Hon’ble Mr. Justice
Bhanwar Singh
Chairman
[Patron]
EDITOR-IN-CHIEF
U.S.
Awasthi
Director
EDITOR-IN-CHARGE
ANUPAM
GOYAL, Additional Director (Research)
EDITORS
P.K. SRIVASTAVA,
Additional Director
Dr.
RAJESH SINGH, Additional Director (Administration)
RAJEEV
BHARTI, Additional Director (Training)
MAHENDRA
SINGH, Dy. Director
PUSHPENDRA SINGH, Dy. Director
AKHILESHWAR PRASAD MISHRA, Dy. Director
RAVINDRA
KUMAR DWIVEDI, Dy. Director
FINANCIAL ADVISOR
SARAN
PIARIE VARMA
Additional Director (Finance)
ASSOCIATES
B.K.
MISHRA, Research Officer
WEB
ASSISTANCE
PRAVEEN SHUKLA, Computer Supervisor.
Administrative Tribunals Act
S. 17 – Contempt of Tribunal –
Non-compliance with orders of C.A.T. - Consideration of
In this appeal is filed
against the order dated 11.6.2010, passed by the Central
Administrative Tribunal. Calcutta Bench in C.P.C. No. 113 of 2005
(O.A.No.203 of 1997) whereby the Tribunal passed an order directing
the appellants herein to be present in Court on the next date of
hearing for framing the charges of contempt and adjourned the matter
to 30.7.2010.
In addition to the same,
the appellants have also pointed out that the Tribunal wrongly
misunderstood that the claim of respondent Nos. 1 and 2 for further
promotion with Sri Talukdar, who was promoted as Sr. Clerk on
14.2.1983 which is unsustainable as he had been promoted to the
higher grade of Head Clerk prior to their joining the department and
those particulars are available in the office records. It is also
pointed out that the seniority of the respondents has been protected
and granting promotion to a grade to which they had not yet obtained
in their parent department would not only deprive promotional
benefit to those who have been serving in the department but would
involve the promotion policy being revised. While considering the
seniority or promotion, the Court cannot go into and examine the
same contrary to the Rules/Policy applicable to the persons
concerned framed by the Government.
In the light of the above
discussion and of the factual
information furnished, we are unable to sustain the impugned
direction of the Tribunal in the order dated 11.6.2010, consequently
the same is set aside. Inasmuch as the appellants have complied with
the earlier order of the Tribunal dated 9.5.2005, the contempt
petition is dismissed. (R. Mohajan & others vs. Shefali Sengupta
& ors; 2012(4) AWC 3769)
S. 19 - Power of Tribunal – Regarding
fixation of senioritis - Consideration of
The Court has held that Tribunal could have very well proceeded to
decide the applications and to recall or modify the order. However,
the Tribunal at the time of deciding the aforesaid applications for
recall/modification of the order dated 04/8/2010, it was not
appropriate to decide the various issues on merits when neither the
counter affidavit was filed in the O.A. nor there was relevant
materials to decide the various issues including the resjudicata,
limitation and other issues. The Tribunal could have very well
recalled the order dated 04/8/2010 and ordered for fresh hearing of
the application. Insofar, as the order of the Tribunal dated
27/8/2010, by which he had recalled the order dated 04/8/2010 is
concerned, there was sufficient ground made by the applicants to
recall the order dated 04/8/2010, which according to the respondents
was prejudicial to their rights and the order was passed without
giving adequate opportunity to them, that ground was itself
sufficient for recall of the order dated 04/8/2010, and we do not
interfere with the order of the Tribunal dated 27/8/2010, insofar as
it has recalled the judgment and order dated 04/8/2010. (Rajeev
Mohan vs. Central Administrative Tribunal, Allahabad Bench;
Allahabad, 2012 (5) ALJ 257)
Advocates Act
Bar Councils and Associations — Court
annexed Bar Associations — Nature and functions of
The Supreme Court Bar
Association, as the name suggests, is a society primarily meant to
promote the welfare of the advocates generally practicing in the
Supreme Court. The name i.e. the Supreme Court Bar Association was
formally registered under the Societies Registration Act, 1860 only
on 25.8.1999. One of the prime objectives of SCBA is to establish
and maintain adequate library for the use of the members and to
provide other facilities and convenience of the members. Thus, the
formation of SCBA is in the nature of aid to the Advocates Act, 1961
and other relevant statutes including Article 145 of the
Constitution.
The very nature of such a Bar Association necessarily means and implies
that it is an association representing members regularly practicing
in the court and responsible for proper conduct of its members in
the court and for ensuring proper assistance to the court. In
consideration thereof, the court provides space for office of the
association, library and all necessary facilities like chambers at
concessional rates for members regularly practicing in the court,
parking place and canteen besides several other amenities. In the
functions organized by the court-annexed Bar Associations the Judges
participate and exchange views and ascertain the problems, if any,
to solve them and vice versa. There is thus regular interaction
between the members of the Bar Association and the Judges. The
regular practitioners are treated as officers of the court and are
shown due consideration. (Supreme Court Bar Association vs. B.D.
Kaushik; (2012) 2 SCC (Cri) 878)
Election — Right to vote — Nature of
— Right to vote or to contest election is neither a fundamental
right nor a common law right but purely a statutory right governed
by statute/rules/regulations prescribe so
Court has further held that a citizen of India is entitled to cast his
vote at an election of MLA or MP only in constituency where his name
appears as a voter in voting list and cannot claim right to vote at
another place where he may be residing because of his occupation,
service. Thus concept of “one person-one-vote” is recognized
statutorily. (Supreme Court Bar Association vs. B.D. Kaushik;
(2012) 2 SCC (Cri) 878)
BACK TO INDEX
Allahabad High Court Rules, 1952
Chapter VIII, Rule 5
– Special appeal – Maintainability – Special appeal not maintainable
against judgment of single Judge in writ petition
A five
Judges’ Bench was constituted on 5th November, 2004.
Times to time members of the Bench were changed. During the pendency
of this reference, another Division Bench of this Court by an order
dated 27th January, 2009 passed an order in Special
Appeal No. 1942 of 2008, Sheet Gupta v. State of U.P. and others,
taking different view than that of Ram Dhyan Singh v. State of U.P.
and others, 2004(3) AWC 2559 framed the following question:
“Whether a special
appeal under the provisions of Rule 5 of Chapter VIII of the Rules
of the Court lies in a case where the judgment has been given by a
learned single Judge in a writ petition directed against an order
passed in an appeal under paragraph 28 of the U.P. Scheduled
Commodities Distribution Order, 2004?”
Accordingly, a Full Bench consisting of three Judges was
constituted to decide such question. Such Full Bench by its judgment
and order dated 11th December, 2009, in Sheet Gupta v.
State of U.P. and others, 2010(1) ESC 273 (All) (FB), answered the
question saying that the special appeal is not maintainable under
the provisions of Chapter VIII, Rule 5 of the Allahabad High Court
Rules, 1952. It was further specifically held therein that Ram Dhyan
Singh (supra) does not lay down the correct law. (Ram Dhyan Singh
vs. State of U.P. and others; 2012(5) AWC 4517 (FB)
BACK TO INDEX
Arbitration and Conciliation Act
Ss. (6), (8) and 12(3)(a) – Power of
Chief Justice or designate to appoint arbitrator other than named
arbitrator in arbitration clause - Availability and exercise of
The Chief Justice or his designate has the power to appoint a person
other than the named arbitrator upon examination of the relevant
facts which would tend to indicate that the named arbitrator is not
likely to be impartial. Hence, the petition cannot be rejected
merely on the ground that the Chief justice or his designate would
have no power to make an appointment of an arbitrator other than the
Chairman –cum - Managing Director or his designate. (Bipromasz
Bipron Trading Sa Vs. Bharat Electronics Limited (BEL); (2012) 6 SCC
384)
BACK TO INDEX
Arms
Act
Ss. 13, 14 – Grant of Licence – Grant
of arms license cannot be refused on ground that applicant was short
tempered
In the instant case,
neither the Licensing Authority nor the appellate authority
considered the facts and circumstances of the case and simply
rejected the application solely on the ground that the petitioner is
a short tempered person and he had failed to bring on record any
material indicating that he has any actual threat to his life.
The Court was of the
opinion that power of a statutory authority has to be based on
certain reasons which such authority must believe to exist, such
exercise of power cannot be left to the subjective satisfaction of
the authority. The issue was not objectively considered by the
statutory authority. Therefore, it is clear that the Licensing
Authority has proceeded on an erroneous basis in the exercise of his
power under Section 14 of the said Act. (Gaurav Sharma vs. State
of U.P. and others; 2012(4) AWC 3894)
S. 13(3) — Fire arms licence —
Refused on the ground that applicant was aged about 63 yrs. —
Validity of
The discretion for
exercise of power vested in the licencing authority by virtue of
Section 13 (2-A) is to be exercised in relation to, and in the
context with, the provisions of the Act in a reasonable and rational
manner. The reasons for refusal of a licence would have to have a
nexus to, and be in context with, the provisions of the Act. Merely
refusing to issue a licence for a reason not prohibited by the Act,
such as being aged 63 years, is unjustified and not in consonance
with the provisions of the Act. It is stated in the impugned orders
passed by the District Magistrate and the State Government, that
there are no reasonable grounds for grant of licence to the
applicant. On the contrary, in view of the relevant provisions of
the Act, it is evidence that the non-applicant have failed to show
any valid grounds for refusal of the licence.
In this case applicant
is, and has been, a member of Billimora Rifle Club since the year
1988, and has participated in a number of Rifle Shooting tournaments
and won several certificates and awards. One of the grounds on which
the petitioner has requested for grant of the licence is for
participation in sports activities, namely, Rifle Shooting. As per
Section 13(3)(i), the licencing authority can grant a licence in
respect of a smooth bore gun having a barrel of not less than twenty
inches in length, for protection of crops or for sports. Apart from
sports, the applicant has cited the reason of self-protection in his
application for grant of the license. As the applicant was 63 years
old at the relevant point of time, and is now aged about 67 years,
it cannot be said that the reason of self-protection is unjustified
as older people would require to be more secure and to have a
licenced firearm would provide such security. Both the grounds for
which the applicant has requested for the issuance of a firearm
licence, cannot be said to be unreasonable or inadequate. Thus,
there was no valid, justified or legal ground for rejecting the
application of the applicant, and for dismissing the appeal files by
him. The refusal of the respondents to grant a firearm licence to
the applicant is not supported by any provision of the Act and is,
therefore, unreasonable, arbitrary and not in accordance with law.
(Sorab Jehangir Bamji vs. State of Gujarat; 2012 (Cr.L.J. (NOC)
393 (Guj)
S. 14 - Arms Rules (1962) - R. 4 Sch.
II - Arms License - Granted of
Schedule II under Rule 4 of Arms Rules, 1962 provides that where the
licensing authority is the District Magistrate for the purpose
of acquisition/possession of firearm, the licence can be provided
to the class of persons belonging to the district or any
specified area under the heading of area for which licenses can
be granted is "throughout the district or his area of jurisdiction
or any specified part of his jurisdiction.
In view of the specific provisions as contained in Arms Act read
with Arms Rules, 1962, it is clear that the licence of the
petitioner as granted by the Deputy Commissioner, Mon, Nagaland,
India is not valid for the whole of India.
In view of the above discussion, the order passed by the court below
putting the condition that the arms licence shall not be carried
by the petitioner within the State of U.P., suffers from no
illegality. (Arun Kumar vs. State of UP; 2012 (2) ALJ 380)
S.17 - Cancellation of Licence -
Validity
The power to cancel or revoke the licence is contained in section 17 of
the Arms Act. One of the grounds for cancellation of licence is that
if the licensing authority deems it necessary for security of the
public peace or public safety then the licence can be cancelled or
revoked. Powers have been given to the District Magistrate to cancel
the licence if it is satisfied that the continuance of the licence
is likely to disturb the public peace or public safety.
This satisfaction has to be recorded by the District Magistrate on the
basis of the relevant material. The relevant material may be
obtained by the District Magistrate through various agencies viz.
police and other sources. Mere registration of the case against a
person may not be necessarily a ground for cancellation provided it
is shown that the applicant has a long criminal record as a result
of which the privilege given him to use the gun is misused. These
are some of the areas where the District Magistrate is required to
record his satisfaction before passing the order under section 17 of
the Arms Act.
In the present case the District Magistrate has cancelled the licence
only on the ground that a criminal case is registered against the
petitioner. I do not find that this was correct approach adopted by
the District Magistrate. Mere registration of the case itself cannot
be a ground for cancellation of licence unless it is shown that the
applicant has a criminal record and has misused the gun given to him
by threatening the public peace in the area. In the present case no
such finding has been recorded nor any material has been disclosed
before passing the impugned order. (Shri Mahabir alias Munna
Panda vs. State of UP; 2012(5) ALJ 3)
BACK TO INDEX
Civil Procedure Code
S. 24 – Transfer application under
– Legality of
Through this transfer
application under Section 24, C.P.C., transfer of Civil Appeal No.
24 of 1999 pending before District Judge, Jhansi has been sought to
some other district by legal representative of defendant respondent
no. 6 in the appeal. In this transfer application following order
was passed by the Court on 21.02.2012:
“It appears that both the parties are
quite influential and wealthy and holding the District judiciary to
ransom. The court completely fails to understand as to why appeal
was earlier transferred in 2007. Order sheet of 2007 has been filed
along with supplementary affidavit. At that time appeal was being
heard before A.D.J. Court No. 4, Jhansi, Sri Raja Ram Saroj. The
learned A.D.J. was unable to decide the appeal in spite of his best
efforts. Now it appears that pendulum has swung other way. Records
of the appeal shall be remitted to this Court by District Judge,
Jhansi through special messenger. Registrar General is directed to
send a copy of this order to District Judge, Jhansi through fax
immediately.”
The Court strongly deprecates the
attitude of both the parties. Each and every allegation made in this
transfer application against learned District Judge is utterly
baseless.
In view of utterly irresponsible
attitude of both the parties, it is essential to transfer the case
to a district which is farthest from Jhansi even though each and
every allegation made against Presiding Officer of the court of
District Judge, Jhansi is disbelieved by the Court. It is also
essential in the interest of justice to impose heavy cost in the
form of damages against both the parties for not only misusing but
also abusing the process of court. (Vishrant Agarwal v. District
Judge, Jhansi and others; 2012 (2) ARC 776 (All HC)
S. 100 - Substantial question of law
– Meaning
Section 100 CPC provides for a second appeal only on the substantial
question of law. Generally, a second appeal does not lie on question
of facts or of law. In SBI Vs. S.N. Goyal, (2008) 8 SCC 92 this
Court explained the terms “substantial question of law” and observed
as under: (SCC p. 103, para 13)
“13. …… The word ‘substantial’ prefixed to ‘question of law’ does not refer
to the stakes involved in the case, nor intended to refer only to
questions of law of general importance, but refers to impact or
effect of the question of law on the decision in the lis between the
parties. “Substantial questions of law’ means not only substantial
questions of law of general importance, but also substantial
question of law arising in a case as between the parties , ……… any
question of law which affects the final decision in a case is a
substantial question of law as between the parties. A question of
law which arises incidentally or collaterally, having no bearing on
the final outcome, will not be a substantial question of law.
……There cannot, therefore, be a straitjacket definition as to when a
substantial question of law arises in case.” (Union of India Vs.
Ibrahim Uddin & another; (2012) 8 SCC 148)
S. 100 – Interference in second
appeal
In exceptional circumstantial, High Court can interfere in second appeal
even on question of fact when factual findings are perverse.
Section 100 CPC provides for a second appeal only on the substantial
question of law. Generally, a second appeal does not lie on question
of facts or of law. In SBI Vs. S.N. Goyal, (2008) 8 SCC 92 this
Court explained the terms “substantial question of law” and observed
as under: (SCC p. 103, para 13)
“13.
…… The word ‘substantial’ prefixed to ‘question of law’ does not
refer to the stakes involved in the case, nor intended to refer only
to questions of law of general importance, but refers to impact or
effect of the question of law on the decision in the lis between the
parties. “Substantial questions of law’ means not only substantial
questions of law of general importance, but also substantial
question of law arising in a case as between the parties , ……… any
question of law which affects the final decision in a case is a
substantial question of law as between the parties. A question of
law which arises incidentally or collaterally, having no bearing on
the final outcome, will not be a substantial question of law.
……There cannot, therefore, be a straitjacket definition as to when a
substantial question of law arises in case.”
The first appellate court allowed the application filed by the plaintiff
under Order 41 Rule 27 CPC vide order dated 28.4.1999 which reads as
under:
“The will in question is necessary
for the disposal of the appeal because the appellant/applicant
obtains right in the disputed property from this will. The
respondent-defendants have neither opposed it that as to why it was
not produced in the subordinate court, there is not any relevancy of
it. The applicant has given reason of not producing the will in the
subordinate court that this will was lost. In my opinion, the will
appears to be necessary for the disposal of the appeal for the
property which was obtained to the appellant earlier by this will.
Proper reason has been given for not producing this will in the
subordinate court.”
(Union of India Vs. Ibrahim Uddin
and another; (2012) 8 SCC 148)
S. 149 – Power to make up
deficiency of court fee – Legality of – Jurisdiction U/s. 149 being
discretionary in nature
When, the Court on more
than one occasion held that the jurisdiction under Section 149 CPC
is discretionary in nature. (See: P.K. Palanisamy v. N. Arumugham &
Anr.; (2009) 9 SCC 173 and (2012) 13 SCC 539: 2009 (2) ARC 751).
