe hee ulta dhamka diya aur isi baat par baat

bar gayi toh pechay se meri saas akbari jethani salma devrani

sahahida nanad rabia urf indira ne milkar mere upar mitti ka tail

dal diya aur mere saas akbari ne mujhe machis ki tilli se aag laya

di jis se mera sara shareer jal gaya inkey kilaf uchit karyawahee

ki jayey. Byan sun lia theek hai”

6. The learned counsel for the appellants submitted that in so far

as PWs 3, 4, 5, 6, who are the brothers, mother and husband respectively

of the deceased Shahjahan, are concerned, they have not at all supported

the case of the prosecution. On the contrary, the prosecution has treated

them as hostile and they were cross-examined by the learned Additional

Public Prosecutor. She further submitted that in view of this fact, the

entire case rests upon the so called dying declaration and the testimony

of PW-7 Dr. R.A. Gautam and PW-8 ASI Jagbir Singh. She submitted

that the dying declaration cannot be made the sole basis of the conviction

in as much as there is no fitness certificate given by the Doctor either

on the dying declaration or just prior to the dying declaration. She also

submitted that the language of the dying declaration itself indicates that

they were not the exact words spoken by the deceased Shahjahan but

closely resembled the language of a police officer. It was, therefore, her

case that the dying declaration was not of a stellar quality and cannot be

made the sole basis of the conviction. She contended that courts have

always doubted purported dying declarations recorded by police officers


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and, that too, by an investigating officer, who is interested in seeing that

his case results in a conviction. For this purpose, she has placed reliance

on Gulam Hussain and another v. State of Delhi: AIR 2000 SC 2480.

She also submitted that the fact that the deceased Shahjahan was taken

to hospital by the appellant Akbari Begum (mother-in-law of Shahjahan)

is also a circumstance which is consistent with her innocence. For this

proposition, she placed reliance on the following decisions:-

1. Meera v. State of Rajasthan: AIR 2004 Supreme Court

1879

2. State of Rajasthan v. Prithvi Raj: 1995 Supp (3) SCC

410

7. In support of the plea that the absence of a certificate of fitness

rendered the so-called dying declaration unsafe to base a conviction

upon, the learned counsel for the appellant placed reliance on Shaikh

Rafiq & Anr v. State of Maharashtra: AIR 2008 SC 1362, where,

though there was a certificate, as no time was mentioned the court took

the view that the dying declaration could not be relied upon, particularly

also, because the Executive Magistrate had not been called. She further

submitted that in the present case, the injured Shahjahan Begum had

arrived at hospital at 7.30 p.m. on 31.3.1994 and had remained alive in

the hospital till 12.30 a.m on 5.4.1994. Therefore according to her there

was ample time and opportunity for the police to have informed the

Magistrate and to have taken him to the hospital to record the statement

of the injured. The fact that no such attempt was made is also indicative

of the doubtful nature of the dying declaration. She also submitted with

reference to Khurshaid Hussain Salihon Shah and Others v. Emperor:

AIR 1941 Lahore 368 (DB) and Muneer Khan & Ors. v. State of

M.P.: JT 2002 SC 399, that roping in of the all family members in the

dying declaration also causes a dent into the veracity of the contents of

the alleged dying declaration.

8. Coming back to the present case, the learned counsel for the

appellant submitted that although PW-7 Dr. R.A. Gautam had written on

the alleged dying declaration that the same was - ‘‘taken in my presence’’,

this cannot be regarded as a substitute for a certificate of fitness which

is essential to lend credence to the dying declaration. For this purpose

she placed reliance on the decision in State of Karnataka v. Aslam @

Aslam Pasha: 2000 Crl. L.J. 1167. The learned counsel for the appellant

also submitted that the alleged dying declaration cannot be relied upon

because of another reason that although the injured remained alive for

five days after she was brought to the hospital, the services of the

Magistrate were not requisitioned by the police for recording the statement

of the injured. For this purpose she relied upon Keshav Ganga Ram

Navge and another v. The State of Maharashtra: AIR 1971 SC 953.

9. The learned counsel for the appellants also drew our attention to

the postmortem report is Ex. PW-12/A, where the opinion has been given

by the Doctor that the burns were ante mortem and were caused by

‘‘flame’’. She, therefore, submitted that the opinion of the postmortem

doctor is consistent with the theory of an accident which has been

propounded by the defence

10. Ms Richa Kapoor, the learned counsel for the State, on the

other hand submitted that the dying declaration which has been recorded

by the police officer in the presence of the Doctor can certainly be made

the sole basis of the conviction. She also submitted that Section 32 of

the Indian Evidence Act 1872 does not state that a dying declaration must

be recorded by a Magistrate and the fact that the Magistrate was not

called for recording the statement of the injured, would not enable us to

throw away a dying declaration which is otherwise trustworthy and

reliable. She also submitted that as per the Forensic Science Laboratory

Report, the presence of kerosene oil was detected on the clothes which

would indicate that Shahjahan Begum’s clothes were doused in kerosene

oil. This would be consistent with the dying declaration and would be

totally contrary to the theory of accident propounded by the defence. She

also submitted that as per the photographs Ex. PW -11/5,11/6,11/7, the

stove shown therein does not reveal any darkening and this clearly

demonstrates that it is not the stove which caught fire and that the burns

were not accidental, but that the deceased Shahjahan Begum suffered the

burn injuries as indicated in the dying declaration. The learned counsel

for the State also submitted that as the defence has not even suggested

it to be a case of suicide, therefore since, according to her, it was not

a case of accidental fire, the only other possibility was homicide. She

also submitted that the PW-8 ASI Jagbir Singh has clarified why the

Magistrate was not called by indicating in his testimony before court that

the condition of the injured Shahjahan was very serious and therefore

there was great urgency in recording her statement.



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11. For all these reasons, the learned counsel for the State submitted

that the dying declaration (Ex.PW-8/C) was of a stellar quality and was

wholly reliable and, therefore, could be made the sole basis of the

conviction de hors the fact that PWs 3, 4, 5 and 6 had turned hostile

before court.

12. Having heard learned counsel for the parties and having examined

the evidence in court in detail, we are clearly of the view that the case

against the appellants is not free from doubt. The sole basis of conviction

by the trial court, in the present case, is the dying declaration (Ex. PW-

8/C). There are many infirmities which surround this so-called dying

declaration. The first infirmity is that the time of recording of the dying

declaration is not indicated. Secondly, although Dr R.A. Gautam (PW-7)

has made an endorsement on the said Ex. PW-8/C to the effect - ‘‘taken

in my presence’’ — he has nowhere stated that the injured Shahjahan

was fit for making a statement. We have already noted the decisions

relied upon by the learned counsel for the appellants that such an

endorsement cannot be a substitute for a clear cut certificate of fitness.

Thirdly, the MLC (Ex. PW-7A) carries a statement to the effectû‘‘fit for

statement’’—but there is no signature beneath that endorsement nor is

there any time or date given therein. So even if it is taken that some

doctor had written the said words - ‘‘fit for statement’’—we cannot

assume as to when the patient Shahjahan was fit for making a statement.

Was it on 31.03.1994 or some other day or time till her death on 05.04.1994

? Fourthly, we also find that both PW-7 Dr R.A. Gautam and PW-8 ASI

Jagbir Singh had stated in court that the condition of the patient Shahjahan

was serious. However, it has not been indicated as to how serious her

condition was. Was it so serious that she could not have even given her

statement? This possibility cannot be ruled out. We may also point out

that from the death summary, Ex. PW-7D/A, it appears that Shahjahan

Begum’s condition deteriorated in the night intervening 4/5.4.1994.

13. There are also contradictions between the testimony of PW-7

Dr. R.A. Gautam and the facts which emerge from the other

circumstances. For instance, PW-7 Dr R.A. Gautam stated in his testimony

before court that the MLC had been written in his handwriting, whereas

this contradicts his statement under Section 161 Cr.P.C. where he had

stated that the MLC had been written under his direction by his junior

doctor. The junior doctor has not been produced before Court by the

prosecution. Interestingly, Dr R.A. Gautam (PW-7) had also testified that

no statement of his was recorded by any police official. However, he

was confronted with the alleged statement under Section 161 Cr.P.C.

which had been recorded by PW-8 ASI Jagbir Singh. Apart from this,

Dr R.A. Gutam, who was in the casualty ward, is stated to have been

present when the purported dying declaration was recorded. But, it is

clear from the death summary (Ex. PW-7/DA) that Shahjahan Begum

was shifted from the Casualty Ward to Ward No.20, which is the Burns

Ward, at 7.53 p.m. and PW-8 ASI Jagbir Singh, in his testimony before

Court, stated that the statement of Shahjahan was recorded after 8 p.m,

may be around 8.05 p.m. or 8.10 p.m. This also casts doubt on the dying

declaration in as much as it is alleged to have been recorded at a time

when Shahjahan Begum had already been shifted to Ward No.20 and was

no longer available in the Casualty Ward, where Dr R.A. Gautam was

stationed!

14. We may also point out that PW-8 ASI Jagbir Singh, in his

testimony has stated that the left thumb impression of Shahjanah was

taken on the dying declaration, Ex. PW-8/C, in as much as her right

thumb had been burnt but, PW-7 Dr R.A. Gautam, has stated that it was

the right thumb impression of the Shahjahan which was taken on Ex.

PW- 8/C. We also note that, PW-8 ASI Jagbir Singh, however,

contradicted himself by stating, in his cross examination, which had been

conducted after a break of some time, that the right thumb of the

deceased had not been burnt.

15. There are other contradictions and inconsistencies in the testimony

of PW-8 AIS Jagbir Singh, in as much as he has stated that there was

no stove present in the room where the deceased Shahjahan is stated to

have got the burn injuries whereas the evidence of the photographer and

photos themselves clearly show that the stove was lying in the room.

PW-2 Constable Om Prakash, also gave the description of the scene in

which he has included the presence of the stove. PW-8 ASI Jagbir Singh

also stated that there was no crowd outside and inside the place of

occurrence. PW-14 Constable Narender, stated to the contrary. In fact,

PW-14 Constable Narender has clearly stated that about 100 to 150

persons were present.

16. Apart from the fact that the dying declaration, Ex- PW-8/C,


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does not inspire much confidence, there is also the important circumstance

that none of the family members of the deceased Shahjahan has supported

the case of the prosecution. PW-3 Chamman, who is the brother of the

deceased stated that he had not seen his sister alive after she had received

the burn injuries. PW-4 Mohd. Iqbal (another brother of the deceased),

stated that he had asked his sister as to what happened. She had simply

said it happened all of a sudden. PW-5 Noorjahan, who is the mother of

the deceased, stated that her daughter did not tell her anything regarding

the involvement of the appellants present in the court. She stated that her

daughter had become unconscious. On the other hand, PW-6 Sabu, who

is the husband of the deceased Shahjahan, stated that she had told him

that she caught fire on account of the stove while she was preparing

some food items.

17. Even the contents of dying declaration do not inspire much

confidence in as much as according to the said Ex. PW-8/C the incident

took place because Shahjahan’s son had been pushed by her sister-in-law

Rabia’s son and that she had accordingly complained to the mother-in-

law Akbari Begum who instead of controlling the situation scolded her

and therefore a quarrel ensued. Thereafter, all the appellants poured

kerosene oil upon her from behind. Akbari Begum lit the match stick.

The incident of one small child being pushed by another small child

escalating into such a serious event also does not seem to be probable.

In the same light, we may also notice the fact that Ex. PW-8/C ropes

in all the female members of the house, which are the four appellants

before us. We may also point out that the language in which dying

declaration is recorded is clearly not that of Shahjahan but is that of a

police officer.

18. For all these reasons, we cannot place reliance on Ex. PW-8/

C which is the main piece of evidence sought to be relied upon by the

prosecution. The conviction of the appellants in the absence of the PW-

8/C cannot be sustained. Consequently, the impugned judgment and order

on sentence are set aside. The appellants are on bail, therefore, their bail

bonds are cancelled and the sureties stand discharged.

The appeal is allowed.


CRL. A.

STATE GNCT OF DELHI ....APPELLANT

VERSUS

MUKESH ....RESPONDENT

(S. RAVINDRA BHAT & G.P. MITTAL, JJ.)

CRL. A. NO. : 21/2011 DATE OF DECISION: 20.05.2011

Indian Penal Code, 1860—Section 363, 376, 511, Criminal

Procedure Code, 1973—Sections 235, 245, 325, 360,

361, 377—Aggrieved by judgment and order on

sentence, State preferred appeal on ground, sentence

of two and a half years imprisonment for conviction


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

Akbari Begum & Ors. v. State (Badar Durrez Ahmed, J.) 339 340


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community need, if any, for such a deterrent in respect

to particular type of offence—No reason found to

disturb conviction of Respondent, however, Court

would exercise and interfere with sentencing discretion

of trial Court “where inadequacy of sentence is gross

or glaring or shocks courts conscious”—In given facts

and conspectus of circumstances, does not warrant

interference in order on sentence.

Penology and sentencing in our country has remained an

underdeveloped concept. In several jurisdictions across the

world, sentencing choices are guided not only by the

subjective ‘‘facts of the case’’ but a whole variety of factors,

such as social investigation of the offender, his family

background, his social environment, behaviour, tendencies,

etc. These are apart from the more ‘‘traditional’’ factors such

as the history of previous offences or convictions, subjective

facts pertaining to the offender, such as age, gender,

gravity of the offence, circumstances leading to the offence,

etc. More often than not, these are factored into a set of

codified rules or regulations, which in some cases, prescribe

great details, and even mandate separate hearings, where

the judge is obliged to consider evidence presented in that

regard. Sadly, courts in this country do not have the benefit

of such specialized assistance. As a result, courts have to

fall back on judicially evolved standards and ad-hoc notions

of penology and theories while exercising discretion in

relation to offences where sentencing choices span a wide

spectrum of penalties and prison terms. Here, the courts

have to strike a balance between the need to impose an

‘‘adequate’’ sentence even while keeping in mind that the

choice has to ultimately sub serve a larger public purpose,

and not be one merely given for the ritualistic satisfaction of

notions like public justice. An offender found to have

committed a crime has to suffer conviction, and also a

punishment. However, if sentencing choices are dominated

by notions like popular justice or popularity demanded

sentences or punishments, it is ultimately the cause of

justice, and rule of law which suffers. A French philosopher

and mystic (Simone Weil (1909-43), in her “Draft for a

Statement of Human Obligations) said that:

‘‘Whenever a human being, through the commission

of a crime, has become exiled from good, he needs to

be reintegrated with it through suffering. The suffering

should be inflicted with the aim of bringing the soul to

recognize freely some day that its infliction was just.’’

(Para 12)

Important Issue Involved: A proper sentence is amalgam


circumstances—Extenuating or aggravating—Of offence,

prior criminal record, if any, of offender, age of offender

as to employment, background of offender with reference

to education, home life, sobriety and social adjustment,

emotional and mental conditions of offender, prospects for

rehabilitation of offender, possibility of return of offender

to normal life in community, possibility of treatment of

training of offender, possibility that sentence may serve as

a deterrent to crime by offender or by others and current

community need, if any for such a deterrent in respect to

particular type of offence.

[Sh Ka]

APPEARANCES:

FOR THE APPELLANT : Mr. Sanjeev Bhandari, ASC for the

State.

FOR THE RESPONDENT : Mr. A.J. Bhambhani with Ms. Nisha

Bhambhani, Advocate. Mr. Victor

Ahanthem, Advocates.

CASES REFERRED TO:

1. State of M.P. vs. Bablu Natt,(2009) 2 SCC 272.

2. Mohd. Munna vs. Union of India 2005 (7) SCC 417.

341 342State GNCT of Delhi v. Mukesh (S. Ravindra Bhat, J.)

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3. State of Karnataka vs. Krishnappa, (2000) 4 SCC 75.

4. Madan Lal vs. State of J&K, (1997) 7 SCC 677.

5. Mohd. Giasuddin vs. State of A.P., (1977) 3 SCC 287.

6. Santa Singh vs. State of Punjab, 1976 (4) SCC 190.

7. State of A.P. vs. Bodem Sundara Rao, (1995) 6 SCC

230.


S. RAVINDRA BHAT, J.

1. The State had appealed against the judgment and order of the

learned Additional Sessions Judge in SC 80/2008. By the said judgment,

the respondent was convicted for the offences punishable under Sections

363 and 376/511 of IPC. The state contends that the sentence imposed

was inadequate, and calls for its enhancement.

2. The facts, as found by the Trial Court, were that on 17.03.2008,

the prosecutrix’s father handed over the respondent (accused before the

Trial Court), at about 3:45 PM. The police recorded the receipt of

complaint, and the minor prosecutrix’s statement, in her father’s presence.

She stated that when she was playing in the street, the respondent, a

neighbour took her to his room, saying that he would show a movie. He

then switched on a television, showing obscene pictures. When the

prosecutrix said that the movie was obscene, the respondent said that it

was good; he removed her underwear and laid her down. The prosecutrix

also stated that the respondent lowered his pants, and tried to insert his

‘‘urinating organ’’ (penis) into her ‘‘urinating place’’ which resulted in

her weeping, and raising a noise. He therefore, left the prosecutrix; she

went out to the street, weeping. Her father, who was entering the street,

inquired as to what was the matter, when she narrated all the events to

him. Her father called out the respondent and caught hold of him, and

later handed him over to the police.

3. The police, after recording the FIR and statements of some

witnesses, also got the prosecutrix medically examined. The doctor who

examined her did not depose during the trial. However, the Medico Legal

Certificate (MLC) Ex. PW-11/A was proved by PW-11 another doctor.

She said that the patient’s history, recorded in the document revealed

that:

‘‘There is no history of bleeding per vagina, pain perineum or

insertion of foreign body in vagina. On examination, general

physical examination was found to be normal. Pelvic examination,

the hymen was found to be intact. Vulval swab was prepared

and both the swab and underwear of the patient was sealed and

handed over to the Investigating Officer..’’

4. The respondent was arrested immediately after the incident, and

remained in custody throughout. He too was subjected to medical

examination. When charged with committing the offence, he denied guilt,

and claimed trial. By the impugned judgment, the Trial Court convicted

the respondent for the offence of attempt to commit rape under Section

376/511, as well as the offence punishable under Section 363. The Court

sentenced the respondent to one year imprisonment and fine, for the

latter offence; for the offence of attempted rape, the Court exercised its

powers under the proviso to Section 376 (1) and sentenced him to two

and a half years’ imprisonment. The respondent completed his sentence.

The State preferred its petition for leave to appeal, much later, after

expiry of the period of limitation, sometime in January, 2011. The court

granted leave on the issue of adequacy of sentence.

5. It was urged by the learned Additional Public Prosecutor (APP)

that the Trial Court fell into error in not awarding the minimum sentence,

for attempted rape. It was submitted that having regard to the provisions

of Sections 57 and 376(1) of the IPC, the sentencing choice was between

10 years and life imprisonment, for the offence of rape; as the court

convicted the respondent for attempt, the sentence was to be half.

Therefore, the minimum sentence which could have been awarded in the

case was 5 years. The judgment reported as Mohd. Munna v. Union of

India 2005 (7) SCC 417 was cited for saying that ‘‘life imprisonment’’

meant rigorous imprisonment for life, which for the purpose of reckoning

fractions, is to be 20 years. It was submitted that having regard to the

nature of the offence, the Trial Court did not take into consideration

relevant factors while awarding a lighter sentence. The learned APP

submitted that while the Court could have given a sentence which was

lighter than the minimum prescribed, the reasons for doing so should

have been adequate and sound. Attacking the Trial Court’s approach in

this context, it was submitted that the reasons given, i.e an ailing old

mother, the respondent being the sole earning member of his family, his



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youth, that he too had a young infant child to be cared for, could not

be called ‘‘special’’ for exercising discretion, which had to be on a

sounder footing. Emphasizing that discretion should be resorted to

judiciously, it was submitted that the crime and the offender had to be

justly dealt with, and the sentence awarded had to be proportionate to the

crime, having regard to the fact, which plainly was not the case in this

instance.

6. Mr. Bhambani, learned amicus curae submitted that by virtue of

Section 377 (2) while a State appeal on the ground of inadequacy of

sentence is permissible, and that the court cannot in such event enhance

sentence, without issuing notice to the accused, at the same time, Section

377 (3) enables the accused respondent, in case such an appeal against

sentence is preferred, to “plead for his acquittal or for the reduction of

the sentence.” Thus, the High Court has to consider the case on the

merits, when the accused respondent challenges the findings, in an appeal

confined only to the question of sentence inadequacy preferred by the

State.

7. It was urged that the prosecutrix was not clear about the precise

nature of the alleged act committed by the respondent; apart from stating

‘‘galat kaam’’ or wrong action, she did not say anything further, or

elaborate. Further, submitted the amicus, the evidence on the record was

to the effect that the accused had shown an obscene movie. However,

the prosecution did not establish how a small, minor girl could differentiate

between what was obscene and what was not. It was also urged that the

prosecutrix did not initially say anything about the alleged incident, and

did so only after the prosecution sought permission to put leading questions

and cross-examine her. It was next urged that there was a material

discrepancy between the witnesses’ account; whereas PW-2 deposed

that statements were recorded in the police station, immediately after the

matter was reported, PW-6 deposed that the police went to the

prosecutrix’s house, took her and the accused to the police station, and

later went to the hospital, after which the statements were recorded.

8. Learned counsel emphasized that since there was no evidence

either medical, or ocular, to corroborate the events narrated by the

prosecutrix, and the fact that she did so during cross examination by the

prosecution - after permission to do so was granted, and further that

nothing was found during medical examination of the accused, the finding

of guilt, recorded by the Trial Court, for attempted rape, was unsound,

and had to be set aside. It was submitted that though the law does not

require corroboration of a prosecutrix/ rape victim’s testimony, the other

materials on record should be credible to justify a conviction. In this

case, the court ought to have been even more circumspect, since the

prosecutrix was also a child witness.

9. Arguing next about sentence, it was submitted that assuming,

though not admitting that the prosecution had proved the accused’s guilt,

the court should not interfere with the sentencing choice exercised by the

Trial Court. The amicus relied on Mohd. Giasuddin v. State of A.P.,

(1977) 3 SCC 287, at page 293, where it was held as follows:

‘‘16. The new Criminal Procedure Code, 1973, incorporates

some of these ideas and gives an opportunity in Section 248(2)

to both parties to bring to the notice of the Court facts and

circumstances which will help personalise the sentence from a

reformative angle. This Court, in Santa Singh vs. State of

Punjab, 1976 (4) SCC 190, has emphasised how fundamental it

is to put such provision to dynamic judicial use, while dealing

with the analogous provisions in Section 235(2):

‘‘This new provision in Section 235(2) is in consonance with

the modern trends in penology and sentencing procedures. There

was no such provision in the old Code. It was realised that

sentencing is an important stage in the process of administration

of criminal justice - as important as the adjudication of guilt -

and it should not be consigned to a subsidiary position as if it

were a matter of not much consequence. It should be a matter

of some anxiety to the Court to impose an appropriate punishment

on the criminal and sentencing should, therefore, receive serious

attention of the Court.

Modern penology regards crime and criminal as equally material

when the right sentence has to be picked out. It turns the focus

not only on the crime, but also on the criminal and seeks to

personalise the punishment so that the reformist component is as

much operative as the deterrent element. It is necessary for this

purpose that facts of a social and personal nature, sometimes


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altogether irrelevant if not injurious, at the stage of fixing the

guilt, may have to be brought to the notice of the Court when

the actual sentence is determined.

A proper sentence is the amalgam of many factors such as the

nature of the offence, the circumstances - extenuating or

aggravating - of the offence, the prior criminal record, if any, of

the offender, the age of the offender, the record of the offender

as to employment, the background of the offender with reference

to education, home life, sobriety and social adjustment, the

emotional and mental conditions of the offender, the prospects

for the rehabilitation of the offender, the possibility of return of

the offender to normal life in the community, the possibility of

treatment or training of the offender, the possibility that the

sentence may serve as a deterrent to crime by the offender or

by others and the current community need, if any, for such a

deterrent in respect to the particular type of offence. These

factors have to be taken into account by the Court in deciding

upon the appropriate sentence.

The hearing contemplated by Section 235(2) is not confined

merely to hearing oral submissions, but it is also intended to give

an opportunity to the prosecution and the accused to place before

the Court facts and material relating to various factors bearing

on the question of sentence and if they are contested by either

side, then to produce evidence for the purpose of establishing

the same. Of course, care would have to be taken by the Court

to see that this hearing on the question of sentence is not abused

and turned into an instrument for unduly protracting the

proceedings. The claim of due and proper hearing would have to

be harmonised with the requirement of expeditious disposal of

proceedings.’’

17. It will thus be seen that there is a great discretion vested in

the Judge, especially when pluralistic factors enter his calculations.

Even so, the Judge must exercise this discretionary power,

drawing his inspiration from the humanitarian spirit of the law,

and living down the traditional precedents which have winked at

the personality of the crime-doer and been swept away by the

features of the crime. What is dated has to be discarded. What

is current has to be incorporated. Therefore innovation, in all

conscience, is in the field of judicial discretion.

18. Unfortunately, the Indian Penal Code still lingers in the

somewhat compartmentalised system of punishment viz.

imprisonment, simple or rigorous, fine and, of course, capital

sentence. There is a wide range of choice and flexible treatment

which must be available with the Judge if he is to fulfil his tryst

with curing the criminal in a hospital setting. Maybe in an

appropriate case actual hospital treatment may have to be

prescribed as part of the sentence. In another case, liberal parole

may have to be suggested and, yet in a third category, engaging

in certain types of occupation or even going through meditational

drills or other courses may be part of the sentencing prescription.

The perspective having changed, the legal strategies and judicial

resources, in their variety, also have to change. Rule of thumb

sentences of rigorous imprisonment or other are too insensitive

to the highly delicate and subtle operation expected of a sentencing

Judge. Release on probation, conditional sentences, visits to healing

centres, are all on the cards. We do not wish to be exhaustive.

Indeed, we cannot be.

19. Sentencing justice is a facet of social justice, even as

redemption of a crime-doer is an aspect of restoration of a

whole personality. Till the new Code recognised statutorily that

punishment required considerations beyond the nature of the

crime and circumstances surrounding the crime and provided a

second stage for bringing in such additional materials, the Indian

Courts had, by and large, assigned an obsolescent backseat to

the sophisticated judgment on sentencing. Now this judicial skill

has to come of age.’’

10. It was submitted that having regard to all the conspectus of

facts, particularly the age of the respondent, his family circumstances,

the fact that he had no previous record of convictions, or involvement

in any other crime, and that he co-operated with the prosecution at all

stages, and never ran away or tried to escape, etc. It was argued that

if prison sentence is aimed at reformation, the enhancement of sentence,



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in this case may not achieve any purpose, and may, on the contrary

result in ruination of the respondent, who had served his sentence, after

the Trial Court delivered its judgment. It was also submitted that the

Court should exercise appellate jurisdiction having regard to all the

circumstances, and interfere with sentencing choice of Trial Courts only

if the impugned judgement shocks the court’s conscience, and not

otherwise.

11. The above discussion reveals that the scope of this appeal is

narrow; it extends to considering whether the sentence imposed by the

Trial Court is ‘‘inadequate’’. Before dealing with that, it would be essential

to consider the respondent’s argument, impeaching the finding of guilt,

recorded against him, in respect of the attempt to commit rape. The

respondent correctly argues that the medical evidence did not establish

rape, or the ingredients of the offence he was convicted of. The court

is also conscious of the fact that the conviction is based solely on the

testimony of a child witness, who could not describe the facts accurately;

she had to be prompted to do so, by the APP, who was permitted to

cross-examine her. Yet, those cannot be circumstances prompting the

court to acquit the respondent. The court is conscious that though the

prosecutrix is a child witness, she is the victim; she could not have (nor

was shown to have) any reason for lying. Furthermore, in attempt to

commit rape, a fairly place common argument appears to be that the

offender did not commit any act, amounting to attempt, but at best had

done something which was preparatory to the commission of the offence.