Thus, it is well settled that the
judicial discretion is required to be exercised in accordance with
the settled principles of law. It must not be exercised in a manner
to confer an unfair advantage on one of the parties to the
litigation. In a case where the plaint is filed within the period of
limitation prescribed by law but with deficit court fee and the
plaintiff seeks to make good the deficit of the court fee beyond the
period of limitation, the Court, though has discretion under Section
149 CPC, must scrutinize the explanation offered for the delayed
payment of the deficit court fee carefully because exercise of such
discretion would certainly have some bearing on the rights and
obligations of the defendants or persons claiming through the
defendants. (The case on hand is a classic example of such a
situation.). It necessarily follows from the above that Section 149
CPC does not confer an absolute right in favour of a plaintiff to
pay the court fee as and when it pleases the plaintiff. It only
enables a plaintiff to seek the indulgence of the Court to permit
the payment of court fee at a point of time later than the
presentation of the plaint. The exercise of the discretion by the
Court is conditional upon the satisfaction of the Court that the
plaintiff offered a legally acceptable explanation for not paying
the court fee within the period of limitation. (A. Nawab John &
Ors. V. V.N. Subramaniyam; 2012(2) ARC 652 (SC)
S.151 – Inherent
powers of the court - Power to correct is always inherent in every
court, even purely executive authority cannot refuse to correct a
calculation error - Whenever pointed out
In my opinion appeal of
the State was wrongly allowed on highly technical grounds. The
application prayer for correction of calculation error which had
been allowed by the Prescribed Authority through the subsequent
order (challenged in the appeals giving rise to the instant writ
petition) was held to be barred by time. Even if the objection was
raised beyond time still an error of calculation could be corrected
by the Prescribed Authority at any time. Such power is always
inherent in every Court, tribunal, judicial or quashi judicial
authority. Even purely executive authority also cannot refuse to
correct a calculation error whenever pointed out. (Shyam Behari
Lal v. State of U.P.; 2012 (116) RD 34)
S. 151 - Inherent powers of the court are to do justice in addition to
and complementary to powers conferred under C.P.C. expressly or by
implication
In a democratic and
civilized society while dispensing Justice, Court possesses two
folds of duty. For the purpose to secure statutory and
constitutional right delivery of judgment or pass an order or
direction to meet the ends of justice and secondly to ensure that
order passed by it while dispensing justice is implemented in its
letter and spirit by the parties or authorities concerned. These are
basic tenets of rule of law in a civilized society so far as Courts
are concerned. Failure on the part of Court to ensure the ends of
justice may result into destruction of rule of law creating chaos in
the society and breaking up social order. Accordingly, judicial
officers or Judges should always be alert to ensure that their
orders are complied with by persons or authorities concerned.
In view of above, the
Court has got ample power to enforce its order. Local authorities or
officers concerned may be directed to ensure the compliance of
injunction granted by the Court. The Court has got ample power to
direct the police to ensure that no construction should be raised
and parties may not remove any structure standing over the disputed
land in terms of injunction granted by the Court. It should be
paramount consideration of Court to ensure that rule of law should
be maintained and orders of the Court must be complied within its
letter and spirit. Power to punish under the contempt procedure has
to fulfil the requirement and in case Court remain moot spectator
and permit the parties or authorities to violate its order, damage
may cause to parties and may suffer from irreparable loss and
injury. Accordingly Trial Court should have issued appropriate
direction or order to the local authorities and administration to
ensure compliance of injunction granted by it in pursuance to
inherent power conferred by section 151 of the CPC and it shall be
obligatory for the State authorities to comply with such order. (Smt.
Shanti Devi v. Pankaj Kumar & others; 2012 (115) RD 585)
O.1, R. 9 and 10(2) – Striking out
or adding parties – Legality of – Being discretion of Court under
facts and circumstances
In the judgment of the
Apex Court in Mumbai International Airport Private Limited, the Apex
Court in the said case has laid down that the discretion to either
allow or reject the application of the person claiming to be the
proper party depends upon the facts and circumstances of the case
and no person has a right to insist that he should be impleaded as a
party merely because he is a proper party. Following propositions
were laid down by the Court in para Nos. 22 to 25 of the aforesaid
case.
“22. Let us consider the scope and
ambit of Order 1, Rule 10(2) CPC regarding striking out or adding
parties. The said sub-rule is not about the right of a non-party to
be impleaded as a party, but about the judicial discretion of the
Court to strike out or add parties at any stage of a proceeding. The
discretion under the sub-rule can be exercised either sue moto or on
the application of the plaintiff or the defendant, or on an
application of a person who is not a party to the suit. The Court
can strike out any party who is improperly joined. The Court can add
anyone as a plaintiff or as a defendant if it finds that he is a
necessary party or proper party. Such deletion or addition can be
without any conditions or subject to such terms as the Court deems
fit to impose. In exercising its judicial discretion under Order 1
Rule 10(2) of the Code, the Court will of course act according to
reason and fair play and not according to whims and caprice.
23. This Court in Ramji Dayawala &
Sons (P) Ltd. v. Invest Import reiterated in SCC P. 96 para 20 the
classic definition of ‘discretion’ by Lord Mansfield in R. V. Wilkes
(ER P. 334) that ‘discretion’ when applied to courts of justice,
means sound discretion guided by law. It must be governed by rule,
not by humour, it must not be arbitrary, vague, and fanciful, but
‘legal and regular’.
24. We may now give some
illustrations regarding exercise of discretion under the said
sub-rule.
24.1 If a plaintiff makes an
application for impleading a person as a defendant on the ground
that he is a necessary party, the Court may implead him having
regard to the provisions of Rules 9 and 10(2) of Order1. If the
claim against such a person is barred by limitation, it may refuse
to add him as a party and even dismiss the suit for non-joinder of a
necessary party.
24.2 If the owner of a tenanted
property enters into an agreement for sale of such property without
physical possession, in a suit for specific performance by the
purchaser, the tenant would not be a necessary party. But if the
suit for specific performance is filed with an additional prayer for
delivery of physical possession from the tenant in possession, then
the tenant will be a necessary party in so far as the prayer for
actual possession.
24.3 If a person makes an application
for being impleaded contending that he is a necessary party, and if
the Court finds that he is a necessary party, it can implead him. If
the plaintiff opposes such impleadment, then instead of impleading
such a party, who is found to be a necessary party, the Court may
proceed to dismiss the suit by holding that the applicant was a
necessary party and in his absence the plaintiff was not entitled to
any relief in the suit.
24.4 If an application is made by a
plaintiff for impleading someone as a proper party, subject to
limitation, bona fides etc., the Court will normally implead him, if
he is found to be a proper party. On the other hand, if a non-party
makes an application seeking impleadment as a proper party and Court
finds him to be a proper party, the Court may direct his addition as
a defendant; but if the Court finds that his addition will alter the
nature of the suit or introduce a new cause of action, it may
dismiss the application even if he is found to be a proper party, if
it does not want to widen the scope of the specific performance
suit; or the Court may direct such applicant to be impleaded as a
proper party, either unconditionally or subject to terms. For
example, if ‘D’ claiming to be a co-owner of a suit property, enters
into an agreement for sale of his share in favour of ‘P’
representing that he is the co-owner with half share, and ‘P’ files
a suit for specific performance of the said agreement of sale in
respect of the undivided half share, the Court may permit the other
co-owner who contends that ‘D’ has only one-fourth share, to be
impleaded as an additional defendant as a proper party, and may
examine the issue whether the plaintiff is entitled to specific
performance of the agreement in respect of half a share or only
one-fourth share; alternatively the Court may refuse to implead the
other co-owner and leave open the question in regard to the extent
of share of the vendor-defendant to be decided in an independent
proceeding by the other co-owner, or the plaintiff; alternatively
the Court may implead him but subject to the term that the dispute,
if any, between the impleaded co-owner and the original defendant in
regard to the extent of the share will not be the subject matter of
the suit for specific performance, and that it will decide in the
suit, only the issues relating to specific performance, that is
whether the defendant executed the agreement/contract and whether
such contract should be specifically enforced.
25. In other words, the Court has the
discretion to either to allow or reject an application of a person
claiming to be a proper party, depending upon the facts and
circumstances and no person has a right to insist that he should be
impleaded as a party, merely because he is a proper party.”
On relying above
proposition laid down by Hon’ble Supreme Court this court has
observed that striking out or adding the parties is discretion of
court which depends on fact and circumstances of the case.
(Manju Gupta (Smt.) v. District
Magistrate, Allahabad and Others; 2012 (3) ARC 288)
O. 1. R. 10(2) – Suit for specific
performance - Addition of subsequent purchaser as defendant -
Permissibility - Subsequent transferee is necessary party
In view of the provisions as contained in section 19(b) of the Specific
Relief Act the subsequent transferee is a necessary party as this
question that whether the subsequent transferee purchased the
property for value and paid the money in good faith and without
notice of the original contract is to be decided in his presence.
Here the other aspect of the matter is that the plaintiff is praying for
addition of purchaser as party defendant on the ground that the
purchasers are necessary party. The learned counsel based his claim
on the basis of the aforesaid decisions of the Apex Court. It is
admitted that the petitioner has sold the properties to the
purchaser. It is for the purchaser to have objected. In view of the
Apex Court a purchaser is a necessary party, therefore, the party
cannot be added and deleted at the instance of a party defendant.
The plaintiff is dominus litis. In such circumstances when it has
already been settled by the Apex Court that the purchaser in
necessary party in suit for specific performance of contract the
learned court below could not have rejected the application of the
plaintiff. Therefore, the learned court below has not exercised a
jurisdiction vested in it by law and thereby occasioned failure of
justice. The impugned order suffers from jurisdictional error and
therefore it is liable to be set aside. (Kalawati Devi & Anr. V.
Yoganti Devi & Ors.; AIR 2012 Patna 125)
O. 1 R. 10 – Consideration of
It is settled legal position that a
party against whom no relief is claimed in the application is not a
necessary party at all. (Church of Christ Charitable Trust and
Educational Charitable Society vs. Ponniamman Educational Trust;
2012(4) AWC 3883(SC)
O. 1, R. 10 (2) – Question of title not to be decided in summary
proceedings
“In the present case,
undisputed position is that JSCC Suit No. 43 of 2000 had been filed
against defendant-respondent No. l for recovery of arrears of rent
and ejectment. In the said suit, defendant- respondent No. l filed
written statement, denying landlord-tenant relationship. The case in
hand has to be decided on the basis of the facts disclosed in the
plaint. Merely because Shakil Ahmad claims that he is owner of the
property and he has filed suit for declaration of his rights, then
ipso facto, it is not necessary to implead him as party in JSCC
suit, which has to be decided on its own merit. Revisional Court has
clearly erred in law in directing impleadment of Shakil Ahmad in
JSCC suit. JSCC suit has to be decided on its own merit as to
whether there existed any landlord-tenant relationship inter se
parties. In case petitioner fails to substantiate the said fact that
he is not landlord, his suit would fail. Revision has been wrongly
allowed." (Smt. Krishna v. Ram Kumar and others; 2012 (115) RD
734)
O. 6. R. 17
The Court said finally, the original
plaint proceeds that the exercise of power by the Central Government
by passing the impugned Notifications dated 02.11.2004 and 4.11.2004
under Sections 58(3) and 58(3) and 58(4) of the MPR Act was
arbitrary, unjust and unfair and had resulted in serious anomalies
in the apportionment of assets and liabilities. In our view, after
praying for such relief, if the amendment as sought for by the
plaintiff is allowed and the plaintiff is permitted to challenge the
vires of the said provisions, then the very basis on which the
plaintiff is claiming its right to apportionment of assets, rights
and liabilities of the undivided Board will cease to be in existence
and the entire suit of the plaintiff will be rendered infructuous.
Moreover, it is settled principle of law that leave to amend will be
refused if it introduces a totally different, new and inconsistent
cases or challenges the fundamental character of the suit.
(State of Madhya Pradesh v. Union of India; AIR 2012 SC 2518)
O. VI, R. 17 – Amendment of W.S. –
Allowed – Legality – By amendment the nature of suit will not be
challenged
By means of the present
revision, the applicant who is a tenant in a suit filed by the
landlord for eviction and arrears of rent being SCC suit No. 36 of
2011 has challenged the order allowing challenged the order allowing
amendment. In the said suit after filing of the written statement,
the landlord plaintiffs have filed an amendment application. The
said amendment application has been allowed against which the
present revision has been filed alleging that instead of filing a
replica in view of the amendment allowed in the written statement,
amendment has been sought in the plaint itself which cannot be
permitted. The suit is for eviction and arrears of rent. By the
aforesaid amendment, it cannot be said that the nature of the suit
will change. It will continue to be a suit for eviction and arrears
of rent. However, certain other pleadings have been brought on
record. The petitioner will have opportunity to rebut the same by
filing the additional written statement. From the order impugned it
appears that the court has permitted the same to the revisionist.
(Om Prakash Agrawal v. Shri Jai Kumar Mishra and others; 2012 (2)
ARC 692 (All HC)
O. 7, R. 7 and 8 and O. 6, R. 2 and 4
– Pleadings – Relief not founded on pleadings, cannot be granted –
All material facts shall be pleaded and party cannot be allowed to
go beyond pleading
Relief not founded on the pleadings cannot be granted. A decision of a
case cannot be based on grounds outside the pleadings of he parties.
No evidence is permissible to be taken on record in the absence of
the pleadings in that respect. The Court cannot travel beyond the
pleadings as no party can lead the evidence on an issue/point not
raised in the pleadings and in case, such evidence has been adduced
or a finding of fact has been recorded by the court, it is just to
be ignored. Though it may be a difference case where in spite of
specific pleadings, a particular issue is not framed and parties
having full knowledge of the issue in controversy lead the evidence
and the court records a finding on it. (Union of India Vs.
Ibrahim Uddin & another; (2012) 8 SCC 148)
O. 7, R. 11
The
law is settled that while considering an application under Order VII
Rule 11 Code
of Civil Procedure, the Court has to examine the averments in the
plaint and the pleas taken by the Defendants in its written
statements would be irrelevant.
High Court is fully justified in confirming the decision of the
appellate Court remitting the matter to the trial Court. (Bhau
Ram Vs. Janak Singh; 2012 (5) AWC 5067)
O. VIII, R. 6-A – Amendment in WS
for counter-claim on property in dispute – Permissibility of
In this case it was contended that
Revisional Court has no considered that counter claim set up by
respondent was highly barred by time and since under Order VIII,
Rule 6-A (4) CPC, counter claims is to be treated as a plaint and
governed by the rules applicable to plaints, it was incumbent upon
Revisional Court to consider the same to find out counter claim set
up by the defendant is within the period of limitation or not. Even
otherwise, it is beyond the scope of Order VIII Rule 6-A as it was
filed after evidence was already recorded and not before the
defendant has delivered his defence as is the condition prescribed
in sub rule (1) of Rule 6-A Order VIII, CPC.
The kind of amendment sought by
defendants/respondents refers to the possession and construction on
the property in question by the petitioners without giving the dates
on which it is allowed to have been done though from the plaint it
appears that possession of property in question and construction was
claimed to have been made by petitioners since 1982 and therefore ex
facie amendment sought by way of counter claim was barred by
limitation. Moreover, the said amendment has been sought after
evidence was over and thus also it is beyond the scope of Order
VIII, Rule 6-A CPC. It was not in a manner of amendment under Order
VIII but is an amendment sought for setting up a counter claim under
Order VIII Rule 6-A and the Court below has erred in law by ignoring
to consider the relevant conditions in which such counter claim
could have been set up by the defendant. The impugned revisional
order therefore cannot sustain. (Rajjab Ali & another v. Zila
Panchayat, Sultanpur and others; 2012 (3) ARC 238 (All HC, LB)
O. 8, R. 10 – Judgment in case no
written statement is filed – Passed blindly by relying on facts
stated in plaint
The effect of
non-filing of the written statement and proceeding to try the suit
is clearly to expedite the disposal of the suit and is not penal in
nature wherein the defendant has to be penalised for non-filing of
the written statement by trying the suit in a mechanical manner by
passing a decree. We wish to reiterate that in a case where written
statement has not been filed, the Court should be a little more
cautious in proceeding under Order 8, Rule 10, CPC and before
passing a judgement, it must ensure that even if the facts set out
in the plaint are treated to have been admitted, a judgment and
decree could not possibly be passed without requiring him to prove
the fact pleaded in the plaint. It is only when the Court for
recorded reasons is fully satisfied that there is no fact which
needs to be proved at the instance of the plaintiff in view of the
deemed admission by the defendant, the Court can conveniently pass a
judgement and decree against the defendant who has not filed the
written statement. But, if the plaint itself indicates that there
are disputed questions of fact involved in the case arising from the
plaint itself giving rise to two versions, it would not be safe for
the Court to record an exparte judgement without directing the
plaintiff to prove the facts so as to settle the factual
controversy. In that event, the ex parte judgment although
may appear to have decided the suit expeditiously, it ultimately,
gives rise to several layers of appeal, after appeal which
ultimately compounds the delay in finally disposing of the suit
giving rise to multiplicity of proceeding which hardly promotes, the
cause of speedy trial. However if' the Court is clearly of the view
that the plaintiff's case even without any evidence is prima facie
unimpeachable and the defendant's approach is clearly a dilatory
tactic to delay the passing of a decree, it would be justified in
appropriate cases to pass even an uncontested decree. What would be
the nature of such a case ultimately will have to be left to the
wisdom and just exercise of discretion by the trial court who is
seized of the trial of the suit. (C.N. Ramappa Gowda v. C.C.
Chandregowda (Dead) By LRs & Anr.; AIR 2012 SC 2528)
O. 9, R. 13 – Availability of
benefit under
Petitioner has challenged the order
of the Court below by which his delay condonation application filed
along with application under order 9 Rule 13 CPC has been rejected
on the ground that proper explanation for the delay has not been
explained. Against the aforesaid order revision was filed being
Revision No. 30 of 2010, which has also been rejected vide order
dated 05.08.2010, hence this writ petition.
It is not disputed that the aforesaid
decree is an ex-parte decree against which petitioner has filed
application for recall and also condonation of delay in filing the
aforesaid recall application on the ground that he had no knowledge
of the proceeding. He claims to have obtained knowledge only on
17.5.2008. However, it is not disputed that for the execution of the
aforesaid decree before Execution Court, the petitioner himself had
filed an application as far back as on 05.03.2008 for adjournment of
the Execution Case, therefore, obviously petitioner had full
knowledge of proceeding much prior to 17.05.2008 and therefore,
claim of the petitioner cannot be accepted that he came to know of
the ex-parte decree only on 17.5.2008.
In view of the aforesaid, the Court
not inclined to interfere with the order impugned. The writ petition
is accordingly dismissed. (Mahrunnisha (Smt.) v. District Judge,
Rae Bareli; 2012 (2) ARC 686 (All HC)
O. 15, R. 1 & 3 and O. 10, R. 2 – For
proper framing of issues necessary – Court must critically examine
pleading before framing of issues
Framing of issues is a very important stage of a civil trial. It is
imperative for a Judge to critically examine the pleadings of the
parties before framing of issues. Rule 2 of Order 10 CPC enables the
court, in its search for the truth, to go to the core of the matter
and narrow down, or even eliminate the controversy. It is a useful
procedural device and must be regularly pressed into service. (A.
Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana
Paripalanai Sangam represented by its President & others; (2012) 6
SCC 430)
O. 15, R.5 – Striking off defence
– Application for – Objection against – Trial Court struck off
defence – Legality of
The respondent/plaintiff
filed a suit for arrears of rent and ejectment against the
petitioner. During the pendency of the SCC Suit, plaintiff moved an
application under Order 15 Rule 5 CPC for striking off the defence
of the petitioner.
Respondent filed its objections
stating that the application for striking off the defence has been
filed by plaintiff on wrong facts as she was depositing the rent
regularly. She further stated that she deposited the rent in lump
sum for some months, if in the opinion of the Court; it is found
that there is any delay in depositing the rent, it may be condoned.
The Trial Court after considering the
material available on recorded by order dated 17.08.2009 struck off
the defence of the petitioner. Being aggrieved and dissatisfied with
the said order dated 17.08.2011, the petitioner filed a SCC
revision, which was registered as Rent Revision No. 8 of 2010. The
said Revision was dismissed by the Revisional Court on 04.05.2012.
Hence, the present writ petition.
Order 15 Rule 6 (UP) CPC, inter alia
provides that the tenant throughout the continuation of the suit
regularly deposit the monthly amount due within a week from the day
of its accrual and in the event of any default in making the deposit
of the entire amount admitted by him to be due or the monthly amount
due, the Court may subject to the provisions of Sub-rule (2) strike
off his defence.
Therefore, in view of the above, the
petitioner has not complied with the provisions of Order 15 Rule 5
CPC (UP).Apart from it, the petitioner neither filed any
representation as provided under Sub-rule (2) of Order 15 Rule 5 CPC
nor given any explanation whatsoever for not complying with t he
aforementioned provision, even no reasons have been assigned by the
petitioner in its objections much less strong and compelling reasons
for her failure to comply with the provisions of Order 15 Rule 5
CPC. Thus, the court below was fully justified in striking off the
defence of the petitioner. (Rajni Mishra (Dr. Smt.) v. Kanta
Prasad Agrawal; 2012 (2) ARC 687)
O. XXII, R. 10 – Recall
application against order passed under O. XXII, R. 10 C.P.C. –
Rejection of – Legality – Petitioner only attempt is to delay the
execution proceeding even after more than three decade, hence
rightly dismissed
Writ petition is directed against the
order dated 11.05.2012 passed by Civil Judge (Senior Division), Agra
in Execution Case No. 16 of 1993 rejecting petitioners’ application
for recall of order dated 23.09.2011 passed on application No. 54C
of respondent no. 1/3 under Order 22 Rule 10 of Code of Civil
Procedure.
The application was filed seeking
recall of order dated 23.09.2011 on the ground that copy of said
application was never served upon petitioners-applicants and order
has been passed without giving any opportunity of hearing and is an
ex-parte order.
The court below however has recorded
a finding that copy of aforesaid application no. 54C was served upon
judgment-debtors on 03.09.2004 and thereafter due opportunity of
hearing was afforded to all parties and after almost seven years
since then the order was passed on 23.09.2011. This finding has not
been challenged in the entire writ petition to be perverse or
contrary to record. There is no averment in the entire writ petition
that copy of application was not served upon petitioners on
03.09.2011.
From the record it appears that one
Fakhruddin filed Original Suit No. 430 of 1979 against the tenant
Smt. Kallo seeking her eviction and the suit was decreed on
02.02.1981. It is not disputed that the judgement has attained
finality having not been challenged before any higher court.
Thereafter Sri Fakhruddin himself filed Original Suit No. 405 of
1992 seeking partition of property No. 23/459 Wazirpura Agra which
included the part of premises subject matter of dispute in Original
Suit No. 430 of 1979. In the meantime he died and his heirs are
substituted. The partition suit was decided vide a compromise decree
passed on 27.01.2003, as a result whereof the premises which was
subject matter of Original Suit No. 430 of 1979 came in the share of
applicants of Application No. 54C. It is pursuant thereto,
application seeking their impleadment as judgment executor in
Execution Case No. 16 of 1993 was filed. The said application filed
in August, 2004/September, 2004 but could be decided by execution
court only on 23.09.2011. i.e., after seven years after hearing both
the parties. The only ground raised for seeking recall of said order
is that the copy of application was not served upon petitioners
which have been found incorrect by court below. The Court has
observed that the said application was received by judgment debtor
on 03.09.2004. As already said, this finding has not been shown
perverse, thus the impugned orders warrant no interference. It is
clear that petitioner’s only attempt is to delay the execution
proceedings even after more than three decades. (Kallo (Since
Deceased) (Smt.) & Others v. Fakhruddin (Since Deceased) & Others;
2012(2) ARC 594 (All HC)
Ss. 38 and 39 – Grant or Refusal of
injunction - Principles laid down in Maria Margarida Sequeria;
(2012) 5 SCC 370, reiterated
In Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria, (2012)
5 SCC 370, (of which one of us, Dr. Bhandari, J. was the author of
the judgment), this court had laid stress on purity of pleadings in
civil cases. We deem it appropriate to set out paras 61 to 77 of
that judgment dealing with broad guidelines provided by the Court
which are equally relevant in this case: (SCC pp. 389-91)
“61. In civil cases, pleadings are extremely important for
ascertaining the title and possession of the property in question.
62. Possession is an incidence of ownership and can be transferred
by the owner of an immovable property to another such as in a
mortgage or lease. A licensee holds possession behalf of the owner.
63. Possession is important when there are no title documents and
other relevant records before the court, but, once the documents and
records of title come before the court, it is the title which has to
be looked at fist and due weightage be given to it. Possession
cannot be considered in vacuum.
64. There is a presumption that possession of a person, other than
the owner, if at all it is to be called possession, is permissive on
behalf of the title-holder. Further, possession of the past is one
thing, and the right to remain or continue in future is another
thing. It is the latter which is usually more in controversy than
the former, and it is the latter which has seen much abuse and
misuse before the courts.
65. A suit can be filed by the title-holder for recovery of
possession or it can be one for ejectment of an ex-lessee or for
mandatory injunction requiring a person to remove himself or it can
be a suit under Section 6 of the Specific Relief Act to recover
possession.
66. A title suit for possession has two parts - first,
adjudication of title, and second, adjudication of possession. If
the title dispute is removed and the title is established in one or
the other, then, in effect, it becomes a suit for ejectment where
the defendant must plead and prove why he must not be ejected.
67. In an action for recovery of possession immovable property, or
for protecting possession thereof, upon the legal title to the
property being established, the possession or occupation the
property by a person other than the holder of the legal title will
be presumed to have been under and in subordination to the legal
title, and it will be for th3e person resisting a claim for recovery
of possession or claiming a right to continue in possession, to
establish that he has such a right. To put it differently, wherever
pleadings and documents establish title to a particular property and
possession is in question, it will be for the person ion possession
to give sufficiently detailed pleadings, particulars and documents
to support his claim in order to continue in possession.
68. In order to do justice, it is necessary to direct the parties
to give all details of pleadings with particulars. Once the title is
prima facie established, it is for the person who is resisting the
title-holder’s claim to possession to plead with sufficient
particularity on the basis of his claim to remain in possession and
place before the court all such documents as in the ordinary course
of human affairs are expected to be there. Only if the pleadings are
sufficient, would an issue be struck and the matter sent to trial,
where the onus will be on him to prove the averred facts and
documents.
69. The person averring a right to continue in possession shall,
as far as possible, give a detailed particularized specific pleading
along with documents to support his claim and details of subsequent
conduct which establish his possession.
70. It would be imperative that one who claims possession must
give all such details as enumerated hereunder. They are only
illustrative and not exhaustive:
(a) who is or are the owner of
owners of the property;
(b) title of the property;
(c) who is in possession of the
title documents;
(d) identity of the claimant or
claimants to possession;
(e) the date of entry into
possession;
(f) how he came into possession – whether he purchased the
property or inherited or got the same in gift or by any other
method;
(g) in case he purchased the property, what is the consideration;
if he has taken it on rent, how much is the rent, licence fee or
lease amount;
(h) if taken on rent, licence fee or lease – then insist on rent
deed, licence deed or lease deed;
(i) who are the persons in possession/occupation or otherwise
living with him, in what capacity; as family members, friends or
servants, etc.;
(j) subsequent conduct i.e. any event which might have
extinguished his entitlement to possession or caused shift therein;
and
(k) basis of his claim that not to deliver possession but continue
in possession.
71. Apart from these pleadings, the court must insist on
documentary proof in support of the pleadings. All those documents
would be relevant which come into existence after the transfer of
title or possession or the encumbrance as is claimed. While dealing
with the civil suits, at the threshold, the court must carefully and
critically examine the pleadings and documents.
72. The court will examine the pleadings for specificity as also
the supporting material for sufficiency and then pass appropriate
orders.
73. Discovery and production of documents and answers to
interrogatories, together with an approach of considering what in
the ordinary course of human affairs is more likely to have been the
probability, will prevent many a false claims or defences from
sailing beyond the stage for issues.
74. If the pleadings do not give sufficient details, they will not
raise an issue, and the court can reject the claim or pass a decree
on admission. On vague pleadings, no issue arises. Only when he so
establishes, does the question of framing an issue arise. Framing of
issues is an extremely important stage in a civil trial. Judges are
expected to carefully examine the pleadings and documents before
framing of issues in a given case.
75. In pleadings, whenever a person claims right to continue in
possession of another property, it becomes necessary for him to
plead with specificity about who was the owner, on what date did he
enter into possession, in what capacity and in what manner did he
conduct his relationship with the owner over the years till the date
of suit. He must also give details on what basis he is claiming a
right to continue in possession. Until the pleadings raise a
sufficient case, they will not constitute sufficient claim of
defence.
76. *
* *
77. The court must ensure that pleadings of a case must contain
sufficient particulars. Insistence on details reduces the ability to
put forward a non-existent or false claim or defence. In dealing
with a civil case, pleadings, title documents and relevant records
play a vital role and that would ordinarily decide the fate of the
case.”
23. We reiterate the immense
importance and relevance of purity of pleadings. The pleadings need
to be critically examined by the judicial officers or Judges both
before issuing the ad interim injunction and/or framing of issues. (A.
Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana
Paripalanai Sangam represented by its President and others; (2012) 6
SCC 430)
O. 39, R. 2
–Temporary injunction – Irreparable loss - Suit for specific
performance of contract of agency – Relief of damages having been
claimed as alternative to relief of specific performance – Cannot be
said that plaintiff would suffer irreparable loss in case injunction
is reused – Grant of injunction claimed, improper even if plaintiff
had prima facie case
On a reading of clause
B-2 of the agreement, we find that Liberty Agencies had given a
warranty that the suit schedule property was owned by it and that it
will retain the possession of the suit schedule property until the
expiry of the agreement. Clause D of the agreement clearly
stipulated that the duration of, the agreement shall be for a period
of twelve years from the. Date of the agreement/unless terminated in
accordance with the provisions of the agreement. Clause E-2 further
provides that respondent No.1 and not Liberty Agencies could
terminate the agreement by giving a notice of not less than three
months after the end of six years from the date of the agreement and
respondent No.1 had not terminated the agreement under this clause.
Before the expiry of six years from the date of the agreement,
Liberty Agencies sent the letter dated 26.02.2010 to the respondent
No.1 committing a breach of clause B-2 of the agreement which
provided that Liberty Agencies will retain possession of the suit
schedule property until the expiry of the agreement. This was the
breach of the agreement which was sought to be prevented by the
trial court by an order of temporary injunction. The trial court and
the High Court were thus right in coming to the conclusion that the
respondent No.1 had a prima facie case.
Despite this claim
towards damages made by the respondent No.1 in the plaint, the trial
court-has held that if the temporary injunction as sought for is not
granted, Liberty Agencies may lease or sub-lease the suit schedule
property or create third party interest over the same and in such an
event, there will be multiplicity of proceedings and thereby the
respondent No.1 will be put to hardship and mental agony, which
cannot be compensated in terms of money. Respondent No.1 is a
limited company carrying on the business of readymade garments and
we fail to appreciate what mental agony and hardship it will suffer
except financial losses. The High Court has similarly held in the
impugned judgment that if the premises is let out, the respondent
No.1 will be put to hardship and the relief claimed would be
frustrated and, therefore, it is proper to grant injunction and the
trial court has rightly granted injunction restraining the partners
of Liberty Agencies from alienating, leasing, sub-leasing or
encumbering the property till the disposal of the suit. The High
Court lost sight of the fact that if the temporary injunction
restraining Liberty Agencies and its partners from allowing,
leasing, sub-leasing or encumbering the suit schedule property was
not granted, and the respondent No.1 ultimately succeeded in the
suit, it would be entitled to damages claimed and proved before the
court. In other words, the respondent No.1 will not suffer
irreparable injury. To quote the words of Alderson, B. in The
Attorney-General vs. Hallett [153 ER 1316: (1857) 16 M. & W.569]:
“I take the meaning of
irreparable injury to be that which, if not prevented by injunction,
cannot be afterwards compensated by any decree which the Court can
pronounce in the result of the cause."
For the aforesaid
reasons, we set aside the order of temporary injunction passed by
the trial court as well as the impugned judgment and the order dated
16.07.2010 of the High. Court. The appeals are allowed with no order
as to costs.
(M/s. Bet Sellers Retail (India) Pvt. Ltd. v. M/s. Aditya Birla Novo
Ltd. & Ors. With A.C. Thirumalaraj v. M/s. Aditya Birla Novo Ltd. &
Ors.; AIR 2012 SC 2448)
Order XXXIX, R. 2-A and S. 151 – Remedy to non compliance of courts
order by the district authorities
The Trial Court has
ample power to enforce its order by issuing appropriate direction to
the district authorities. Needless to say that in case the district
authorities do not implement the order passed by the trial Court the
latter has ample power to refer the matter to this Court. We
reiterate the proposition of law discussed in the case of Mohd.
Hamja (supra) and permit the petitioner to approach the trial Court
by moving appropriate application. The Trial Court shall ensure that
the order passed by it is complied with in its letter and spirit by
the district authorities.
It shall be obligatory
on the part of the district authorities to implement the order
passed by the Trial Court. Attention of this Court has been invited
to the order dated 14.7.2011 (Annexure-6). In case the private
respondents have got any grievance against the order passed by the
trial Court, then option is open to them to approach the higher
forum like revisional or appellate jurisdiction but there shall not
be any connivance between the private respondents and the district
authorities in complying the order passed by the Trial Court.
Non-compliance of the Court's order by the district authorities is a
symptom which shows the breakage of the constitutional machinery. We
hope and trust that the district authorities including the
Superintendent of Police, Lucknow shall enforce the order passed by
the Trial Court in its letter and spirit. (Hari Om Rastogi and
another v. State of IT.P. through its Secretary Home, Lucknow and
others; 2012 (115) RD 728)
Order XXXIX, Rule 4 –
Two field remedy provided to the incumbent against when such
injunction may be discharged
On the parameters of
judicial pronouncements and the statutory provisions, the situation
which emerges in the present case, that two fold remedy has been
provided for to an incumbent against whom injunction order has been
passed and who is dissatisfied with the said order of injunction.
Rule 4 of Order XXXIX provides that an order for an injunction may
be discharged, or varied, or set aside by the Court, on application
made thereto by any party dissatisfied with such order. Order XLIII,
Rule l(r) provides that an appeal shall lie from an order under
Rules 1, 2 and Rule 4 of Order XXXIX. The Legislature deliberately
and consciously has provided the forum of appeal against the order
passed under Rules 1, 2 and 4 of Order XXXIX, the stages being
different. Under Order XJc. XIX Rule 1 of the Code whenever an ex
parte order of injunction is passed, against the same also appeal is
maintainable under Order XLIII Rule 1 (r) and at the point of time
said appeal is decided, the question to be agitated is as to whether
in the facts of the case Trial Court was justified in issuing
injunction order and no new material can be taken into consideration
until application under Order XLI, Rule 27 of the Code is taken on
record and allowed. Said appeal in question has to be confined on
the material which was available before the Court at the point of
time when an injunction order had been granted ex parte. As far as
proceeding under Order JLXXLX, Rule 4 of the Code is concerned, a
person who is dissatisfied with the order of injunction has a right
to apply for revocation. variation or for rescinding the order of
injunction and therein all necessary material particulars can be
placed before the Court in respect of his claim preferred under
Order XXXIX Rule 4 of the Code, and the Court has to consider the
claim of a party on the premises as to whether it would be just and
in the interest of justice to continue with injunction order or not
in the facts of the case and even against the said order passed
either way, remedy of appeal has been provided for against the order
passed under Order XXXIX, Rule 4 of the Code. Appeal is maintainable
both against grant of ex parte injunction order as well as against
the order passed after hearing both the parties. Thus, there is
procedural difference in the two and the stage of the appeal is also
different, for the simple reason that while considering the appeal
under Order XLIII Rule l(r) against the order passed under Order
JLXXLX, Rule 1 of the Code, only material on which injunction order
has been passed is taken into consideration, whereas in the appeal
preferred under Order XLIII, Rule 1 (r) against the order passed
under Rule 4 of Order XXXIX entire material has to be taken into
consideration, including the documents which have been submitted by
the defendant at the said stage of the proceeding. There is no
statutory embargo, whatsoever imposed upon the defendant to invoke
the two proceedings simultaneously. Apex Court in the case of
Transcore v. Union of India, AIR 2007 SC 212, has considered at
length, the doctrine of election of remedies by mentioning that said
doctrine is evolved by Courts on equality, and there are three
elements of election, namely existing of two or more remedies;
inconsistencies between such two remedies and choice of one of them.
If one of the three elements is not there, the doctrine will not
apply. Here the remedies provided for are not at all inconsistent to
each other rather both the remedies recognize existence of same
facts. Both, the application under Order XXXIX, Rule 4 as well as
appeal under Order XLIII, Rule 1 (r) are to be decided on different
parameters as already noted above. In view of this the proposition
that the appeal in question is not maintainable, cannot be accepted,
for the simple reason that right of appeal is statutory right and
such right cannot be curtailed unless the statute expressly or by
necessary implication says so. The sentence "the choice is for the
party affected by the order either to move the appellate Court or to
approach the same Court which passed ex parte order for any relief'
as mentioned in the case of A. Venkatasubbiah Naidu v. S. Chellappan
and others, 2007(7) SCC 695, has to be read and understood, in the
backdrop of the issue before Apex Court. At no point of time, the
issue of simultaneous election of remedy was ever engaging the
attention of Court, moreover judgments cannot be substitute of
statutory provisions, and same has to be seen, in the facts and
circumstances of each case. Here, scheme of things provided for do
not reflect that by necessary implication or by express statutory
provision, appeal in question is in any way prohibited on
application also being moved under Order XXXIX, Rule 4 of the Code.
It is well known rule of construction, that a Court must construe a
section unless it is impossible to do so, to make such provision
workable rather proceeding to make it unworkable. No word can be
rendered ineffective or purpose less. Courts are required to carry
out legislative intent fully and completely while construing
provisions, full effect is to be given to the language used therein
giving reference to context and the other provisions of the Statute
and by construction a provision shall not be reduced as dead letter.