Any debate on this aspect, at least in respect of the offence of attempted

rape, has been foreclosed by the binding judgment of the Supreme Court

in Madan Lal v. State of J&K, (1997) 7 SCC 677, where it was held

that:

“12. The difference between preparation and an attempt to commit

an offence consists chiefly in the greater degree of determination

and what is necessary to prove for an offence of an attempt to

commit rape has been committed is that the accused has gone

beyond the stage of preparation. If an accused strips a girl naked

and then making her lie flat on the ground undresses himself and

then forcibly rubs his erected penis on the private parts of the

girl but fails to penetrate the same into the vagina and on such

rubbing ejaculates himself then it is difficult for us to hold that

it was a case of merely assault under Section 354 IPC and not

an attempt to commit rape under Section 376 read with Section

511 IPC. In the facts and circumstances of the present case the

offence of an attempt to commit rape by the accused has been

clearly established and the High Court rightly convicted him under

Section 376 read with Section 511 IPC.’’

In view of the above discussion, the facts as found, and the ruling of

the Supreme Court, the court does not find any reason to disturb the

conviction of the respondent.

12. Penology and sentencing in our country has remained an

underdeveloped concept. In several jurisdictions across the world,

sentencing choices are guided not only by the subjective ‘‘facts of the

case’’ but a whole variety of factors, such as social investigation of the

offender, his family background, his social environment, behaviour,

tendencies, etc. These are apart from the more ‘‘traditional’’ factors

such as the history of previous offences or convictions, subjective facts

pertaining to the offender, such as age, gender, gravity of the offence,

circumstances leading to the offence, etc. More often than not, these are

factored into a set of codified rules or regulations, which in some cases,

prescribe great details, and even mandate separate hearings, where the

judge is obliged to consider evidence presented in that regard. Sadly,

courts in this country do not have the benefit of such specialized assistance.

As a result, courts have to fall back on judicially evolved standards and

ad-hoc notions of penology and theories while exercising discretion in

relation to offences where sentencing choices span a wide spectrum of

penalties and prison terms. Here, the courts have to strike a balance

between the need to impose an ‘‘adequate’’ sentence even while keeping

in mind that the choice has to ultimately sub serve a larger public purpose,

and not be one merely given for the ritualistic satisfaction of notions like

public justice. An offender found to have committed a crime has to

suffer conviction, and also a punishment. However, if sentencing choices

are dominated by notions like popular justice or popularity demanded

sentences or punishments, it is ultimately the cause of justice, and rule

of law which suffers. A French philosopher and mystic (Simone Weil

(1909-43), in her “Draft for a Statement of Human Obligations) said that:

‘‘Whenever a human being, through the commission of a crime,


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has become exiled from good, he needs to be reintegrated with

it through suffering. The suffering should be inflicted with the

aim of bringing the soul to recognize freely some day that its

infliction was just.’’

13. While considering the sentence, it would be apt to notice the

judgment reported as State of A.P. v. Bodem Sundara Rao, (1995) 6

SCC 230. The court upheld the conviction of the respondent, for the

offence of rape, and held that the minimum sentence was 10 years. The

courts below had imposed RI for 4 years; it was enhanced to seven

years. The court held that:

‘‘We, thus, consider it our plain duty to enhance the sentence in

this case. Keeping in view the facts and circumstances of this

case and the submissions made by the learned amicus curiae,

while maintaining the conviction of the respondent for the offence

under Section 376, Indian Penal Code, we enhance the sentence

of 4 years’ RI to 7 years’ RI, which is the minimum prescribed

sentence under the section, for we find no adequate or special

reasons to impose a sentence less than the prescribed minimum.

Necessary warrants shall be issued to take the respondent into

custody to undergo the remaining period of sentence.’’

In State of M.P. v. Bablu Natt, (2009) 2 SCC 272, the Supreme Court

upheld the sentence of four years imprisonment for rape of a minor,

when the lower courts had exercised jurisdiction under proviso to Section

376 (1). The court held that:

‘‘The principle governing imposition of punishment would depend

upon the facts and circumstances of each case. An offence

which affects the morale of the society should be severely dealt

with. Socio-economic status, religion, race, caste or creed of the

accused and the victim although may not be wholly irrelevant,

should be eschewed in a case of this nature, particularly when

Parliament itself had laid down minimum sentence. In India, we

do not have sentencing guidelines. Necessity of the guidelines on

the judicial side has been highlighted in State of Punjab v. Prem

Sagar1 wherein it was noticed: (SCC p. 553, paras 5-8)

‘‘5. Whether the court while awarding a sentence

would take recourse to the principle of deterrence or


reform or invoke the doctrine of proportionality would no

doubt depend upon the facts and circumstances of each

case. While doing so, however, the nature of the offence

said to have been committed by the accused plays an

important role. The offences which affect public health

must be dealt with severely. For the said purpose, the

courts must notice the object for enacting Article 47 of

the Constitution of India.

6. There are certain offences which touch our social

fabric. We must remind ourselves that even while

introducing the doctrine of plea bargaining in the Code of

Criminal Procedure, certain types of offences had been

kept out of the purview thereof. While imposing sentences,

the said principles should be borne in mind.

7. A sentence is a judgment on conviction of a crime.

It is resorted to after a person is convicted of the offence.

It is the ultimate goal of any justice-delivery system.

Parliament, however, in providing for a hearing on

sentence, as would appear from sub-section (2) of Section

235, sub-section (2) of Section 248, Section 325 as also

Sections 360 and 361 of the Code of Criminal Procedure,

has laid down certain principles. The said provisions lay

down the principle that the court in awarding the sentence

must take into consideration a large number of relevant

factors; sociological backdrop of the accused being one

of them.

8. Although a wide discretion has been conferred

upon the court, the same must be exercised judiciously.

It would depend upon the circumstances in which the

crime has been committed and his mental state. Age of

the accused is also relevant.’’

14. In a previous ruling, the Supreme Court had held that there

cannot be any cast iron rule about what constituted relevant factors while

exercising jurisdiction for ‘‘special’’ reasons, in imposing a sentence

which was less than the minimum prescribed in the case of rape. This

was in State of Karnataka v. Krishnappa, (2000) 4 SCC 75 where it

was held that:


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interference.

16. For the above reasons, the appeal has to fail, and is accordingly

dismissed.


CRL. APPEAL

STATE (GOVT. OF NCT OF DELHI) ....APPELLANT

VERSUS

GIRDHARI LAL VERMA ....RESPONDENT

(MUKTA GUPTA, J.)

CRL. APPEAL NO. : 90/1999 DATE OF DECISION: 30.05.2011

Indian Penal Code, 1860—Section 161—Prevention of

Corruption Act, 1947—Sections 5(1) (d) and Sections 5

(2)—Respondent was supervisor of Delhi Cantt. Area—

He demanded Rs. 400/- for correction of electoral rolls

and addition of votes deleted—Raid conducted—

Respondent apprehended—After trial, the respondent

was acquitted—Appeal preferred by State—Held—It is

evident that in the entire testimony of PW-3 it is

nowhere stated that the Respondent demanded

money—This evidence of PW3 is also corroborated by

PW 4 who also in his testimony does not state that the

Respondent demanded money; rather has stated that

at no stage money was demanded by the Respondent

either initially or at the time of trap—To constitute an

offence under Section 161 IPC & Section 5 (1) (d) of

the Prevention Corruption Act it is necessary that

there is a demand of money and the same is accepted

for doing a favour—Demand of Money is a sine qua

non for the conviction of the accused—Thus, in the


‘‘Thus, the normal sentence in a case where rape is committed

on a child below 12 years of age, is not less than 10 years’ RI

though in exceptional cases ‘‘for special and adequate reasons’’

sentence of less than 10 years’ RI can also be awarded. It is a

fundamental rule of construction that a proviso must be

considered with relation to the principal matter to which it stands

as a proviso particularly in such like penal provisions. The courts

are obliged to respect the legislative mandate in the matter of

awarding of sentence in all such cases. Recourse to the proviso

can be had only for ‘‘special and adequate reasons’’ and not in

a casual manner. Whether there exist any ‘‘special and adequate

reasons’’ would depend upon a variety of factors and the peculiar

facts and circumstances of each case. No hard and fast rule can

be laid down in that behalf of universal application.’’

15. In this case, the offence for which the respondent was convicted

was attempted rape, though he was charged for the offence of rape. The

circumstances also show that the prosecutrix, a minor was unable to

depose about the incident; the prosecution cross examined her to elicit

details of the facts. The respondent and prosecutrix were both medically

examined; nothing was discerned. The respondent co-operated with the

prosecution in the investigation. All these were taken into consideration

by the Trial Court. It also considered the offender’s age, as well as his

previous (lack of) record. The materials also did not suggest his propensity

to commit crimes. The accused respondent was an under trial prisoner

for the entire duration of the proceedings before the Trial Court. He

continued to be incarcerated after the impugned judgment was delivered,

and having completed his sentence, was set free. The State does not

dispute that the factors cited by the Trial Court when it chose to impose

the sentence that it did, actually existed. The court has regard to all these

circumstances, and the further fact that this Court would exercise and

interfere with sentencing discretion of the Trial Court in a given case

where the ‘‘inadequacy’’ of sentence is gross or glaring, or shocks the

court’s conscience, and also recollects the decisions of the Supreme

Court noticed in the preceding parts of this judgment, where the sentence

in the case of rape was enhanced from four to seven years, though the

minimum prescribed in the category of rape was imprisonment for ten

years. The court considers that the impugned judgment and order on sente

ce, in the given facts and conspectus of circumstances, does not warran

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absence of demand and the presumption, the offence

punishable under Sections 161 and 5 (1) (d) read with

5 (2) of the PC Act has not been proved beyond

reasonable doubt by the prosecution in the present

case.

The next issue that arises is whether the prosecution has

proved the demand by the respondent at the time of trap.

PW3 Jaipal Singh was accompanied by PW4, the panch

witness and the driver. PW 3 does not depose in his

testimony that the Respondent demanded money while

sitting on the rear seat of the car along with him. According

to PW 3, he stated to the Respondent that he had brought

the papers relating to one public booth as also the money

and requested him to correct the voters list for one polling

booth. The Respondent told him that he had some work at

his office at 5, Alipur Road regarding the transfers and that

he would do the work first and then accept the papers and

the money. The Respondent then enquired about PW4 Mr.

Khanna, to which PW 3 replied that PW 4 wanted permit for

cement and he had to get him the permit. PW3 again

offered money to the Respondent but he was reluctant and

he took the car to the office of Food & Civil Supply, Under

Hill Road. PW3 again offered him the money at the Food &

Civil Supply Office, but the Respondent told him that they

had to go to the office at Begum Zaidi Marg and he would

accept the money there. On the pretext of going to the office

of the Civil supplies PW3 and PW4 came out of the car and

informed PW7 that the Respondent would take money only

in Zaidi Market. He also told the Inspector that they would

reach the Market by 6.30P.M. whereas, the Respondent

remained seated in the car. They came back and got into

the car. On reaching Begum Zaidi Market, PW3 got down

and went to the office for 2-4 minutes while PW4 and the

Respondent remained seated in the car. PW3 came back.

He again offered the money to the Respondent while sitting

in the car and gave money and papers. The Respondent

took the money in his left hand and list in the right hand on

which PW4 gave the signal to the raiding party. It is thus

evident that in the entire testimony of PW3 it is nowhere

stated that the Respondent demanded money. ˇThis

evidence of PW3 is also corroborated by PW 4 who also in

his testimony does not state that the Respondent demanded

money rather has stated that at no stage money was

demanded by the Respondent either initially or at the time

of trap. Though, it is stated that money was given to the

Appellant along with the voters list for correction and

objections however, no documents have been seized from

the right hand of the Appellant. No explanation has been

offered by the prosecution as to why these papers were not

recovered from the right hand of the Appellant by the

raiding officer. (Para 7)

It is now to be examined that in the absence of any demand,

would mere acceptance of money implicate the Respondent

for offence punishable under Section 161 IPC and Section

5(1) (d) read with Section 5(2) of the PC Act, specially when

the corroboration evidence of post raid proceedings is not

authentic. Demand is an essential ingredient for an offence

punishable under Sections 161 IPC and 5 (1) (d) read with

5 (2) of the PC Act. Section 4 of the PC Act lays down a

statutory presumption that in any trial for offence punishable

under Section 161 of the IPC or 5(1) (a) or (b) punishable

under Section 5(1) the Court is duty bound to raise a

presumption after it is proved that an accused person has

accepted or obtain or admitted to obtain for himself or any

other person any gratification or any valuable thing. This

presumption is not available for offence punishable under

Section 5(1) (d) read with Section 5(2) of the PC Act.

Hon’ble Supreme Court in Banarsi Dass Vs. State of

Haryana (2010) SCC 450 has held that to constitute an

offence under Section 161 IPC & Section 5(1)(d) of the PC

Act it is necessary that there is a demand of money and the

same is accepted for doing a favour. Demand of Money is

a sine qua non for the conviction of the accused. Thus, in

the absence of demand and the presumption, the offence

355 356 State (Govt. of NCT of Delhi) v. Girdhari LaL Verma (Mukta Gupta, J.)


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punishable under Sections 161 and 5(1) (d) read with 5(2)

of the PC Act has not been proved beyond reasonable

doubt by the prosecution in the present case. (Para 8)

Important Issue Involved: For constituting offence under

Section 161 IPC and Section 5 (1) (d) of Prevention of

Corruption Act, 1947, it is necessary that there is demand

of money and same is accepted for doing a favour.

[Vi Ba]

APPEARANCES:

FOR THE APPELLANT : Mr. Manoj Ohri, APP for the State.

FOR THE RESPONDENT : Mr. K.B. Andley, Sr. Advocate with

Mr. M. Shamikh, Advocate.

CASES REFERRED TO:

1. Banarsi Dass vs. State of Haryana (2010) SCC 450.

2. Ganpat vs. State of Haryana, 2010 (10) SCALE 237.

3. State of Andhra Pradesh vs. S. Swarnlatha & Ors. 2009

(4) C.C.C. (SC) 168.

4. Sri Chand Gaur vs. CBI Crl. Appeal No. 252/2001.


MUKTA GUPTA, J.

1. This is an appeal against acquittal filed by the State wherein the

Respondent after a trial by the learned Special Judge was acquitted for

offence punishable under Section 161 IPC and Section 5(1) (d) read with

Section 5(2) of the Prevention of Corruption Act, 1947(in short ‘PC

Act’) in case FIR No. 33/1987 at P.S. Anti Corruption Branch, Delhi.

2. Briefly the prosecution case is that the Complainant PW3, Jaipal

Singh the Vice President of Yuva Janta Morcha on 4th December, 1987

lodged a complaint Ex. PW3/A with the Anti Corruption Branch that

during the checking of votes from door-to-door by the supervisors of the

election office, one Girdhari Lal Verma (Respondent herein) who was the

supervisor of the Delhi Cantt area came to his office and told him that

he had deleted 800 votes of Naraina area. The Respondent also dismissed

the objections filed by the Complainant in respect of jhuggis situated in

Kirby Place, Subroto Park and Dhaula Kuan. When PW3 wanted the

electoral rolls to be corrected, the Respondent demanded Rs. 400/- for

every polling booth. The Respondent also told the Complainant that if the

complainant filed a claim, he would correct the votes deleted by him.

PW3 alleged that even his name has been deleted from the list of voters.

On the complaint of PW3, PW4 Sh. J.L. Khanna was associated as

panch witness and pre-raid formalities by noting the numbers of the four

currency notes of Rs. 100/- denomination were prepared. The said notes

were treated with phenolphthalein powder. Since the appointed place of

giving the bribe amount was at Bus stand on Ridge Road near Dhaula

kuan, the raiding party reached at the spot. On reaching the appointed

place, PW3, the complainant told the raiding officer that he would be

going towards old secretariat in his vehicle bearing No. DBR 65 and, the

transaction would take place in the car on the way. The Maruti Van of

PW3 bearing No. DBR 65 came at about 2:15 P.M. PW4, J.L. Khanna

sat on the front seat by the side of the driver and PW3 and the Respondent

on the rear seat. At about 3:00 P.M. the vehicle reached 5, Alipur Road

at the office of Delhi Administration and from there the Maruti Van went

to the office of Food & Supply situated at Under Hill Road. At 3:30 P.M.

PW3 told the raiding party that the Respondent would be taking the bribe

at Begum Zaidi Market, Moti Bagh where the office of Yuva Janta Morcha

was situated and they would be reaching at the spot about 6:30 P.M. The

raiding party took position at the said market. At about 6:30 P.M. Maruti

Van reached the spot where PW3 again offered money to the Respondent

and when PW4 gave the pre-appointed signal, the raiding party rushed

towards the Maruti Van and apprehended the Respondent. Rs.400/- were

recovered from the left hand of the Respondent. Numbers of the G.C.

notes were tallied and the left hand wash of the Respondent turned pink.

The same were seized and sealed in a glass bottle. The Respondent was

arrested and FIR was registered. On completion of investigation, charge-

sheet was filed. After recording of the prosecution ˇwitnesses, statement

of the Respondent was recorded. The Respondent was acquitted vide the

impugned judgment dated 20th November, 1997.

3. Learned APP for the State contends that the date of incident is


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4th December, 1987 and the Respondent was on leave on that day. The

learned trial court while acquitting the Respondent has laid a lot of

emphasis on the change of place of payment from Dhaula Kuan to Alipur

Road to Moti Bagh near the office of the Complainant. The change of

place was only an over-cautious approach of the Respondent and in no

way belied the prosecution case. The trial court failed to appreciate that

PW 3 the Complainant was cross-examined on the 9th February, 1996

after more than six years and thus variations are bound to take place in

his testimony. In his statement under Section 313 Cr.P.C., the Respondent

had admitted most of the facts except saying that he has been falsely

implicated. The testimony of PW3, the Complainant is corroborated by

the testimony of PW4 J.L. Khanna, the panch witness who accompanied

PW3 throughout in the van. The conduct of the Respondent becoming

nervous on seeing the raiding party is relevant under Section 8 of the

Evidence Act. Slight variations in the testimony of PW4 as to how the

Respondent was holding the bribe amount has been clarified in his cross-

examination by the learned APP. Moreover the testimony of this witness

was recorded after nine years of the incident and thus variations are

ˇbound to occur in the said testimony. The contradiction between the

statements of PW3 and PW4 as to whether the post raiding work was

done at the office of Anti Corruption Branch or on the spot does not go

to the root of the prosecution case and thus the Respondent could not

have been acquitted on the said ground. The evidence of PW3 and PW4

is further corroborated by the testimony of PW7 the raid officer Insp.

Abhay Ram. The CFSL report Ex. PW6/B further corroborates the

testimony of the witnesses as it opined that the solution gave positive test

for phenolphthalein and sodium carbonate. Referring to a decision of this

Court in Sri Chand Gaur vs. CBI Crl. Appeal No. 252/2001 it is

contended that when witnesses are examined after a longtime, variations

are bound to occur and accused cannot be granted benefit of those minor

variations which do not go to the root of the matter.

4. Per Contra learned counsel for the Respondent has placed reliance

on State of Andhra Pradesh vs. S. Swarnlatha & Ors. 2009 (4)

C.C.C. (SC) 168 to contend that in an appeal against acquittal if two

views are possible and the view taken by the learned trial court is probable

then the Appellate Court will not interfere. It is contended that the trial

of the Respondent was conducted under the PC Act, 1947 where unlike

the Act of 1988 presumption was not available. Thus, the evidence of the

prosecution has to be examined in the light of these two legal principles.

PW1 Ram Kishan, Food and Civil Supply Officer in his cross-examination

has stated that SDM alone was competent to uphold the objection and

rectify the list. Thus, it was not in the competence of the Respondent

to rectify the list or make additions/alterations to the same. In the absence

of such a power vested in the Respondent, he could have neither demanded

the bribe nor would have been given the bribe for this work. PW 3 the

Complainant himself in his examination-in-chief has given the reason for

false implication of the Respondent. PW3 has admitted that he was an

active worker of a political party and his vote has been deleted from the

list of voters from the polling booth No. 41. The conduct of the

Respondent declining the money after being offered four times is not in

consonance with demand and acceptance of bribe. No evidence has been

led to show that PW3 had filled the claim forms and no such document

supporting the claim has been exhibited. Only photocopies were placed

on record which were not accepted and were only marked by the learned

Trial Court. Thus, the same cannot be read in evidence. Even, the

complaint Ex. PW3/A does not indicate the date, month and the year of

initial demand and thus this fact being stated for the first time in the

examination in chief shows that it was a clear improvement in the testimony

of PW3. PW3 has been duly confronted on this count. There are material

improvements in the testimony of PW3 i.e. his having stated that the

money was to be paid at Ridge Road, Dhaula Kuan and stating in his

cross-examination that he does not know which of the worker had filled

up the claim forms. In regard to the original document, he has stated that

the original documents must be in the party office and no verification of

the claim form has been done by the investigating agency. There are

contradictions in the testimony of PW4, the Panch witness also who has

further stated that the money was kept by the respondent in his front

pocket which was recovered by the Inspector. This witness has further

stated that the Seizure memo of the papers recovered from accused was

also prepared by the Police officials. PW 4 who was sitting in the front

seat has in his cross-examination stated that the Respondent did not

demand any money at any stage. In the absence of demand, no case for

conviction under PC Act is made out. There is also discrepancy as to the

place where the writing work i.e. the seizure memo etc. were filled and

the hand wash of the respondent was taken. PW4 has stated that the

hand wash was taken at the office of Anti Corruption Branch whereas



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the other witnesses have stated that the same was done at the spot and

thus showing total manipulation. This part of the cross-examination has

not been challenged by the prosecution and no re-examination of the

witness has been conducted to clarify on the aspect that where the

proceedings took place. All the witnesses have admitted that the Respondent

did not make any demand throughout and PW3 was clearly instructed to

give the money only when the demand was made. Thus, in the absence

of the demand, no money could have been paid to the Respondent. PW7

Inspector Abhey Ram in his cross-examination has admitted that he did

not seize any objections or any photocopies thereof and thus the

photocopies of the said documents placed on record have been planted.

The decision of the trial Court acquitting the accused as the prosecution

has failed to prove its case beyond reasonable doubt is correct. Thus,

there being no illegality or perversity in the impugned judgment the present

appeal be dismissed.

5. I have heard learned counsel for the parties and perused the

record. Conscious of the limitation of interference in an appeal against

acquittal, I would now proceed to examine the evidence on record and

examine whether the judgment on the basis of said evidence falls in any

of the categories laid down by the Hon’ble Supreme Court in case of

Ganpat vs. State of Haryana, 2010 (10) SCALE 237 i.e. whether the

learned trial court has ignored material evidence or material legal aspect.

In case two views are possible, this Court will not interfere in this appeal

against acquittal.

6. PW3 Jaipal Singh is the Complainant of the case. According to

him, the Appellant told him to pay Rs. 400/- per polling booth and on the

Complainant giving fresh objections thereafter he would set everything

right. There were number of polling booths and number of discrepancies

in the voter lists. In was finally agreed with the Respondent to pay him

Rs. 400/- only on 4th December, 1987 for one polling both. However,

as per the complainant it was not decided for which polling booth this

money was to be paid. The same sounds highly improbable. When the

money was agreed to be paid, the polling booth for which it was being

paid would have also been decided. This part of the testimony of PW3

is also not supported by the documents which were allegedly given in the

form of list and objections. It has also not been proved for which polling

booth the same related to. There is no doubt that during elections, the


time available with the political parties is short and the Complainant

would not wait to pay in installments and get the list corrected for one

polling booth when it is not even decided for which one it is. I do not

find the testimony of PW3 to be reliable on this count.

7. The next issue that arises is whether the prosecution has proved

the demand by the respondent at the time of trap. PW3 Jaipal Singh was

accompanied by PW4, the panch witness and the driver. PW 3 does not

depose in his testimony that the Respondent demanded money while

sitting on the rear seat of the car along with him. According to PW 3,

he stated to the Respondent that he had brought the papers relating to one

public booth as also the money and requested him to correct the voters

list for one polling booth. The Respondent told him that he had some

work at his office at 5, Alipur Road regarding the transfers and that he

would do the work first and then accept the papers and the money. The

Respondent then enquired about PW4 Mr. Khanna, to which PW 3

replied that PW 4 wanted permit for cement and he had to get him the

permit. PW3 again offered money to the Respondent but he was reluctant

and he took the car to the office of Food & Civil Supply, Under Hill

Road. PW3 again offered him the money at the Food & Civil Supply

Office, but the Respondent told him that they had to go to the office at

Begum Zaidi Marg and he would accept the money there. On the pretext

of going to the office of the Civil supplies PW3 and PW4 came out of

the car and informed PW7 that the Respondent would take money only

in Zaidi Market. He also told the Inspector that they would reach the

Market by 6.30 P.M. whereas, the Respondent remained seated in the

car. They came back and got into the car. On reaching Begum Zaidi

Market, PW3 got down and went to the office for 2-4 minutes while

PW4 and the Respondent remained seated in the car. PW3 came back.

He again offered the money to the Respondent while sitting in the car and

gave money and papers. The Respondent took the money in his left hand

and list in the right hand on which PW4 gave the signal to the raiding

party. It is thus evident that in the entire testimony of PW3 it is nowhere

stated that the Respondent demanded money. This evidence of PW3 is

also corroborated by PW 4 who also in his testimony does not state that

the Respondent demanded money rather has stated that at no stage

money was demanded by the Respondent either initially or at the time of

trap. Though, it is stated that money was given to the Appellant along

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with the voters list for correction and objections however, no documents

have been seized from the right hand of the Appellant. No explanation has

been offered by the prosecution as to why these papers were not recovered

from the right hand of the Appellant by the raiding officer.

8. It is now to be examined that in the absence of any demand,

would mere acceptance of money implicate the Respondent for offence

punishable under Section 161 IPC and Section 5(1) (d) read with Section

5(2) of the PC Act, specially when the corroboration evidence of post

raid proceedings is not authentic. Demand is an essential ingredient for

an offence punishable under Sections 161 IPC and 5 (1) (d) read with

5 (2) of the PC Act. Section 4 of the PC Act lays down a statutory

presumption that in any trial for offence punishable under Section 161 of

the IPC or 5(1) (a) or (b) punishable under Section 5(1) the Court is duty

bound to raise a presumption after it is proved that an accused person

has accepted or obtain or admitted to obtain for himself or any other

person any gratification or any valuable thing. This presumption is not

available for offence punishable under Section 5(1) (d) read with ˇSection

5(2) of the PC Act. Hon’ble Supreme Court in Banarsi Dass Vs. State

of Haryana (2010) SCC 450 has held that to constitute an offence under

Section 161 IPC & Section 5(1)(d) of the PC Act it is necessary that

there is a demand of money and the same is accepted for doing a favour.

Demand of Money is a sine qua non for the conviction of the accused.

Thus, in the absence of demand and the presumption, the offence

punishable under Sections 161 and 5(1) (d) read with 5(2) of the PC Act

has not been proved beyond reasonable doubt by the prosecution in the

present case.

9. In the light of the facts elaborated above, I find that there is

neither any illegality nor perversity in the view taken by the learned Trial

Court. The impugned judgment does not warrant any interference. Appeal

is dismissed.


CS (OS)

IHHR HOSPITALITY PVT. LTD. ....PLAINTIFF

VERSUS

BESTECH INDIA PVT. LTD. ....DEFENDANT

(V.K. JAIN, J.)