Here the language used in C.P.C. is very clear and does not require
any interpretation, as there is no ambiguity in it, rather the same
is clear and specific. Dual remedy provided for, cannot be made
redundant and otiose merely because one of the remedies has been
availed of. However, when both the remedies are opted and the matter
is inter se parties, then whatsoever, decision is taken, such
decision has to be taken into account by the Court dealing with such
cases and the said Court will weigh the impact of the decision,
which has been taken at the earlier point of time. In view of this
the objection so raised is unsustainable. (Anil Agarwal v. Indian
Oil Corporation Ltd. Mumbai & others; 2012 (115) RD 746)
O. - 41, R. 27 – Additional evidence
– Discretion of
Appellate Court has discretion to allow production of additional
evidence in exceptional circumstances but it must exercised judicial
and with circumspection only where any of the prerequisite
conditions provider O.15 R. 27 exist?
The general principle is that the appellate court should not travel
outside the record of the lower court and cannot take any evidence
in appeal. However, as an exception, Order 41 Rule 27 CPC enables
the appellate court to take additional evidence in exceptional
circumstances. The appellate court may permit additional evidence
only and only if the conditions laid down in this Rule are found to
exist. The parties are not entitled, as of right, to the admission
of such evidence. Thus, the provision does not apply, when on the
basis of the evidence on record, the appellate court can pronounce a
satisfactory judgment. The matter is entirely within the discretion
of the court and is t be used sparingly. Such a discretion is only a
judicial discretion circumscribed by the limitation specified in the
Rule itself. (Vide K. Venkataramia V. A. Seetharama Reddy, AIR 1963
SC 1526, Muncipal Corpn. Of Greater Bombay V. Lala Pancham, AIR 1965
SC 1008, Soonda Ram V. Rameshwarlal, (1975) 3 SCC 698 and Syed Abdul
Khader v. Rami Reddy, (1979) 2 SCC 601. (Union of India Vs.
Ibrahim Uddin & another; (2012) 8 SCC 148)
Interim injunction Violated -
Court below ought not to have waited for final decision. As the
proceedings under Order XXXIX, Rule 2 - A are separate proceedings
and Court can go on in spite of any interim order that may be passed
in as, to proceed in contempt, is the sole discretion of the Court
The claim of the petitioner is that
proceeding under Order XXXIX, Rule 2-A, C.P.C. are separate
proceedings and it would not come in the way of the interim order
granted by this Court dated 18.12.1990, by which further proceedings
in the suit has been stayed. According to the learned Counsel for
the petitioner the said writ petitioner in which interim order was
granted being Writ Petition No. 32472 of 1990 has since been
dismissed in default vide order dated 13.10.2008. It is submitted
that Writ Petition No. 32472 of 1990 was his writ petition and a
recall application has also been filed but the Court below ought not
to have waited for final decision in that writ petition as the
proceedings under Order XXXIX, Rule 2-A, C.P.C. are separate
proceedings and can go on in spite of any interim order that may be
passed in that writ petition. (Sri Mahadeo Ji Maharaja Viraj Man
Mandir vs. Munna Lal; 2012(116) RD 745)
Adverse Possession cannot be
proved merely be obtaining ration card and house tax receipts
The appellant has also failed to
prove the adverse possession of the suit property. Only by obtaining
the ration card and the house tax receipts, the appellant cannot
strengthen his claim of adverse possession. The High Court was fully
justified in reversing the judgment of the First Appellate Court and
restoring the judgment of the Trial Court. In our considered
opinion, no interference is called for. (A. Shanmugam vs. Ariya
K.R.V.M.N.P., Sangam; 2012(116) RD 567)
If there is no prima facie case
for trial, question for considering balance of convenience and
irreparable injury is not required
Hon’ble Apex Court in Kashi Math Samsthan and another vs. Shrimad
Sudhindra Thirth Swami and another, 2010(79) ALR 167 (SC) held that
if there is no prima facie case for trial, question for considering
balance of convenience and irreparable injury is not required. (Raj
Kumar Singh Bhadouria vs. Satya Mohan Pandey; 2012(116) RD 847)
BACK TO INDEX
Constitution of India
Art. 14 -
Employment
Question arose
before Hon’ble Supreme court that whether over-payment of amount due
to wrong fixation of 5th and
6th pay scale
of teachers/principals based on the 5th Pay
Commission Report could be recovered from the recipients who are
serving as teachers. The Division Bench of the High Court rejected
the writ petition filed by the Appellants and took the view that
since payments were effected due to a mistake committed by the
District Education Officer, the same could be recovered. Aggrieved
by the said judgment, this appeal has been preferred.
Held - that there is no proposition of
law that only if the State or its officials establish that there was
misrepresentation or fraud on the part of the recipients of the
excess pay, then only the amount paid could be recovered. Any
amount paid/received without authority of law can always be
recovered barring few exceptions of extreme hardships but not as a
matter of right, in such situations law implies an obligation on the
payee to repay the money, otherwise it would amount to unjust
enrichment. (Chandi Prasad Uniyal and
Ors. Vs. State of Uttarakhand and Ors.; 2012 (5) AWC 5320 (SC)
Art. 14 – Restricting a candidate to apply for only five districts in
U.P. his chose is illegal and ultravires of the statute
It is well settled that
in the matter of selection and appointment etc. the policy decisions
can be taken by the State and the same are not lightly to be
interfered by the Court in judicial review but if such policy
decision is ex facie irrational, illogical and arbitrary, it can be
axed by the Courts while going for judicial review. The respondents
in the absence of the counter- affidavit had the opportunity to show
deliberation available on record, if any, made while formulating the
above policy to show justification or rationality for restricting a
candidate in applying in only five districts but that option has not
been availed by the respondents though they have opportunity to do
so. No such request was made. It appears that on this aspect there
is not even deliberation on the part of the respondents. In a sheer
momentary flash this condition has been made part of the process of
selection without applying mind to its logic and rationality. It is
also not discernible as to whether any rational object the
respondents intent to achieve by making this restriction. The said
condition also fails ex facie to show any nexus with the undisclosed
objectives sought to be achieved. It is well settled that any policy
decision, which is ex facie arbitrary, irrational or illogical is
violative of Article 14 and cannot sustain. (Sarita Shukla v.
State of U.P.; 2012 (2) ESC 963 (All HC)
Art. 14 & 16 – Employment –
Appointment – Bank – Appellant refused appointment despite having
been selected on ground that three criminal case pending against him
– Effect of
It is settled law that
mere selection does not confer indefeasible right to claim
appointment. In State of Haryana v. Subhash Chander Marwah and
others; (1974) 1 SCR 165, the Apex Court held as under:
“... One fails to see
how the existence of vacancies gives a legal right to a candidate to
be selected for appointment. The examination is for the purpose of
showing that a particular candidate is eligible for consideration.
The selection for appointment comes later. It is open then to the
Government to decide how many appointments shall be made. The mere
fact that a candidate's name appears in the list will not entitle
him to a mandamus that he be appointed.”
A Division Bench of this
Court in U. P. Public Service Commission, Allahabad and another v.
State of U.P. and another, 2007 (5) ADJ 280 : 2007 (6) AWC 6486,
took the similar view and observed as under;
"Moreover, even in the
case of a select list candidate, the law is well settled that such a
candidate has no indefeasible right to claim appointment merely for
the reason that his name is included in the select list as the State
is under no legal duty to fill up all or any of the vacancy and it
can always be left vacant or unfilled for a valid reason."
Therefore, in the facts
of the case, even if the appellant was selected, since the
respondents have decided not to offer him appointment because of his
involvement in criminal cases, we have no reason to differ with the
view taken the learned Single Judge. (Pankaj Pandey vs. State
Bank of India and other; 2012(4) AWC 3818)
Art. 14, 16(1) & 141 - Article 16(4)
which protects the interest of certain Sections of the Society has
to be balanced against the Article 16(1), which protects the
interest of every citizen of the entire society - They should be
harmonized because they are restatements of the principle of equity
under Article 14 of the Constitution
From various decisions and their
paragraphs court has mentioned following principles:
(i) Vesting of the power by
an enabling provision may be constitutionally valid and yet
'exercise of power' by the State in a given case may be arbitrary,
particularly, if the State fails to identify and measure
backwardness and inadequacy keeping in mind the efficiency of
service as required under Article 335.
(ii) Article 16(4) which
protects the interests of certain sections of the society has to be
balanced against Article 16(1) which protects the interests of every
citizen of the entire society. They should be harmonized because
they are re statements of the principle of equality under Article
14.
(iii) Each post gets marked for
the particular category of candidates to be appointed against it and
any subsequent vacancy has to be filled by that category candidate.
(iv) The appropriate Government
has to apply the cadre strength as a unit in the operation of the
roster in order to ascertain whether a given class/group is
adequately represented in the service. The cadre strength as a unit
also ensures that the upper ceiling-limit of 50% is not violated.
Further roster has to be post-specific and not vacancy based.
(v) The State has to form its
opinion on the quantifiable data regarding adequacy of
representation. Clause (4A) of Article 16 is an enabling provision.
It gives freedom to the State to provide for reservation in matters
of promotion. Clause (4A) of Article 16 applies only to SCs and STs.
The said clause is carved out of Article 16(4A). Therefore, Clause
(4A) will be governed by the two compelling reasons- "backwardness"
and "inadequacy of representation", as mentioned in Article 16(4).
If the said two reasons do not exist, then the enabling provision
cannot be enforced.
(vi) If the ceiling-limit on
the carryover of unfilled vacancies is removed, the other
alternative time-factor comes in and in that event, the time- scale
has to be imposed in the interest of efficiency in administration as
mandated by Article 335. If the time-scale is not kept, then posts
will continue to remain vacant for years which would be detrimental
to the administration. Therefore, in each case, the appropriate
Government will now have to introduce the duration depending upon
the fact-situation.
(vii) If the appropriate
Government enacts a law providing for reservation without keeping in
mind the parameters in Article 16(4) and Article 335, then this
Court will certainly set aside and strike down such legislation.
(viii) The constitutional
limitation under Article 335 is relaxed and not obliterated. As
stated above, be it reservation or evaluation, excessiveness in
either would result in violation of the constitutional mandate. This
exercise, however, will depend on the facts of each case.
(ix) The concepts of
efficiency, backwardness and inadequacy of representation are
required to be identified and measured. That exercise depends on the
availability of data. That exercise depends on numerous factors. It
is for this reason that the enabling provisions are required to be
made because each competing claim seeks to achieve certain goals.
How best one should optimize these conflicting claims can only be
done by the administration in the context of local prevailing
conditions in public employment. Article 16(4), therefore, creates a
field which enables a State to provide for reservation provided
there exists backwardness of a class and inadequacy of
representation in employment. These are compelling reasons. They do
not exist in Article 16(1). It is only when these reasons are
satisfied i that a State gets the power to provide for reservation
in the matter of employment.
(U.P.
Power Corpn. Ltd. v. Rajesh Kumar; 2012 (2) ESC 233) (SC)
Art. 16 Seniority – Fixation -
Determination of Seniorities between direct recruits and
enter-charge transferees under direct recruit quota - Principles
stated
Principles emerging for
determination of seniority between the direct recruits and
inter-charge transferees (under direct recruit quota) on
interpretation of various Govt. orders are:-
(1)
The seniority of direct recruits can neither be reckoned from
the date of sending requisition to the recruiting body nor can the
seniority be reckoned from the date of selection.
(2)
The seniority of direct recruits shall be reckoned from the
date when they are available for appointment in any particular year
in their quota as per the rotation of quota.
(3)
The inter-change transferee belonging to direct recruit quota
shall be treated to be direct recruit in the particular year when he
joins after transfer and shall be treated to be an addition in the
direct recruits available in the particular year.
(4)
The seniority in the cadre of inter-charge transferee shall
start from the date of person reports for duty in that charge.
However, he will not rank senior to any official to a batch selected
on merit, whose inter-se seniority is not regulated by the date of
joining.
(Rajeev Mohan vs. Central
Administrative Tribunal, Allahabad Bench, Allahabad; 2012 (5) ALJ
257)
Art. 16 Compassionate Appointment –
Denial - Validity of
The authority concerned has rejected the application of petitioner for
compassionate appointment on account of lapse of a period of more
than three years from the date of death of Shyam Veer Singh without
further considering the case of applicant on merit as to whether the
family of deceased employee is continuously facing financial
distress and hardship occasioned by death of deceased employee of
corporation and whether the family cannot be relieved from such
financial distress and hardship without offering compassionate
appointment to the applicant.
The Authority concerned is directed to consider the case of petitioner
on merit and while considering so the competent authority shall
examine as to whether the family of deceased employee continues to
be under financial distress and hardship and the family of deceased
employee cannot be relieved from such financial hardship and
distress unless the compassionate appointment is offered to the
petitioner. (Asha Rani vs. State of U.P.; 2012(5) ALJ 335)
Art. 21 & 19 – Right to reputation is
also a facit under 21
In the present case, the appellant doctor who was spreading awareness
against the exploitation of weaker and marginalized sections of
society became a victim of the local coal mafia, police and persons
whose interests were being affected thereby. Multiple criminal cases
were lodged against the doctor and he was admittedly humiliated in
police custody. Pursuant to the intervention by the High Court,
departmental proceedings were initiated and the erring officials
were punished. The High Court in its final order referred the matter
to the Chief Secretary of the State for grant of compensation. Till
the present appeal i.e. after 19 years, no compensation had been
paid to the appellant even though the Supreme Court initially gave
an opportunity to the State Government to consider the issue of
compensation.
In the present case the writ court is not concerned with defamation as
postulated under Section 499 IPC. The writ court is really concerned
with how in a country governed by the rule of law and where Article
21 of the Constitution is treated to be sacred, the dignity and
social reputation of a citizen has been affected.
Inhuman treatment has many a facet. It fundamentally can cover such acts
which have been inflicted with an intention to cause physical
suffering or severe mental pain. It would also include a treatment
that is inflicted that causes humiliation and compels a person to
act against his will or conscience. Torture is not merely physical
but may even consist of mental and psychological torture calculated
to create fear to submit to the demands of the police. (Mehmood
Nayyar Azam Vs. State of Chhattisgarh and others; (2012) 8 SCC 1)
Art. 21, 32 and 226 – Compensation
for harassment in police custody under public law – Consideration of
It needs no special
emphasis to state that when an accused is in custody, his
Fundamental Rights are not abrogated in too. His dignity cannot be
allowed to be comatose. The right to life is enshrined in Article 21
of the Constitution and a fortiorari it includes the right to live
with human dignity and all that goes along with it.
There is no shadow of doubt that any treatment meted out to an accused
while he is in custody which causes humiliation and mental trauma
corrodes the concept of human dignity. The majesty of law protects
the dignity of a citizen in a society governed by law. It cannot be
forgotten that the Welfare State is governed by rule of law which
has paramountcy. It has been said by Edward Biggon “the laws of a
nation form the most instructive portion of its history.” The
Constitution as the organic law of the land has unfolded itself in
manifold manner like a living organism in the various decisions of
the court about the rights of a person under Article 21 of the
Constitution of India. When citizenry rights are sometimes dashed
against and pushed back by the members of City Halls, there has to
be a remand and when the remand takes place. Article 21 of the
Constitution, springs up to action as a protector.
It is the
sacrosanct duty of the police authorities to remember that a citizen
while in custody is not denuded of his fundamental right under
Article 21 of the Constitution. The restrictions imposed have the
sanction of law by which his enjoyment of fundamental right is
curtailed but his basic human rights are not crippled so that the
police officers can treat him in an inhuman manner. On the contrary,
they are under obligation to protect his human rights and prevent
all forms of atrocities.
The
appellant was tortured while he was in custody. When there is
contravention of human rights, the inherent concern as envisaged in
Article 21 springs to life and enables the citizen to seek relief
by, taking recourse to public law remedy.
The relief of monetary compensation as exemplary damages, in proceedings
under Article 32 by the Supreme Court or under Article 226 by the
High Courts for established infringement of the indefeasible right
guaranteed under Article 21 is a remedy available in public law and
is based on the strict liability for contravention of the guaranteed
basic and indefeasible rights of the citizen. The purpose of public
law is not only to civilize public power but also to assure the
citizen that they live under a legal system which aims to protect
their interests and preserve their rights. Therefore, when the court
moulds the relief by granting 'compensation' in proceedings under
Article 32 or 226 seeking enforcement or protection of fundamental
rights, it does so under the public law by way of penalizing the
wrongdoer and fixing the liability for the public wrong on the State
which has failed in its public duty to protect the fundamental
rights of the citizen. The payment of compensation in such cases is
not to be understood, as it is generally understood in a civil
action for damages under the private law but in the broader sense of
providing relief by an order of making 'monetary amends' under the
public law for the wrong done due to breach of public duty, by not
protecting the fundamental rights of the citizen. The compensation
is in the nature of 'exemplary damages' awarded against the
wrongdoer for the breach of its public law duty and is independent
of the rights available to the aggrieved party to claim compensation
under the private law in an action based on tort, through a suit
instituted in a court of competent jurisdiction or/and prosecute the
offender under the penal law. (Dr. Mehmood Nayyar Azam vs. State
of Chhatisgarh and others; 2012(5) AWC 4353(SC)
Art. 136 – Scope of interference –
Principles reiterated
When the evidence is
legally admissible and has been appreciated by the courts in its
correct perspective then merely because another view is possible,
this Court, in exercise of its powers under Article 136 of the
Constitution, would be very reluctant to interfere with the
concurrent findings of the courts below. Of course, there are
exceptions but they are very limited ones. Where upon careful
appreciation of evidence, this Court finds that the courts below
have departed from the rule of prudence while appreciating the
evidence in a case or the findings are palpably erroneous and are
opposed to law or the settled judicial dictums, then the Court may
interfere with the concurrent findings. Still, it is not possible to
exhaustively state the principles or the kind of cases in which the
Court would be justified in disturbing the concurrent findings. It
will always depend upon the facts and circumstances of a given
case. (Nagesh Vs. State of Karnataka; (2012) 6 SCC 477)
Art. 136, 226 –
Consumer protection Act 1986 – Section 27A(1)(c) – Writ petition –
Challenging order of National consumer commission – Order of
national consumer disputes Redressal commission cannot be questioned
in writ jurisdiction of High Court
In the
instant case, condoning such an inordinate delay without any
sufficient cause would amount to substituting the period of
limitation by this Court in place of the period prescribed by the
Legislature for filing the special leave petition. Therefore, we do
not see any cogent reason to condone the delay.
While declining to
interfere in the present special leave petition preferred against
the order passed by the High Court in exercise of its extraordinary
jurisdiction under Article 226 of the Constitution of India, we
hereby make it clear that the order of the Commission are incapable
of being questioned under the writ jurisdiction of the High Court,
as a statutory appeal in terms of Section 27A (1) (c) lies to this
Court. Therefore, we have no hesitation in issuing a direction of
caution that it will not be proper exercise of jurisdiction by the
High Courts to entertain writ petitions against such orders of the
Commission. (Cicily Kallarackal vs. Vehicle Factory; 2012(5) AWC
4398 (SC)
Art. 141 - Constitution Law and
Preamble, Pts III and IV and Art. 300-A - Need for law to evolve
with time
Although the legal jurisprudence developed in the country in the last
five decades is somewhat precedent-centric, the judgments which have
a bearing on socio-economic conditions of citizens and issues
relating to compensation payable to the victims of motor accidents,
those who are deprived of their land and similar matters need to be
frequently revisited keeping in view the fast-changing societal
values, the effect of globalization on the economy of the nation and
their impact on the life of the people. (Santosh Devi Vs.
National Insurance Company Limited and Others; (2012) 6 SCC 421)
Art. 226 and 32 – Judicial review of
administrative action – Scope and parameters
The power of judicial
review is neither unqualified nor unlimited. It has its own
limitations. The scope and extent of the power that is so very often
invoked has been the subject-matter of several judicial
pronouncements within and outside the country. When one talks of
'judicial review' one is instantly reminded of the classic and oft
quoted passage from Council of Civil Service Unions (C.C.S.U.) v.
Minister for the Civil Service, (1984) 3 All ER 935, where Lord
Diplock summed up the Permissible grounds of judicial review thus:
“Judicial review has I
think developed to a stage today when, without reiterating any
analysis of the steps by which the development has come about, one
can conveniently classify under three heads the ground on which
administrative action is subject to control by judicial review. The
first ground I would call ‘illegality’, the second ‘irrationality’
and the third ‘procedural impropriety”.
By ‘illegality’ as a ground for judicial review I mean that the
decision-maker must understand correctly the law that regulates his
decision-making power and must give effect to it. Whether he has or
not is par excellence a justiciable question to be decided, in the
event of dispute, by those persons, the Judges, by whom the
judicial power of the
State of exercisable.
By ‘irrationality’
I mean what can by now be succinctly referred to as ‘Wednesbury
unreasonableness’. It applies to a decision which is so outrageous
in its defiance of logic or of accepted moral standards that no
sensible person who had applied his mind to the question to be
decided could have arrived at it. Whether a decision falls within
this category is a question that Judges by their training and
experience should be well equipped to answer or else there would be
something badly wrong with our judicial system.
The above principles have
been accepted even by this Court In a long line of decisions handed
down from time to time. We may, however, refer only to some of those
decisions where the development of law on the subject has been
extensively examined and the principles applicable clearly
enunciated. In Tata Cellular v. Union of India, (1994) 6 SCC 651,
this Court identified the grounds of judicial review of
administrative action in the following words:
"The duty of the Court is to confine
itself to the question of legality. Its concern should be:
(1) Whether a
decision-making authority exceeded its powers?
(2) Committed an
error of law.
(3) Committed a
breach of the rules of natural justice.
(4) Reached a
decision which no reasonable Tribunal would
have reached or.
(5) Abused its
powers.
Therefore, it is not for
the Court to determine whether a particular policy or particular
decision taken in the fulfilment of that policy is fair. It is only
concerned with the manner in which those decisions have been taken.
The extent of the duty to act fairly will vary from case to case.
Shortly put, the grounds upon which an administrative action is
subject to control by judicial review can be classified as under:
(i) Illegality:
This means the decision-maker must understand
correctly the law that regulates his decision-making power and must
give effect to it.
(ii)
Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.”
(Heinz India (P) Ltd. and another vs.
State of U.P. and others; 2012 (4) AWC 3662 (SC)
Art. 226 - Advocates Act, S.34 Writ
Petition – Maintainability - Election for Bar Association – Whether
writ containing the methodic of election disputes of Bar Association
is maintainable – Held - “No”
The Court had gone to the issue of maintainability of the writ petition
against the High Court Bar Association when a special circumstance
compelled the Court to look into the matter in a writ petition. We
find that everywhere the role of the Advocates was taken into
consideration by the Division Bench as if the Bar Association is the
only controlling body of the Advocates like Bar Council. In other
words, the measures of the Bar Council in to have been discussed
taking the name of the Bar Association giving complete go-by to the
Advocates Act, 1961. Therefore, when the subject matter of dispute
in Shiv Kumar Akela (supra) was between a petitioner and the
Registrar, Societies, Firms and Chits and others and when the
question of maintainability of the writ petition against the Bar
Association arose incidentally and when on concession on a special
circumstance the order was passed but not on contest, we are of the
view that the ratio of the judgment is treated to be obiter dicta
but not ratio decidendi to hold the High Court Bar Association as a
statutory body to attract the writ jurisdiction of this Court under
Article 226 of the Constitution. (Udit Chandra vs. State of U.P.;
2012 (5) ALJ 191)
Art. 311 - Employment – Disciplinary
proceedings – Invitation – Quashbility of charge sheet – Authority
subordinate to appointing Authority can initiate disciplinary
proceedings or issue charge memo
The legal proposition has been told
down by the Supreme Court while interpreting the provisions of
Article 311 of the Constitution of India that the removal and
dismissal of a delinquent on misconduct must be by the authority not
below the appointing authority. However, it does not mean that
disciplinary proceedings may not be initiated against the delinquent
by the authority lower than the appointing authority.
It is permissible for an
authority, higher than appointing authority to initiate the
proceedings and impose punishment, in case he is not the appellate
authority so that the delinquent may not loose the right of appeal.
In other case, delinquent has to prove as what prejudice has been
caused to him.
There is nothing in law
which inhibits the authority subordinate to the appointing authority
to initiate disciplinary proceedings or issue charge memo and it is
certainly not necessary that charges should be framed by the
authority competent to award the punishment or that the inquiry
should be conducted by such an authority.
Law does not permit
quashing of charge-sheet in a routine manner. (Secretary,
Ministry of Defence and others vs. Prabhash Chandra Mirdha; 2012(4)
AWC 3989)
BACK TO INDEX
Court Fees Act
S. 7(iv)(a) and Art. 17 Schedule II –
Court fee payable – In suit for declaration of title, to declare
sale deeds void and in effective and consequential relief of
permanent injunction – Provisions of S. 7(iv)(a) are applicable
instead of Art. 17 Schedule II of above Act
The plaintiff-appellant
is owner in possession of the suit property, which was acquired by
the plaintiff-appellant through a duly registered gift deed executed
by Thakur Pooran Singh S/o Late Sri Natthu Singh on 27.7.1911 and
since then, the plaintiff-appellant is in possession of the same.
The name of the plaintiff-appellant is entered in the revenue record
as owner of the suit property. The suit property was in the tenancy
of one Beryl Price and after his death the tenancy devolved upon his
legal heirs. The tenant or his successors had no authority, right,
or title to transfer the suit property or to execute any sale deed
in favour of any person. The tenant of the suit property executed
the sale deed dated 20.12.1941 and another sale deed on 15.12.2004
and thereafter on 27.7.2006 in favour of the defendant-respondent
nos. 1 to 12. Thereafter, they (defendant respondent nos. 1 to 12)
got the map sanctioned in their favour from the respondent no 13 by
order dated 27.7.2007.
Before the learned Civil Judge (Senior Division) Dehradun, the
defendants moved an application under Order 7, Rule 11 CPC, for
rejection of the plaint on the ground that the Court fee paid in
insufficient.
The learned Civil Judge (Senior Division) on the basis of the averments
made in the plaint and the relief sought by the plaintiff-appellant
came to the conclusion that the Court fee is payable as per Section
7(iv)(a) of the Court Fees Act and direction was given accordingly.
Learned Counsel for the respondents drew attention of the Court on the
relief sought in the plaint and contended that Article 17 of
Schedule II would be applicable in the case where there is no
consequential relief. The first relief (A) sought by the
plaintiff-appellant is for declaration of title in respect of suit
property and its consequential relief is relief (E) for injunction.
Second relief (Aa) sought by the plaintiff is to declare two
instruments/sale-deeds dated 20.12.1941 and the sale deed dated
27.7.2006 as null and ineffective. In Court’s view the contention of
the learned Counsel for the respondents has force.
The plaintiff-petitioner filed Civil Suit No. 602 of 2009 against the
defendant-respondents in the Court of Civil Judge (Senior Division)
Dehradun. Relief A contains the prayer that the plaintiff be
declared owner of the suit property. Relief “Aa” contains the prayer
to declare the sale-deeds mentioned in relief clause “Aa” to be void
and ineffective. Relief E contains the prayer for permanent
injunction.
A perusal of the record reveals that in the case at hand, the plaintiff
has sought relief of declaration of title and to declare the
sale-deeds void and ineffective. The plaintiff, in addition, has
sought the relief of permanent injunction as a consequential relief.
In my view, the learned trial Court has rightly held that the
provisions of Section 7(iv-A) of the Court Fees Act are applicable
and not the provisions of Article 17 of Second Schedule of the Court
Fees Act. Accordingly, the learned trial Court has rightly held that
the Court fee paid by the plaintiff-appellant is not sufficient and
has rightly directed the plaintiff-appellant to make the deficiency
of Court-fee good with a time frame. (Dayanand Shiksha Sansthan
v. M/s. Ambe Associates and others; 2012 (3) ARC 179)
S. 12(1) and (2) – Provision under –
Finality to decision ties on lower court relating to question
valuation
That the question of court fee is a matter between the plaintiff and the
Court is a principle which has been followed for a long time. The
Madras High Court in SL. Lakshmana Ayyar v. TSPLP Palaniappa
Chettiar; AIR 1935 Mad 927 held “under the prevailing usage, the
court fully goes into the question relating to the Court fee, only
upon an objection taken in the written statement by the defendant,
but as the judicial committee points out in 36 M.L. 1437 the Court
fees Act was passed not to arm a litigant with a weapon of
technicality against his opponent, and from that view it follows,
that although in actual practice a defendant is permitted to object
that the proper Court fee has not been paid, he has, strictly
speaking, no legal right to raise such a plea, but his function must
be deemed to be, subject to the court’s leave, merely to assist in
it coming to a proper decision.”
Though this judgment does not refer to any statutory provisions, Section
12 of the Court Fees Act, 1870 supports this view. Sub section 1
gives finality to the decision of the trial court on the questions
relating to valuation.
“(1) Every question relating to
valuation for the purpose of determining the amount of any fee
chargeable under this Chapter on a plaint or memorandum of appeal,
shall be decided by the Court in which such plaint or memorandum, as
the case may be, is filed, and such decision shall be final as
between the parties to the suit.”
Sub-Section 2 however provides that the appellate or revisional Court
can direct the deficiency to be made good if it comes to the
conclusion that the lower court had decided the issue to the
detriment of the revenue.
(2) “But whenever any such suit comes
before a Court of appeal, reference or revision, if such Court
considers that the said question has been wrongly decided, to the
detriment of the revenue, it shall require the party by whom such
fee has been paid to pay so much additional fee as would have been
payable had the question been rightly decided, and the provisions of
section 10, paragraph (ii), shall apply.”
In view of the finality attached under sub-section (1) to the decision
of the trial court and the time of the limited scope of the
appellate court’s power to examine whether the lower court wrongly
decided the question to the detriment of the revenue, the conclusion
obviously is inevitable the defendant has no right to file a
revision petition against the decision of the trial court.
However the position under the Madras Court fees act, 1955 is different.
Section 12(2) expressly provides for the defendant’s right to raise
the question of the court fees:-
“(2) Any defendant may, by his
written statement filed before the first hearing of the suit or
before evidence is recorded on the merits of the claim but, subject
to the next succeeding sub-section, not later, plead that the
subject matter of the suit has not been properly valued or that the
fee paid is not sufficient. All questions arising on such pleas
shall be heard and decided before evidence is recorded affecting
such defendant, on the merits of the claim. If the Court decides
that the subject-matter of the suit has not been properly valued or
that the fee paid is not sufficient, the Court shall fix a date
before which the plaint shall be amended in accordance with the
Court’s decision and the deficit fee shall be paid. If the plaint
be not amended or if the deficit fee be not paid within the time
allowed, the plaint shall be rejected and the Court shall pass such
order as it deems just regarding costs of the suit.”
However, the Court in Rathnavarma Raja v. Smt. Vimala; AIR 1961 SC 1299
held:-
The Court Fees Act was enacted to collect revenue for the benefit of the
State and not to arm a contesting party with a weapon of defence to
obstruct the trial of an action.
By recognising that the defendant was entitled to contest the valuation
of the properties in dispute as if it were a matter in issue between
him and the plaintiff and by entertaining petitions preferred by the
defendant to the High Court in exercise of its revisional
jurisdiction against the order adjudging court fee payable on the
plaint, all progress in the suit for the trial of the dispute on the
merits has been effectively frustrated for nearly five years. The
Court failed to appreciate what grievance the defendant can make by
seeking to invoke the revisional jurisdiction of the High Court on
the question whether the plaintiff has paid adequate court fee on
his plaint.
But this section only enables the defendant to raise a contention as to
the proper court fee payable on a plaint and to assist the court in
arriving at a just decision on that question.
Therefore the law is clear that though a defendant is entitled under the
Tamil Nadu Act to bring it to the notice of the Court that the
amount of court fee paid by the plaintiff is not in accordance with
law, the defendant cannot succeed in the suit only on that count.
But the dispute of the 2nd defendant is not regarding the
amount of the court fee but the acceptance of the court fee after
the expiry of the period of limitation applicable to the suit.
(A. Nawab John & Ors. V. V.N. Subramaniyam; 2012(2) ARC 652 (SC)
BACK TO INDEX
Criminal Procedure Code
S. 154 - Delay in lodging F.I.R. – If
properly explained – Effect of
In this case, PW 4 is the
mother of the deceased while PW 9 is the father of the deceased.
Both of them have stated that Anant had pressurized them to send
their daughter to Belgaum with him. On 8.10.1993, the accused
brought her dead body in the car and at that time her nose was
bleeding and there were bloods clotting on the cheeks as well. Anant
and Nagesh had informed the parents that she died as a result of
consuming poison. They did not give any further information.
Further, the father of the deceased. PW 9, had objected that her
body be not cremated but despite his protest, the dead body was
cremated in the village.
A contention has also
been raised to argue that the first information report (FIR), Ext.
P-10, is an afterthought as it was lodged after deliberation and
planning, that too, after a considerable time. The Court cannot
ignore the fact that young daughter of P/W 4 and P/w 9 had died
allegedly be consuming poison. No other details were brought to
their notice, they had other daughter present in the house and the
dead body of the deceased was cremated against their wish. After the
cremation, the FIR was lodged. The delay, if any, in the
circumstances of the case, thus, stands properly explained. (Nagesh
Vs. State of Karnataka; (2012) 6 SCC 477)
S. 156 – Investigation
by CBI – Power of Court to direct – Pendency of complaints or trial
on same aspect - Does not debar Court from exercising such power
The fact that certain
complaints filed by private person or that the matters on same
aspect are pending before the Court would not debar Court to direct
the CBI to conduct investigation of those aspects. Investigation of
a case or filing charge-sheet in a case does not by itself bring the
absolute end to exercise of power by the investigating agency or by
the Court. Sometime the investigating agency has to keep its options
open to continue with the investigation, as certain other relevant
facts, incriminating materials and even persons other that the
persons stated in the FIR as accused, might be involved in the
commission of the crime. The basic purpose of an investigation is to
bring out the truth by conducting fair and proper investigation, in
accordance with law and ensure that the guilty are punished.
A magistrate is
competent to direct further investigation in terms of Section 173
(8) Cr. PC in the case instituted on a police report. Similarly, the
Magistrate has powers under Section 202 Cr.P.C. to direct police
investigation while keeping the trial pending before him instituted
on the basis of a private complaint in terms of that Section. The
provisions of S. 210 Cr. P.C. use the expression ‘shall’ requiring
the Magistrate to stay the proceedings of inquiry and trial before
him in the event in a similar subject matter, an investigation is
found to be in progress. All these provisions clearly indicate the
legislative scheme under the Cr. PC that initiation of an
investigation and filing of a charge-sheet do not completely debar
further or wider investigation by the investigating agency or
police, or even by a specialized investigation agency.
Significantly, it requires to be noticed that when the Court is to
ensure fair and proper investigation in an adversarial system of
criminal administration, the jurisdiction of the Court is of a much
higher degree than it is in inquisitorial system. It is clearly
contemplated under the Indian Criminal Jurisprudence that an
investigation should be fair, in accordance with law and should not
be tainted. But, at the same time the court has to take precaution
that interested or influential persons are not able to misdirect or
hijack the investigation so as to throttle a fair investigation
resulting in the offenders escaping the punitive course of law. It
is the inherent duty of the Court and any lapse in this regard would
tantamount to error of jurisdiction. (Samaj Parivartan Samudaya
v. State of Karnataka; AIR 2012 SC 2326)
S. 156 - Investigation
– Initiation – Suspect does not have right of prior hearing
A suspect has no
indefeasible right of being heard prior to initiation of the
investigation, particularly by the investigating agency. Even, in
fact, the scheme of the Code of Criminal Procedure does not admit of
grant of any such opportunity. There is no provision in the Cr.P.C.
where an investigating agency must provide a hearing to the affected
party before registering an FIR or even before carrying on
investigation prior to registration of case against the suspect. The
CBI, may even conduct pre-registration inquiry for which notice is
not contemplated. It is only in those cases where the Court directs
initiation of investigation by a specialized agency or transfer
investigation to such agency from another agency that the Court may,
in its discretion, grant hearing to the suspect or affected parties.
However, that also is not an absolute rule of law and is primarily a
matter in the judicial discretion of the Court. (Samaj Parivartan
Samudaya & Ors. v. State of Karnataka & Ors.; AIR 2012 SC 2326)
S.157—F.I.R.—Failure to name accused
in FIR—Does not necessarily result in his acquittal
The main purpose of the FIR is to satisfy the police officer as to the
commission of a cognizable offence for him to conduct further
investigation in accordance with law. The primary object is to set
the criminal law into motion and it may not be possible to give
every minute detail with unmistakable precision in the FIR. FIR
itself is not the proof of a case, but is a piece of evidence which
could be used for corroborating the case of prosecution. The FIR
need not be an encyclopedia of all the facts and circumstances on
which the prosecution relies. It only has to state the basic case.
Merely because an accused has not been named in the FIR would not
necessary result in his acquittal. An accused who has not been named
in the FIR, but to whom a definite role has been attributed in the
commission of the crime and when such rule is established by cogent
and reliable evidence and the prosecution is also able to prove its
case beyond reasonable doubt, such an accused can be punished in
accordance with law, if found guilty. Every omission in the FIR may
not be so material so as to unexceptionally be fatal to the case of
prosecution. (Jitender Kumar vs. State of Haryana; 2012 Cr.L.J.