CS (OS) NO. : 207/2011 DATE OF DECISION: 31.5.2011

Code of Civil Procedure, 1908—Order 39, Rule 1 & 2—

Permanent Injunction—Trade Marks Act, 1999—

Deceptive similarity—Plaintiff owning and managing

destination spas, luxury business leisure hotels in

India and abroad providing services under Trade Mark

and Service Mark ‘Ananda’—Pre-launch advertising

campaign of residential complex under name ‘Park

View Ananda’ launched by defendant for promoting

residential complexes—Claim of plaintiff that defendant

adopted well known mark ‘Ananda’ to create

association with plaintiff’s properties and to ride on

goodwill and reputation of plaintiff—Held, difficult to

accept that trade mark ‘Ananda’ had become a well

known trade mark or that it came to be associated

exclusively with plaintiff’s company so as to indicate a

connection with the plaintiff company—No material on

record to show that the mark ‘Ananda’ had acquired

such a high brand equity in India that its use by

persons other than plaintiff would dilute its reputation—

Difficult to say that word ‘Ananda’ had become

distinctive with plaintiff company— No evidence of

any legal proceedings having been initiated by the

plaintiff company against registration and/or user of

‘Ananda’ by others—Goods and services of defendant

in wholly unrelated category compared to plaintiff—

Plaintiff failed to make out prima facie case for grant



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of injunction against defendant—Application dismissed.

[Ad Ch]

APPEARANCES:

FOR THE PLAINTIFF : Mr. Neeraj Grover, Advocate.

FOR THE DEFENDANT : Mr. Arun Bhardwaj, Sr. Advocate

with Mr. Manish Sharma and Mr.

Amit Bhardwaj, Advocate.

RESULT: Application Dismissed.

V.K. JAIN, J.

IA No. 1376/2011 (O. 39 R. 1&2 CPC)

1. This is a suit for permanent injunction. The plaintiff-company

claims to be engaged in the ownership and management of Destination

Spas, luxury business and leisure hotels in India and destinations around

the world, including Mauritius and is providing services under the ˇtrade

and service mark “Ananda”, which if claims to be its well-known mark

in India and abroad. According to the plaintiff-company, the aforesaid

mark was adopted by it way back in 1998 and it is registered in India

under class 5 in respect of Ayurvedic and herbal preparations; class 30

in respect of breads, biscuits, cakes, pastries, confectioneries, sauces

and spices; class 03 in respect of bath salts for toilets purposes; essential

oils, shampoos, potpourri, herbs and herbal preparations; class 21 in

respect of potteries, crockery and glassware; class 42 in respect of

health resort, hotels and spa. The plaintiff-company is running a hotel

and spa resort in the foothills of Himalayas under the name “Ananda”

which attracts numerous visitors and travellers from India and other

countries and has been voted as world’s best destination spa for three

years. One spa has been opened by the plaintiff in Mauritius under the

name “Shanti Ananda Maurice” which is a joint venture with C&C

Hospitality. It is also claimed that Ananda hotels of the plaintiff-company

have featured in various magazines and newspapers, including New York

Times; The Times; London, Times of India and Economic Times. The

plaintiff has opened Ananda Spa Institute in the premises of its ˇluxurious

hotel ISTA in Hyderabad. It is alleged that the plaintiff-company incurred

advertising and promotion expenses of Rs 2,24,20,644/- Rs 3,93,30,123/

- and Rs.3,02,44,285/- in the years 2007, 2008 and 2009 respectively.

The gross revenue of the plaintiff-company from its spa properties is

stated to be Rs 30,28,12,673/-, Rs 28,68,56,855/- and Rs 31,33,92,622/

- respectively during these years.

It is alleged that the mark Ananda has achieved such distinctiveness

and degree of association with the plaintiff-company that use of an

identical or a deceptively similar mark in relation to any services or goods

is likely and bound to be taken as indicating a connection between those

goods or services and the services of the plaintiff under the mark ‘Ananda’.

2. It is alleged that in August 2010, the plaintiff’s attention was

drawn to the pre-launch advertising campaign of a residential complex

under the name ‘Park View Ananda’. The defendant was thereby promoting

residential complex to be launched in Sector 81 of Gurgaon, near NH-

8. The proposed residential complex is to feature a number of amenities

like swimming pool, health club and gym. The defendant has also been

sending SMS, promoting its property under the name ‘Park View Ananda’.

The plaintiff-company sent a cease and desist notice to the defendant; in

reply to which, it was claimed by the defendant that it was engaged in

real estate and hospitality industry and was primarily involved in

establishment of a number of business hotels and was also developing a

resort besides development of another property called 'Park View Spa in

the vicinity of the site for the ‘Park View Ananda’. It is claimed that the

defendant has adopted the mark ‘Ananda’ as the name of its proposed

residential complex in order to create an association with the plaintiff’s

well-known Ananda properties and to ride on the goodwill and reputation

of the plaintiff-company. It is also alleged that a number of websites are

promoting Park View Ananda on behalf of the defendant though the

board on the site no more displays this name. The defendant also published

an advertisement in Times of India on January 12, 2011, promoting its

project “Park View Ananda” which is also to feature a club with modern

amenities, including a spa and separate Yoga Huts. It is also claimed that

the overseas clients of the plaintiff-company are likely to be attracted to

the project of the defendant under the mistaken belief that the plaintiff-

company is in some way connected to the aforesaid complex and in case

the excellence which is available in the spas of the plaintiff, is not found

in the complex of the defendant, they would form an unfavourable

perception about the brand of the plaintiff-company and would also cease

365 366IHHR Hospitality Pvt. Ltd. v. Bestech India Pvt. Ltd. (V.K. Jain, J.)

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to associate the mark Ananda exclusively with the plaintiff-company,

thereby causing irreparable damage to the plaintiff-company and its

reputation and goodwill. The plaintiff has accordingly sought an injunction,

restraining the defendant from using the mark “Ananda’’ with or without

the conjunction of any other mark which is deceptively similar to the

plaintiff’s registered mark ‘Ananda’.

3. The defendant has contested the suit and has stated that the

words being used by it to describe its products are “Bestech Parkview

Ananda” with three words being used conjunctively and written in a

particular artistic manner with an artistic logo in the middle of the three

words and there is absolutely no similarity between the visual manner and

context of the word ‘Ananda’ as used by the defendant vis-à-vis the

word ‘Ananda’, used by the plaintiff. It is also alleged that the plaintiff

is not in the same business of the defendant and the mark of the plaintiff-

company has not become a well-known trademark, within the meaning

of Section 11 of Trademarks Act. It is also pointed out that the business

of the plaintiff is located in Tehri Garwal while the business of the

defendant is located at Gurgaon. It is also stated that the revenue of the

defendant-company was Rs 1,02,97,00,504/-, Rs 2,25,02,13,525/- and

Rs 2,61,60,52,083/- in the years 2008, 2009 and 2010 respectively. It is

also submitted that the defendant has applied for registration of its

trademark in classes 36 and 37 and is awaiting registration.

It is also alleged by the defendant that the word ‘Ananda’ is not a

coined word and the plaintiff can claim no exclusive right to its usage,

the word signifying one of the two female forms of the male Indian

name, Anand. It is also claimed that the root for the name Ananda is a

Sanskrit word meaning “bliss” and, therefore, the meaning of Ananda

can be said to be great joy and great happiness and denoting the state of

mind of happiness and the same is not confined to the hotels of the

plaintiff. It is also alleged that registration has been granted to Ananda

Utsav with label, Anandam with label, Ananda Valley, Ananda Sai with

logo and Anandamaya Wellness Centre, all in class 42 in which the

plaintiff claims registration which shows that even in its own class, the

plaintiff does not have exclusive, distinct and sole right to use of the

trademark ‘Ananda’.

4. I had an opportunity to examine the concept of a well-known

mark in CS(OS) No.264/2008, decided on 28th March, 2011. This Court,

referring to the concept of a well-known trade mark, inter alia, observed

as under:-

“A well known trademark is a mark which is widely known to

the relevant general public and enjoys a comparatively high

reputation amongst them. On account of advancement of

technology, fast access to information, manifold increase in

international business, international travel and advertising/publicity

on internet, television, magazines and periodicals, which now are

widely available throughout the world, of goods and services

during fairs/exhibitions, , more and more persons are coming to

know of the trademarks, which are well known in other countries

and which on account of the quality of the products being sold

under those names and extensive promotional and marketing

efforts have come to enjoy trans-border reputation. It is, therefore,

being increasingly felt that such trademark needs to be protected

not only in the countries in which they are registered but also in

the countries where they are otherwise widely known in the

relevant circles so that the owners of well known trademarks are

encouraged to expand their business activities under those marks

to other jurisdictions as well.

The relevant general public in the case of a well known trademark

would mean consumers, manufacturing and business circles and

persons involved in the sale of the goods or service carrying

such a trademark.

The doctrine of dilution, which has recently gained momentum,

particularly in respect of well known trademarks emphasizes that

use of a well known mark even in respect of goods or services,

which are not similar to those provided by the trademark owner,

though it may not cause confusion amongst the consumer as to

the source of goods or services, may cause damage to the

reputation which the well known trademark enjoys by reducing

or diluting the trademark’s power to indicate the source of goods

or services.

Another reason for growing acceptance of trans-border reputation

is that a person using a well known trademark even in respect

of goods or services which are not similar tries to take unfair



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advantage of the trans-border reputation which that brand enjoys

in the market and thereby tries to exploit and capitalize on the

attraction and reputation which it enjoys amongst the consumers.

When a person uses another person’s well known trademark, he

tries to take advantage of the goodwill that well known trademark

enjoys and such an act constitutes an unfair competition.

The concept of confusion in the mind of consumer is critical in

actions for trademark infringement and passing off, as well as in

determining the registrability of the trademark but, not all use of

identical/similar mark result in consumer confusion and, therefore,

the traditionally principles of likelihood of confusion has been

found to be inadequate to protect famous and well known marks.

The world is steadily moving towards stronger recognition and

protection of well known marks. By doing away with the

requirement of showing likelihood of confusion to the consumer,

by implementing anti-dilution laws and recognizing trans-border

or spill over reputation wherever the use of a mark likely to be

detrimental to the distinctive character or reputation of an earlier

well known mark. Dilution of a well known trademark occurs

when a well known trademark loses its ability to be uniquely and

distinctively identify and distinguish as one source and consequent

change in perception which reduces the market value or selling

power of the product bearing the well known mark. Dilution

may also occur when the well known trademark is used in

respect of goods or services of inferior quality. If a brand which

is well known for the quality of the products sold or services

rendered under that name or a mark similar to that mark is used

in respect of the products which are not of the quality which the

consumer expects in respect of the products sold and/or services

provided using that mark, that may evoke uncharitable thoughts

in the mind of the consumer about the trademark owner’s product

and he can no more be confident that the product being sold or

the service being rendered under that well known brand will

prove to be of expected standard or quality.”

After noticing the provisions of Trademarks Act, 1999 with respect

to well-known trademarks, this Court observed as under:-

“Trademarks Act, 1999 does not specify the factors which the


Court needs to consider while determining whether a mark is a

well known mark or not, though it does contain factors which

the Registrar has to consider whether a trademark is a well

known mark or not. In determining whether a trademark is a

well known mark or not, the Court needs to consider a number

of factors including (i) the extent of knowledge of the mark to,

and its recognition by the relevant public; (ii) the duration of the

use of the mark; (iii) the extent of the products and services in

relation to which the mark is being used; (iv) the method,

frequency, extent and duration of advertising and promotion of

the mark; (v) the geographical extent of the trading area in

which the mark is used; (vi) the state of registration of the mark;

(vii) the volume of business of the goods or services sold under

that mark; (viii) the nature and extent of the use of same or

similar mark by other parties; (ix) the extent to which the rights

claimed in the mark have been successfully enforced, particularly

before the Courts of law and trademark registry and (x) actual

or potential number of persons consuming goods or availing

services being sold under that brand. A trademark being well

known in one country is not necessarily determinative of its

being well known and famous in other countries, the controlling

requirement being the reputation in the local jurisdiction.”

5. As per plaintiff’s own case, the mark ‘Ananda’ in respect of

health resorts, hotels and spa is being used by it since 22.09.2003.

Though the plaintiff-company claims registration in respect of ayurvedic

and herbal preparations, breads, biscuits, cakes, pastries, confectioneries,

sauces and spices, salts for toilets purposes, essential oils, shampoos,

potpourri, herbs and herbal preparations, potteries, crockery and glassware,

health resort, hotels and spa, it does not claim any actual use of the

trademark in respect of the aforesaid products nor has it filed any

document to show use of the mark ‘Ananda’ in respect of these products.

It appears that, the plaintiff-company has only two resorts, one in

Himalayas under the name Ananda, the other in the name ‘Shanti Ananda’

in Mauritius, which is a joint venture; besides an institute in Hyderabad,

where it is running a spa institute under the name ‘Ananda’. Considering

the duration for which the mark ‘Ananda’ has been used by the plaintiff,

the extent of the services being provided by the plaintiff-company, the

expenditure it claims to have incurred in advertising and promoting its

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services, the geographical extent of the area in which spas are being run

by the plaintiff, the volume of the business and the spas being run under

the name Ananda either alone or in conjunction with Shanti is generating,

I find it difficult to accept that the trademark ‘Ananda’ has become a

well-known trademark or that it has come to be associated exclusively

with the plaintiff-company to such an extent that any product sold or any

service offered using the word “Ananda” either alone or in conjunction

with other words is likely to indicate a connection between that goods/

service and the services being provided by the plaintiff-company. It is

difficult to accept that the persons who have stayed in the resorts of the

plaintiff-company or have otherwise come to know of the reputation

which these resorts claim to enjoy, would, on seeing the advertisement

of the defendant in respect of its project being sold under the name

‘Bestech Parkview Ananda’, associates the project of the defendant-

company with the services being offered by the plaintiff-company or

would presume a connection between the project of the defendant on one

hand and the plaintiff-company on the other hand. It has to be kept in

mind that the persons staying in luxury spas such as Ananda are likely

to be well-educated persons coming from rather higher echelons of the

society. Such persons on seeing advertisements of a housing product in

Gurgaon under the name ‘Bestech Parkview Ananda’ are not at all likely

to believe that the house project originates from the promoters of Ananda

resorts. Therefore, there is no likelihood of their expecting any parity in

the quality of the services being rendered in the resort of the plaintiff-

company and the housing projects being developed by the defendant in

Gurgaon. It is difficult to say that merely because the plaintiff-company

has also opened a spa in Mauritius by way of a joint venture with C&C

Hospitality under the name Shanti Ananda Maurice, the brand Ananda has

come to enjoy a trans-border reputation and, therefore, needs to be

protected in classes other than those in which it has registered in the

name of the plaintiff-company.

6. There is no material on record to show that the mark ‘Ananda’

has acquired such a high brand equity in India that its use by persons

other than the plaintiff in respect of totally unrelated goods/services will

dilute the reputation which the brand ‘Ananda’ enjoys in India. In my

view, considering an altogether different nature of the product being

promoted by the defendant, coupled with the use of the words ‘Bestech

Parkview’ before the word Ananda, there is no reasonable possibility of

any confusion being caused among the consumers as regards the source

of the product being offered by the defendant nor is there any reasonable

probability of any damage to the reputation which is claimed to be

enjoyed by the trademark ‘Ananda’ in India. Considering the origin of the

word Ananda which means nothing, but bliss and which is used primarily

to express a state of mind of a human being, it is difficult to say that

this word has become distinctive with the plaintiff-company and the

defendant is trying to take an unfair advantage by using this word as a

part of the name being used by it to promote its housing project in

Gurgaon. In the facts and circumstances of the case, I find it difficult

to accept that the attempt of the defendant-company by use of the word

‘Ananda’ as a part of the name of its project at Gurgaon is to capitalize

on the reputation which the trademark ‘Ananda’ claims to enjoy in

hospitality sector.

7. The documents filed by the defendant shows that the mark

‘Anand Agency’ has been registered in class 42 in the name of ‘Daulat

Ram Takhatmal Mehani’ since 01.01.1990 vide Registration No. 1243892,

the mark Anandam (label) has been registered in class 42 in the name of

Raji Suresh since 01.08.2001 in respect of providing food and drink in

packet and non-packed forms, the mark “Anandam” has been registered

in the name of Daljeet Gambhir in class 42 in respect of temporary

accommodation (guest/hotel house), the mark ‘Ananda Utsav’ (label) has

been registered in the name of ABP Pvt. Ltd. in class 42 in respect of

computer programming, the mark Anandam (label) has been registered in

the name of M/s Anandam in respect of Ayurvedic Treatment Services,

the mark “Ananda” Valley Valley of Joy. (device) has been registered in

class 42 in favour of Anand Ramlal Kataria in respect of service of

temporary accommodation, agricultural services family week and service,

eco tour, nature walk, corporate meet treak, event, leisure, meditation

service. The mark ‘Ananda Sai’ (logo) has been registered in class 42 in

favour of K. Venkat Rao in respect of Sweet and Bakery mall for the

State of Andhra Pradesh. There is no evidence of any legal proceedings

having been initiated by the plaintiff-company against registration and/or

user of the aforesaid marks which on a comparative basis are much

more close to the registered mark ‘Ananda’ of the plaintiff-company as

compared to the name ‘Bestech Parkview Ananda’ being used by the

defendant-company. Another noteworthy feature in this regard is that the

aforesaid registrations are in class of 42 in which the trademark of the



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plaintiff is registered, whereas the services being provided by the

defendant-company fall in the class 36 and 37, which are altogether

different from the products/services referred in Class 42. The above

referred registrations using the word ‘Ananda’ alone or a word of which

the words “Ananda’ form an integral part, coupled with failure of the

plaintiff to stop their user clearly indicates that the mark ‘Ananda’ has

not become so much associated with the plaintiff company, as to necessarily

indicate a connection with the plaintiff company or to identify the plaintiff

company as the source of those goods/services even when that goods/

services are in wholly unrelated categories and the word ‘Ananda’ is

used in conjunction with other words.

8. For the reasons given in the preceding paragraphs, I am of the

view that the plaintiff-company has failed to make any prima facie case

for grant of injunction against the defendant. The application is devoid of

any merit and the same stands disposed of. The observations made in

this order shall, however, not affect the decision of the suit on merits.

CS(OS) No. 207/2011

The parties to appear before the Court for framing of issues on

05th December, 2011.


W.P.(C)

M/S. JINDAL STAINLESS LIMITED & ANR. ....PETITIONERS

VERSUS


(G.S. SISTANI, J.)

W.P.(C) NO. 4452/2008 DATE OF DECISION: 31.05.2011

Constitution of India, 1950—Article 226—Special

Economic Zones Act, 2005—Section 26(1) (e), 26(2), 51,

55 and 58—Special Economic Zone Rules, 2006—Rule

31—Central Excise Act, 1994—Section 37B—Payment

of whole service tax exempted on services provided

to a Developer or Units of SEZ by any service provider,

for purpose of development, operation and

maintenance of SEZ or for setting up of a SEZ unit or

for manufacture of goods by SEZ Units, on satisfaction

of certain conditions—Impugned circular clarified that

service tax is exempted on provision of only such

services which are rendered by service providers to

Developer or Unit for its authorized operation within

area of SEZ—Circular challenged in writ petition before

High Court —Plea taken, only condition required for

availing exemption from payment of service tax by a

Developer/Entrepreneur is that taxable service should

be used for carrying on authorized operations by

Developer/Entrepreneurs—Location of service

provider or place of service is entirely irrelevant for

purpose of this exemption—Per contra plea taken,

service tax exemption is available only for services

which are provided to carry on authorized operation

in a SEZ—Held—Only condition that is required to be

satisfied to avail service tax benefit is that services

must be rendered for purpose of carrying out

‘‘authorized operations in a special economic zone’’—

If intention of legislature was to exempt only those

services from levy of service tax that are rendered

within SEZ, legislature would have categorically stated

so in statute—A subordinate legislation has to confirm

to parent statute and any subordinate legislation

inconsistent to provisions of parent statute is liable to

be set aside—Circulars being executive/administrative

in character cannot supersede or override Act and

statutory Rules—Impugned circular seeks to impose a

condition that was not intention of legislature in SEZ

Act or Rules and is liable to be set aside.

A plain reading of the impugned circular makes it clear that

as per the circular; only those services are exempted from

373 374Jindal Stainless Limited & Anr. v. Union of India (G.S. Sistani, J.)

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service tax which are rendered to a Developer or a Unit/

Entrepreneur within the Special Economic Zone. Thus, while

the SEZ Act and the rules framed thereunder provide for tax

exemption to all services provided to a Developer/

Entrepreneur operating in a Special Economic Zone but vide

the impugned circular the Government has sought to

prescribe an additional condition that the parent statute,

which in the present case is the SEZ Act, 2005, does not

prescribe. The impugned circular curtails the tax exemption

granted to a service provider providing services to a

Developer or a Unit/Entrepreneur operating in a Special

Economic Zone to only those services that have been

rendered within the Special Economic Zone, which in clear

terms, is inconsistent with Section 26(1)(e) of the SEZ Act.

(Para 34)

Important Issue Involved: (A) A subordinate legislation

has to confirm to the parent statute and any subordinate

legislation inconsistent to the provisions of the parent statute

is liable to be set aside.

(B) Circulars being executive/administrative in character

cannot supersede or override the Act and the statutory rules.

[Ar Bh]

APPEARANCES:

FOR THE PETITIONERS : Mr. S. Ganesh, Sr. Advocate with

Mr. Tarun Gulati and Mr. Tushar

Gulati, Advocate.

FOR THE RESPONDENTS : Mr. Rakesh Tiku and Mr. Aditya

Bhardwaj, Advocates.

CASES REFERRED TO:

1. Ajmera Housing Corpn. vs. CIT reported at (2010) 8 SCC

739.

2. Federation of Indian Airlines vs. Union of India (WP

(C) No. 8004/2010).

3. Godrej & Boyce Mfg. Co. Ltd. vs. State of Maharashtra

reported at (2009)5 SCC 24.

4. Punjab Water Supply and Sewerage Board vs. Ranjodh

Singh AIR 2007 SC 1082.

5. Tata Teleservices Ltd. vs. Commission of Customs, reported

at (2006) 1 SCC 746.

6. Dilip Kumar Ghosh vs. Chairman AIR 2005 SC 3485.

7. Ashok Lanka vs. Rishi Dixit (2005) 5 SCC 598.

8. Hansraj & Sons vs. State of J&K, reported at (2002) 6

SCC 227.

9. Union of India & Ors. vs. Inter Continental (India),

reported at C.A. 6529/2002.

10. Additional District Magistrate (Rev.), Delhi Administration

vs. Shri Ram AIR 2000 SC 2143.

11. CCE, Baroda vs. Vipul Shipyard, reported at 1997 (10)

SCC 337.

12. General Officer Commanding-in-Chief vs. Dr. Subhash

Chandra Yadav, AIR 1988 SC 876.

13. B.K. Garad vs. Nasik Merchants Co-op. Bank Ltd, AIR

1984 SC 192.

14. Hansraj Gordhandas vs. H.H. Dav, Asstt. CCE, reported

at Surat 1969 (2) SCR 253.

15. CIT vs. Ajax Products, reported at 55 ITR 741, 747

(SC).

16. CIT vs. Shahzada Nand, reported at 60 ITR 392, 400

(SC).

17. State of Punjab vs. Jaswant, reported at 186 ITR 655.

RESULT: Allowed.

G.S. SISTANI, J.

1. The present petition has been filed under Article 226 of the



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Constitution of India and is directed against the impugned Circular dated

03.04.2008, issued by the Additional Director, Directorate General of

Export Promotion, Government of India.

2. The brief facts as set out in the petition are that petitioner No.1

is a public limited company registered under the Companies Act, 1956,

and is engaged, inter alia, in the business of manufacture and trade of

stainless steel and allied products. Petitioner No.1 is stated to be the

largest and the only integrated stainless steel and ferroalloys producer in

India.

3. With a view to encourage and promote exports, generate additional

economic activities and employment opportunities, promote investment

and development of infrastructural facilities in the country, the Government

of India introduced the concept of Special Economic Zone (hereinafter

referred to “SEZ”) in India. Such zones are specifically delineated duty

free enclaves, which are deemed to be a foreign territory for trade

operations, duties and tariff purposes. In order to increase the

competitiveness of exporters, the SEZs have been accorded special status

and are provided with a number of tax concessions and exemptions. In

order to give effect to the assurances made by respondent No.2, which

included the exemption from payment of service tax, respondent No.1

issued notification No.17/2002-ST, dated 21.11.2002, for an exemption

from the whole of payment of service tax on services provided to a

Developer or Units of SEZ by any service provider, for the purposes of

development, operation and maintenance of SEZ or for setting up of a

SEZ Unit or for manufacture of goods by the SEZ Unit, on the satisfaction

of certain conditions. This notification was superseded by a subsequent

notification No.4/2004-ST dated 31.03.2004 which provided for an

exemption from the payment of whole of service tax on the services

provided to a Developer or a Unit for consumption of services within the

SEZ subject to certain conditions.

4. Initially for the first time on 01.04.2000, the concept of SEZs

was introduced under the Export and Import Policy (Now referred to as

‘Foreign Trade Policy’). The Foreign Trade Policy is issued by respondent

No.2 which provides for exemptions and concessions from the payment

of various taxes and duties. To give more clear and emphatic approach

to the aspect of SEZs, a separate Special Economic Zones Act, 2005 (the

‘SEZ Act’) and the Special Economic Zone Rules, 2006 (the ‘SEZ Rules’)

were brought into effect from 10.02.2006. The provisions of the SEZ

Act and the SEZ Rules include the substantive law and the relevant

procedures relating to SEZs in one legislation. The SEZ Act in terms of

Section 51 of the SEZ Act provides for a non-obstante provision, which

is extracted hereunder:

“Act to have overriding effect

The provisions of this Act shall have effect notwithstanding

anything inconsistent herewith contained in any other law for the

time being in force or in any other instrument having effect by

virtue of any law other than this Act.”

5. Since the focus of the petitioner was to export stainless steel

products from India, they decided to set up a SEZ talking into consideration

various direct and indirect tax benefits. Land was identified in the State

of Orissa and during the course of the year 2007, requisite clearances

from State and Central Govt. were obtained. The SEZ was notified by

the Central Govt. on 28.11.2007 and the petitioner started carrying out

the default authorized operations in its capacity of a Developer and availed

services of various service providers.

6. Vide the impugned circular dated 03.04.2008, Respondent No.3

issued various internal guidelines seeking to deny tax benefits to service

provided outside the SEZ. Consequently, service providers who are

providing services to the petitioner are insisting upon charging service tax

despite the tax exemptions available to the petitioner under the SEZ Act,

2005 and the SEZ Rules, 2006.

7. Counsel for the petitioner submits that on 15.05.2008, M/s KSMN

& Co., Chartered Accountants, having their office in New Delhi, raised

an invoice of Rs. 5,00,000/- (Five lakhs) charging a service tax of

Rs.60,000/-on the petitioners for providing services in relation to the

accounting to the petitioners. The petitioners wrote a letter to the Chartered

Accountants from Delhi requesting them to cancel the invoice issued by

them as Section 26(1)(e) of the SEZ Act read with Rule 31 of the SEZ

Rules provides for a service tax exemption on the rendition of such

services. M/s. KSMN & Co., Chartered Accountants, New Delhi replied

to the letter of the petitioners stating that they are aware of the provisions

of the SEZ Act and the SEZ Rules. However, service tax has been

charged in the invoice in view of the impugned circular issued by


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respondent No.3 which provides that service tax exemption will not be

provided if the services are not rendered within the SEZ. The Chartered

Accountants further stated that since the liability to pay service tax to the

Government lies on them, they do not want to take a chance by not

paying now and be required to pay by the Department later without

recovering it from the petitioners. The petitioner-company issued another

letter dated 30.05.2008 to M/s KSMN & Company, Chartered Accountants,

submitting that the petitioners have been advised by the petitioner’s internal

legal team and the lawyers that the impugned guidelines are for the

Departmental Officers and are not binding on the assesses. The Chartered

Accountants replied to the petitioners stating that the matter is not free

from doubt and that the Department may in accordance with the impugned

guidelines demand service tax from them. This has led to the filing of the

present petition.