3085 (SC)
S. 157 – FIR - Failure to name
accused in FIR - Does not necessarily result in his acquittal -
Witness attributing specific role to unnamed accused in commission
of murder – Recovery also made on disclosure by accused – Accused
cannot be acquitted only because he was not named in FIR
The main purpose of the FIR is to satisfy the police officer as to the
commission of a cognizable offence for him to conduct further
investigation in accordance with law. The primary object is to set
the criminal law into motion and it may not be possible to give
every minute detail with unmistakable precision in the FIR. FIR
itself is not the proof of a case, but is a piece of evidence which
could be used for corroborating the case of prosecution. The FIR
itself is not the proof of a case, but is a piece of evidence which
could be used for corroborating the case of prosecution, the FIR
need not be an encyclopedia of all the facts and circumstances on
which the prosecution relies, it only has to state the basic case.
Merely because an accused has not been named in the FIR would not
necessary result in his acquittal. An accused who has not been named
in the FIR, but to whom a definite role has been attributed in the
commission of the crime and when such role is established by cogent
and reliable evidence and the prosecution is also able to prove its
case beyond reasonable doubt, such an accused can be punished in
accordance with law, if found guilty. Every omission in the FIR may
not be so material so as to unexceptionally be fatal to the case of
prosecution.
Where in murder of daughter –in-law committed in pursuance of conspiracy
hatched between her in-laws, one of the accused who was attributed
specific role by husband of deceased and on whose disclosure vehicle
used in crime was recovered was not named in FIR as he had left the
places of occurrence before informant arrived the accused only
because he was not named in FIR, would not be entitled to acquittal.
(Sunil Kumar & Anr. V. State of Haryana; AIR 2012 SC 2488)
S. 178(8) – Further investigation –
Power of Magistrate to direct –Not inhibited by requirement to hear
accused before making such direction
Once the investigation
is conducted in accordance with the provisions of the Cr.P.C., a
police officer is bound to file a report before the Court of
competent jurisdiction, as contemplated under Section 173 Cr.P.C.,
upon which the Magistrate can proceed to try the offence, if the
same were triable by such Court or commit the case to the Court of
Session. It is significant to note that the provisions of Section
173(8) Cr. P.C. open with non-obstante language that nothing in the
provisions of Section 173(1) to 173(7) shall be deemed to preclude
further investigation in respect of an offence after a report under
sub-section (2) has been forwarded to the Magistrate. Thus, under
Section 173(8), where charge-sheet has been filed, that Court also
enjoys the jurisdiction to direct further investigation into the
offence. {Ref. Hemant Dhasmana v. Central Bureau of Investigation &
Anr. [(2001) 7 SCC 536: (AIR 2001 SC 2721)]}.
This power cannot have
any inhibition including such requirement as being obliged to hear
the accused before any, such direction is made. It has been held in
Shri Bhagwan Sarnardha Sreepada Vallabha Venkata Vishwandha Maharaj
v. State of Andhra Pradesh and Ors. [JT 1999 (4) SC 537: (AIR
1999 se 2332)] that the casting of any such obligation on the Court
would only result in encumbering the Court with the burden of
searching for all potential accused to be afforded with the
opportunity of being heard. (Samaj Parivartan Samudaya & Ors. v.
State of Karnataka & Ors.; AIR 2012 SC 2326)
Ss. 190 and 198 – Comparative scope -
Explained
Section 190 of the Code states when cognizance of offences can be taken
by a Magistrate. It reads as under:
“190. Cognizance of Offences by Magistrates – (1) Subject to the
provisions of this Chapter, any Magistrate of the First Class, and
any Magistrate of the Second Class specially empowered in this
behalf under sub-section (2), may take cognizance of any offence –
(a)
Upon receiving a complaint of facts which constitute such
offence;
(b)
Upon a police report of such facts;
(c)
Upon information received from any person other than a
police officer, or upon his own knowledge, that such offence has
been committed.
(2) The Chief Judicial
Magistrate may empower any Magistrate of the Second Class to take
cognizance under sub-section (1) of such offences as are within his
competence to inquire into or try.”
Section 198 of the Code
pertains to prosecution for offences against marriage. Sub-section
(1) thereof is relevant. It reads as under:
“198. Prosecution for
offences against marriage – (1) No court shall take cognizance of an
offence punishable under Chapter XX of the Indian Penal Code (45 of
1860) except upon a complaint made by some person aggrieved by the
offence.”
The above provisions
indicate that whereas Section 190 (1) empowers the Magistrate to
take cognizance of any offence, upon receiving complaint of facts
which constitute such offence; upon police report of such facts;
upon information received from any person other than a police
officer or upon his knowledge that such offence has been committed,
Section 198 which relates to prosecution of offences against
marriage brings in the concept of complaint by an aggrieved person
and Section 198(1)(c) explains how far the scope of the term
“aggrieved person” can be extended in the context of offence under
Section 494 IPC. (Ushaben Vs. Kishorbhai Chunilal Talpada &
others, (2012) 6 SCC 353)
S.204—Summon under—Reasoned order not
required
The expression
“cognizance” in Sections 190 and 204 CrPC is entirely a different
thing from initiation of proceedings; rather it is the condition
precedent to the initiation of proceedings by the Magistrate or the
Judge. Cognizance is taken of cases and not of persons. Under
Section 190 CrPC, it is the application of judicial mind to the
averments in the complaint that constitutes cognizance. At this
stage, the Magistrate has to be satisfied whether there is
sufficient ground for proceeding and not whether there is sufficient
ground for conviction. Whether the evidence is adequate for
supporting the conviction can be determined only at the trial and
not at the stage of enquiry. If there is sufficient ground for
proceeding then the Magistrate is empowered for issuance of process
under Section 204 CrPC. (Bhushan Kumar vs. State (NCT of Delhi);
(2012) 2 SCC (Cri) 872)
S. 284—Examination of witness by
internet conferencing instead of video conferencing—Permissibility
of—Allowed to avoid unnecessary expenses
Vide its judgment dated August 7, 2009, delivered in Criminal Appeal
Nos. 1191-1194 of 2005, this Court directed as under:
“We further direct that if any
foreign experts are to be examined it shall be done only through
video conferencing and at the cost of respondents.”
Mr. Krishnamani, learned senior counsel appearing on behalf of the
appellant submits that he wishes to examine only two experts,
namely, Prof. John Broughton and Prof. John F. Burke, Economists.
However, he has given up two other experts.
Learned counsel for the respondents submits that to avoid unnecessary
expenses, the appellant may be permitted to examine these two
experts on internet conferencing instead of video conferencing. We
order accordingly. (Kunal Saha vs. Sukumar Mukherjee; 2012
Cr.L.J. 3312 (SC)
Ss. 311, 242 – Recall of witness for
examination – Bribery case –Recall of complainant and shadow witness
for cross- examination sought years after examination-in-chief –
Plea that their cross-examination was deferred as defence wanted to
cross-examine them after trap laying officer was examined – Liable
to be accepted as nobody would refuse to cross-examine witnesses who
had supported prosecution case
We are, therefore, inclined to believe that the two prosecution
witnesses were not cross-examined by the counsel for the appellant
not because there was nothing incriminating in their testimony
against the appellant but because counsel for the appellant had
indeed intended to cross-examine them after the Trap Laying Officer
had been examined. The fact that the appellant did not make a formal
application to this effect nor even an oral prayer to the Court to
that effect at the time the cross-examination was deferred may be a
mistake which could be avoided and which may have saved the
appellant a lot of trouble in getting the witnesses recalled. But
merely because a mistake was committed, should not result in the
accused suffering a penalty totally disproportionate to the gravity
of the error committed by his lawyer. Denial of an opportunity to
recall the witnesses for cross-examination would amount to
condemning the appellant without giving him the opportunity to
challenge the correctness of the version and the credibility of the
witnesses. It is trite that the credibility of witnesses whether in
a civil or criminal case can be tested only when the testimony is
put through the fire of cross-examination. Denial of an opportunity
to do so will result in the serious miscarriage of justice in the
present case keeping in view the serious consequences that will
follow any such denial.
We are conscious of the fact that recall of the witnesses is being
directed nearly four years after they were examined in chief about
an incident that is nearly seven years old. Delay takes a heavy toll
on the human memory apart from breeding cynicism about the efficacy
of the judicial system to decide cases within a reasonably
foreseeable time period. To that extent the apprehension that the
prosecution may suffer prejudice on account of a belated recall, may
not be wholly without any basis. Having said that, we are of the
opinion that on a parity of reasoning and looking to the
consequences of denial of opportunity to cross-examine the
witnesses, we would prefer to err in favour of the appellant getting
an opportunity rather than protecting the prosecution against a
possible prejudice at his cost. Fairness of the trial is virtue that
is sacrosanct in our judicial system and no price is too heavy to
protect that virtue. A possible prejudice to prosecution is not even
a price, leave alone one that would justify denial of a fair
opportunity to the accused to defend himself. (P. Sanjeeva Rao v.
State of A.P.; AIR 2012 SC 2242)
S. 313—Examination of accused—False
denial made by accused of established facts can be used as
incriminating evidence against him
Statement made by accused under S. 313 Cr.P.C. serves a dual purpose,
firstly, to afford to the accused an opportunity to explain his
conduct and secondly to use denials of established facts as
incriminating evidence against him. If the accused gives incorrect
or false answers during the course of his statement under S. 313
Cr.P.C., the Court can draw an adverse inference against him. (Munna
Kumar Upadhyaya vs. State of A.P.; 2012 Cr.L.J. 3068 (SC)
S. 313 – Examination of accused under
– Purpose of
In the instant case of
death due to administration of poison, the law required the
appellant-accused to provide some explanation as he was last seen in
the room with the deceased. The appellant in his statement under S.
313 Cr.P.C., rather than providing some explanation of the
circumstances under which the deceased died, offered complete
denial. But strangely, a suggestion was put to PW 4 (mother of the
deceased) when she was cross-examined by the defence, that the
deceased was having a love affair with a student in her college in
her hometown and her parents had sent her to another town B with A-1
to ensure that the said love affair failed, and thus the deceased
had become desperate in town B and had taken poison and died. If
this was the stand of the appellant, then there was no occasion for
him to deny every material piece of evidence as well as not to give
any explanation when he was specifically asked therefor. The trend
of cross-examination on behalf of the appellant implies admission of
the death of the deceased having taken place in the premises in
question by taking poison, however, the appellant failed to offer
any explanation therefore, which was the least expected of him,.
Hence, the courts below were justified in drawing an adverse
inference against him. (Nagesh Vs. State of Karnataka; (2012) 6
SCC 477)
Ss. 367(5), 235(2) and 354(3)—IPC, S.
302—Death Sentence—Evaluation of sentencing policy and concept of
mitigating circumstances in India relating to death penalty
discussed
Sec. 367(5) CrPC, 1898
required that if an accused was convicted of an offence punishable
with death and the court sentenced him to any punishment other than
death, the court shall, in its judgment, give reasons why death
sentence was not passed. In 1955, the Code of Criminal Procedure
(Amendment) Act, 1955 deleted Section 367(5) where after it was
necessary to record any reason for not imposing death sentence where
the accused was convicted of an offence punishable with death. The
court made a distinction between its formation of opinion on the
conviction of the accused for the crime committed and its formation
of opinion on the punishment to be imposed for the crime on
consideration of extenuating or mitigating circumstances.
The enforcement of the
Criminal Procedure Code, 1973 substantially changed the sentencing
policy. The most significant change was that under Section 235
thereof an opportunity of hearing was given to accused on question
of sentence which was a great humanizing principle of natural
justice and fairness procedure in the realm of penology. The accused
under CrPC, 1898 did not get any statutory opportunity to establish
and prove the mitigating and other extenuating circumstances
relating to himself, his family and other relevant factors which are
germane to a fair sentence policy which now he could do so.
The object of hearing
under Section 235(2) CrPC, 1973 intrinsically and inherently
connected with the sentencing procedure, the provision of Section
354(3) CrPC, 1973 which calls for recording of special reason for
awarding death sentence must be read conjointly with Section 235(2)
CrPC, 1973. Such special reasons can only be validly recorded if an
effective opportunity of hearing as contemplated under Section
235(2) CrPC is genuinely extended and is allowed to be exercised by
the accused who stands convicted and is awaiting the sentence. These
two provisions do not stand in isolation but must be construed as
supplementing each other as ensuring the constitutional guarantee of
a just, fair and reasonable procedure in the exercise of sentencing
discretion by the court.
These changes in the
sentencing structure reflect the “evolving standards of decency”
that mark the progress of a maturing democracy and which is in
accord with the concept of dignity of the individual—one of the core
values in our Preamble to the Constitution. In a way these changes
signify a paradigm shift in our jurisprudence with the gradual
transition of our legal regime from “rule of law” to the “due
process of law”. (Rajesh Kumar vs. State (NCT of Delhi); (2012) 2
SCC (Cri) 836)
S. 386 – Appeal against acquittal –
Parameters for reversing judgment of acquittal to that of conviction
– Stated through authorities
To appreciate the submissions raised at the bar and to evaluate the
correctness of the impugned judgment, we think it appropriate to
refer to certain authorities in the field which deal with the
parameters for reversing a judgment of acquittal to that of
conviction by the appellate court.
To appreciate the
submissions raised at the bar and to evaluate the correctness of the
impugned judgment, we think it appropriate to refer to certain
authorities in the field which deal with the parameters for
reversing a judgment of acquittal to that of conviction by the
appellate court.
In Jadunath Singh and
others v. State of U.P,
a three Judge Bench of this Court has held thus:-
“This Court has
consistently taken the view that an appeal against acquittal the
High Court has full power to review at large all the evidence and to
reach the conclusion that upon that evidence the order of acquittal
should be reversed. This power of the appellate court in an appeal
against acquittal was formulated by the Judicial Committee of the
Privy Council in Sheo Swarup v. King Emperor,
and Nur Mohammad v. Emperor.
These two decisions have been consistently referred to in judgments
of this Court as laying down the true scope of the power of an
appellate court in hearing criminal appeals: see Surajpal Singh v.
State
and Sanwat Singh v. State of Rajasthan.”
In Damodar Prasad
Chandrika Prasad and others v. State of Maharashtra
it has been held that once the Appellate Court comes to the
conclusion that the view of the trial court is unreasonable, that
itself provides a reason for interference. The two-Judge Bench
referred to the decision in State of Bombay v. Rusy Mistry,
to hold that if the finding shocks the conscience of the Court or
has disregarded the norms of legal process or substantial and grave
in- justice has been done, the same can be interfered with.
20. In Shivaji Sahebrao
Bobade and another v. State of Maharashtra,
the three- Judge Bench opined that there are no fetters on the
plenary power of the Appellate Court to review the whole evidence on
which the order of acquittal is founded and, indeed, it has a duty
to scrutinise the probative material de novo, informed, however, by
the weighty thought that the rebuttable innocence attributed to the
accused having been converted into an acquittal the homage of our
jurisprudence owes to individual liberty constrains the higher court
not to upset the finding without very convincing reasons and
comprehensive consideration. This Court further proceeded to state
that the cherished principles of golden thread to prove beyond
reasonable doubt which runs through the wave of our law should not
be stretched morbidly to embrace every hunch, hesitancy and degree
of doubt. Emphasis was laid on the aspect that a balance has to be
struck between chasing chance possibilities as good enough to set
the delinquent free and chopping the logic of preponderant
probability to punish the marginal innocents.
In State of Karnataka
v. K. Gopala Krishna,
it has been held that where the findings of the Court below are
fully unreasonable or perverse and not based on the evidence on
record or suffer from serious illegality and include ignorance and
misreading of record, the Appellate Court will be justified in
setting aside such an order of acquittal. If two views are
reasonably possible and the view favouring the accused has been
accepted by the courts below, that is sufficient for upholding the
order of acquittal. Similar view was reiterated in Ayodhya Singh v.
State of Bihar and others.
In Anil Kumar v. State
of U.P.,
it has been stated that interference with an order of acquittal is
called for if there are compelling and substantial reasons such as
where the impugned judgment is clearly unreasonable and relevant and
convincing materials have been unjustifiably eliminated.
.
In Girija Prasad (dead)
by LRs. v. State of M. P,
it has been observed that in an appeal against acquittal, the
Appellate Court has every power to re-appreciate, review and
reconsider the evidence as a whole before it. It is, no doubt, true
that there is a presumption of innocence in favour of the accused
and that presumption is reinforced by an order of acquittal recorded
by the trial court, but that is not the end of the matter. It is for
Appellate Court to keep in view the relevant principles of law to
re-appreciate and reweigh as a whole and to come to its own
conclusion in accord with the principle of criminal jurisprudence.
24. In State of Goa v.
Sanjay Thakran
it has been reiterated that the Appellate Court can peruse the
evidence and interfere with the order of acquittal only if the
approach of the lower court is vitiated by some manifest illegality
or the decision is perverse.
25. In State of U. P.
v. Ajai Kumar,
the principles stated in State of Rajasthan v. Sohan Lal
were reiterated. It is worth noting that in the case of Sohan Lal,
it has been stated thus:-
"This Court has
repeatedly laid down that as the first appellate court the High
Court, even while dealing with an appeal against acquittal, was also
entitled, and obliged as well, to scan through and if need be
reappreciate the entire evidence, though while choosing to interfere
only the court should find an absolute assurance of the guilt on the
basis of the evidence on record and not merely because the High
Court could take one more possible or a different view only. Except
the above, where the matter of the extent and depth of consideration
of the appeal is concerned, no distinctions or differences in
approach are envisaged in dealing with an appeal as such merely
because one was against conviction or the other against an
acquittal."
26. In Chandrappa v.
State of Karnataka;
this Court held as under:-
“42 From the above
decisions, in our considered view, the following general principles
regarding powers of the appellate court while dealing with an appeal
against an order of acquittal emerge:
(1) An appellate
court has full power to review, reappreciate and reconsider the
evidence upon which the order of acquittal is founded.
(2) The Code of
Criminal Procedure, 1973 puts no limitation, restriction or
condition on exercise of such power and an appellate court on the
evidence before it may reach its own conclusion, both on questions
of fact and of law.
(3) Various
expressions, such as, "substantial and compelling reasons", "good
and sufficient grounds", "very strong circumstances", "distorted
conclusions", "glaring mistakes", etc. are not intended to curtail
extensive powers of an appellate court in an appeal against
acquittal. Such phraseologies are more in the nature of "flourishes
of language" to emphasise the reluctance of an appellate court to
interfere with acquittal than to curtail the power of the court to
review the evidence and to come to its own conclusion.