8. It is contended by learned counsel for the petitioner that Section

58 of the SEZ Act provides that any notification, etc., issued under a

Central Act would continue to have effect only if it was not inconsistent

with the provisions of the SEZ Act. Section 26(1)(e) of the SEZ Act

specifically grants an exemption from service tax on taxable services

provided to a Developer or Unit to carry on the authorized operations by

the Developer and the Entrepreneur/Unit. The authorized operations are

those operations which have been approved by the Board of Approval

(hereinafter referred to as the ‘BoA’) for a Developer and the Development

Commissioner for a Unit

9. Mr. Ganesh states that Section 26(2) of the SEZ Act provides

the power to the Central Government to prescribe the manner in which

and subject to the terms and conditions to which the exemptions shall be

granted to the Developer or Unit under Section 26(1). Further, Section

55 of the Act provides a general power to the Central Government to

make rules to carry out the provisions of the Act. Under the powers of

Section 55 of the SEZ Act, the Central Government has introduced the

SEZ Rules. Rule 31 of the SEZ Rules prescribes the manner in which,

and the terms and conditions, subject to which, the service tax exemption

is available to a Developer or a Unit. This Rule provides that exemption

from service tax shall be available on the rendition of all taxable services

by any service provider to a Developer or a Unit for the purpose of

carrying on authorized operations of the SEZ. Rule 31 of the SEZ Rules

is extracted hereunder:

“Exemption from service tax

“The exemption from payment of service tax on taxable services

under Section 65 of the Finance Act, 1994 (32 of 1994) rendered

to a Developer or a Unit (including a Unit under construction) by

any service provider shall be available for the authorized operations

in a Special Economic Zone.”

10. Learned counsel for the petitioner next submits that a combined

reading of Section 26(1)(e) of the SEZ Act with Rule 31 of the SEZ

Rules would show that the only condition required for availing exemption

from payment of Service Tax by a developer/Entrepreneur is that the

taxable service should be used for the carrying on the authorized operations

by the Developer/Entrepreneurs. The location of the service provider or

the place of service is entirely irrelevant for the purpose of this exemption.

It is submitted by learned counsel for the petitioner that Respondent No.3

by issuing the impugned circular dated 03.04.2008 has virtually directed

the departmental officers to deny tax exemptions to SEZs in accordance

with its views. Therefore, the departmental officers, who are bound by

such clarifications, are seeking to deny the tax benefits which are otherwise

available to SEZs under the statutory provisions of the SEZ Act and the

SEZ Rules. Similarly, service providers, who are providing services to

the petitioners are insisting on charging service tax despite the fact that

there is a clear exemption from service tax available to the petitioners

under the statutory provisions of the SEZ Act/Rules. The impugned

circular, inter alia, clarified the following in paras 8 and 10.

“9. The SEZ Act and Rules do not permit any exemption to

services provided by a SEZ unit to any individual inside an SEZ

as it does not get covered under the export of services. Similarly,

regarding exemption of service tax on services availed by units/

developers in SEZs and regarding taxability of service rendered

to an SEZ unit in respect of authorized operations by a DTA

service provider in DTA, it may be kept in mind that service tax

is exempted only for services rendered within the area of SEZ.

10. CENVAT credit is not available for the inputs used in the

finished product supplied to “Developer” of SEZ in terms of



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Rule 6(6) of CENVAT Credit Rules, 2004.

11. The impugned circular has clarified that service tax is exempted

on the provision of only such services which are rendered by the service

providers to the Developer or the Unit for its authorized operation within

the area of the SEZ. This interpretation given by the impugned circular

is clearly contrary to the provisions of the SEZ Act and the SEZ Rules

as the statutory provisions which do not require that only such services

which are physically rendered within the SEZ are allowed for an exemption

from service tax. The impugned circular has sought to introduce new

conditions which are not prescribed by the statutory provisions.

12. Learned counsel for the petitioner submits that the petitioner is

availing a number of services which are not physically rendered within

the SEZ but are used for the authorized operations of the Developer and

the Unit. Learned counsel for the petitioner submits that even though

these services are to be used for carrying out the authorized operations

of the petitioners, service tax is being charged on them by the service

provider as they have not been rendered within the SEZ. Learned counsel

for the petitioners submits that the SEZ Act has a non-obstante provision

contained in Section 51 which expressly provides that the provisions of

this Act will have effect and will override any other law for the time

being in force which is inconsistent with the provisions of the Act.

Therefore, a reading of Section 51 would clear that the provisions of

SEZ Act/SEZ Rules are paramount and anything contrary to the said

provisions will be overridden. In view of the fact that para 9 of the

impugned circular contains provisions contrary to the provisions of the

SEZ Act/SEZ Rules, the impugned circular is illegal and are liable to be

overridden by the provisions of Section 51 read with Section 26(1)(e) of

the SEZ Act read with Rule 3 of the SEZ Rules.

13. Learned counsel for the petitioners has strongly urged before

this Court that the provisions of an Act which provide for an exemption

from a tax have to be interpreted strictly. It is a well settled legal principle

that in a taxing statute, one has to look merely at what is clearly said.

There is no room for any intendment. These principles have been laid

down by the Hon’ble Supreme Court in CIT Vs. Ajax Products, reported

at 55 ITR 741, 747 (SC); CIT Vs. Shahzada Nand, reported at 60 ITR

392, 400 (SC) and State of Punjab Vs. Jaswant, reported at 186 ITR

655. In view of the plain language of the SEZ Act/SEZ Rules, there is

no scope of an interpretation of such provisions to include a condition

that the exemption would be available only if the services are rendered

within a SEZ. Mr. Ganesh has strongly urged before this Court that the

impugned circular has been issued and/or inserted without proper

application of mind and in colourable and mechanical exercise of powers.

The impugned circular has no nexus with the object and purpose of SEZ

Act and SEZ Rules which was to provide impetus to exports. By the

impugned circular, respondent No.3 has virtually attempted to defeat the

object with which the SEZ Act/SEZ Rules were formed.

14. Learned counsel for the petitioner further submits that it is a

well settled legal principle that no additional condition can be read into an

exemption notification when there exists no such condition and that and

exemption has to be interpreted strictly. This principle has been laid

down by the Hon’ble Supreme Court in Hansraj Gordhandas Vs. H.H.

Dav, Asstt. CCE, reported at Surat 1969 (2) SCR 253, and CCE,

Baroda Vs. Vipul Shipyard, reported at 1997 (10) SCC 337. The

exemption from service tax has been provided in the SEZ Act and SEZ

Rules for carrying out the authorized operations of the developer/Unit.

Further, the impugned circular issued by respondent No.3 purports to

add a new condition in the exemption provided by the statutory provisions

of the SEZ Act read with SEZ Rules which never existed in the provisions.

15. It is vehemently argued by learned counsel for the petitioners

that proposition of law being whether that the Department can add a new

condition to a notification thereby either restricting the scope of the

exemption notification or whittling it down when the notification itself did

not provide for the same by issuing a Circular came before the Hon’ble

Supreme Court in the case of Tata Teleservices Ltd. Vs. Commission

of Customs, reported at (2006) 1 SCC 746 and in the case of Union

of India & Ors. Vs. Inter Continental (India), reported at C.A. 6529/

2002. The Hon’ble Supreme Court observed that such circular sought to

impose a limitation on the exemption notification which the exemption

notification itself did not provide and therefore it was not open to the

Board to whittle down the exemption notification in such a manner.

16. Learned counsel for the petitioners further submits that it is a

settled law that Circulars/Guidelines are administrative in nature and are


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issued in exercise of executive powers. Similarly, the power of respondent

No.1 to issue guidelines can only be exercised to prescribe procedure.

Such Guidelines cannot have the effect of adding new and fresh conditions

in the SEZ Act or SEZ Rules. It is submitted that by means of the

impugned circular, the respondents have also arbitrarily sought to negate

the excise duty benefits available to the SEZ Developers like the petitioners.

It has been erroneously stated in Para 10 of the impugned circular that

input credit is not available to manufacturers making supplies to SEZ

developers. By making this erroneous clarification which is contrary to

the statutory provisions, the impugned circular has virtually taken away

the excise duty benefit available to SEZ developers as suppliers would

substantially lose the excise duty benefit available to them for making

such supplies.

17. Lastly, learned counsel for the petitioners submits that the power

to issue clarifications rests only with the Central Board of Excise and

Customs (hereinafter referred to as the ‘Board’) under Section 37B of

the Central Excise Act, 1944. Thus, the impugned circular is illegal so

far as they have not been issued by the Board and, in any event, are also

beyond the scope of even the Boards. powers.

18. Per contra, learned counsel for the respondents submits that the

present writ petition is liable to be dismissed as the same amounts to an

abuse of the process of law. Counsel submits that by this petition, the

petitioners are trying to seek anticipatory declaration regarding the leviability

of service tax in respect of certain transactions. Further there is adequate

mechanism provided in the Act itself, and should there arise any dispute

by any assessee, it is open for him to take recourse to the adjudication

mechanism as provided under the Act. Thus, the writ petition is legally

misconceived.

19. Learned counsel for the respondents has also challenged the

locus standi of the petitioners to file the present petition and it is submitted

that the liability to pay service tax is on the service provider which is M/

s KSMN and Company, Chartered Accountant, for the taxable service

provided. It is for the said service provider to decide whether to pass or

not to pass on the service tax liability to its client, namely, the petitioners.

The liability to pay service tax is on M/s KSMN and Company, Chartered

Accountants, and any relief from levy of service tax on the taxable

services provided by it, should be sought only by the aggrieved party,

namely, M/s KSMN and Company, Chartered Accountants, and not by

the petitioners. It is to be noted that in the present case the levy or denial

of exemption is challenged not by the person who is liable to pay service

tax but by another person on the assumption that service tax levied has

been passed on to him. Accordingly, the petitioners have no locus standi

to challenge the levy of the service tax. Further the petitioners have not

been able to show the existence of any legal right, which is threatened

to be violated by the said impugned circular dated 03.04.2008. Learned

counsel for the respondent contends that there is no legal right shown

by the petitioners, therefore, there cannot be any legal injury and

consequently writ petition filed by the petitioners is utterly misconceived

and liable to be dismissed. Counsel further submits that the letter dated

03.04.2008 is in the nature of internal guidelines intended to provide

guidelines to the departmental officers so as to enable them to take a

uniform stand on matter pertaining to tax relief. No challenge can be

sustained against the impugned letter dated 03.04.2008 at the instance of

the petitioners. Even otherwise the said letter dated 03.04.2009 is perfectly

within the parameters of the special mechanism which is the Act and the

Rules framed thereunder.

20. The counsel next submits that the dispute is between the

petitioners and M/s KSMN & Company, Chartered Accountants, and for

disputes between two parties various legal remedies are available and

filing of writ petition against tax collecting authorities is not maintainable.

21. Learned counsel for the respondents submits that the impugned

circular is in fact a letter F.No.DGEP/SEZ/473/2006 dated 03.04.2008

issued by the Additional Director General, Directorate General of Export

Promotion, respondent No.3 herein, to all the Chief Commissioners, which

correctly interprets the provisions of Special Economic Zones Act and

Rules, and provides internal guidelines to the departmental officers

representing department of Revenue in the Approval Committees of SEZs,

so as to enable them to take uniform stand on matters pertaining to tax

revenue/exemptions related to Special Economic Zones at the meetings of

the Approval Committee. Further Section 26(1)(e) of the Special Economic

Zones Act, 2005, and Rule 31 of the Special Economic Zones Rules,

2006 clearly state that the Service Tax exemption is available only if the

services are provided to carry on authorized operation in a Special

Economic Zone.



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22. Learned counsel for the respondents submits that the Notification

No.17/2002-ST, dated 21.11.2002 provides conditional exemptions from

Service Tax to the developer or unit of a Special Economic Zone for the

taxable services provided to a developer or unit of Special Economic

Zone by any service provider for the purposes of development, operation

and maintenance of Special Economic Zone, or for manufacture of goods

by the Special Economic Zone unit provided that the said taxable services

have been authorized to be rendered by the service provider, by a committee

headed by the Commissioner of Customs having jurisdiction over the said

Special Economic Zone. Condition No.3, required the developer or unit

of a Special Economic Zone to maintain proper account of receipt and

utilization of said taxable services. Further it is correct that the above

notification No.17/2000-ST dated 21.11.2002 was superseded by

Notification No.4/2004 dated 31.03.2004 issued by the Central Board of

Excise and Customs, Department of Revenue and provided for an

exemption from the payment of all of Service Tax on the services provided

to a developer for a unit for consumption of services within such Special

Economic Zones, subject to certain conditions. Thus, it is clear that the

Department of Revenue, which is responsible for administering service

tax all along provided that exemption from the payment of Service Tax

would be available for services provided to a developer or a unit for

consumption of services within such Special Economic Zones.

23. It is further submitted that the authorized operations are always

those operations which are to be carried out inside the Special Economic

Zones, hence, it is evident that the words “In Special Economic Zone”

in sub-Section 26(1)(e) are to be read with taxable services provided in

a Special Economic Zone and not to be read with “authorized operations”

only because if so read it would make the wordings “ In Special Economic

Zone” superfluous since the authorized operations by very definition are

already such operations that are carried out inside Special Economic

Zones. Further the exemption from levy of Service Tax under the Special

Economic Zones Act is available only for taxable services consumed

within Special Economic Zones. Relief from any tax on services consumed

outside Special Economic Zones but relatable to export is available not

under the Special Economic Zones but under the provisions contained in

the Central Excise Act and the Finance Act, 1994 (Service Tax), as per

notification 41/2007-ST dated 06.10.2007 and notification 43/2007-ST

dated 29.11.2007. The exemption from Service Tax under Special

Economic Zones Act is for consumption of Services within Special

Economic Zones Act cannot provide Service Tax exemption merely on

the ground that the recipient of service is a Unit or Developer of Special

Economic Zones. The counsel for respondent further submits that the

Special Economic Zones Act, by its very nature, does not envisage

enforcement of Special Economic Zone Rules cannot go and actually has

not gone beyond this scheme of SEZ Act.

24. The counsel for respondent strongly contends that exemption

from levy of service tax under the Special Economic Zones Act is

available only for taxable services consumed within Special Economic

Zones. Relief from any tax on services consumed outside SEZ but relatable

to export is available not under the SEZ Act but under the provisions

contained in the Central Excise Act and the Finance Act, 1994 as per

notification 41/2007-ST dated 06.10.2007 and notification 43/2007-ST

dated 29.11.2007. It is submitted by the counsel for respondent that area

under the SEZ is distinct from Domestic Tariff Area for the purpose of

taxation and under the SEZ Act, taxable services provided to a developer

or a unit for consumption in SEZ is treated as export. Services are

intangible and are taxed in a place where they are consumed and because

of intangible nature of services, place of consumption of service generally

known as place of supply of service is to be determined in accordance

with the principles enunciated in relevant Rules. The scheme of the SEZ

Act recognises the intangible nature of services and envisages exemptions

only for those services which are consumed within a Special Economic

Zone and therefore, the Department of Revenue is consistent of the view

that exemption from payment of Service tax is not available for the

services provided outside Special Economic Zones.

25. It is vehemently argued by counsel for respondent that the

interpretation given in the impugned circular is consistent with the scheme

of the SEZ Act and does not introduce any new condition which is not

prescribed by the statutory provisions. It is the contention of the counsel

for respondent that under section 26(2) of the SEZ Act, the Central

Government has been empowered to prescribe the manner in which, and

the terms and conditions subject to which, the exemptions, concessions,

drawback or other benefits shall be granted to the Developer or

entrepreneur under sub-section (1) of section 26. The impugned circular

is not giving any new interpretation to the words of a statuette and is


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only in the form of internal guidelines to the departmental officers merely

clarifying the existing provisions of a statute. It only clarifies the existing

statutory provision without adding nay new condition or provision.

26. The counsel also submits that from the invoice dated 15.05.2007

raised by M/s KSMN & Co., Chartered Accountants charging a service

tax of Rs. 50,000 on accounting services rendered by them to the

petitioner, it cannot be made out that the services rendered are anywhere

related to any authorised operation as defined in section 2(c) of the

Special Economic Zones Act.

27. Refuting the contention of the counsel for petitioner that only

Central Board of Excise & Customs can pass such circular, the counsel

for respondent submits that the aforesaid section is not relevant for the

present case since the said section empowers the Central Excise &

Customs to issue clarifications where it considers it necessary for purpose

of uniformity in the classification of excisable goods or with respect to

levy of duties of excise on such goods, to issue such orders , instructions

and directions to Central Excise Officers as it may deem fit. In the

present case, the impugned circular is a letter dated 03.04.2008 that is

in the form of internal guidelines on matters relating to Special Economic

Zone to departmental officers to enable them to take a uniform stand

while attending meetings of approval committee. It is next submitted that

it is not a clarification under section 37B of Central Excise Act. It is only

a letter which reiterates some of the legal provisions of Special Economic

Zones Act and Rules and does not in any way impose or add any

condition or denied nay right of exemption bestowed under the Special

Economic Zones Act and Rules.

28. I have heard the counsel for parties and have carefully perused

the pleadings on record and the written submission filed by both the

parties.

29. Before proceeding further, it would be relevant to reproduce

section 26(1) (e) of the SEZ Act, 2005 and Rule 31 of the SEZ Rules,

2006. Section 26 (1)(e) reads as under:

“26. Exemptions, drawbacks and concessions to every

Developer and entrepreneur:

(1) Subject to the provisions of sub-section (2), every

Developer and entrepreneur shall be entitled to the following

exemptions, drawbacks and concessions,

namely:(a).......................

(e) Exemption from service tax under Chapter-V of the

Finance Act, 1994 (32 of 1994) on taxable services

provided to a developer or Unit to carry on authorised

operation in a Special Economic Zone;

(f)..................................

(2) The Central Government may prescribe the manner in which,

and the terms and conditions subject to which, the exemptions,

concessions, drawback or other benefits shall be granted to the

Developer or entrepreneur under sub-section (1).

Rule 31 of the SEZ Rules, 2006 reads as under:

“The exemption from payment of service tax on taxable services

under section 65 of Finance Act, 1994 (32 of 1994) rendered to

a Developer or a Unit (including a Unit under construction) by

any service provider shall be available for the authorised operations

in a Special Economic Zone”.

30. It is contended by the counsel for respondent that since the

expression “authorised operations” refers to those operations which are

to be carried out inside the Special Economic Zones, hence the words

“in Special Economic Zone” as they appear in section 26 and Rule 31 are

to be read with “taxable services” so as to mean that the exemption is

available only with regard to those services that are rendered in a special

economic zone. The aforementioned argument of the counsel for

respondent has no basis. It is a well established law that statutes have

to be given strict interpretation. If the words of a statute are precise and

clear, they must be accepted as declaring the express intention of the

legislature. It is equally well-settled that a subject is not to be taxed unless

the words of a taxing statute unambiguously impose the tax on him. In

Ajmera Housing Corpn. v. CIT reported at (2010) 8 SCC 739, the

Apex Court observed as under:

“36. It is trite law that a taxing statute is to be construed strictly.

In a taxing Act one has to look merely at what is said in the

relevant provision. There is no presumption as to a tax. Nothing



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is to be read in, nothing is to be implied. There is no room for

any intendment. There is no equity about a tax. (See Cape

Brandy Syndicate v. IRC1 and Federation of A.P. Chambers

of Commerce & Industry v. State of A.P2) In interpreting a

taxing statute, the court must look squarely at the words of the

statute and interpret them. Considerations of hardship, injustice

and equity are entirely out of place in interpreting a taxing statute.

(Also see CST v. Modi Sugar Mills Ltd3)”

31. A similar view was expressed in Hansraj & Sons v. State of

J&K, reported at (2002) 6 SCC 227. The relevant portion reads as

under:

“22. A Constitution Bench of this Court in the case of A.V.

Fernandez v. State of Kerala4 observed: (AIR p. 661, para 29)

“29. It is no doubt true that in construing fiscal statutes

and in determining the liability of a subject to tax one

must have regard to the strict letter of the law and not

merely to the spirit of the statute or the substance of the

strictly within the provisions of the law, the subject can

be taxed. If, on the other hand, the case is not covered

within the four corners of the provisions of the taxing

statute, no tax can be imposed by inference or by analogy

or by trying to probe into the intentions of the legislature

and by considering what was the substance of the matter.

We must of necessity, therefore, have regard to the actual

provisions of the Act and the rules made thereunder before

we can come to the conclusion that the appellant was

liable to assessment as contended by the Sales Tax

Authorities.”

‘In that case this Court noted with approval, the following

observations of Lord Russel of Killowen in IRC v. Duke of

Westminster5, AC at p. 24: (AIR p. 661, para 27)


1. (1921) 1 KB 64

2. (2000) 6 SCC 550

3. AIR 1961 SC 1047 : (1961) 2 SCR 189

4. AIR 1957 SC 657 : 1957 SCR 837

5. 1936 AC 1 : 1935 All ER Rep 259 : 104 LJ KB 383 (HL)

6. AIR 1940 PC 183 : (1940) 8 ITR 522

7. (1998) 1 SCC 384

8. (1976) 3 SCC 800

9. AIR 1964 SC 457 : (1964) 5 SCR 230

‘I confess that I view with disfavour the doctrine that in

taxation cases the subject is to be taxed if in accordance

with court.s view of what it considers the substance of

the transaction, the court thinks that the case falls within

the contemplation or spirit of the statute. The subject is

not taxable by inference or by analogy, but only by the

plain words of a statute applicable to the facts and

circumstances of his case.”

The observations of Lord Russel in the aforementioned case

were also referred by the Privy Council in Bank of Chettinad

Ltd. v. CIT6. The Privy Council did not accept the suggestion

that in revenue cases “the substance of the matter” may be

regarded as distinguished from the strict legal position.

23. A similar view was taken in CWT v. Ellis Bridge Gymkhana7

in which it was observed:

“5. The rule of construction of a charging section is that

before taxing any person, it must be shown that he falls

within the ambit of the charging section by clear words

used in the section. No one can be taxed by implication.

A charging section has to be construed strictly. If a person

has not been brought within the ambit of the charging

section by clear words, he cannot be taxed at all.”

24. Again in the case of Diwan Bros. v. Central Bank of

India8 a three-Judge Bench of this Court, construing the principles

of interpretation of fiscal statutes, quoted with approval, the

observations in A.V. Fernandez v. State of Kerala and in

State of Maharashtra v. Mishrilal Tarachand Lodha9in which

it was observed: (AIR p. 459, para 9)

“The Act is a taxing statute and its provisions therefore

have to be construed strictly, in favour of the subject

litigant.”

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25. Following the ratio in the aforementioned decisions it was

observed: (SCC p. 807, para 7)

“7. These observations manifestly show that the courts

have to interpret the provisions of a fiscal statute strictly

so as to give benefit of doubt to the litigant. The principles

deducible from the decisions referred to above are well

established and admit of no doubt.”

26. From the discussions in the foregoing paragraphs, the position

that emerges is that Notification No. SRO 348 in which the

additional toll tax was levied was clearly beyond the purview of

Section 3 of the Act. Further, the finding of the High Court that

in the context of facts and circumstances of the case, processing

of the dry fruits like almonds, walnuts and walnut kernels did

not come within the expression “manufacture” cannot be said to

be erroneous. The judgment of the High Court upholding the levy

of additional toll tax in the case is also unsustainable.”

32. A plain grammatical reading of section 26(1) (e) of the SEZ

Act, 2005 makes it clear that taxable services provided by a service

provider to a Developer or a Unit/entrepreneur to carry out authorised

operations in a Special Economic Zone are exempted from levy of service

tax. Similarly, a bare perusal of Rule 31 of the SEZ Rules, 2006 make

it abundantly clear that the exemption from service tax is available on

services rendered to a developer or a unit/entrepreneur for carrying out

authorised operations. Further, from a combined reading of section 26(1)(e)

with Rule 31 makes it evident that the only condition that is required to

be satisfied to avail the service tax benefit under the said provisions is

that the services must be rendered for the purpose of carrying out the

“authorised operations in a special economic zone”. Had it been the

intention of the legislature that only those services are exempted from

levy of service tax that are rendered within the special economic zones,

the legislature would have categorically and clearly stated so in the statute.

In the absence of such express intention, the court cannot add words to

the statute to lead to an interpretation which could not have been the

intention of the legislature.

33. The counsel for petitioner has vehemently argued before this

Court that in the absence of any such condition under the parent statute,

the impugned circular being administrative in nature cannot impose a new

condition nor can it supersede the parent statute which in the present

case is section 26(1) (e) of the SEZ Act, 2005 read with Rule 31 of the

SEZ Rules, 2006. The relevant portion of the impugned circular reads as

under:

"9. The SEZ Act and Rules do not permit any exemption to

services provided by a SEZ unit to any individual inside an SEZ

as it does not get covered under the export of services. Similarly,

regarding exemption of service tax on services availed by units/

developers in SEZs and regarding taxability of service rendered

to an SEZ unit in respect of authorized operations”

34. A plain reading of the impugned circular makes it clear that as

per the circular; only those services are exempted from service tax

which are rendered to a Developer or a Unit/Entrepreneur within the

Special Economic Zone. Thus, while the SEZ Act and the rules framed

thereunder provide for tax exemption to all services provided to a

Developer/ Entrepreneur operating in a Special Economic Zone but vide

the impugned circular the Government has sought to prescribe an additional

condition that the parent statute, which in the present case is the SEZ

Act, 2005, does not prescribe. The impugned circular curtails the tax

exemption granted to a service provider providing services to a Developer

or a Unit/Entrepreneur operating in a Special Economic Zone to only

those services that have been rendered within the Special Economic

Zone, which in clear terms, is inconsistent with Section 26(1)(e) of the

SEZ Act.

35. It is trite law that a subordinate legislation has to conform to

the parent statute and any subordinate legislation inconsistent to the

provisions of the parent statute is liable to be set aside. It is equally well

settled that circulars being executive/administrative in character cannot

supersede or override the Act and the statutory rules. A division Bench

of this Court in decision dated 04.03.2011 in Federation of Indian

Airlines v. Union of India (WP (C) No. 8004/2010) has elaborately

discussed the above proposition of law. the relevant extract of the judgment

reads as under:

“67. The basic test is to determine whether a rule to have

effect must have its source of power which is relatable to the

rule making authority. Similarly, a notification must be in accord

with the rules, as it cannot travel beyond it. In this context, we

may refer with profit to the decision in General Officer



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Commanding-in-Chief v. Dr. Subhash Chandra Yadav, AIR

1988 SC 876 wherein it has been held that before a rule can have

the effect of a statutory provision, two conditions must be fulfilled,

namely (1) it must conform to the provisions of the statute

under which it is framed; and (2) it must also come within the

scope and purview of the rule making power of the authority

framing the rule. If either of these two conditions is not fulfilled,

the rule so framed would be void.

68. In Additional District Magistrate (Rev.), Delhi

Administration v. Shri Ram AIR 2000 SC 2143, it has been

held that it is a well recognized principle that conferment of rule

making power by an Act does not enable the rule making authority

to make a rule which travels beyond the scope of the enabling

Act or which is inconsistent therewith or repugnant thereto.

69. In B.K. Garad v. Nasik Merchants Co-op. Bank Ltd, AIR

1984 SC 192, it has been held that if there is any conflict

between a statute and the subordinate legislation, the statute shall

prevail over the subordinate legislation and if the subordinate

legislation is not in conformity with the statute, the same has to

be ignored.

70. In Ashok Lanka v. Rishi Dixit (2005) 5 SCC 598, it has

been laid down that although the State may delegate its power to

an administrative authority, yet such a delegation cannot be made

in relation to the matters contained in the rule-making power of

the State. The matters which are outside the purview of the

Rules only could be the subject-matter of delegation in favour of

the authority. Their Lordships have further opined that a

subordinate legislation must be framed strictly in consonance

with the legislative intent.

71. In Dilip Kumar Ghosh v. Chairman AIR 2005 SC 3485,

their Lordships have expressed the view that it is well settled

principle of law that Circular cannot override the rules occupying

the field and if there is a clash between the Rule and the circular,

the circular has to be treated as non est.

72. In Punjab Water Supply and Sewerage Board v. Ranjodh

Singh AIR 2007 SC 1082; their Lordships have observed that a

Scheme under Article 162 of the Constitution of India would not

prevail over the statutory rule. Their Lordships have further clearly

held that any departmental letter or executive instruction cannot

prevail over the statutory rule.”

36. In Godrej & Boyce Mfg. Co. Ltd. V. State of Maharashtra

reported at (2009)5 SCC 24, the Apex Court held that circulars are

administrative in nature and cannot alter the provisions of a statute nor

can they impose additional conditions. Para 64 of the judgment of the

judgment reads as under:

“64. Having regard to the nature of the law the submission

advanced on behalf of the municipal authority would lead to

palpably unjust and inequitable results. The landowner whose

land is designated in the development plan as reserved for any of

the purposes enumerated in Section 22 of the Act or for any of

the amenities as defined under Section 2(2) of the Act or Regulation

2(7) [sic Regulation 3(7)] of the Regulations is not left with

many options and he does not have the same bargaining position

as the municipal authority. Therefore, surrender of the land in

terms of clause (b) of Section 126(1) of the Act cannot be

subjected to any further conditions than those already provided

for in the statutory provisions. It is of course open to the legislature

to add to the conditions provided for in the statute (or for that

matter to do away with certain conditions that might be in

existence). But it certainly cannot be left in the hands of the

executive to impose conditions in addition to those in the statutes

for accepting the offer to surrender the designated land.”

37. Thus, applying the settled position of law to the facts and

circumstances of the present case, I find that the impugned circular

dated 03.04.2008 seeks to impose a condition that was not the intention

of the legislature as expressed in the SEZ Act or in the SEZ Rules framed

thereunder and thus, is liable to be set aside.

38. The writ petition is disposed of in above terms.


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CS (OS)

M/S. CHUGH KATHURIA ENGINEERS (P) LTD. ....PLAINTIFF

VERSUS

DELHI DEVELOPMENT AUTHORITY (DDA) ....DEFENDANT

(VIPIN SANGHI, J.)

CS (OS) NO. : 1043/2009 DATE OF DECISION : 15.06.2011

Arbitration Act, 1940—Section 30 and 33—Indian

Contract Act, 1872—Section 15 and 16—Code of Civil

Procedure, 1908—Section 34, Order IX Rule 8, Order VI

Rule 4—Petitioner was allotted work of construction

of flats—Disputes between parties referred to sole

arbitrator—Award rendered by arbitrator challenged

before High Court—As arbitrator had failed to consider

a letter of petitioner accepting responsibility for delay

in execution of work, award partly set aside and new

arbitrator appointed to decide claims—Arbitrator held

delay in completion was on part of respondent—Award

challenged before High Court—Plea taken, impugned

order is not based on any evidence placed before

arbitrator and that there is an error apparent on face

of award—There was no pleading to support story that

letter admitting delay was obtained from petitioner

under duress or coercion—Per contra plea taken,

arbitrator had considered evidence and concluded

delay was attributable to respondent at various stages

of work—Held—A plea of coercion or undue influence

or duress has necessarily to be specifically raised and

pleaded as a fact—Though Code of Civil Proceedure

is not strictly applicable to arbitral proceedings,

Principles thereof, which are evolved to achieve

fairness in proceedings, are attached even to arbitral

proceedings—To permit a party to arbitration

proceeding to raise oral plea of ‘‘coercion’’ or ‘‘duress’’

or ‘‘undue influence’’, would cause irreparable

injustice to opposite party as opposite party would be

put to grave disadvantage in dealing with such a

vague and indefinite plea which is devoid of particulars

and specifics—Grant of extension of time by

respondent, till date of abandonment, cannot

necessarily lead to conclusion that delay was

attributable to respondent, and not petitioner—A party

to a contract has option to accept breach thereof by

opposite party and require opposite party to still

complete contract—It is not that whenever there is

breach of contract by one party, opposite party should

rescind contract—Claim for tools & plants stationed at

site for prolonged period made rule of Court—Arbitrator

appointed to reconsider claims for expenses incurred

for delayed work/losses suffered by petitioner due to

contract getting prolonged.

Important Issue Involved: (A) A plea of coercion, or

undue influence or duress (which is not a legally defined

term and is used interchangeably with the first two terms)

has necessarily to be specifically raised and pleaded as a

fact.

(B) A party to a contract has the option to accept the

breach thereof by the opposite party and require the opposite

party to still complete the contract.

[Ar Bh]

APPEARANCES:

FOR THE PLAINTIFF : Mr. Sandeep Sharma, Advocate.

FOR THE DEFENDANT : Mr. Abhishek Puri, Advocate.

CASES REFERRED TO:

1. National Insurance Company Limited vs. Sehtia Shoes,

395 396 Chugh Kathuria Eng. (P) Ltd. v. Delhi Devel. Auth. (DDA) (Vipin Sanghi, J.)


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(2008) 5 SCC 400.

2. Ranganayakamma and Another vs. K.S. Prakash (Dead)

By LRs. and Others, (2008) 15 SCC 673.

3. Double Dot Finance Ltd. vs. Goyal MG Bases Ltd., 2005(1)

ALR 324 (Delhi).

4. Divisional Manager, United India Insurance Co. Ltd. &

Anr. vs. Sameer Chandra Chaudhary, JT 2005(6) SC

289.

5. Maharashtra S.E.B. and Another vs. Suresh Raghunath

Bhokare [(2005) 10 SCC 465].

6. ONGC vs. Comex Services SA, 2003(3) Arb.LR 197(Bom).

7. Delhi Development Authority vs. Polo Singh, 101 (2002)

DLT 401.

8. NDMC vs. Priya Constructions and another 2001 (2),

Arbitration Law Reporter 126 (Delhi).

9. United India Insurance vs. Ajmer Singh Cotton & General

Mills, (1999) 6 SCC 400.

10. Hindustan Construction Co. Ltd. vs. State of J & K (1992)

4 SCC 217.

11. DDA and others vs. Alkarma AIR 1985 Delhi 132.

12. Pao On and Others vs. Lau Yiu and Another, 1979 (3)

All ER 65.

13. Kale & Others vs. Deputy Director of Consolidation &

Others, (1976) 3 SCC 119.

14. Union of India vs. Baldev Dutt and another, ILR (1972)

I Delhi 811.

15. Union of Indian vs. Bungo Steel Furniture Pvt. Ltd. AIR

1967 SC 1032.

16. Lala Kapurchand Godha and Others vs. Mir Nawab

Himayatalikhan Azamjah, AIR 1963 SC 250 (V 50 C23).

17. Narayan Bhagwantrao Gosavi Balajiwale vs. Gopal

Vinayak Gosavi and Ors., AIR 1960 SC 100).

RESULT: Partly allowed.

VIPIN SANGHI, J.

I.A. No. 1008/2010

1. These are objections preferred by the respondent-DDA under

Sections 30 & 33 of the Arbitration Act, 1940 against the award dated

19.03.2009 passed by Mr. Justice R.C. Chopra, retired Judge, Delhi High

Court.

2. The petitioner M/s Chugh Kathuria Engineers (P) Ltd. was awarded

the work of construction of 96 Type-III, 96 Type II quarters and 140

Scooter Garage in Block-B, Janak Puri, New Delhi vide an agreement

No. 41/EE/HD/VII/DDA/81-82. The stipulated date of commencement of

work was 20.08.1981. The work was to be completed on or before

19.05.1982 i.e. within a period of nine months. However, the work

continued till 1985, and was never completed by the petitioner.

3. The respondent-DDA alleged that the petitioner had abandoned

the work. On the other hand, the case of the petitioner was that the

respondent was responsible for delays and breaches. Disputes arose

between the parties which were referred to arbitration by Mr. M.S.

Telang. Mr. Telang rendered his award on 31.01.1994. The DDA

challenged the said award by filing I.A. No. 8700/1994 in CS(OS) No.

543/1994. By judgment dated 01.08.2006, the learned Single Judge decided

the objection petition. While dealing with the award on claim No. 3,

additional claim No. 3 and counter-clam No. 2, the court observed that

the learned Arbitrator had failed to take into consideration a relevant

document, namely, Exhibit R-2 dated 01.08.1985 which was written by

the petitioner. Consequently, the court set aside the award pertaining to

claim No. 3, additional claim No. 3 and counter-claim No. 2. The relevant

extract from the said order reads as follows:

“44. On claim No.3 of the contractor as also additional ˇclaim

no.3 and counter claim no.2 of DDA, in my opinion there is

serious problem with the award.

45. Claim No.3 was on account recompense claimed by the

contractor for the expenditure incurred during the period contract

got prolonged. Sum of Rs.6,05,800/- has been awarded to the

contractor. On additional claim No.3 sum of Rs.28,900/- has

been awarded. This claim also related to the contract prolonged


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period and was pertaining to the tools and plants stationed at the

site.

46. Counter claim no.2 of DDA was for losses suffered due to

contract getting prolonged.

47. In the preamble of the award, learned Arbitrator has referred

to the delay in furnishing the structural drawings. He has also

referred to the fact that the contractor established that the site

had hindrances. Learned Arbitrator has also held that there was

delay in supply of cement and steel items which were to be

supplied by DDA. Learned Arbitrator has held delay attributable

only to DDA.

48. Consequence of said finding is that DDA's counter claim

No.2 has been rejected and contractor's claim No.3 and additional

claim No.3 has been allowed in sum of Rs.6,05,800/- and

Rs.28,900/- respectively.

49. Learned counsel for DDA drew my attention to Ex R-2 being

a letter relied upon by DDA., The said letter dated 1.8.1995

bears the signature of the contractor.

50. The said letter written by the contractor contains an admission

that delay was occasioned due to contractor's faults.

51. Learned counsel for the contractor drew my attention to the

minutes of the hearing held on 20th August, 1993 (pages 49 to

57 of Part-I of the Arbitrator's record).

52. Minutes of the said meeting notes the stand of the contractor

to the effect that Ex.R-2 was obtained under duress by the

Engineer concerned.

It records the justification of the contractor that the said letter

was written after 2 years of letter Ex. C-24 dated 6.5.1983. The

minutes note that the letter Ex C-24 pertains to grant of extension

of time and does not refer to any delay by the contractor. Minutes

record the submission of the contractor that the language of Ex

R-2 does not show volition of the contractor. It is also noted

that the letter is not on the letter head of the contractor. It is also

recorded that case of the contractor is that in the parliament a

question was raised as to why the project had got delayed and

to save their skin the engineers of DDA had obtained said letter

from the contractor.

53. Unfortunately, learned Arbitrator has not discussed Ex.R-2

while giving his justifications in the award.

54. What has been noted in the minutes dated 20.8.1993 is the

respective stand of the parties. Stand of the contractor qua the

said letter has been noted. But that would not be the justification

for the award.

55. Reasons have to be stated in the award. I cannot enter into

surmises and conjectures. As I read the award I find an omission,

in that, there is no reference whatsoever to Ex.R-2.

56. It is settled law that where a material document has been

ignored by the Arbitrator, in that, while discussing on the issue,

no mention is made thereto, same would vitiate the award as

being a case of legal misconduct, i.e. failure to consider a relevant

and material document.

57. Ex.R-2 is certainly a material document. Its importance can

be gauged from the fact that extensive reference has been made

by learned Arbitrator to the submissions of a contractor made on

20.8.1993 pertaining to Ex.R-2.

58. Findings of the learned Arbitrator pertaining to claim No.3,

additional claim No.3 and counter claim No.2 cannot be sustained

due to non-consideration of Ex.R-2.”

4. The court appointed Mr. Justice R.C. Chopra (Retired), as the

Arbitrator to decide the petitioner’s claim No.3, additional claim No.3 and

DDA’s counter-claim No.2. The court directed that the Arbitrator would

not record any further evidence, but would decide the aforesaid claims

and counter-claim on the basis of the existing evidence. As a consequence

of the aforesaid order, the learned Arbitrator has rendered the impugned

award which is challenged by the DDA.

5. The learned Arbitrator in his award takes note of the judgment

of the High Court aforesaid. He also takes note of the submissions of the

petitioner, inter alia, to the effect that the respondent was responsible for



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the delays in, amongst others, handing over of the construction site, the

supply of construction drawings, granting approvals, issuing cement and

steel doors, pipes, etc. The learned Arbitrator also takes note of the

submission of the petitioner in relation to the Exhibit R-2, that there was

a Parliament Question in 1985 and the Executive Engineer concerned, in

order to save his skin, pressurized and coerced the claimant to write this

letter accepting the responsibility for delay in execution of the work. The

learned Arbitrator observes that before the previous Arbitrator, in the

sixth sitting held on 20.08.1993, it was contended by the petitioner that

the letter Ex. R-2 had been obtained from him in view of a parliament

question. It was also argued that all letters had been written by the

claimant on its letterhead whereas Exhibit R-2 alone was a letter written

on plain paper. The petitioner also highlighted the fact that up to the 34th

RA Bill dated 23.11.1985, the respondent had made payment under Clause

10(C) of the agreement which provides for escalation on labour cost.

The conduct of the respondent in making payment under Clause 10(C)

of the agreement for the period up to November 1985 shows the

acknowledgement by the respondent, of the fact that the delay up to that

period was not on account of the petitioner.

6. The learned Arbitrator also noticed the submission of the

ˇrespondent that Exhibit R-2 was voluntarily written by the claimant

which clinches the issue with regard to the responsibility for the delay

in completion of the project. It was argued that Exhibit R-2 was the

truthful admission on the part of the petitioner that the delay was on its

part only. The respondent relied upon the judgment reported as Double

Dot Finance Ltd. V. Goyal MG Bases Ltd., 2005(1) ALR 324 (Delhi),

to submit that coercion or duress in commercial contracts cannot be

inferred on account of financial pressures only and various other factors

have to be considered to ascertain whether the freedom of exercising

free will was there or not when the person had made the admission.

Pertinently, it was the submission of the respondent that a question was

raised in Parliament in regard to delay in completion of the work and,

therefore, the respondent was pressing the petitioner to re-organise its

work and complete the same.

7. The learned Arbitrator proceed to consider the issue whether

Exhibit R-2 was a voluntary and genuine admission on the part of the

petitioner-claimant regarding its fault in delaying the project, or whether

it was obtained from him under coercion or duress by the Engineers of

the respondent who wanted to save themselves in the wake of Parliament

Question. While dealing with this issue, the learned Arbitrator examines

the correspondence exchanged between the parties as also the various

steps taken by them for the performance of the contract. On this basis,

he concludes that the delay was on the part of the respondent. He also

takes note of the fact that for about three years the respondent allowed

the claimant to go ahead with the work which, according to him, showed

that the petitioner was not to blame for delay in execution of the work.

He notes that as per record till May 1984, when inspection was carried

out the completed work was about 62% only. Still no action taken

against the petitioner. He observes that this indicates that the respondent

was satisfied that the petitioner was not to blame for the delay. He also

notices the fact that the petitioner was paid escalation under Clause 10(C)

upto the 34th RA Bill dated 23.11.1985, which indicated that till then the

respondent did not blame the claimant for delay in execution of the work.

He holds that the letters issued by the respondent, and relied upon by

them, to claim that the progress of the work was slow were of no

consequence. He holds that the said letters were apparently written in

routine, only to save their own skin in regard to delay in completion of

the project.

8. At this stage, I may note that the learned Arbitrator has observed

that the respondent rescinded the contract on 11.10.1985. However, as

a matter of fact, a perusal of Exhibit R-47 dated 11.10.1985 shows that

the said letter does not purport to rescind the contract. The learned

Arbitrator in paragraph 18 of the impugned award holds as follows:

“18. In the light of the aforesaid facts and circumstances and the

evidence on record, it can be safely held that right from the

beginning, the respondent was not adhering to the time schedule

for completion of the work and did not provide the site free

from hindrances to the claimant contractor. It had also defaulted

in supplying the requisite drawings and the material to the claimant

promptly and as such the delay was attributable to the respondent.

Throughout the period of subsistence of the contractual

relationship between the parties, the claimant had been

continuously writing to the respondent that it was not responsible

for the delay in the project. It is not understandable as to why


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all of a sudden on 1st August 1985, the claimant should have

taken a U-turn and written Ex.R2, which was absolutely self-

damaging, contrary to its stand and exonerated the respondent of

all its defaults. The claimant has been contending before the

previous Arbitrator also that Ex.R2 was obtained from him by

the Engineers of the respondent in the wake of a Parliament

Question to save their skin. The respondent has not been able to

suggest even as to why the claimant should have written such

a self damaging letter Ex.R2 without any rhyme or reason. It is

also noticed that all other letters by the claimant were on the

letterheads of the claimant whereas Ex.R2 was on a plain paper,

which indicates that it was not sent from the office of claimant

but was written at some other place. This fact supports the

stand of the claimant that it was obtained from him under pressure

and coercion and it had no reason to write such self-damaging

letter when its disputes with the respondent were still pending

and its accounts had not been settled. The Judgment cited by ld.

Counsel for the respondent is not applicable to the facts of the

present case as it is not pleaded that Ex.R2 was obtained for

releasing payments. I therefore have no hesitation in holding that

Ex.R2 is a procured and false document and cannot be relied

upon to hold that claimant was liable for delay in the project.”

9. The submission of learned counsel for the respondent-applicant

is that the impugned award is not based on any evidence placed before

the learned Arbitrator, and that is an error apparent on the face of the

award. It is submitted that the learned Arbitrator has ignored various

documents relied upon by the respondent. These documents showed that

the petitioner was behind schedule, and in spite of extensions granted to

the petitioner and his promise to complete the work within the extended

period, the same was not so completed. It is also argued that the petitioner-

claimant did not deny the fact that the Ex.R-2 dated 01.08.1985 was a

letter written by it. There was no pleading or averment made to support

the story that the said letter Ex. R-2 was obtained from the petitioner

under coercion or duress by the respondent. This oral plea raised in a

hearing held on 20.08.1993 was not corroborated by any material or

evidence placed on record of the learned Arbitrator. Learned counsel for

the respondent submits that the learned Arbitrator has misconducted

himself by accepting the said plea of the petitioner.

10. On the other hand, learned counsel for the petitioner has supported

the impugned award by submitting that the learned Arbitrator has

considered documentary evidence placed before him to conclude that the

delay was attributable to the respondent at various stages of the work,

and there was no reason for the petitioner to have issued Ex.R-2 dated

01.08.1985 which was self destructive and went contrary to the position

as it emerges from the evidence placed on record. The petitioner also

submits that claim No. 2 had been made by the petitioner to claim

escalation on account of delay by the respondent. The said claim had

been allowed by the earlier appointed Arbitrator and also upheld by the

High Court, which establishes that the delay was not on account of

defaults of the claimant-petitioner, but on account of hindrances and

delay caused by the respondent. It is argued that the decision of the High

Court in regard to claim No. 2 operates as issue estoppel against the

respondent inasmuch, as, by allowing this claim the High Court had put

the blame for delay on the respondent. Learned counsel for the petitioner

has raised various other submissions which I shall record a little later.

11. A perusal of the impugned award shows that the learned

Arbitrator has recorded a finding in paragraph 18 to the effect “This fact

supports the stand of the claimant that it was obtained from him under

pressure and coercion and it had no reason to write such a damaging

letter when its disputes with the respondent were still pending and its

accounts had not been settled”. The coercion and duress alleged by the

petitioner was on the premise that there was a Parliament question in

1985 and the Executive Engineer concerned, in order to save his skin,

pressurized and coerced the claimant to write this letter, accepting

responsibility for the delay in execution of the work.

12. In relation to the said cause for coercion, pertinently there is

no finding returned by the learned Arbitrator. The learned Arbitrator has

not found, as a matter of fact, that a parliament question was raised

around the time when the letter Ex.R-2 was issued, or that the same was

issued due to coercion exercised by the respondent due to the said

parliamentary question being raised, to save their skin. A perusal of the

impugned award shows that the finding of coercion returned by the

Learned Arbitrator is only inferential i.e. it is inferred from the finding

that the respondent alone was responsible for the delay. On the basis of

this finding it is inferred that there could be no other reason for the



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petitioner to voluntarily give a self destructive letter as Ex. R-2. There is

no direct finding of fact, to the effect that the respondent exercised

coercion or duress upon the petitioner to extract Ex. R-2.

13. During the course of arguments, I called upon the petitioner to

show me the pleading of the petitioner to the effect that Ex. R-2 had been

given under coercion and pressure for the reason that there was a

Parliament question raised in 1985, and that the Executive engineer

concerned, in order to save his skin had pressurized and coerced the

petitioner into writing Ex.R-2. There was absolutely no mention of Ex.R-

2 in the petitioner’s statement of claim. Therefore there is no pleading

in relation to Ex. R-2 either. Ex.R-2 was relied upon by the respondent

in it counter statement of fact while dealing with claim no.2. It would

be appropriate to set out the pleading of the respondent in reply to Claim

No.2. The same reads as follows:-

“Claim No.2

Claim No.2 is in fact mischievous and without any basis. In

terms of clause-10C of the agreement the claimant is entitled for

claim towards the cost of material till the date of completion of

the work but the claimant is not entitled to claim any rise in the

cost of materials if the delay is on the part of the claimant. Since

in the present case the work has been delayed by the

claimant and it is entirely attributable to the claimant

therefore the claimant is not entitled for any payment under

Clause 10-C after the extended date of completion. It is

further submitted that since the claimant had abandoned

the work on 25.11.1985 the respondent became entitled to

get the work done at the risk & cost of the claimant. In

fact the delay has already been admitted by the claimant in

his letter dt. 1.8.85 (Exh.R-2) wherein the claimant himself

has admitted that on account of some financial problem of

the contractor/claimant the claimant was not in a position

to deploy the sufficient labour to complete the work as per

the programme submitted by the claimant, duly concurred

by the respondents. In view of the situation that the claimant

has admitted the delay, he is not entitled for payment under

Clause 10-C as the delay is entirely attributable to the

claimant himself. The details of the payments made under clause

10-C are given in Exh.R-3 of counter statement of facts. Such

payments are reimbursed to the claimant. The claim is therefore

liable to be rejected and the excess payments made to the claimant

may please be awarded in favour of the respondents which are

being filed under the head of Counter Claims.” (emphasis supplied)

14. Pertinently, the petitioner did not file any rejoinder before the

arbitral tribunal to controvert the aforesaid averments and, in particular,

to controvert the respondent’s reliance placed at Ex.R-2. It would be

appropriate at this stage to reproduce Ex.R-2 a well. The same reads as

follows:-

“M/S Chugh Kathuria Engineers (P) Ltd.

J-11/94 Rajouri Garden, N. Delhi.

To,

The Executive Engineers,

Housing Division No.XXX,

DDA, New Delhi.

Sub: C/o 96, Type-III, 96, Type-II house and 144 S/Grs. In

Block B Janakpuri.

Dear Sir,

Kindly refer your letter No.F(31)A/HDXXX/DDA/84/85/ 1276

dated 24/7/1985 regarding slow progress on the above cited

work. It is admitted that on account of some financial problem

with the firm, we could not deploy sufficient labour required to

complete the work as per programme given by you. We now

reaffirm that the entire work as per terms and conditions of the

agreement like flooring, plastering, white washing, sanitary

installations, water supply installations, miscellaneous items and

item of internal development shall all be completed by 30th Sep.

85. We further assured that labour to the extent of about 150

Nos. including 30-35 Masons, carpenters and fitters etc. shall be

deployed with immediate effect and department shall be liberty to

deploy labour at our risk and cost, in case we fail to keep our

promise and fullfil the targets.

Chugh Kathuria Engineers (P) Ltd.


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c.c.S.E. Circle-XIII for kind information.”

15. The stand of the petitioner that Ex.R-2 was given under duress

and coercion was raised by the petitioner only during the course of oral

submissions made before the arbitral tribunal in the proceedings held on

20.08.1993, while discussing counter claim No. 2 of the respondent. I

think it appropriate to extract the relevant proceedings drawn up by the

learned Arbitrator in relation to Ex.R-2. The same read as follows:-

“All emphasis is drawn by respondent from R-2 Ext.” is granted

by C-24/6.5.83 (upto 31.8.83 extension stands granted). This is

the last extension on record.

R-2/1.8.85. from Claimant is almost 2 years after C-24/6.5.83.

In the light of querry in Parliament: R-2 was LC found.

Language of R-2 is not on claimants own volition. Even so, it is

mere promise. It cannot therefore said to be one drafted for

Claim 3 of Agt.”

16. The petitioner, it appears did not lead any direct evidence before

the earlier Arbitrator to establish duress or coercion. Before the learned

Arbitrator it was claimed that the Parliamentary question was raised in

1985 and that Exhibit R-2 was taken from the petitioner under ˇduress

and coercion in the wake of the said parliamentary question, to save the

skin of the respondent’s officers. However, there was no document

placed on the record of the learned Arbitrator to show that any

parliamentary question was raised in relation to the project in the year

1985. On the contrary, there is a communication dated 04.02.1984 issued

by the respondent (Ex.R-30) which, inter alia, records “You are well

aware that these houses are to be completed by June. 84 as per programme

given by the department to the Parliament”. It would, therefore, appear

that the issue in relation to the project was raised in Parliament well

before 04.02.1984. In fact, a letter dated 30.01.1984 addressed to Sh.

Harish Khanna, Vice Chairman, DDA (Ex. R-33) shows that the question

in the Lok Sabha was raised as early as on 19.12.1983. As aforesaid,

there is no evidence placed on record by the petitioner to substantiate the

plea that the said issue was again raised before the Parliament close to

the date of issue of the communication dated 01.08.1985, Ex. R-2.

17. In my view, the learned Arbitrator has grossly misconducted

himself in adopting such a course of action. Firstly, the Court had

remanded back the matter to the learned Arbitrator to consider Ex.R-2.

Consideration of Ex.R-2 entailed the consideration of the issue, whether,

in the absence of any pleading whatsoever by the petitioner, the petitioner

could, at all, raise an oral plea of exercise of coercion and duress by the

respondent to obtain Ex.R-2, only at the time of making its oral submissions

before the Arbitral Tribunal. Even if it were to be assumed for the sake

of argument, that such a plea could be raised orally, without any foundation

in pleadings, consideration of Ex.R-2 would also have entailed the

consideration of the issue whether Ex.R-2 had, in fact, been obtained by

duress and coercion.

18. Unfortunately, the learned Arbitrator has not addressed himself

to the issue, whether the petitioner could have raised a plea of coercion

and duress in relation to Ex. R-2 for the first time during the course of

its oral submissions before the learned Arbitrator on 20.08.1993, without

there being any basis for such a plea in the pleadings before the Arbitrator.

19. The Indian Contract Act, 1872 defines ‘Coercion’ in Section 15

as follows :

“Coercion is the committing, or threatening to commit, any act

forbidden by the Indian Penal Code (45 of 1860) or the unlawful

detaining, or threatening to detain, any property, to the prejudice

of any person whatever, with the intention of causing any person

to enter into an agreement.”