(4) An appellate
court, however, must bear in mind that in case of acquittal, there
is double presumption in favour of the accused. Firstly, the
presumption of innocence is available to him under the fundamental
principle of criminal jurisprudence that every person shall be
presumed to be innocent unless he is proved guilty by a competent
court of law. Secondly, the accused having secured his acquittal,
the presumption of his innocence is further reinforced, reaffirmed
and strengthened by the trial court.
(5) If two
reasonable conclusions are possible on the basis of the evidence on
record, the appellate court should not disturb the finding of
acquittal recorded by the trial court.”
27. In S. Ganesan v.
Rama Raghuraman and others,
one of us (Dr. B.S. Chauhan. J), after referring to the decision in
Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra,
considered various aspects of dealing with a case of acquittal and
after placing reliance upon earlier judgments of this Court,
particularly in Balak Ram v. State of U.P.,
Budh Singh v. State of U.P.
, Rama Krishna v. S. Rami Reddy,
Aruvelu v. State
and Babu v. State of Kerala,
held that unless there are substantial and compelling circumstances,
the order of acquittal is not required to be reversed in appeal.
Simila view has been reiterated in Ranjitham v. V. Basvaraj & Ors.
And State of Rajasthan v. Shera Ram @ Vishnu Dutta..
(Jugendra
Singh v. State of U.P.; AIR 2012 SC 2254)
Ss. 437 and 438 – Bail - Grant of -
Exercise of jurisdiction to be exercised judiciously having regards
to all relevant facts and circumstances and not as a matter of
course
It is true and relevant to note that “grant of bail” is an exercise
of judicial discretion vested in a judicial officer to be exercised
depending on the facts and circumstances before him, yet it is
equally important that exercise of that discretion must be judicious
having regard to all relevant facts and circumstances and not as a
matter of course. (Registrar General, High Court of Patna Vs.
Pandey Gajendra Prasad and others; (2012) 6 SCC 357)
(2005) 9
SCC 584: (AIR 2005 se 1022: 2005 AIR sew 975).
(2007) 3
SCC 755: (AIR 2007 SC (Supp) 61: 2007 AIR SCW 2226).
AIR 2008
SC 1269: (2008 AIR SCW 1303).
(2004) 5
SCC 573: (AIR 2004 SC 4520 2004 AIR SCW 4321).
(1975) 3
SCC 219: (AIR 1974 SC 2165).
BACK TO INDEX
Criminal Trial
I.P.C. - S. 302 – Murder trial –
Circumstantial evidence – Death due to administration of poison –
Conviction confirmed
In the instant case,
there is no eyewitness to the actual scene of crime that resulted in
the death of the deceased. To that limited extent, it is a case of
circumstantial evidence. The statements of the parents of the
deceased (PWs 4 and 9), neighbours (PWs 1 and 2) and the
investigating officer (PW 15) clearly establish the case of the
prosecution. The statements of the witnesses examined in light of
the statement of the investigating officer, provide a complete chain
of circumstances as to how the deceased was brought to the place of
the incident and was last seen with the appellant A-3, where after
she died and her body was cremated in her village despite protest by
her parents. There is no major discrepancy or even an iota of real
doubt in the prosecution case, and despite the clear irresponsible
attitude on part of the police officials who were present at the
residence of A-1 when the deceased was brought to the court on the
pretext of taking her to a doctor for treatment and her body was
taken away, still the prosecution has been able to establish the
complete chain of events pointing undoubtedly towards the guilt of
the appellant. Herein, the evidence is admissible evidence and has
been appreciated in consonance with the rules of prudence and law.
These findings can neither be termed as perverse or so improper that
no person of common prudence can arrive at that conclusion.
Therefore, the conviction of the appellant is confirmed. (Nagesh
Vs. State of Karnataka; (2012) 6 SCC 477)
Criminal Trial – Circumstance
evidence – Benefit of doubt – Theory of – Explained
It is neither possible
nor prudent to state a straitjacket formula or principle which would
apply to all cases without variance. Every case has to be
appreciated on its own facts and in the light of the evidence led by
the parties. It is for the court to examine the cumulative effect of
the evidence in order to determine whether the prosecution has been
able to establish its case beyond reasonable doubt or that the
accused is entitled to the benefit of doubt.
The Court has to examine
the evidence in its entirely, particularly, in the case of
circumstantial evidence the Court cannot just take on aspect of the
entire evidence led in the case like delay in lodging the FIR in
isolation of the other evidence placed on record and give undue
advantage to the theory of benefit of doubt in favour of the
accused.
This Court in Sucha Singh
V. State of Punjab, (2003) 7 SCC 643, has stated: (SCC pp. 653-54,
para 20)
“20. Exaggerated devotion to the rule
of benefit of doubt must not nurture fanciful doubts or lingering
suspicion and thereby destroy social defence. Justice cannot be made
sterile on the plea that it is better to let a hundred guilty escape
than punish an innocent. Letting the guilty escape is not doing
justice according to law. (See Gurbachan Singh v. Satpal Singh,
(1990) 1 SCC 445. The prosecution is not required to meet any and
every hypothesis put forward by the accused. (See State of U.P. V.
Ashok Kumar Srivastava, (1992) 2 SCC 86. A reasonable doubt is not
an imaginary, trivial or merely possible doubt, but a fair doubt
based upon reason and common sense. It must grow out of the evidence
in the case. If a case is proved perfectly, it is argued that it is
artificial; if a case has some inevitable flaws because human beings
are prone to err, it is argued that it is too imperfect. One wonders
whether in the meticulous hypersensitivity to eliminate a rare
escape Proof beyond reasonable doubt is a guideline, not a fetish.
(See Inder Singh v. State (Delhi Admn.), (1978) 4 SCC 161, Vague
hunches cannot take place of judicial evaluation.
‘A Judge does not preside over a
criminal trial, merely to see that no innocent man is punished. A
Judge also presides to see that a guilty man does not escape. Both
are public duties’. (Per Viscount Simon in Stirland V. Director of
Public Prosecutions quoted in State of U.P. v. Anil Singh (SCC
p.692, para 17) . Doubts would be called reasonable if they
are free from a zest for abstract speculation. Law cannot afford any
favourite other than truth.”
(Nagesh Vs. State of Karnataka;
(2012) 6 SCC 477)
Proof—Proof beyond reasonable
doubt—Meaning of, and duty of court while applying principle of
reasonable doubt—Reiterate
In Shivaji Sahabrao
Bobade vs. State of Maharashtra, (1973) 2 SCC 793, this Court held:
(SCC pp. 799—800, para 6)
“6. ….. Thus, too frequent
acquittals of the guilty may lead to a ferocious penal law,
eventually eroding the judicial protection of the guiltless. For all
these reasons it is true to say, with Viscount Simon, that ‘a
miscarriage of justice may arise from the acquittal of the guilty no
less than from the conviction of the innocent…..’ In short, our
jurisprudential enthusiasm for presumed innocence must be moderated
by the pragmatic need to make criminal justice potent and realistic.
A balance has to be struck between chasing chance possibilities as
good enough to set the delinquent free and chopping the logic of
preponderant probability to punish marginal innocents. We have
adopted these cautions in analyzing the evidence and appraising the
soundness of the contrary conclusions reached by the courts below.
Certainly, in the last analysis reasonable doubts must operate to
the advantage of the appellant.”
Therefore, in such a case
the paramount importance of the court is to ensure that miscarriage
of justice is avoided. The benefit of doubt particularly in every
case may not nurture fanciful doubts or lingering suspicion and
thereby destroy social defence. A reasonable doubt is not an
imaginary trivial or merely possible doubt, but a fair doubt based
upon reason and common sense. (Ramesh Harijan vs. State of U.P.;
(2012) 2 SCC (Cri) 905)
BACK TO INDEX
Dowry Prohibition Act
S.4—Dowry—Demand of money for
establishing business is necessarily a dowry demand
PW 1 made a statement (Ext. PC) before the police at Rohtak Chowk,
Kharkohda to the effect that his daughter Indro, aged about 21
years, was married to appellant Rohtash about one year back and in
the said marriage he had given sufficient dowry according to his
capacity. However, her husband and parents-in-law were not satisfied
with the dowry. They always made taunts for not bringing sufficient
dowry. His son-in-law made various demands and the complainant had
to give him a sum of Rs. 10,000/-. He had received information
through Gopi Chand and Ram Kishan that his daughter had died by
consuming poisonous tablets and her dead body had been cremated in
the morning. On the basis of the said statement, FIR was recorded in
P.S. Kharkhoda on 14.7.1989 at about 8.10 p.m. under Sections 304,
201 and 498-A of the IPC. S.I. Inder Lal accompanied Jiwan,
Complainant (PW. 1) to village Mandora and went to the house of the
accused persons. The accused persons, namely, Smt. Brahmo Devi,
Rajbir and Dharampal were found present. He made the inquiries from
them and, thereafter, came back to the police station and added the
offence under Section 304-B IPC. The said accused as well as the
appellant were arrested. The I.O. went to the cremation ground and
took into possession the ashes and bones in presence of Jiwan
(PW.1), complainant and other witnesses and after putting them under
sealed cover sent the same for FSL report. He lifted broken pieces
of glass bangles and prepared a recovery memo in presence of the
witnesses. He further recorded the statement of witnesses under
Section 161 Cr.P.C., 1973. After completing the investigation, the
I.O. submitted the chargesheet and trial commenced for the offences
under Sections 304-B and 498-A IPC. (Rohtash vs. State of Haryana;
2012 Cr.L.J. 3189 (SC)
BACK TO INDEX
Evidence Act
S.3—Circumstantial
evidence—Significance in prosecution—Generally one and only one
hypothesis consist with guilt of accused
There can be no dispute that in a case entirely dependent on the
circumstantial evidence, the responsibility of the prosecution is
more as compared to the case where the ocular testimony or the
direct evidence, as the case may be, is available. The Court, before
relying on the circumstantial evidence and convicting the accused
thereby has to satisfy itself completely that there is no other
inference consistent with the innocence of the accused possible nor
is there any plausible explanation. The Court must, therefore, make
up its mind about the inferences to be drawn from each proved
circumstance and should also consider the cumulative effect thereof.
In doing this, the court has to satisfy its conscience that it is
not proceeding on the imaginary inferences or its prejudices and
that there could be no other inference possible excepting the guilt
on the part of the accused.
There indeed cannot be a universal test applicable commonly to all the
situations for reaching an inference that the accused is not guilty
on the basis of the proved circumstances against him nor could there
be any quantitative test made applicable. At times, there may be
only a few circumstances available to reach a conclusion of the
guilt on the part of the accused and at times, even if there are
large numbers of circumstances proved, they may not be enough to
reach the conclusion of guilt on the part of the accused. It is the
quality of each individual circumstance that is material and that
would essentially depend upon the quality of evidence. Fanciful
imagination in such cases has no place. Clear and irrefutable logic
would be an essential factor in arriving at the verdict of guilty on
the basis of the proved circumstances. (Mohd. Arif @ Ashfaq vs.
State (NCT of Delhi); (2012) 2 SCC (Cri) 766)
S. 3 – Child witness - No law that
his evidence shall be rejected, even if it is found reliable –
Corroboration is not absolute requirement it is only rule of
prudence
There is no rule or practice that in every case the evidence of such a
witness be corroborated by other evidence before a conviction can be
allowed to stand but as a rule of prudence the Court always finds it
desirable to seek corroboration to such evidence from other reliable
evidence placed on record. Further, it is not the law that if a
witness is a child, his evidence shall be rejected, even if it is
found reliable (Ref. Dattu Ramrao Sakhare v. State of Maharashtra
{(1997) 5 SCC 3411} and Panchhi v. State of U.P. [(1998) 7 SCC 177]
:(AIR 1998 SC 2726: 1998 AIR SCW 2777) (Alagupandi alias
Alagupandian v. State of Tamil Nadu; AIR 2012 SC 2405)
Ss. 6 and 24 – Extra – Judicial
confession – Admissibility and evidentiary value of – Principles
reiterated
It is a settled principle of criminal jurisprudence that extra-judicial
confession is a weak piece of evidence. Wherever the court, upon due
appreciation of the entire prosecution evidence, intends to base a
conviction on an extra-judicial confession suffers from material
discrepancies or inherent improbabilities and does not appear to be
cogent as per the prosecution version, it may be difficult for the
court to base a conviction on such a confession. In such
circumstances, the court would be fully justified in ruling such
evidence out of consideration.
Now, court has not examined some judgments of the Court dealing with the
aspect.
In Balwinder Singh V. State of Punjab, 1995 Supp (4) SCC 259 the court
stated the principle that: (SCC p. 265, para 10)
“10. An extra judicial confession by
its very nature is rather a weak type of evidence and requires
appreciation with a great deal of care and caution. Where an extra
judicial confession is surrounded by suspicious circumstances, its
credibility becomes doubtful and it loses its importance.”
In Pakkirisammy v. State of T.N., (1997) 8 SCC 158 the court held that:
(SCC p.162, para 8)
“8. ……It is well settled that it is a
rule of caution where the court would generally look for an
independent reliable corroboration before placing any reliance upon
such extra – judicial confession.”
Again in Mavita v. State of T.N., (1998) 6 SCC 108 the Court stated the
dictum that: (SCC p. 109, para 5)
“4. There is no doubt that
convictions can be based on extra-judicial confession but it is well
settled that in the very nature of things, it is a weak piece of
evidence. It is to be proved just like any other fact and the value
thereof depends upon the veracity of the (witnesses) to whom it is
made.”
While explaining the dimensions of the principles governing the
admissibility and evidentiary value of an extra-judicial confession,
this Court in State of Rajasthan v. Raja Ram, (2003) 8 SCC 180
stated the principle that: (SCC p. 192, para 19).
“19. An extra-judicial confession, if
voluntary and true and made in a fit state of mind, can be relied
upon by the court. The confession will have to be proved like any
other fact. The value of the evidence as to confession, like any
other evidence, depends upon the veracity of the witness to whom it
has been made.”
The Court further expressed the view
that: (SCC p. 192, para 19)
“19. …..Such a confession can be
relied upon and conviction and thereon if the evidence about the
confession comes from the mouth of witnesses who appear to be
unbiased, not even remotely inimical to the accused, and in respect
of whom nothing is brought out which may tend to indicate that he
may have a motive of attributing an untruthful statement to the
accused. ……”
In Aloke Nath Dutta v. State of W.B., (2007) 12 SCC 230, the Court,
while holding the placing of reliance on extra-judicial confession
by the lower courts in absence of other corroborating material as
unjustified, observed: (SCC pp. 265-66, paras 87 & 89)
“87. Confession ordinarily is
admissible in evidence. It is a relevant fact. It can be acted upon.
Confession may under certain circumstances and subject to law laid
down by the superior judiciary from time to time form the basis for
conviction. It is, however, trite that for the said purpose the
court has to satisfy itself in regard to: (i) voluntariness of the
confession; (ii) truthfulness of the confession; and (iii)
corroboration.
“89. A detailed confession which
would otherwise be within the special knowledge of the accused may
itself be not sufficient to raise a presumption that confession is a
truthful one. Main features of a be based only on the sole basis
thereof.”
Accepting the admissibility of the extra judicial confession, the court
in Sansar Chand V. State of Rajasthan, (2012) 10 SCC 604, held that
(SCC p. 611, paras 29-30)
“29. There is no absolute rule that
an extra – judicial confession can never be the basis of a
conviction, although ordinarily an extra – judicial confession
should be corroborated by some other material.
30. In the present case, the extra-judicial confession by Balwan has
been referred to in the judgments of the learned Magistrate and the
Special Judge, and it has been corroborated by the other material on
record. Court is satisfied that the confession was voluntary and
was not the result of inducement, threat or promise a contemplated
by Section 24 of the Evidence Act, 1872.”
Dealing with the situation of retraction from the extra-judicial
confession made by an accused, the Court in Rameshbhai Chandubhai
Rathod v. State of Gujarat, (2009) 5 SCC 740, held as under: (SCC
pp. 772-73, para 53)
“53. It appears therefore, that the
appellant has retracted his confession. When an extra-judicial
confession is retracted by an accused, there is no inflexible rule
that the court must invariably accept the retraction. But at the
same time it is unsafe for the court to rely on the retracted
confession, unless the court on a consideration of the entire
evidence comes to a definite conclusion that the retracted
confession is true.”
Extra-judicial confession must be established to be true and made
voluntarily and in a fit state of mind. The words of the witnesses
must be clear, unambiguous and should clearly convey that the
accused is the perpetrator of the crime. The extra-judicial
confession can be accepted and can be the basis of conviction, if it
passes the test of credibility. The extra-judicial confession should
inspire confidence and the court should find out whether there are
other cogent circumstances on record to support it. (ref. Sk. Yusuf
v. State of W.B. and Pancho v. State of Haryana, (2011) 10 SCC 165.
Upon a proper analysis of the above referred judgments of this Court, it
will be appropriate to state the principles which would make an
extra judicial confession an admissible piece of evidence capable of
forming the basis of conviction of an accused. These precepts would
guide the judicial mind while dealing with the veracity of cases
where the prosecution heavily relies upon an extra – judicial
confession alleged to have been made by the accused:
(i)
The extra-judicial confession is a weak evidence by itself.
It has to be examined by the court with greater care and caution.
(ii)
It should be made voluntarily and should be truthful.
(iii)
It should inspire confidence.
(iv)
An extra-judicial confession attains greater credibility and
evidentiary value if it is supported by a chain of cogent
circumstances and is further corroborated by other prosecution
evidence.
(v)
For an extra-judicial confession to be the basis of
conviction, it should not suffer from any material discrepancies and
inherent improbabilities.
(vi)
Such statement essentially has to be proved like any other
fact and in accordance with law.
(Sahadevan & another Vs. State of
Tamil Nadu; (2012) 6 SCC 403)
S.8—Existence of motive not absolute requirement of law
Existence of a motive for committing
a crime is not an absolute requirement of law but it is always a
relevant factor, which will be taken into consideration by the
courts as it will render assistance to the courts while analyzing
the prosecution evidence and determining the guilt of the accused.
(Alagupandi vs. State of Tamil Nadu; 2012 Cr.L.J. 3363 (SC)
S.9—Test identification parade—Delay
in holding does not perse fatal to validity of parade
There was some delay in
holding the identification parade. But the delay per se cannot be
fatal to the validity of holding an identification parade. In all
cases, without exception, the purpose of the identification parade
is to provide corroborative evidence and is more confirmatory in its
nature. The identification parade was held in accordance with law
and the witnesses had identified the accused from amongst a number
of persons who had joined the identification parade. There is
nothing on record before us to say that the photographs of the
accused were actually printed in the newspaper. Even if that be so,
they were printed months prior to the identification parade and
would have lost their effect on the minds of the witnesses who were
called upon to identify an accused. (Munna Kumar Upadhyaya vs.