“Undue influence” is defined in Section 16 in the following manner:

“(1) A contract is said to be induced by "under influence" where

the relations subsisting between the parties are such that one of

the parties is in a position to dominate the will of the other and

uses that position to obtain an unfair advantage over the other.

(2) In particular and without prejudice to the generally of the

foregoing principle, a person is deemed to be in a position to

dominate the will of another -

(a) where he hold a real or apparent authority over the other, or

where he stands in a fiduciary relation to the other; or

407 408Chugh Kathuria Eng. (P) Ltd. v. Delhi Devel. Auth. (DDA) (Vipin Sanghi, J.)


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(b) where he makes a contract with a person whose mental

capacity is temporarily or permanently affected by reason of

age, illness, or mental or bodily distress.

(3) Where a person who is in a position to dominate the will of

another, enters into a contract with him, and the transaction

appears, on the face of it or on the evidence adduced, to be

unconscionable, the burden of proving that such contract was

not induced by undue influence shall be upon the person in a

position to dominate the will of the other. Nothing in the sub-

section shall affect the provisions of section 111 of the Indian

Evidence Act, 1872 (1 of 1872).”

A plea of coercion, or undue influence, or duress (which is not a

legally defined term and is used interchangeably with the first two terms)

has necessarily to be specifically raised and pleaded as a fact. As to how

coercion or undue influence has been exercised by one party upon the

other are all matters of fact.

20. Though the Code of Civil Procedure is not strictly applicable to

arbitral proceedings, the Principles thereof, which are evolved to achieve

fairness in proceedings, are attracted even to arbitral proceedings. In

Union of Indian Vs. Bungo Steel Furniture Pvt. Ltd. AIR 1967 SC

1032 and Hindustan Construction Co. Ltd. Vs State of J & K (1992)

4 SCC 217 the Supreme Court held that though Section 34 CPC per se

did not apply to arbitral proceedings, but the principles thereof have been

held to be applicable to arbitral proceedings.

21. In Union of India Vs. Baldev Dutt and another, ILR (1972)

I Delhi 811 the Court held that in an Arbitration (under the Arbitration

Act, 1940), the Arbitrator is entirely in the same position as a Judge with

the difference that his authority is derived not by virtue of a public office

but by virtue of an agreement between the parties. The proceedings

before the arbitrator are, therefore, entirely judicial. The Court distinguished

the proceedings before an arbitrator appointed under the Arbitration Act,

1940 from proceedings which are called quasi judicial proceedings before

an authority which combines two capacities of a Judge and an

administrator. The Court held that where an arbitrator is appointed by the

parties to decide the disputes arising out of the contract between them,

he is just like a Judge. The arbitrator is not governed by the technical

rules contained in the Civil Procedure Code and the Evidence Act. He is

nevertheless required to follow the fundamental rules of fair procedure.

This is why his award would be vitiated if he misconducts the

proceedings. The proceedings would include the hearing of the parties

and taking evidence with a view to decide the disputes between them.

Evidence may, however, be documentary or oral or both. It may even

consist of the admissions made in the pleadings.

22. The Court further held that if on examination of award by the

Court “it is apparent that the proceedings were misconducted by the

arbitrator then the effect of such misconduct would be a question of law

and it would be difficult for the Court to shut its eyes to such misconduct.

It is true that the misconduct must be flagrant to vitiate the proceedings.

Minor mistakes of technical nature would not be misconduct. But the

complete failure of an arbitrator to collect any evidence on which

he based his award would be such misconduct.”

23. I may also note that, without going into the issue whether the

provisions contained in the Civil Procedure Code, or the principles thereof

apply to arbitral proceedings, this Court in NDMC Vs. Priya

Constructions and another 2001 (2), Arbitration Law Reporter 126

(Delhi) invoked the provisions contained in Rule 8 of Order IX, Civil

Procedure Code. In this case the claimant failed to appear before the

Arbitrator despite notices. The learned Arbitrator, inspite of that, proceeded

to pass a ‘nil’ award. The Court held that the arbitrator could have

dismissed the claim in default but could have not rendered an award on

merits. Reliance was placed on the provisions of the Civil Procedure

Code, and, in particular Order IX Rule 8 Civil Procedure Code to set

aside the award made by the Arbitrator.

24. In DDA and others Vs. Alkarma AIR 1985 Delhi 132, this

court held as follows:

“The administration of justice would require that there should

not be multiplicity of proceedings and the parties should not be

permitted to raise disputes over and over again once the disputes

have been entitled (settled sic) either by the pronouncement of

a Court on (of sic) competent jurisdiction or by an award by an

arbitrator. Once the suit, which is filed, has been decided, the

provisions of Order II Rule 2 become applicable. After the trial


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of the suit if any claim, which could have been made, has not

been made, then it is deemed that the same has been relinquished

and a fresh suit in respect to the said claim cannot be filed.

During the pendency of the suit, however, the plaintiff has a

right to apply for amendment of the plaint under Order VI Rule

17 in order to enlarge the scope of the suit and, if he so desires,

raise additional pleas praying for a larger relief than what he had

prayed for originally. Just as a Court while exercising its

power under Order VI Rule 17 has the jurisdiction to allow

amendment, in the arbitration proceedings as well as the

same principle should be invoked. It is true that if an award

has been made then the principles analogous to Order II

Rule 2, C.P.C. would apply and after the making of the

award a claimant cannot seek to raise a dispute which he

ought to or could have raised earlier. This being so, it would

indeed be unfair and unjust not to invoke the principles of

Order VI Rule 17 during the pendency of the arbitration

proceedings.” (emphasis supplied)

25. It is not without purpose that Order VI Rule 4 CPC provides

that “In all cases in which the party pleading relies on any

misrepresentation, fraud, breach of trust, willful default, or undue influence,

and in all other cases in which particulars may be necessary beyond such

as are exemplified in the forms aforesaid, particulars (with dates and

items if necessary) shall be stated in the pleading.” The above rule is

engrafted to bind the party making the pleading to his case (so that he

does not shift from his stand), and also to enable to opposite to effectively

meet the same. To permit a party to an arbitration proceeding to raise an

oral plea of “coercion” or “duress” or “undue influence” would cause

irreparable injustice to the opposite party as the opposite party would be

put to grave disadvantage in dealing with such a vague and indefinite plea

which is devoid of particulars and specifics.

26. In Lala Kapurchand Godha and Others Vs. Mir Nawab

Himayatalikhan Azamjah, AIR 1963 SC 250 (V 50 C23), as no plea

was raised by the appellants to the effect that the endorsement on the

promissory notes has been obtained by coercion, and no issue was

struck between the parties as to the endorsements on the promissory

notes having been obtained by coercion, the court held that the question

of coercion was introduced as and by way of afterthought.

27. In Kale & Others Vs. Deputy Director of Consolidation &

Others, (1976) 3 SCC 119, the Supreme Court was dealing with an

argument that the family settlement in question had been brought about

by duress or undue influence or fraud. The Supreme Court, in para 29,

held that in respect of the challenge to the family settlement that it was

brought about by duress, or undue influence or fraud, there was no iota

of evidence or whisper of an allegation by the challenger either in the

Subordinate Courts or in the High Court. The Supreme Court held that

“it is well-settled that allegations of fraud or undue influence must be first

clearly pleaded and then proved by clear and cogent evidence”.

28. In Ranganayakamma and Another Vs. K.S. Prakash (Dead)

By LRs. and Others, (2008) 15 SCC 673, the Supreme Court held that:

“43. We are, however, not oblivious of the decisions of this

Court and other High Courts that illegality of a contract need not

be pleaded. But, when a contract is said to be voidable by reason

of any coercion, misrepresentation or fraud, the particulars thereof

are required to be pleaded. In Maharashtra S.E.B. and Another

v. Suresh Raghunath Bhokare [(2005) 10 SCC 465], the law

is stated in the following terms:

"5...The Industrial Court after perusing the pleadings and

the notice issued to the respondent came to the conclusion

that the alleged misrepresentation which is now said to be

a fraud was not specifically pleaded or proved. In the

show-cause notice, no basis was laid to show what is the

nature of fraud that was being attributed to the appellant.

No particulars of the alleged fraud were given and the

said pleadings did not even contain any allegation as to

how the appellant was responsible for sending the so-

called fraudulent proposal or what role he had to play in

such proposal being sent..."

[See also Prem Singh Vs. Birbal, (2006) 5 SCC 353]

44. In Ramesh B. Desai and Others v. Bipin Vadilal Mehta

and Others [(2006) 5 SCC 638], this Court emphasized the

necessity of making requisite plea of Order 6, Rule 4 stating:



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"22. Undoubtedly, Order 6 Rule 4 CPC requires that

complete particulars of fraud shall be stated in the pleadings.

The particulars of alleged fraud, which are required to be

stated in the plaint, will depend upon the facts of each

particular case and no abstract principle can be laid down

in this regard."

45. In Sangramsinh P. Gaekwad and Others v. Shantadevi

P. Gaekwad [(2005) 11 SCC 314], this Court held:

"207. We may now consider the submissions of Mr Desai

that Appellant 1 herein is guilty of commission of fraud.

Application filed by Respondent 1 before the Gujarat High

Court does not contain the requisite pleadings in this behalf,

the requirements wherefor can neither be denied nor

disputed.

208. It is not in dispute that having regard to Rule 6 of

the Companies (Court) Rules, the provisions of the Code

of Civil Procedure will be applicable in a proceeding under

the Companies Act. In terms of Order 6 Rule 4 of the

Code of Civil Procedure, the plaintiff is bound to give

particulars of the cases where he relies on

misrepresentation, fraud, breach of trust, etc." (emphasis

supplied)

29. In National Insurance Company Limited Vs. Sehtia Shoes,

(2008) 5 SCC 400, the respondent had preferred a consumer claim under

the Consumer Protection Act against the appellant. The matter travelled

to the Supreme Court. The Supreme Court took notice of the decision

in United India Insurance Vs. Ajmer Singh Cotton & General Mills,

(1999) 6 SCC 400, wherein it was held that the discharge vouchers were

executed voluntarily and the complainant had not alleged their execution

to be under fraud, undue influence, misrepresentation or the like. The

Supreme Court in Ajmer Singh (supra) held that in the absence of

pleadings and evidence, the State Commission was justified in dismissing

the complaint. In Sehtia Shoes (supra), though the plea of coercion has

been raised by the complainant before the District Forum, but the same

had not been proved. Consequently, the Supreme Court allowed the

appeal of National Insurance Company Limited and remitted the matter

back to the District Forum for fresh adjudication. Pertinently, the Civil

Procedure Code and the Evidence Act do not apply to the proceedings

under the Consumer Protection Act, just as they are not strictly applicable

to the proceedings before the Arbitrator under the Arbitration Act, 1940.

However, the principles of these statutes were made applicable to the

Consumer Courts because the fundamental principles of procedure and

evidence cannot be given a go-bye, as these principles are founded upon

concepts of fair play and natural justice.

30. Therefore, in the light of the aforesaid legal position, I cannot

appreciate how the learned Arbitrator could have examined the petitioner’s

oral defence to Ex. R-2 that the same was obtained by coercion or

duress. Such a plea could not have been entertained as it was raised

without any specific pleading. The learned arbitrator has misconducted

the proceedings by falling in this patent error.

31. The submission of Mr. Sharma is that when this court, in the

earlier round had remanded the matter back to the Ld. arbitrator, at that

stage, such a view was not taken. The court required the arbitrator to

examine the issue afresh on the basis of the existing evidence and,

therefore, it can not be said that without any pleading the said plea of

coercion and duress could not have been entertained. This plea is meritless.

A perusal of the order passed by the court in the earlier round shows that

the court had not even examined whether there was, or was not, any

pleading of coercion or duress raised by the petitioner. There is no

discussion on the aspect of the petitioner not having raised the said

defense to Ex. R-2 in its pleading. Therefore, it can not be inferred that

the court had ruled that even without a specific pleading, the defence of

coercion and duress could be raised.

32. Pertinently, the learned Arbitrator himself holds that in the facts

of this case it was not pleaded that the coercion and duress was economic

or financial coercion or duress. The questions then arise, what kind of

coercion or duress was exercised; was it threat to the life of any of the

officers of the petitioner, or to the and property of the petitioner, or any

of its officers? If so, to whom was the threat issued? If so, by whom?

If so, when? If so, where? It is also pertinent to note that the petitioner,

on its own, did not even bother to make a reference to Ex. R-2 in its

statement of claim.

33. The aforesaid are some of the obvious questions that the arbitrator


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should have addressed himself to, before concluding inferentially that

there was exercise of coercion or duress by the respondent upon the

petitioner. In the absence of any pleading the aforesaid questions could,

obviously, not have been raised or answered.

34. Even if one were to assume for the sake of argument, that in

arbitration proceedings the plea of coercion or duress need not be

specifically pleaded by a party in its pleadings, and that the same could

be raised in an oral hearing, as aforesaid, the learned Arbitrator has not

even gone into the absolutely imperative factual enquiry with regard to

the exercise of coercion and duress by the officers of the respondent.

35. The document Ex.R-2 was suppressed by the petitioner. It was

only brought out by the respondent. The petitioner, even after the execution

of the said document as early as 01.08.1985, did not retract it or make

any allegation of its being obtained by coercion or duress till as late as

20.08.1993, i.e., after a lapse of more than eight years. Even this statement

was made only orally during the course of the advancement of submissions

before the learned Arbitrator. Despite the fact that the petitioner could

have raised the said plea by filing a rejoinder to the counter-statement of

facts filed by the respondent, no such opportunity was sought or availed

of by the petitioner. Pertinently, the counter-statement of facts, wherein

the respondent had relied upon Ex.R-2, was filed by the respondent

before the learned Arbitrator on or about 04.09.1989. The oral plea, as

aforesaid, was made by the petitioner nearly four years thereafter.

36. I also find that the manner in which the learned Arbitrator has

dealt with the decision in Double Dot Finance Limited (supra) specifically

relied upon by the respondent to be completely perfunctory. The only

reason given by the learned Arbitrator to distinguish the said decision in

the facts of the present case is that, in the present case, the petitioner

had not alleged economic duress, whereas in the case of Double Dot

Finance Limited (supra) economic duress had been raised as a defence

to the execution of a full and final settlement receipt. Pertinently, the

decision in Double Dot Finance Limited (supra) was rendered by Mr.

Justice R.C. Chopra i.e. learned Arbitrator while sitting as a Judge of this

court. In para 9 of this decision the court took note of the judgment of

the Privy Council in Pao On and Others Vs. Lau Yiu and Another,

1979 (3) All ER 65. By referring to the said decision, this court had held:

“It was also held that the question as to whether at the time the

person making a contract allegedly under coercion had or not

any alternative course open to him which could be an adequate

legal remedy and whether after entering into the contract, he

took steps or not to avoid it are matters which are relevant for

determining as to whether he acted voluntarily or not. It was

also held that the compulsion has to be of a nature which deprives

a party of his freedom of exercising free will leaving no alternative

course open to him. Therefore, the 'coercion' or 'duress' required

for vitiating 'free consent' has to be of the category under which

the person under 'duress' is left with no other option but to give

consent and is unable to take an independent decision, which is

in his interest.”.

37. This court further held as follows:

“11. In certain cases, the plea of entering into 'settlement' under

coercion, mistake, duress or misrepresentation may, however,

be examined and accepted even if the facts and circumstances

establish that the party repudiating the agreement was under

pressure of the other party at the time of entering into settlement

and had without delay taken steps to disclaim the accord and

satisfaction. Mere financial exigency or economic expediency

cannot constitute 'pressure'.

12. .……………...However, the plea of coercion, undue influence

or duress raised by a party to challenge the 'accord and

satisfaction' cannot be accepted lightly merely upon word of

mouth. The facts and circumstances, material on record and

conduct of the parties at the time of signing the settlement

agreement and soon thereafter have to be looked into. It need not

be stated that the burden to establish this plea remains on the

party which raises it.”

38. In para 14, this court held:

“14. If such pleas are sustained, the sanctity and purpose of

‘amicable settlements’ between the parties would stand totally

eroded. Amicable resolution of disputes and negotiated settlements

is ‘public policy of India’. Section 89 of the Code of Civil



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Procedure, 1908, Arbitration and Conciliation Act, 1996 as well

as Legal Services Authorities Act, 1995 call upon the Courts to

encourage settlement of legal disputes through negotiations

between the parties. If amicable settlements are discarded and

rejected on flimsy pleas, the parties would be wary of entering

into negotiated settlements and making payments there under as

a shrewed party after entering into a negotiated settlement, may

pocket the amount received under it and thereafter challenge the

settlement ad re-agitate the dispute causing immeasurable loss

and harassment to the party making payment there under. This

tendency has to be checked and such litigants discouraged by

the Courts. It would be in consonance with public policy of

India. The Arbitrator, Therefore, had acted against public policy

of India by accepting the plea as raised by the respondent No.1

and thereafter, passing an Award. The view taken by the Arbitrator

was absolutely capricious, unfair and unreasonable and as such,

the impugned ward dated 29.11.2002 passed by him is liable to

be set aside.”

39. Merely because the present was not a case wherein the petitioner

had alleged exercise of duress and coercion on economic grounds, the

decision in Double Dot Finance Limited (supra) did not become irrelevant,

as this court had set out the General Principles and Guidelines to examine

a plea of coercion, duress, or undue influence on the basis of settled law.

Pertinently, it was not even pleaded, even during the oral submissions by

the petitioners before the learned Arbitrator on 20.08.1993, as to what

was the nature of the coercion or duress exercised by the officers of the

respondent. Was it that the officers of the respondent had physically

threatened any officer of the petitioner or had threatened the petitioner

that the petitioner may be blacklisted, etc.? None of this is pleaded or

proved. In the absence of such pleading and proof the finding returned

by the learned Arbitrator that the Ex.R-2 was obtained by exercise of

coercion or undue influence or duress cannot be sustained and it suffers

from error apparent on the face of the award. As observed in Double

Dot Finance Limited (supra), in this case as well I have to say that the

view taken by the Arbitrator is absolutely capricious, unfair and

unreasonable and the learned Arbitrator has misconducted himself in

making the impugned award.

40. The learned Arbitrator goes into the plea of duress and coercion

not by directly examining the said plea as orally raised by the petitioner,

for the first time, in the proceedings held on 20th August, 1993. The said

plea should have been examined, if at all, by asking the question whether

the petitioner had placed any material or evidence on record to show that

a parliamentary question was raised regarding the construction of the

flats in question some time before Ex. R-2 was issued. However, the

learned Arbitrator has not even gone into this aspect of the matter. Had

he ventured that way, he would have found that the petitioner had not

placed on record any material or evidence to show that a parliamentary

question was raised in respect of the project in question at any time

proximate to the date of issuance of the Ex.R-2. Instead he would have

found that the parliamentary question was raised well before early February,

1984 i.e. at least 1½ years before the issuance of Ex.R-2 dated 01.08.1985.

He would have also found that there was not an iota of evidence lead by

the petitioner in the arbitral proceedings to substantiate the said oral plea

of duress or coercion.

41. The learned Arbitrator has examined various documents placed

ˇon record by the petitioner while dealing with the issue of delay.

Undoubtedly, the documents relied upon by the petitioner before the

learned Arbitrator do show that the respondent was indeed responsible

for the initial delay of the project. However, the documents taken note

of by the learned Arbitrator in the impugned award do not show delays

and defaults on the part of the respondent till August, 1985 or thereafter.

In fact, the petitioner in its letter dated. 10.2.1984 (C-45), while raising

the issue of payment of dues under clause 10(C) and 12 of the agreement

stated as follows :

“We have sufficient labour and material with us and as such

there is no hindrance in our work on account of this but the

progress of our work is being hindered only for non-payment

of our long outstanding dues. Kindly release the same

immediately so that we may be able to show our worth in

completing the job by the target already committed.” (emphasis

supplied)

42. It is pertinent to note that after issuance of this letter dated

10.2.1984 (C-45), there was no communication from the side of the

petitioner, and on 16.11.1984, the respondent issued a show cause notice


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under Clauses 2 and 3 of the Agreement (C-46) thereby complaining that

there was slow progress of the work without any reason. On 7.12.1984

(C-47), the petitioner sent its reply. In this reply the petitioner referred

to the earlier defaults and failures of the respondent, but did not refer to

any ongoing failure or default of the respondent. In the concluding

paragraphs of this communication the petitioner stated as follows :

“We are still on the job and hope to complete the same ˇwith

in the shortest possible time provided, we continue to get your

present co-operation.

We would therefore earnestly request you to kindly atleast go

through the realities of the case before the imposing penal clauses

2 & 3 of the contract.

In the end we may assure you, Sir, that with the present state

of affairs, we hope to hand over the completed flats to you in

the very near future.

We have deployed sufficient labour for rectification of the defects

and when our labourers are at the job there is no point in engaging

departmental labour on the same very job. Hence we may either

be specifically informed of the work done and the quantum there

to by the departmental labour to enable us to make necessary

deductions from our labourers or no such claim of the department

shall be entertained.”

43. On 24.07.1985, the respondent issued another show-cause notice

(Ex. R-45) to the petitioner, alleging that the petitioner was “not executing

the work speadily. It is evident that you have failed to carry out the work

as per conditions of agreement”.

44. Between 07.12.1984 and 01.08.1985 (the date of issuance of

Ex.R-2) there is no other communication issued by the petitioner alleging

any further delay or defaults on the part of the respondent.

45. Pertinently, the learned Arbitrator in Para 15 of the impugned

award observes “Not only this, the drawings for water supply duly

approved by MCD were supplied to the claimant on 05.09.1984 only i.e.

after about two years of stipulated date of the completion of the contract”.

This observations appears to be patently incorrect as none of the documents

referred to or relied upon in the award suggests so. In para 6 of the

impugned award, the date of supply of drawings for water supply,

approved by MCD has been noticed as 05.04.1984 i.e. 5 months earlier.

Pertinently, the stipulated date of start under the contract was 20.08.1981,

and the stipulated date of completion was 19.05.1982. Therefore, the

period of the contract was nine months. Even if the said period is

assumed to begin in April, 1984, the same would have expired in January

1985. It is not as if before April 1984, no work could be carried out by

the petitioner. The petitioner had been able to complete substantial work

by April 1984 (nearly 60%) as noticed by the Ld. Arbitrator. The issuance

of the letter Ex. R-2 dated 01.08.1985 in these circumstances cannot be

said to be unusual, or that the said letter was against the other facts

emerging from the record.

46. In Divisional Manager, United India Insurance Co. Ltd. &

Anr. v. Sameer Chandra Chaudhary, JT 2005(6) SC 289 the Supreme

Court held as follows:

“……Admission is the best piece of evidence against the persons

making admission. As was observed by this Court in Avadh

Kishore Das v. Ram Gopal and Ors. AIR 1979 SC 861 in the

backdrop of Section 31 of Indian Evidence Act, 1872 (in short

the ‘Evidence Act’) it is true that evidentiary admissions are not

conclusive proof of the facts admitted and may be explained or

shown to be wrong; but they do raise an estoppels and shift the

burden of proof placing it on the person making the admission

or his representative-in-interest. Unless shown or explained to be

wrong, they are an efficacious proof of the facts admitted. As

observed by Phipson in his Law of Evidence (1963 Edition, Para

678) as the weight of an admission depends on the circumstances

under which it was made, these circumstances may always be

proved to impeach or enhance its credibility. The effect of

admission is that it shifts the onus on the person admitting the

fact on the principle that what a party himself admits to be true

may reasonably be presumed to be so, and until the presumption

is rebutted, the fact admitted must be taken to be established. An

admission is the best evidence that an opposing party can rely

upon, and though not conclusive is decisive of matter, unless

successfully withdrawn or proved erroneous. (See Narayan



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Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and

Ors., AIR 1960 SC 100)…..”

The admission contained in Ex.R-2 binds the petitioner as the petitioner

has not pleaded or proved coercion or duress before the learned arbitrator.

47. Ex. R-2 clearly demonstrates the admission on the part of the

petitioner to the fact that the petitioner was responsible for the delay. I

am not suggesting that the entire delay was attributable to the petitioner.

48. From the documents referred to in the impugned award, it

emerges that the delays and defaults on the part of the respondent did

not continue, in any event, after April, 1984.

49. The finding of the learned Arbitrator that “It is not understandable

as to why all of a sudden on 1st August 1985, the claimant should have

taken a U-turn and written Ex.R2, which was absolutely self-damaging,

contrary to its stand and exonerated the respondent of all its defaults”,

appears to be result of non-application of mind to the aforesaid facts and

documents/evidence on record.

50. Pertinently, the learned arbitrator has even failed to notice that

Ex. R-2 had been issued in response to the respondent’s show cause

notice bearing No.F(31)A/HDEXXX/DDA/84-85/1276 dated 24.07.1985

regarding slow progress of the work at the site. The said show cause

notice dated 24.07.1985 was also placed on record by the respondent as

Ex. R-45. Therefore, it could not be said that the letter dated 01.08.1985

(Ex. R-2) came as bolt from the blue, as held by the learned arbitrator.

The facts discussed above show that the communication dated 01.08.1985

was not issued, as suddenly, as held by the learned Arbitrator. It was

also not a U-turn inasmuch, as, the respondent had issued notices dated

16.11.1984 (C-46), 07.12.1984 (C-47) and 24.07.1985 (R-45) accusing

the petitioner of delays and defaults in the completion of the works. The

petitioner had, as early as on 07.12.1984 and responded by assuring the

completion of the works “in the very near future”. It is clear that the

learned Arbitrator has ignored, inter alia, the petitioner’s reply (C-47)

dated 07.12.1984, and the respondents notice dated 24.07.1985 (R-45)

while rendering his impugned award. Failure to consider such relevant

documents amounts to misconduct on the part of the learned Arbitrator.

There is nothing placed on record to show that “throughout the period

of subsistence of contractual relationship between the parties, the claimant


had not continuously written to the respondent that it was not responsible

for the delay in the project”. As aforesaid, firstly, the contract was not

rescinded on 11.10.1985. Secondly, after the issuance of the letter dated

10.02.1984 (C-45), the petitioner, of its own, did not even once make

a grievance of the existence of any further hindrances, delays or defaults

on the part of the respondent. The observations of the learned Arbitrator

that “the mere fact that the respondent has been writing certain letters

to the claimant that the progress of the work was slow is of no

consequence. It appears that the respondent was writing these letters in

routine only with a view to save its own skin in regard to the delay in

the completion of the project”, shows non-application of mind by the

learned Arbitrator to very relevant documents and facts. The dates and

contents of these letters have not at all been examined and considered by

the learned Arbitrator.

51. A perusal of the impugned award shows that the learned

Arbitrator has heavily relied upon the fact that the respondent had granted

escalation to the petitioner under Clause 10(C) up to 34th RA Bill dated

23.11.1985. The learned Arbitrator held that this indicates that till then

the respondent did not blame the claimant-contractor for delay in execution

of the work. However, the learned Arbitrator has failed to notice the case

of the respondent as set out in its counter statement of facts. It was the

specific plea of the respondent, in response to claim No. 2, that the

claimant was not entitled to escalation under Clause 10(C). I have already

extracted the stand of the respondent in this regard hereinabove. The

respondent had, in fact, given the details of payments made under Clause

10(C) in Ex. R-3. The excess payment made under clause 10 (C)

according to the respondent, was to the tune of Rs.1,73,220.30/- on

labour account, and Rs.96,562.72/- on account of Bricks. As already

noticed above, there was no rejoinder filed by the petitioner in the arbitration

proceedings to controvert the said plea of the respondent. Therefore, no

conclusion could have been drawn by the learned Arbitrator to the effect

that the mere over payment of escalation under Clause 10 (C) upto the

34th RA Bill dated 23.11.1985, tantamounted to an admission that the

petitioner was not liable for delay after the expiry of the extended period

of contract. The release of the said payment was pleaded to be in excess

of what was due. Whether the payment under Clause 10(C) was in

excess or not, itself depended on the determination of the issue whether

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on to the Executive Engineer, DDA.

33. Unfortunately, the rough calculations submitted by the

contractor are not to be found in the record of arbitration, but

what is relevant for the purposes of the present decision is that

in the minutes recorded on 15th December, 1992 it was recorded

that the Executive Engineer DDA, after re-conciling the figures

has recorded consent to claim No.2 being allowed in sum of

Rs.37,117.69.

34. Objection filed by DDA to claim No.2 is accordingly rejected.”

54. The aforesaid submission of Mr. Sharma cannot be accepted

also for the reason that Ex. R-2, on a plain reading thereof, shows that

the petitioner took upon itself the responsibility for, at least, partial delay

in the execution of the works. Therefore, when the Court remanded the

matter back to the sole arbitrator for reconsideration of Ex. R-2, it

obviously meant that the aspect of fixing the responsibility for delay/

apportionment of the said responsibility was required to be reconsidered.

55. It is well settled that levy of liquidated damages under clause

2 is not an arbitrable dispute. In fact, this aspect was dealt with by the

court while dealing with the earlier award in paras 22 to 25. The same

reads as follows:

“22. DDA had levied a compensation (LD) under Clause 2 of the

agreement in sum of Rs. 8,51,839/-.

23. While raising counter claim No.1 it sought adjustment of said

sum. Learned Arbitrator has held that the levy of compensation

under Clause 2 is arbitrary and illegal.

24. Learned counsel for the petitioner does not dispute that the

issue of liquidated damages is a non-arbitrable dispute in as much

as it is an excepted matter.

25. I accordingly dispose of DDA’s objections to the award

pertaining to claim No.1 and 4 as also DDA’s counter claim

No.1 by holding that the award in so far it adjudicates on the

question of liquidated damages is without jurisdiction.”

56. Inspite of the aforesaid position, in the impugned award, the

learned arbitrator has commented on the levy of liquidated damages as


the petitioner was responsible for the delay, and if so, to what extent.

52. The submission of Mr. Sharma that the award made on claim

no.2 by Sh. M.S. Telang, the sole arbitrator, on 31.01.1994 having been

upheld by this court, it stood established that the entire delay was

attributable to the respondent, cannot be accepted.

53. A perusal of the award dated 31.01.1994 shows that the learned

sole arbitrator first discussed the aspect of delay and concluded that the

respondent was responsible for the same. In his consideration, the learned

arbitrator did not take into account Ex. R-2. So far as claim no.2 is

concerned, the amount of Rs.37,117.69 had been awarded on the basis

of mutual reconciliation. It is for this reason that this Court while dealing

with the award made by Sh. M.S. Telang did not interfere with the said

award. Reference may be made to paras 28 to 34 of the judgment dated

01.08.2006 passed in I.A. No.8770/1994 in C.S. (OS) No.543/1994. The

said paragraphs are reproduced herein below:

“28 Claim No.2 was the contractor's claim under Clause 10C of

the agreement. Contractor claimed Rs.3 lacs, sum awarded is

Rs.37,117.69.

29. Objection taken by DDA is to the quantification of the amount.

Shri Anil Sapra, learned counsel for DDA states that no reasons

are forthcoming on the record as to how the sum of Rs.37,117.69

has been arrived at.

30. In my opinion the objection is not sustainable for the reason

minutes of the various proceedings held by the learned Arbitrator

shows that from time to time he was calling upon the parties to

submit clarificatory statement and has been recording that disputes

were narrowing down.

31. A perusal of the minutes recorded on 15th December 1992

shows that claim No.2, was discussed. Following has been noted

by the learned Arbitrator :-

'respondents state that they have reconciled the figures

and the amount of Rs.37,117.69 as claimed is correct.'

32. The previous minutes show that the contractor had submitted

fresh calculations to the learned Arbitrator which were passed


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being unjustified. The said finding of the learned arbitrator is wholly

without jurisdiction and cannot be sustained.

57. The decision in Delhi Development Authority v. Polo Singh,

101 (2002) DLT 401 relied upon by the petitioner is of no avail. In Polo

Singh (supra), the award made on all the claims, except in relation to

claim no.5 (for Rs.14,39,972/- being loss of profit to the extent of 10%

of the contract value), was made a rule of the court. The award made

in relation to claim no.5 was set aside when the matter was remanded

back to the arbitrator for fresh adjudication thereon in the light of the

observations made in the judgment. The arbitrator, on reconsideration,

published a fresh award dated 04.03.1998 in relation to claim no.5 awarding

a sum of Rs.12,35,742/- in favour of the claimant. Repelling the challenge

to the award made on claim no.5, the Division Bench held that in the

earlier award, while allowing claim no.1 and disallowing the counter

claim of the appellant, DDA, the earlier arbitrator had returned his finding

that the recession of the contract was illegal and bad in law. The said

award had been made a rule of the court, except in relation to claim no.5.

That decision of the learned Single Judge had become final against the

appellant DDA. The Division Bench, therefore, held that while assailing

the award made on claim no.5, the validity of the earlier award could not

be challenged.

58. However, in the present case, the Court remanded the matter

back for reconsideration of Ex. R-2, which has a direct nexus with the

issue of delay, and with the issue as to who was responsible for the

delay, and to what extent. It can not be said that the court while dealing

with the award of Mr. Telang had accepted the finding that the entire

delay was attributable to the respondent alone. The Court while disposing

of the earlier objections to the award made by Mr. M.S. Telang, had

remanded the matter back for reconsideration of evidence not considered

by the learned arbitrator. The Court had not put its stamp of approval on

any finding to the effect that the entire delay was on the part of the

respondent DDA, and that none of it was attributable to the petitioner/

contractor. If that had been the case, there was no purpose of remanding

the case back to the learned arbitrator for reconsideration of Ex. R-2, as

that would have been a futile and wasteful exercise.

59. It is also urged by Mr. Sharma that there is no specific ground

taken by the respondent in its objections contained in I.A. No.1008/2010

to the effect that the learned arbitrator had rendered his finding without

any pleading of exercise of coercion or duress by the respondent at the

time of issuance of Ex. R-2 dated 01.08.1985. I do not find any merit

in this submission either. Grounds 7 and 8 taken by the respondent in its

application raising objections reads as follows:

“VII. That Learned Arbitrator has failed to appreciate that Exhibit

R-2 was a voluntary and genuine admission on the part of

the claimant regarding its fault in delaying the project. The

Respondent/DDA pleaded that there were no hindrances

or delays on the part of the respondent/DDA and right

from the beginning the claimant/contractor was not taking

the work seriously. Several letters and notices were issued

to the Claimant to speed up the work but it failed to

complete the project and for this reason only the

ˇrespondent had written the letter Exhibit R2 dated

01.08.1985 explicitly admitting that the delay was on

account of its fault. The Claimant does not deny that the

letter was written by him. But creates a story that the

letter was obtained from the Claimant under duress by the

Respondent. Which is not supplemented by any material

on record of the arbitration proceedings and this amounts

to misconduct on the part of the Arbitrator.

VIII. That the contention, reasons as stated by the Arbitrator in

Para 16 are baseless and is made on assumption. The

reason given in the para are without proper reasoning, not

based on the evidence placed before him and there apparent

on the face of award, and the award is liable to be set

aside for the misconduct on part of the arbitrator in

conducting the proceedings.” (emphasis supplied)

60. In Baldev Dutt & Another (supra), the Division Bench of this

Court has rejected a similar argument, while observing as follows:

“Shri R.L. Aggarwal, learned counsel for the Contractor firstly

argued that this objection to the proceedings of the arbitrator has

not been given specifically raised by the Government under section

30 of the Arbitration Act, 1940 and even in the grounds of


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appeal before us and we cannot, therefore, consider it. It is true

that the objection raised was only in general terms, namely, that

the arbitrator misconducted the proceedings. We are of the view,

however, that section 30(a) of the Arbitration Act, 1940 gives

the Court power to examine the proceedings of the arbitrator. If

on such examination it is apparent that the proceedings were

misconducted by the arbitrator then the effect of such misconduct

would be a question of law and it would be difficult for the

Court to shut its eyes to such misconduct.”

The decision of the Bombay High Court in ONGC v. Comex

Services SA, 2003(3) Arb.LR 197(Bom), does not come to the aid of

the petitioner in the light of the aforesaid judgment of the Division Bench

of this Court. The aforesaid submission of Mr. Sharma, therefore, stands

rejected.

61. It is then contended by Mr. Sharma that the respondent had

granted extension of time till the date of abandonment of the contract by

the petitioner while imposing liquidated damages for non completion of

the work. In this regard, he makes reference to Ex. R-54 dated 15.04.1986,

which, inter alia, states as follows:

“Extension of time is granted upto the date of abandonment of

work without prejudice to the right of DDA to recover liquidated

damages in accordance with the provisions of Clause 2 of the

agreement.

In exercise of the powers conferred on me under clause 2 of the

agreement, I.R.G. Bhatnager, Suptdg. Engineer, DDA, decide

and determine that you are liable to pay Rs.8,51,839/- (Rs. Eight

lakhs fifty one thousand eight hundred thirty nine only) as and

by way of compensation, as stipulated in clause 2 of the

agreement.”

62. Mr. Sharma raises the question that if Ex. R-2 had been given

by the petitioner voluntarily, where was the occasion for the respondent

to grant extension of time upto the date of abandonment. He further

points out that in the impugned award, the learned arbitrator has also

observed that if the delay was on the part of the petitioner, why was the

contract not rescinded by the respondent.

63. I cannot accept the aforesaid submissions of the petitioner.

Grant of extension of time by the respondent, till the date of abandonment,

cannot necessarily lead to the conclusion that the delay was attributable

to the respondent, and not the petitioner. Pertinently, by the same order

(Ex. R-54), the respondent has also imposed liquidated damages. A party

to a contract has the option to accept the breach thereof by the opposite

party and require the opposite party to still complete the contract. It is

not that whenever there is a breach of contract by one party, the opposite

party should necessarily rescind the contract. Therefore, the submission

of Mr. Sharma and the logic adopted by the learned arbitrator in the

impugned award is contrary to the law of the land, and is rejected.

64. Coming to the award made on claim no.3, I find that though

the learned arbitrator has broadly indicated the principle for computing

the compensation, there is still lack of clarity as to how the learned

arbitrator arrived at a figure of Rs.6 lacs. In any event, as I am of the

view that the impugned award cannot be sustained, the award made on

claim no.3 is set aside.

65. So far as the additional claim no.3 is concerned, learned counsel

for the respondent/applicant has fairly not raised any challenge to the said

award. Accordingly, the award made on additional claim no.3 is made a

rule of the court.

66. Counter claim no.2 has been rejected by the learned arbitrator

by holding that the entire delay in completion of the project was attributable

to the respondent. This finding cannot be sustained in the face of Ex. R-

2. The rejection of Ex. R-2, as I have already found, is bad. Therefore,

the award on counter claim no.2 is set aside.

67. The award made on claim no.3 and counter claim no.2 requires

reconsideration. I appoint Mr. Justice S.N. Kapoor, retired Judge, Delhi

High Court as the arbitrator to re-examine claim no.3 and counter claim

no.2, in the light of the aforesaid discussion and observations. The learned

arbitrator may fix his own fee, subject to a ceiling of Rs.50,000/-.

68. For all the aforesaid reasons, I partially allow the application

and set aside the impugned award to the extent indicated hereinabove, as

the learned arbitrator has clearly misconducted himself, and the award

suffers from serious errors on the face of the award itself. At the same

time, the award made on additional claim no.3 is made a ‘Rule’ of the



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Court and a decree is passed in terms thereof.

69. The respondent/applicant shall be entitled to costs quantified at

Rs.One Lac.

70. The complete arbitral record and a copy of this order be

communicated to the newly appointed arbitrator.


LPA

BSES RAJDHANI POWER LTD. ....APPELLANT

VERSUS



LPA NO. : 647/2010. DATE OF DECISION: 04.07.2011.

(A) Industrial Disputes Act, 1947—Section 10—Indian Penal


Respondent workman was employee of Delhi Vidyut

Board—On 04.05.1973, he was convicted for offences

punishable under Sections 148/302/323 and 149 IPC—

In Criminal appeal, the High Court of Punjab and

Haryana found him guilty of offences under Sections

323/149/148 of IPC but the charges levelled against

him under Section 302 IPC were not found to have

been proven—On 30.09.1996, his services terminated

on the ground that he had been convicted for offences

which involved moral turpitude—Industrial dispute

raised—Labour Court vide award dated 17.12.2005,

directed his reinstatement with back wages and

consequential benefits—Appellant invoked

jurisdiction—The workman was involved in commission

of a serious criminal offence which involved moral

turpitude—The workman contends that finding

recorded by labour Court is impeccable and do not

warrant interference—Single Judge held—The

imposition of punishment was excessive—The award

passed by the labour Court did not warrant

interference—Letters Patent Appeal—Held—The

punishment under Section 323 of the IPC has a different

contour but when a person is convicted under Section

148 of the Act, it establishes, in a way, the nature,

attitude, proclivity and propensity of the person

concerned—The petitioner was working as a peon in

the Delhi Vidyut Board—He got himself involved in a

criminal case of this nature and eventually, the

conviction has been recorded under Sections 323/149

and 148 of the IPC—Regard being had to the conviction

in respect of the nature of an offence, as engrafted

under Section 148 of the IPC, we are disposed to think

that it involves an offence involving moral turpitude.

The punishment under Section 323 of the IPC has a

different contour but when a person is convicted under

Section 148 of the Act, it establishes, in a way, the nature,

attitude, proclivity and propensity of the person concerned.

The petitioner was working as a peon in the Delhi Vidyut

Board. He got himself involved in a criminal case of this

nature and eventually, the conviction has been recorded

under Sections 323/149 and 148 of the IPC. Regard being

had to the conviction in respect of the nature of an offence,

as engrafted under Section 148 of the IPC, we are disposed

to think that it involves an offence involving moral turpitude

and the petitioner has been convicted to undergo rigorous

imprisonment for six months for the said offence. Both facts

have their own signification. (Para 27)

(B) Industrial Disputes Act, 1947—Section 10—Indian Penal

429 430BSES Rajdhani Power Ltd. v. Union of India (Dipak Misra, CJ.)

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Respondent workman was employee of Delhi Vidyut

Board—On 04.05.1973, he was convicted for offences

punishable under Sections 148/302/323 and 149 IPC—

In Criminal appeal, the High Court of Punjab and

Haryana found him guilty of offences under Sections

323/149148 of IPC but the charges levelled against him

under Section 302 IPC were not found to have been

proven—On 30.09.1996, his services terminated on

the ground that he had been convicted for offences

which involved moral turpitude—Industrial dispute

raised—Labour Court vide award dated 17.12.2005,

directed his reinstatement with back wages and

consequential benefits—Appellant invoked writ

jurisdiction—The workman was involved in commission

of a serious criminal offence which involved moral

turpitude—The workman contends that finding

recorded by labour Court is impeccable and do not

want interference—Single Judge held—The imposition

of punishment was excessive—The award passed by

the labour Court did not warrant interference—Letters

Patent Appeal—Disproportionate punishment—Held—

In the case at hand, when the offence committed by

the respondent is in the realm or sphere of moral

turpitude and there is imposition of sentence of

rigorous imprisonment for a period of six months on

two counts (although with a stipulation that the

sentences would run concurrently), the punishment

of termination cannot be said to be shocking to the

judicial conscience—We are disposed to think that

the punishment is not excessive or shockingly

disproportionate—An employee, who has been

involved in an offence of moral turpitude, has no right

to continue in service—A lesser punishment would be

contrary to the norms—It is difficult to hold that such

a punishment shocks the judicial conscience or is

totally unreasonable.

In the case at hand, when the offence committed by the

respondent is in the realm or sphere of moral turpitude and

there is imposition of sentence of rigorous imprisonment for

a period of six months on two counts (although with a

stipulation that the sentences would run concurrently), the

punishment of termination cannot be said to be shocking to

the judicial conscience. We are disposed to think that the

punishment is not excessive or shockingly disproportionate.

An employee, who has been involved in an offence of moral

turpitude, has no right to continue in service. A lesser

punishment would be contrary to the norms. It is difficult to

hold that such a punishment shocks the judicial conscience

or is totally unreasonable. (Para 35)

Important Issue Involved: (A) Conviction for an offence

punishable u/s 148 IPC involves moral turpitude.

(B) When the offence committed is in the realm of moral

turpitude and there is imposition of sentence of rigorous

imprisonment, the punishment of termination cannot be said

to be shocking to the judicial conscience.

[Vi Ba]

APPEARANCES:

FOR THE APPELLANT : Mr. Sandeep Prabhakar, Ms. Prerna

Mehta & Mr. Amit Kumar,

Advocates.

FOR THE RESPONDENTS : Mr. Anuj Agarwal, Mr. Jatin Rajput,

Advocates for Respondent No.1. Ms.

Ruchi Sindhwani and Ms. Megha

Bharara, Advocates for Respondent

No.3.

CASES REFERRED TO:

1. Chairman cum Managing Director, Coal India Limited

and Anr. vs. Mukul Kumar Choudhuri and Ors.; (2009)



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15 SCC 620.

2. On-Dot Couriers and Cargo Ltd. vs. Anand Singh Rawat;

WP(C) No.4197/2008.

3. State of M.P. & Ors. vs. Hazarilal; 2008-II-LLJ-715

(SC).

4. Coimbatore District Central Coop. Bank vs. Employees

Assn.; (2007) 4 SCC 669.

5. Hombey Gowda Educational Trust & Another vs. State of

Karnataka & Others; (2006) 1 SCC 430.

6. State of Rajasthan & Another vs. Mohammad Ayub Naz;

(2006) 1 SCC 589.

7. State of U.P. vs. Sheo Shanker Lal Srivastava and Others;

(2006) 3 SCC 276.

8. V. Ramana vs. A.P.S.R.T.C. and Ors.; (2005) 7 SCC

338.

9. Bharat Forge Co. Ltd. vs. Utam Manohar Nakate; (2005)

2 SCC 489.

10. Regional Manager, Rajasthan SRTC vs. Sohan Lal;

(2004) 8 SCC 218.

11. Om Kumar and Ors. vs. Union of India; (2001) 2 SCC

386.

12. Mahak Singh vs. State of UP & Ors., AIR 1999 Allahabad

274.

13. Bhagwati Prasad Tiwari vs. Regional Manager, Bank of

Baroda, Branch Manager, Bank of Baroda & Ors.;

W.P.No.41636/98 (Allahabad High Court).

14. Allahabad Bank & Anr. vs. Deepak Kumar Bhola, (1997)

4 SCC 1.

15. J.Jaishankar vs. Government of India & Anr.; 1996 SCC

(L&S) 1372.

16. Pawan Kumar vs. State of Haryana & Anr.; AIR 1996

SC 3300.

17. Pawan Kumar vs. State of Haryana (1996) 4 SCC 17:

1996 SCC (Cri) 583 (SCC at p.21).

18. Karam Singh vs. State of Punjab & Anr.; 1996 SCC

(L&S) 668.

19. State of Punjab & Ors. vs. Ram Singh, AIR 1992 SC

2188.

20. Glaxo Laboratories (I) Limited vs. Labour Court, Meerut

& Ors.; 1984 (I) LLJ 16 (SC).

21. Krishnankutty vs. Senior Supt. Of Post Offices, Ernakulam

& Ors.; 1976 (I) LLJ 175 (Kerala High Court).

22. Harsukh Lal vs. Sarnam Singh, 1964 ALL LJ 1118.

23. Durga Singh vs. The State of Punjab, AIR 1957 Punjab

97.

24. State of West Bengal & Ors. vs. Ram Nagina Dubey; 199

(64) FLR 272 (Cal HC).


DIPAK MISRA, CJ.

1. In this intra-court appeal, the assail is to the order dated 28.7.2010

passed by the learned Single Judge in WP(C) No.14237/2006 declining

to interfere with the award dated 17.12.2005 passed by the Labour Court

X, Karkardooma Courts in ID No.63/1998 whereby the reference was

answered in favour of the respondent-workman on the foundation that

the order of termination which was passed on conviction for offences

punishable under Section 323/149/148 of the Indian Penal Code (for

short "IPC?) did not tantamount to conviction for offences involving

moral turpitude and further the punishment imposed did not reflect proper

exercise of discretion vested in an employer while dealing with an employee.

2. The facts which are essential to be enumerated are that the

respondent-workman was in the employment of Delhi Vidyut Board as

a Peon since 25.10.1978. On 4.5.1993, he was convicted in a criminal

case for offences punishable under Sections 148/302/323 and 149 IPC

and sentenced to undergo life imprisonment. The judgment of conviction

and the order of sentence were assailed in a criminal appeal before the

High Court of Punjab & Haryana wherein the High Court found him

guilty of offences under Sections 323/149/148 of IPC but the charges

levelled against him under Section 302 IPC were not found to have been

proven. It is worth noting that during the pendency of the criminal

appeal, he was released on bail and joined the services under Delhi

Vidyut Board, till 17.4.1996 but was arrested again on 22.4.1996 to

undergo remaining period of imprisonment. On 30.9.1996, his services

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Indian Law Reports (Delhi) ILR (2011) VI Delhi435 436BSES Rajdhani Power Ltd. v. Union of India (Dipak Misra, CJ.)

were terminated on the ground that he had been convicted for offences

which involved moral turpitude.

3. Being dissatisfied with the order of termination, an industrial

dispute was raised and eventually, it travelled to the Labour Court forming

the subject matter of ID No.63/1998. The Labour Court, by the award

dated 17.12.2005, directed his reinstatement with backwages and

consequential benefits.

4. Grieved by the aforesaid award, the present appellant, BSES

Rajdhani Yamuna Power Limited ( one of the companies that came into

existence after the bifurcation of the Delhi Vidyut Board), invoked the

writ jurisdiction of the Court for quashment of the order of reinstatement

with backwages and consequential benefits. It was contended before the

learned Single Judge that the respondent-workman was not convicted for

committing a petty offence but was involved in commission of a serious

criminal offence which involved moral turpitude. It was also urged that

the respondent-workman might have been acquitted under Section 302

IPC but was convicted under Section 323/149 IPC and sentenced to

undergo six months? rigorous imprisonment and also for the same period

for the conviction under Section 148 IPC with the stipulation that both

the sentences shall run concurrently and, hence, the punishment is quite

grave involving moral turpitude. It was canvassed that if Rule 10(ii) of

the DESU (DMC) Service (C&A) Regulations, 1976 is scanned in proper

perspective, it would be quite clear that such a conviction constitutes

moral turpitude as the same discloses depravity in his conduct and

behaviour but the Labour Court has placed a narrow interpretation on the

concept of moral turpitude and, therefore, the award passed by the

Labour Court was absolutely vulnerable. On behalf of the appellant,

decisions rendered in J.Jaishankar v. Government of India & Anr.;

1996 SCC (L&S) 1372, Pawan Kumar v. State of Haryana & Anr.;

AIR 1996 SC 3300 and Karam Singh v. State of Punjab & Anr.; 1996

SCC (L&S) 668 were pressed into service.

5. The aforesaid submissions were combated by the learned counsel

for the workman contending, inter alia, that the findings recorded by the

Labour Court are impeccable and do not warrant interference in exercise

of extraordinary jurisdiction. It was put forth that by no stretch of

imagination, the conviction in the case at hand can be construed as a

conviction in respect of offences involving moral turpitude. In support

of the said submissions, the learned counsel for the workman placed

reliance on the decisions in State of M.P. & Ors. v. Hazarilal; 2008-

II-LLJ-715 (SC), Glaxo Laboratories (I) Limited v. Labour Court,

Meerut & Ors.; 1984 (I) LLJ 16 (SC), Karam Singh (supra), State

of West Bengal & Ors. v. Ram Nagina Dubey; 199 (64) FLR 272

(Cal HC), Bhagwati Prasad Tiwari v. Regional Manager, Bank of

Baroda, Branch Manager, Bank of Baroda & Ors.; W.P.No.41636/

98 (Allahabad High Court), Krishnankutty v. Senior Supt. Of Post

Offices, Ernakulam & Ors.; 1976 (I) LLJ 175 (Kerala High Court),

On-Dot Couriers and Cargo Ltd. v. Anand Singh Rawat; WP(C)

No.4197/2008 (Delhi High Court) and Pawan Kumar (supra).

6. The learned Single Judge referred to the 1976 Regulations

framed under Section 95 of the DMC Act, 1957 and also to few

passages from Durga Singh v. State of Punjab, AIR 1957 Punjab 97 and

Pawan Kumar (supra), and opined that the facts of the instant case

would be nearer to the decision of the Apex Court in the case of Hazarilal

(supra) wherein the employee was prosecuted under Section 323 read

with Section 34 IPC and sentenced to undergo one month simple

imprisonment which was reduced to a fine of Rs. 500/- in appeal. The

learned Single Judge also referred to the concept of discretion and

proportionality and, eventually, held that the imposition of punishment

was excessive and, hence, the award passed by the Labour Court did not

warrant interference.

7. We have heard Mr. Sandeep Prabhakar, learned counsel for the

appellant, Mr.Anuj Agarwal, learned counsel for the respondent No.1 and

Ms. Megha Bharara, learned counsel on behalf of Ms. Ruchi Sindhwani,

learned counsel for the respondent No.3. Despite service of notice,

none has appeared on behalf of the respondent No.2, the workman.

8. The seminal issues that emerge for consideration in the present

appeal are whether the conviction recorded against the second respondent

can be regarded as a conviction involving moral turpitude and whether

the punishment is disproportionate in the obtaining factual matrix. Be

it noted, the judgment of conviction is one under Sections 323/149 and

148 of the IPC. The submission of the learned counsel for the appellant

is that because of the acquittal of the offence punishable under Section

302 of IPC, it cannot be said that other punishment does not relate to

moral turpitude.


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9. In this context, we may refer with profit to the order dated

0.09.1996 which reads as follows:

" O R D E R

Whereas Shri Jai Prakash, E. NO. 25719, Peon under SE(C-III)

had been convicted by the Sessions Court Sonipat under Section

148 IPC & Section 302 read with Section 148 IPC & Section

323 read with Section 149 IPC & sentenced him to undergo life

imprisonment in criminal case registered against him under FIR

No. Sl dated 22.02.1991 O.S.Rai Sonipat. And whereas Shri Jai

Prakash filed an appeal before the High Court of Punjab &

Haryana, Chandigarh against the judgment passed by the Sessions

Court and he was released on bail.

And Whereas the Hon’ble High Court of Punjab and Haryana

now vide their order dated 18.03.1996 held him guilty Under

Section 323/149 IPC and also Under Section 148 IPC reducing

the life imprisonment to six months only and Shri Jai Prakash

has undergone the imprisonment and has been released.

And whereas Shri Jai Prakash had begun to absent himself from

duty w.e.f. 18.04.1996 onwards.

And whereas Shri Jai Prakash in the above manner has been

convicted by two successive Courts including the Hon’ble High

Court. His involvement in the Criminal activity has been clearly

established through the Police investigation and also during the

regular trial of his case in the court of law and as such there is

no need to institute a regular departmental inquiry.

And whereas the U/s therefore dispenses with holding of any

regular Department inquiry and other proceedings to be conducted

under Regulations 10(ii) of the DESU(DMC) Service (C&A)

Regulations, 1976 read with Section 95 of the DMC Act, 1957.

And whereas in the totality of the circumstances and after perusal

of relevant records and careful consideration of the case the U/

s is of the opinion that the conduct and character of Shri Jai

Prakash is such that he is not a liability to a public utility

organization like DESU and therefore the U/s exercising the

powers conferred on him in the DESU (Delhi Municipal

Corporation) Service (Control & Appeal) Regulation, 1976 has

no hesitation to impose the penalty of "dismissal from service"

which shall ordinarily be a disqualification for future employment

on Shri Jai Prakash, E.No.25719, Peon.

The above orders are subject to recovery of dues recoverable

from him on any account.”

10. Clause 14 of the Regulations, 1976 deals with the disciplinary

action for misconduct. Sub-clause 3 of the said clause enumerates what

acts and omissions shall be treated as misconduct. In the case at hand,

as we are only concerned with clause (q) of Clause 14 of the Regulations,

1976, the same is reproduced below:

"(q) Any offence involving moral turpitude which punishable

under the I.P.C."

11. First, we shall refer to the decision in Hazarilal (supra) as the

learned Single Judge has based his conclusion on the bedrock of the ratio

laid down therein. In Hazarilal (supra), the respondent, a peon in a

middle school, had assaulted one Ram Singh. He was prosecuted for the

commission of the said offence and was convicted by the trial Magistrate

under Section 323 read with Section 34 of the IPC and sentenced to

undergo one month’s simple imprisonment. On an appeal being preferred

by him, the sentence was reduced to a fine of Rs.500/- only. The

revision preferred before the High Court was dismissed. It is worth

noting that after conviction, the services were terminated and the appeal

preferred by him also faced dismissal. Being grieved by the said action,

the employee/ government servant preferred an application before the

State Administrative Tribunal which allowed the application holding that

the punishment of removal was grossly excessive. The State of Madhya

Pradesh preferred a writ petition before the High Court which was

dismissed. The Apex Court referred to Rule 19 of the MP Civil Service

(Classification, Control and Appeal) Rules, 1996 and interpreted the said

provision to convey that the disciplinary authority has been empowered

to consider the circumstances of the case where any penalty is imposed

on a Government servant on the ground of misconduct which has led

to his conviction on a criminal charge but the same would not mean that

irrespective of the nature of the case in which he was involved or the

punishment which had been imposed upon him, an order of dismissal

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must be passed. Their Lordships further opined that an authority which

is conferred with the statutory discretionary power is bound to take into

consideration all the attendant facts and circumstances of the case before

imposing an order of punishment and at that juncture, it must act reasonably

and fairly. Their Lordships referred to the doctrine of proportionality and

eventually came to hold that the appeal was bereft of merit and, accordingly,

dismissed the same. It is worth noting that Rule 19 of the MP Civil

Service (Classification, Control and Appeal) Rules, 1996 only uses the

words "conviction on a criminal charge" and the term "moral turpitude"

is not a part of the Rule. That apart, the peon was convicted under

Section 323 read with Section 34 IPC at his native place and, therefore,

their Lordships invoked the doctrine of proportionality. It is submitted

by the learned counsel for the appellant that the said decision is

distinguishable as in the said case, the employee/government servantw

as convicted for inflicting a simple injury and was eventually sentenced

to pay a fine of Rs.500/- but in the case at hand, the respondent was

convicted for offences punishable under Sections 302, 323, 148 and 149

IPC and on an appeal, the conviction under Section 302 IPC was set

aside on technical grounds. The learned counsel for the respondent,

per contra, submitted that once the order of acquittal has been recorded

in respect of the offence under Section 302 IPC, the Court has to see

the judgment of conviction in respect of the offences and should not go

into the facts. In our considered opinion, the said decision is distinguishable

regard being had to the language employed in the Rule and also keeping

in view the nature of punishment.

12. In our considered opinion, what is required to be scrutinized is

whether the conviction for offence involves moral turpitude or not. That

is the fulcrum of the matter. If there is no moral turpitude in the

commission of the offence, there is no misconduct. In case there is

moral turpitude, the issue that would further emerge for consideration is

whether the doctrine of proportionality qua punishment is to be invoked.

13. The learned counsel for both the sides have relied on the

decision rendered in Pawan Kumar (supra). In the said case, their

Lordships expressed the view that moral turpitude is an expression which

is used in legal as well as societal parlance to describe conduct which

is inherently base, vile, depraved or having any connection showing

depravity. After so stating, their Lordships referred to the policy decision

of the State Government which has stated thus:

"Decision in each case will, however, depend on the

circumstances of the case and the competent authority has to

exercise its discretion while taking a decision in accordance with

the above mentioned principles. A list of offences which involve

moral turpitude is enclosed for your information and guidance.

This list, however, cannot be said to be exhaustive and there

might be offence which are not included in it but which in

certain situations and circumstances may involve moral turpitude."

After analyzing the same, their Lordships proceeded to state that

the appellant therein was imposed with a fine of Rs.20/-. Be it noted,

their Lordships called for the judgment but only a copy of the institution/

summary register maintained by the Court of the Chief Judicial Magistrate,

First Class was produced. Thereafter, their Lordships proceeded to state

as follows:

"…..Mere payment of fine of Rs.20/- does not go to show that

the conviction was validly and legally recorded. Assuming that

the conviction is not open to challenge at the present juncture,

we cannot but deprecate the action of the respondents in having

proceeded to adversely certify the character and antecedents of

the appellant on the basis of the conviction per se, opining to

have involved moral turpitude, without satisfying the tests laid

down in the policy decision of the Government. We are rather

unhappy to note that all the three Courts below, even when

invited to judge the matter in the said perspective, went on to

hold that the act/s involved in conviction under Section 294,

I.P.C. per se established moral turpitude. They should have

been sensitive to the changing perspectives and concepts of

morality to appreciate the effect of Section 294, I.P.C. on today’s

society and its standards, and its changing views of obscenity.

The matter unfortunately was dealt with casually at all levels.

"14. Before concluding this judgment we hereby draw attention

of the Parliament to step in and perceive the large many cases

which per law and public policy are tried summarily, involving

thousands and thousands of people throughout the country

appearing before summary Courts and paying small amounts of


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fine, more often than not, as a measure of plea-bargaining.

Foremost among them being traffic, municipal and other petty

offences under the Indian Penal Code, mostly committed by the

young and/or the inexperienced. The cruel result of a conviction

of that kind and a fine of payment of a paltry sum on

pleabargaining is the end of career, future or present, as the case

may be, of that young and/or inexperienced person, putting a

blast to his life and his dreams. Life is too precious to be staked

over a petty incident like this. Immediate remedial measures are,

therefore, necessary in raising the toleration limits with regard

petty offences especially when tried summarily. Provision need

be made that punishment of fine up to a certain limit, say up to

Rs.2,000/- or so, on a summary/ordinary conviction shall not be

treated as conviction at all for any purpose and all the more for

entry into the retention in Government service. This can brook

no delay, whatsoever."

Regard being had to the factual matrix in the case of Pawan Kumar

(supra), we have no trace of doubt that the said decision is distinguishable

and, in fact, the learned Single Judge has also not placed reliance on the

same.

14. Presently, we shall proceed to deal with the concept of moral

turpitude and how it has been understood and interpreted. In Black’s

Law Dictionary, (8th Edn., 2004), the term "moral turpitude" has been

defined thus:

"Conduct that is contrary to justice, honesty, or morality. In the

area of legal ethics, offences involving moral turpitude - such

as fraud or breach of trust… Also termed moral depravity….

"Moral turpitude means, in general, shameful wickedness - so

extreme a departure from ordinary standards of honest, good

morals, justice, or ethics as to be shocking to the moral sense

of the community. It has also been defined as an act of baseness,

vileness, or depravity in the private and social duties which one

person owes to another, or to society in general, contrary to the

accepted and customary rule of right and duty between people.’"

15. In this context, we may refer to the Corpus Juris Secundum,

wherein “moral turpitude” has been described as follows:

"While frequently general statements have been made to the effect

that mere assault does not or may not, involve moral turpitude,

or that assault and battery rarely involve moral turpitude, the rule

would seem to be that assault and battery may involve moral

turpitude and it may not, the difference depending on the

circumstances, and whether an assault does or does not involve

moral turpitude generally will be determined by the particular

facts of each individual case. The statutes of various jurisdictions

divide assaults into different degrees, and many of the crimes

which are included within such definition are crimes that involve

moral turpitude. Homicide may or may not involve moral turpitude

depending on the degree of the crime."

16. In Ram Nagina (supra), the respondent was convicted under

Sections 147 and 325/149 of the IPC and on an appeal being preferred,

the learned Sessions Judge converted the same to one under Sections

147/323 of the IPC. The question that arose before the Calcutta High

Court was whether such a conviction would imply moral turpitude.

The learned Single Judge had opined that the conviction in respect of

the offences under Sections 149 and 323 of the IPC do not involve moral

turpitude and, accordingly, set aside the punishment. On an appeal being

preferred, the Division Bench took note of the fact that the employee,

being a constable, was a member of the disciplined force and his

involvement in the crime did tantamount to moral turpitude and resultantly

set aside the decision of the learned Single Judge.

17. In this regard, we may refer with profit to the decision in In

re 'P' An Advocate; AIR 1963 SC 1313 wherein the Constitution

Bench, while dealing with the facet of moral turpitude in the context of

delinquency byan “Advocate-on-record”, held thus:

“It is true that mere negligence or error of judgment on the part

of the Advocate would not amount to professional misconduct.

Error of judgment cannot be completely eliminated in all human

affairs and mere negligence may not necessarily show that the

Advocate who was guilty of it can be charged with misconduct,

vide In re A Vakil, ILR 49 Mad 523: (AIR 1926 Mad 568) and

in the matter of an Advocate of Agra, ILR (1940) All 386: (AIR

1940 All 289 (SB)). But different considerations arise where the

negligence of the Advocate is gross. It may be that before

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condemning an Advocate for misconduct, courts are inclined to

examine the question as to whether such gross negligence involves

moral turpitude or delinquency. In dealing with this aspect of

the matter, however, it is of utmost importance to remember that

the expression "moral turpitude or delinquency" is not to receive

a narrow construction. Wherever conduct proved against an

Advocate is contrary to honesty, or opposed to good morals, or

is unethical, it may be safely held that it involves moral turpitude.

A willful and callous disregard for the interests of the client may,

in a proper case, be characterised as conduct unbefitting an

Advocate. In dealing with matters of professional propriety, we

cannot ignore the fact that the profession of law is an honourable

profession and it occupies a place of pride in the liberal professions

of the country. Any conduct which makes a person unworthy

to belong to the noble fraternity of lawyers or makes an advocate

unfitto be entrusted with the responsible task of looking after the

interests of the litigant, must be regarded as conduct involving

moral turpitude. The Advocate-on-record like the other members

of the Bar are Officers of the Court and the purity of the

administration of justice depends as much on the integrity of the

Judges as on the honesty of the Bar. That is why dealing with

the question as to whether an Advocate has rendered himself

unfit to belong to the brotherhood at the Bar, the expression

"moral turpitude or delinquency" is not to be construed in an

unduly narrow and restricted sense.”

18. In J. Jaishanker (supra), the appellant was convicted for an

offence under Section 509 IPC and sentenced to pay a fine of Rs.100/

-. The employee sought a reference under Section 10 of the Industrial

Disputes Act, 1947 for adjudication of his dismissal from service. The

Central Government declined to refer the dispute. Being dissatisfied, a

writ petition was filed before the learned Single Judge. The learned

Single Judge allowed the petition. In appeal, the Division Bench modified

the order and on the basis of a concession given by the respondent, the

order of dismissal was converted into discharge from service without

retiral benefits. However, the Division Bench directed to pay him gratuity,

as payable, in accordance with law. In appeal, reliance was placed on

the decision in Pawan Kumar (supra). Their Lordships have held thus:

“In view of the admitted position that the conviction of the

petitioner for an offence under Section 509 IPC had attained

finality, it undoubtedly involves moral turpitude as it is

impermissible for such an employee to continue in service. When

a government servant is dismissed from service on conviction by

a criminal court involving moral turpitude, it automatically leads

to removal from service, without further enquiry. Can a worker

be put on a higher pedestal than as a government servant” The

obvious answer is “No”. In view of the conviction for moral

turpitude of the petitioner and due to conviction for an offence

under Section 509 IPC, the order of dismissal was rightly passed.

The recommendation made by this Court was made after noticing

the trivial offences like traffic offences, municipal offences and

other petty offences under the IPC which do not involve moral

turpitude. This Court recommended to Parliament to step in and

make necessary alteration in law so that consequence of the

conviction and sentence would suitably be modulated and mitigated

in the light of the judgment. That ratio is clearly inapplicable to

the facts of this case. As a fact, on the basis of concession

made by the learned counsel for the respondents, the Division

Bench of the High Court modified the order of dismissal to one

of discharge from service without consequential retiral benefits

but with payment of gratuity in accordance with law. The

learned Single Judge was obviously in error in directing reference

to the Industrial Tribunal. We do not, therefore, find any illegality

warranting interference."

[Emphasis Supplied]

19. In Durga Singh v. The State of Punjab, AIR 1957 Punjab 97,

it has been opined thus:

"The term "moral turpitude" is a rather vague one and it may

have different meanings in different contexts. The term has

generally been taken to mean to be a conduct contrary to justice,

honesty, modesty or good morals and contrary to what a man

owes to a fellow-man or to society in general. It has never been

held that gravity of punishment is to be considered in determining

whether the misconduct involves moral turpitude or not. Even

if the words "involving moral turpitude" are held to be implied in


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as also societal parlance to describe conduct which is

inherently base, vile, depraved or having any connection

showing depravity."

This expression has been more elaborately explained in Baleshwar

Singh v. District Magistrate and Collector where it was observed

as follows:

"The expression 'moral turpitude' is not defined anywhere.

But it means anything done contrary to justice, honesty,

modesty or goods morals. It implies depravity and

wickedness of character of disposition of the person

charged with the particular conduct. Every false statement

made by a person may not be moral turpitude, but it

would be so if it discloses vileness or depravity in the

doing of any private and social duty which a person owes

to his fellowmen or to the society in general. If therefore

the individual charged with a certain conduct owes a

duty, either to another individual or to the society in

general, to act in a specific manner or not to so act and

he still acts contrary to it and does so knowingly, his

conduct must be held to be due to vileness and depravity.

It will be contrary to accepted customary rule and duty

between man and man."

21. In State of Punjab & Ors. v. Ram Singh, AIR 1992 SC

2188, a three Judge Bench was dealing with the dismissal of an employee

on the ground that he had misconducted himself as per Rule 16.2(1) of

the Punjab Police Manual, 1934 inasmuch as he was heavily drunk and

had become uncontrollable. Their Lordships referred to the clause which

provided that dismissal shall be awarded only for the gravest acts of

misconduct or as the cumulative effect of continued misconduct proving

incorrigibility and complete unfitness for police service, and in making

such an award, regard shall be had to the length of service of the

offender and his claim to pension. In that context, their Lordships

referred to the meaning given to the term "misconduct" in Black’s Law

Dictionary and in P. Ramanatha Aiyar’s Law Lexicon, Reprint Edition

1987 and eventually expressed the view as follows:

"Thus it could be seen that the word 'misconduct' though not

"conviction on a criminal charge" in Proviso to Art. 311(2) it

appears to me clear that if a member of the Police Force is guilty

of having been found drunk at a public place or to have become

habituated to liquor and if he is convicted by a criminal Court,

then his conviction should be held as involving moral turpitude.

It appears to me rather incongruous that persons who are

habituated to liquor and are found drunk in public places should

be allowed to remain in Police Force to bring such persons to

book. I have, therefore, no hesitation in rejecting this contention

on behalf of the petitioner. I accordingly hold that the petitioner

in the present case was not entitled to protection under Art.

311(2) of the Constitution."

20. In Allahabad Bank & Anr. v. Deepak Kumar Bhola, (1997)

4 SCC 1, the respondent was visited with an order of suspension which

was challenged on the ground that solely because there was an allegation

that he had entered into a criminal conspiracy, it could not be regarded

that an offence involving moral turpitude had been committed by him

and, therefore, the Bank had no jurisdiction to pass the order of suspension.

The High Court quashed the order of suspension and directed full payment

of salary and allowances to the respondent. In that case, their Lordships

posed a question as to what is an offence involving moral turpitude in

the context of handling of accounts of the bank and expressed the view

as follows:

"8. What is an offence involving "moral turpitude" must depend

upon the facts of each case. But whatever may be the meaning

which may be given to the term "moral turpitude" it appears to

us that one of the most serious offences involving "moral

turpitude" would be where a person employed in a banking

company dealing with money of the general public, commits

forgery and wrongfully withdraws money which he is not entitled

to withdraw.

9. This Court in Pawan Kumar v. State of Haryana (1996)

4 SCC 17: 1996 SCC (Cri) 583 (SCC at p.21) dealt with the

question as to what is the meaning of expression "moral turpitude"

and it was observed as follows:

" ‘Moral turpitude’ is an expression which is used in legal

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capable of precise definition, its reflection receive its connotation

from the context, the delinquency in its performance and its

effect on the discipline and the nature of the duty. It may involve

moral turpitude, it must be improper or wrong behaviour; unlawful

bahaviour, wilful in character; forbidden act, a transgression of

established and definite rule of action or code of conduct but not

mere error of judgment, carelessness or negligence in performance

of the duty; the act complained of bears forbidden quality or

character. Its ambit has to be construed with reference to the

subject-matter and the context wherein the term occurs, regard

being had to the scope of the statute and the public purpose it

seeks to serve. The police service is a disciplined service and it

requires to maintain strict discipline. Laxity in this behalf erodes

discipline in the service causing serious effect in the maintenance

of law and order."

22. We have referred to the said decision as it highlights that a

misconduct may involve moral turpitude and the whole ambit has to be

construed with reference to the subject matter. Be it noted, the factum

of disciplinary service and the requirement of maintaining strict discipline

have been taken into consideration in the said case.

23. In Mahak Singh v. State of UP & Ors., AIR 1999 Allahabad

274, the Bench referred to the decision in Harsukh Lal v. Sarnam

Singh, 1964 ALL LJ 1118 wherein the observations of Hon’ble V. Broome,

J. were reproduced. They read as follows:

“ ‘Turpitude’ is a word of high emotional significance, suggesting

conduct of such depravity as to excite feelings of disgust and

contempt. The crime of simple hurt does not normally provoke

any such reaction and consequently cannot be classed as an

offence involving moral turpitude and it seems to me that there

is no logical reason why the offence of murder, which in essence

is only and aggravated form of hurt, should be held necessarily

to involve moral turpitude. I am willing to concede that murders

which are premeditated and planned in cold blood, those which

the perpetrated for some base motive and those which are carried

out with extreme ferocity and cruelty do involve moral turpitude,

as they naturally evoke a spontaneous feeling of repulsion and

condemnation in the mind. But a murder committed in the head

of a fight or in response to serious provocation could hardly be

placed in the same category.”

24. In the said case, as the petitioner has committed murder of his

step mother, the Bench expressed the view that the conviction was an

act of moral turpitude.

25. Regard being had to the basic concept of moral turpitude, we

are obliged to analyse whether the conviction in the case at hand can be

regarded to fall in the compartment of an offence involving moral turpitude.

It is worth noting that the appellant along with others was tried for

offences punishable under Sections 322, 133, 134, 149 and 148 of IPC

and sentenced to undergo rigorous imprisonment as has been indicated

earlier. In appeal, the Division Bench came to hold that the co-accused

did not share the common intention with the main accused Kalu for

inflicting the injury that had caused death of the deceased and, hence,

they were liable to be punished for the individual acts. The Division

Bench has found that the injuries caused by others including the respondent

No.2were caused by blunt weapon and, hence, they are to be convicted

under Section 123/149 IPC. The Bench has also found that the offence

against them under Section 148 IPC is fully established. It is worth

noting that regard being had to the gap of time when the death occurred,

the Division Bench converted the offence from Section 302 to Section

304 Part I of IPC. We have referred to the said facts only to highlight

that the appellant was found to have committed an offence under Section

148 IPC also. Section 148 of the IPC reads as follows:-

"148. Rioting, armed with deadly weapon.-Whoever is guilty

of rioting, being armed with a deadly weapon or with anything

which, used as a weapon of offence, is likely to cause death,

shall be punished with imprisonment of either description for a

term which may extend to three years, or with find, or with

both."

26. It is worth noting that "rioting" is an offence under Section 147

of the IPC. Section 148 is an accentuated form of rioting inasmuch as

it stipulates that the rioting has to be done being armed with a deadly

weapon or with anything which used as a weapon of offence is likely

to cause death. The punishment is severe than what has been provided

under Section 147 of the IPC. The basic ingredients of an offence under


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its jurisdiction is wide but the same must be applied in terms of

the provisions of the statute and no other.

31. If the punishment is harsh, albeit a lesser punishment may

be imposed, but such an order cannot be passed on an irrational

or extraneous factor and certainly not on a compassionate ground.

32. In Regional Manager, Rajasthan SRTC v. Sohan Lal;

(2004) 8 SCC 218, it has been held that it is not the normal

jurisdiction of the superior courts to interfere with the quantum

of sentence unless it is wholly disproportionate to the misconduct

proved. Such is not the case herein. In the facts and circumstances

of the case and having regard to the past conduct of the

respondent as also his conduct during the domestic enquiry

proceedings, we cannot say that the quantum of punishment

imposed upon the respondent was wholly disproportionate to his

act of misconduct or otherwise arbitrary.”

30. The said principles were reiterated in Hombey Gowda

Educational Trust & Another v. State of Karnataka & Others;

(2006) 1 SCC 430.

31. In this context, we may refer fruitfully to the decision in V.

Ramana Vs. A.P.S.R.T.C. and Ors.; (2005) 7 SCC 338 wherein it

has been held thus:

"The common thread running through in all these decisions is

that the Court should not interfere with the administrator's decision

unless it was illogical or suffers from procedural impropriety or

was shocking to the conscience of the Court, in the sense that

it was in defiance of logic or moral standards. In view of what

has been stated in the Wednesbury's case the Court would not

go into the correctness of the choice made by the administrator

open to him and the Court should not substitute its decision to

that of the administrator. The scope of judicial review is limited

to the deficiency in decision-making process and not the decision.

11. To put it differently unless the punishment imposed by the

Disciplinary Authority or the Appellate Authority shocks the

conscience of the Court/Tribunal, there is no scope for

interference. Further to shorten litigations it may, in exceptional

Section 148 are that there was an unlawful assembly, that there was use

of force or violence by the members of such an assembly, that the

accused was a member of such an assembly and that the accused, in

prosecution of the common object of such assembly, used force. The

term "offence of rioting” finds place in Section 146 of the IPC. It

stipulates that whenever force or violence is used by an unlawful assembly

or any member thereof in prosecution of the common object of such

assembly, every member of such assembly is guilty of the offence of

rioting. The term "deadly weapon’ has its own signification. As has been

indicated in many an authority which we have referred to herein before,

the offence involving moral turpitude has to adjudged regard being had

to the moral and societal paradigms.

27. The punishment under Section 323 of the IPC has a different

contour but when a person is convicted under Section 148 of the Act,

it establishes, in a way, the nature, attitude, proclivity and propensity of

the person concerned. The petitioner was working as a peon in the

Delhi Vidyut Board. He got himself involved in a criminal case of this

nature and eventually, the conviction has been recorded under Sections

323/149 and 148 of the IPC. Regard being had to the conviction in

respect of the nature of an offence, as engrafted under Section 148 of

the IPC, we are disposed to think that it involves an offence involving

moral turpitude and the petitioner has been convicted to undergo rigorous

imprisonment for six months for the said offence. Both facts have their

own signification.

28. As is evident from the order passed by the learned Single

Judge, he has also referred to the doctrine of proportionality to give the

stamp of approval to the award passed by the Labour Court. In this

context, we think it appropriate to discuss under what circumstances

the doctrine of proportionality should be invoked or deserves to be invoked.

29. In Bharat Forge Co. Ltd. v. Utam Manohar Nakate; (2005)

2 SCC 489, it has been ruled thus.

“30. Furthermore, it is trite, the Labour Court or the Industrial

Tribunal, as the case may be, in terms of the provisions of the

Act, must act within the four-corner thereof. The Industrial

Courts would not sit in appeal over the decision of the employer

unless there exists a statutory provision in this behalf. Although

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and rare cases, impose appropriate punishment by recording cogent

reasons in support thereof. In a normal course if the punishment

imposed is shockingly disproportionate it would be appropriate

to direct the Disciplinary Authority or the Appellate Authority to

reconsider the penalty imposed."

32. In State of Rajasthan & Another v. Mohammad Ayub Naz;

(2006) 1 SCC 589, their Lordships have expressed thus:

“10. This Court in Om Kumar and Ors. v. Union of India;

(2001) 2 SCC 386 while considering the quantum of punishment/

proportionality has observed that in determining the quantum,

role of administrative authority is primary and that of court is

secondary, confined to see if discretion exercised by the

administrative authority caused excessive infringement of rights.

In the instant case, the authorities have not omitted any relevant

materials nor has any irrelevant fact been taken into account nor

any illegality committed by the authority nor was the punishment

awarded was shockingly disproportionate. The punishment was

awarded in the instant case after considering all the relevant

materials, and, therefore, in our view, the interference by the

High Court on reduction of punishment of removal was not

called for.”

33. In Chairman cum Managing Director, Coal India Limited

and Anr. Vs. Mukul Kumar Choudhuri and Ors.; (2009) 15 SCC

620, while dealing with the doctrine of proportionality, the Apex Court,

after referring to the decision in Coimbatore District Central Coop.

Bank v. Employees Assn.; (2007) 4 SCC 669, has ruled thus:

"19. The doctrine of proportionality is, thus, well recognized

concept of judicial review in our jurisprudence. What is otherwise

within the discretionary domain and sole power of the decision-

maker to quantify punishment once the charge of misconduct

stands proved, such discretionary power is exposed to judicial

intervention if exercised in a manner which is out of proportion

to the fault. Award of punishment which is grossly in excess to

the allegations cannot claim immunity and remains open for

interference under limited scope of judicial review.

20. One of the tests to be applied while dealing with the question

of quantum of punishment would be: would any reasonable

employer have imposed such punishment in like circumstances?

Obviously, a reasonable employer is expected to take into

consideration measure, magnitude and degree of misconduct and

all other relevant circumstances and exclude irrelevant matters

before imposing punishment."

34. In State of U.P. v. Sheo Shanker Lal Srivastava and Others;

(2006) 3 SCC 276, it has been held that the High Court should be very

slow in interfering with the quantum of punishment, unless it is found

to be shocking to one’s conscience.

35. In the case at hand, when the offence committed by the

respondent is in the realm or sphere of moral turpitude and there is

imposition of sentence of rigorous imprisonment for a period of six

months on two counts (although with a stipulation that the sentences

would run concurrently), the punishment of termination cannot be said

to be shocking to the judicial conscience. We are disposed to think that

the punishment is not excessive or shockingly disproportionate. An

employee, who has been involved in an offence of moral turpitude, has

no right to continue in service. A lesser punishment would be contrary

to the norms. It is difficult to hold that such a punishment shocks the

judicial conscience or is totally unreasonable.

36. In view of our aforesaid premised reasons, we are unable to

concur with the view expressed by the learned Single Judge by which

the learned Single Judge has concurred with the award passed by the

Labour Court and resultantly, the appeal is allowed and the order passed

in the writ petition as well as the award passed by the Labour Court

are set aside.

There shall be no order as to costs.

INDIAN LAW REPORTS DELHI SERIES 2011 · 2012-07-19 · INDIAN LAW REPORTS DELHI SERIES 2011...

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Transcript of INDIAN LAW REPORTS DELHI SERIES 2011 · 2012-07-19 · INDIAN LAW REPORTS DELHI SERIES 2011...