State of A.P.; 2012 Cr.L.J. 3068 (SC)
S. 9 – Test identification parade -
Delay in holding – Not per se fatal to validity of parade
S. 9 –Test identification parade -
Photographs of accused published months before parade –Veracity of
parade does not stand impaired
There was some delay in holding the identification parade. But the delay
per se cannot be fatal of the validity of holding an identification
parade, in all cases, without exception. The purpose of the
identification parade is to provide corroborative evidence and is
more confirmatory in its nature. No other infirmity has been pointed
out by the learned counsel appearing for the appellant, in the
holding of the identification parade. The identification parade was
held in accordance with law and the witnesses had identified the
accused from amongst a number of persons who had joined the
identification parade. There is nothing on record before us to say
that the photographs of the accused were actually printed in the
newspaper. Even if that be so, they were printed months prior to the
identification parade and would have lost their effect on the minds
of the witnesses who were called upon to identify an accused. (Munna
Kumar Upadhyaya alias Munna Upadhyaya v. State of Andhra Pradesh;
AIR 2012 SC 2470)
S. 24 – Extra-judicial confession -
Principles for deciding whether it is admissible and capable of
forming basis of conviction
The principles which would make an extra-judicial confession, an
admissible piece of evidence capable of forming the basis of
conviction of an accused are as follows:-
(i)
The extra-judicial confession is weak evidence by itself. It
has to be examined by the Court with greater care and caution.
(ii)
It should be made voluntarily and should be truthful.
(iii)
It should inspire confidence.
(iv)
An extra-judicial confession attains greater credibility and
evidentiary value if it is supported by other prosecution evidence.
(v)
For an extra-judicial confession to be the basis of
conviction, it should not suffer from any material discrepancies and
inherent improbabilities.
(vi)
Such statement essentially has to be proved like any other
fact and in accordance with law.
(Shadevan & Anr. V. State of Tamil
Nadu; AIR 2012 SC 2435)
Ss. 24, 114(f) – Extra-judicial
confession – Injured accused – History given to doctor and recorded
in usual course of business – Not extra-judicial confession - Can be
relied upon
The statement in so far as they concern the use of various articles in
commission of crime and recovery of such articles and stolen items,
would form a valid and admissible piece of evidence for the
consideration of the court. The history given to the doctor at the
time of treatment would not be strictly an extra-judicial
confession, but would be a relevant piece of evidence, as these
documents had been prepared by PW 33 in the normal course of her
business. Even the accused do not dispute that they were given
treatment by the doctor in relation to these injuries. Thus, it was
for the accused to explain this aspect. This Court has had the
occasion to discuss the effect of extra-judicial confessions in a
number of decisions. (Munna Kumar Upadhyaya alias Munna Upadhyaya
v. State of Andhra Pradesh; AIR 2012 SC 2470)
S.24—Extra-judicial
confession—Credibility of
Accused alleged to have
killed entire family of deceased and stolen valuables kept in
almirah. Finger print taken from almirah found matching with that of
accused. Evidence of witnesses and that of recovery of valuable from
accused supporting evidence of finger print experts. Hence, mere
failure of I.O. to state in his chief examination about taking of
finger prints of accused. Does not call for rejection of finger
prints evidence.
Extra-judicial confession
must be established to be true and made voluntarily and in a fit
state of mind. The words of the witnesses must be clear, unambiguous
and should clearly convey that the accused is the perpetrator of the
crime. The extra-judicial confession can be accepted and can be the
basis of conviction, if it passes the test of credibility. The
extra-judicial confession should inspire confidence and the Court
should find out whether there are other cogent circumstances on
record to support it. (Munna Kumar Upadhyaya vs. State of A.P.;
2012 Cr.L.J. 3068 (SC)
S.26—Extra-judicial
confession—Recorded when accused was in police custody—Mere fact
that no police officer was standing near accused at the time when he
made alleged extra judicial confession—Admissibility of—Held, “so
called confession cannot be admitted
The language of Sec. 26
makes it crystal clear that a confession made by him in the custody
of the police officer cannot be proved against the appellant. We
need not advert to the decisions which make out a distinction
between ‘custody’ and ‘formal arrest’, as in this case, the formal
arrest has already been made, admittedly. The mere fact that no
police official was standing near the appellant at the time when he
made the alleged extra judicial confession cannot and shall not
detract against the fact that he continued to be in the custody of
the police officer. In that view of the matter, it appears to us to
be evidence that the so-called confession cannot be admitted in
evidence. (Salim vs. State of Kerala; 2012 Cr.L.J. 3198)
S.26—Extra-judicial confession made
to respectable person namely medical officer while accused was in
police custody—Admissibility of
Extra judicial
confession, made to respectable person namely medical officer while
accused was in police custody, can be ignored and need not be
reckoned as relevant probative material against appellant in
adjudication of guilt against him. (Salim vs. State of Kerala;
2012 Cr.L.J. 3198)
S.27—Discovery statement—Credibility
when discovery is delayed—Satisfactory explanation for delay—Held,
discovery statement could not be discarded
It has been held in
Suresh Chandra Bahri vs. State of Bihar, 1995 SCC (Cri) 60 that even
if the discovery statement is not recorded in writing but there is
definite evidence to the effect of making such a discovery statement
by the investigating officer concerned, it can still be held to be a
good discovery. The question is of the credibility of the evidence
of the police officer before whom the discovery statements were
made. If the evidence is found to be genuine and creditworthy, there
is nothing wrong in accepting such a discovery statement. (Mohd.
Arif @ Ashfaq vs. State (NCT of Delhi); (2012) 2 SCC (Cri) 766)
S. 27 – Applicability of – Principles
reiterated
In State of Rajasthan v. Bhup Singh,
(1997) 10 SCC 675, this Court observed (SCC p. 679, para 14) the
following as the conditions prescribed in Section 27 of the Evidence
Act, 1872 for unwrapping the cover of ban against admissibility of
statement of the accused to the police (1) a fact should have been
discovered in consequence of the information received from the
accused; (2) he should have been accused of an offence; (3) he
should have been in the custody of a police officer when he supplied
the information; (4) the fact so discovered should have been deposed
to by the witness. The Court observed that if these conditions are
satisfied, that part of the information given by the accused which
led to such recovery gets denuded of the wrapper of prohibition and
it becomes admissible in evidence.
In the present case, the
recoveries have been effected upon the statement of the accused
under Section 27 of the Evidence Act. These recoveries, in court’s
view, were made in furtherance to the statement of the accused who
were in police custody and in the presence of independent witnesses.
May be that one of them had not been examined, but that by itself
shall not vitiate the recovery or make the articles inadmissible in
evidence. The aspect which the Court has to consider in the present
case is whether these recoveries have been made in accordance with
law and whether they are admissible in evidence or not, and most
importantly, the link with and effect of the same viz-a-viz the
commission of the crime. (Sahadevan and another vs. State of
Tamil Nadu; (2012) 6 SCC 403)
S. 27 – Penal Code, S. 300 – Recovery made on disclosure by accused
– Reliability – Murder case - Disclosure made by Accused leading to
recovery of kerosene bottle, Moped etc. - Post mortem report and
forensic report however not indicating presence of kerosene on body
or belongings of deceased – Recovery evidence cannot be relied upon
The aspect which the Court has to consider in the present case is
whether these recoveries have been made in accordance with law and
whether they are admissible in evidence or not and most importantly
the link with and effect of the same vis-à-vis the commission of the
crime. According to the post-mortem report Ext. p-10 as well as the
forensic report Ext. P.22, kerosene or its smell was neither found
on the body nor the belongings of the deceased and, therefore, it
creates a little doubt as to whether the recovered items were at all
and actually used in the commission of crime. However, as far as TVS
moped, MO-6 is concerned, there is sufficient evidence to show that
it was used by the accused but the other contradictions and
discrepancies noted above over shadow this evidence and give
advantage to the accused. (Shadevan & Anr. V. State of Tamil
Nadu; AIR 2012 SC 2435)
S.45—Finger print
evidence—Reliability of
Accused alleged to have killed entire family of deceased and stolen
valuables kept in almirah. Finger print taken from almirah found
matching with that of accused. Evidence of witnesses and that of
recovery of valuable from accused supporting evidence of finger
print experts. Hence, mere failure of I.O. to state in his chief
examination about taking of finger prints of accused. Does not call
for rejection of finger prints evidence. (Munna Kumar Upadhyaya
vs. State of A.P.; 2012 Cr.L.J. 3068 (SC)
S. 53 & 54
Prosecution has to prove its case beyond reasonable doubt and cannot
take support from the weakness of the case of defence. There must be
proper legal evidence and material on record to record the
conviction of the accused. Conviction can be based on sole testimony
of the prosecutrix provided it lends assurance of her testimony.
However, in case the court has reason not to accept the version of
prosecutrix on its face value, it may look for corroboration. In
case the evidence is read in its totality and the story projected by
the prosecutrix is found to be improbable, the prosecutrix case
becomes liable to be rejected.
The court must act with sensitivity and appreciate the evidence in
totality of the background of the entire case and not in the
isolation. Even if the prosecutrix is of easy virtue/unchaste woman
that itself cannot be a determinative factor and the court is
required to adjudicate whether the accused committed rape on the
victim on the occasion complained of. (Narender Kumar v. State
(NCT of Delhi); AIR 2012 SC 2281)
Circumstantial evidence - Confession
– Extra-judicial confession – Consideration of
There is no doubt that in
the present case there is no eyewitness. It is a case based upon
circumstantial evidence. In case of circumstantial evidence, the
onus lies upon the prosecution to prove the complete chain of events
which shall undoubtedly point towards the guilt of the accused.
Furtherance, in case of circumstantial evidence, where the
prosecution relies upon an extra-judicial confession, the court has
to examine the same with a greater degree of care and caution. (Sahadevan
and another Vs. State of Tamil Nadu; (2012) 6 SCC 403)
Circumstantial Evidence – Theory of
last seen together – Applicability of
With the development of
law, the theory of last seen has become a definite tool in the hands
of the prosecution to establish the guilt of the accused. This
concept is also accepted in various judgments of this Court. The
Court has taken the consistent view that where the only
circumstantial evidence taken resort to by the prosecution is that
the accused and the deceased were last seen together, it may raise
suspicion but it is not independently sufficient to lead to a
finding of guilt.
In Arjun Marik v. State
of Bihar, 1994 Supp (2) SCC 372, this Court took the view that where
the appellant was alleged to have gone to the house of one Sitaram
in the evening of 19.7.1985 and had stayed in the night at the house
of deceased Sitaram, the evidence was very shaky and inconclusive.
Even if it was accepted that they were there, it would, at best,
amount to be the evidence of the appellants having been last seen
together with the deceased with the deceased. The Court further
observed that: (SCC p. 385, para 31)
“31. ….it is settled law that the
only circumstance of last seen will not complete the chain of
circumstances to record (a) finding that it is consistent only with
the hypothesis of the guilt of the accused and, therefore, no
conviction, on that basis alone, can be found.”
Even in State of
Karnataka v. M.V. Mahesh, (2003) 3 SCC 353, this court held that:
(SCC p. 354, para 3)
“3. …. Merely being seen last
together is not enough. What has to be established in a case of this
nature is definite evidence to indicate that (the deceased) had been
done to death of which the respondent is or must be aware as also
proximate to the time of being last seen together. No such clinching
evidence is put forth. It is no doubt true that even in the absence
of the corpus deliciti it is possible to establish in an appropriate
case commission of murder on appropriate material being made
available to the court.”
In State of U.P. V.
Satish, (2005) 3 SCC 114, Supreme Court had stated that (SCC p. 123,
para 22) the principle of last seen comes into play
“where the time gap between the point
of time when the accused and the deceased were last seen alive and
when the fact that deceased is found dead is so small that
possibility of any person other than the accused being the author of
the crime becomes impossible.”
Undoubtedly, the last
seen theory is an important event in the chain of circumstances that
would completely establish and/or could point to the guilt of the
accused with some certainty. But this theory should be applied while
taking into consideration thecae of the prosecution in its entirety
and keeping in mind the circumstances that precede and follow the
point of being so last seen. (Sahadevan and another Vs. State of
Tamil Nadu; (202) 6 SCC 403)
Ss. 63 and 65 - Secondary Evidence -
Admissibility
The original certificate of admission is given to the allottee and only
a counterpart is retained on the record. The said certificate in
original does not form part of the record of the L.M.C. or the
Assistant Collector.
The law is settled that the party should produce the best evidence
possible within his reach and not merely rely upon the secondary
evidence and that when secondary evidence is produced instead of the
primary some reason or explanation must be given for not producing
the original.
The evidence on record is that the record of the LMS has been lost or
destroyed but it is not the case of the petitioner that the
certificate of lease issued to him has been lost or destroyed or
that no such certificate was never given to him. There is no
explanation for not production the original of the certificate of
admission so given. In the absence of such a case and evidence from
the side of the petitioner, secondary evidence in the form of
photocopy of the certificate of admission was not admissible in
evidence.
In view of above, court has the opinion that no illegality or error has
been committed either by the trial court or the Board of Revenue in
refusing to rely upon the photocopy of the certificate of lease. The
oral evidence to prove that the lease was actually granted to the
petitioner in the absence of the documentary evidence is of no
avail. (Ajuddhi vs. State of U.P.; 2012 (5) ALJ 20)
Ss. 73, 45 – Comparison of signatures – Sending documents for
opinion of expert - S. 73 enables Court to undertake exercise of
comparison of signature, writing or seal without need for sending
same to opinion of handwriting expert - S. 45 does not cast an
obligation on Courts to send a disputed document for expert’s
opinion as matter of course
Under Section 73 of the Act, the Court is empowered to ascertain whether
a signature, handwriting or seal is that of the person, by whom it
purports to have been written or made, and compare any signature,
writing or seal, admitted or proved to the satisfaction of the
Court, to have been written or made by that person with the one,
which is to be proved. This provision, thus, enables the Court to
undertake the exercise of comparison of the signature, writing or
seal without need for sending the same to the opinion of the
handwriting expert. Section 45 of the Act recognized the opinions of
the experts in handwriting or finger impressions as relevant facts.
Section 45 does not cast an obligation on the Courts to send a
disputed document for expert’s opinion as matter of course. It is
only when the court forms an opinion that, having regard to the
facts of the particular case.
Since the Court below has formed an opinion that it can by itself
undertake the exercise of comparison, of the signatures, between the
admitted and disputed documents, it cannot be said that the
discretion exercised by the Court below is either unsound or
irrational calling for interference of this court in exercise of its
supervisory jurisdiction under Article 227 of the Constitution of
India. (Gowry Shankar v. J.L. Babu & Anr.; AIR 2012 AP 118)
S. 90 – Old documents – Presumption
u/s 90 does not relate to correctness of statements contained in
document
The alleged partition in the year 1819 among the ancestors of Respondent
1-plaintiff even if had taken place, cannot be a proof of title of
Respondent 1-plaintiff over the suit property as the pedigree has
not been proved. Presumption under Section 90 of the Evidence Act in
respect of 30 years’ old document coming from proper custody relates
to the signature, execution and attestation of a document i.e. to
its genuineness but it does not give rise to presumption of
correctness of every statement contained in it. That the contents of
the document are true or it had been acted upon, have to be proved
like any other fact. More so, in case the will is ignored, there is
nothing on record to show as to how Respondent 1-plaintiff could
claim the title. (Union of India Vs. Ibrahim Uddin and another;
(2012) 8 SCC 148)
BACK TO INDEX
Hindu Marriage Act
S. 23 - Restitution of conjugal
rights - Consideration of
The grievances of the appellant are
that there is no marriage between him and the respondent but the
respondent in order to defame her in society filed a suit for
restitution for conjugal rights, inter alia, on the ground that
marriage between them took place on 28th October, 2007. It is an
admitted position that there is no valid document evidencing
marriage. Nor is there any acceptable evidence of marriage. The
Family Court came to a finding that the attempt of the husband is to
blackmail the appellant herein and the respondent husband had
already married Smt. Seema, D/o Shri Jeet Singh, R/o 263 Begum Bagh,
Meerut and a daughter was born in connection with the said marriage
and was studying in school. In the background of those facts the
Principal Judge, Family Court, Meerut held since there is no
marriage there is no question of restitution. The Family Court,
therefore, dismissed the said petition with cost of Rs.2 lacs.
An appeal was filed before the High
Court in which the Division Bench of the High Court has taken very
peculiar stand in proceeding by trying for conciliation. The High
Court has noted that the appellant girl has categorically denied the
existence of marriage and the existence of joint account in a bank.
The High Court has not recorded anywhere about the validity of the
marriage. Even then the High Court strangely enough explored the
possibility of a settlement between the parties. The High Court
without coming to any finding about the validity of marriage and
after recording that the validity of marriage was always denied by
the appellant gave certain directions which are wholly inconsistent
with the facts of the case. Since no marriage has been established,
directions given by the High Court are wholly inappropriate. (Pallavi
Bhardwah vs. Pratap Chauhan; 2012(5) ALJ 10)
BACK TO INDEX
Hindu
Minority and Guardianship Act
S. 6 – Custody - Children of estranged couple – Both children
closely associated with each other – Separation of children would be
against their welfare - Mother not in a position to look after
educational need of elder son - Father member of Indian
Administrative Service able to take very good care of children with
help of his father who was professor – Custody of both children
given to father - Mother given visitation right to meet children
once in month at father’s cost - Children to go to mother for 3 days
during vacation
Upon speaking to the children personally, we also found that they are
indeed very much attached to each other. This fact was also noted by
the learned single Judge of the High Court in the impugned judgment,
and is also admitted by both the parties in their respective written
submissions. Looking to the overall peculiar circumstances of the
case, it is our view that the welfare of both the children would be
best served if they remain together. In our view it would not be
just and proper to separate both brothers, who are admittedly very
close to each other.
During the period of vacation exceeding two weeks, the appellant- father
shall send the children to Delhi so that the children can stay with
the respondent mother at least for three days. We are sure that the
appellant and the respondent shall determine the modalities as to
during which portion of the vacation, the children should visit the
respondent- mother as almost both the parents are interested in
having the company of the children. (Shaleen Kabra v. Shiwani
Kabra; AIR 2012 SC 2467)
BACK TO INDEX
Indian Penal Code
Ss. 120-B, 300 – Criminal PC, S. 218
– Accused charged of conspiracy to commit murder – Charge under S.
300 not framed –As yet accused can be convicted U/s. 120 B r/w S.
300 if found to have actually committed offence along with other
accused with whom he conspired
In other words, once the Court finds an accused guilty of Section 120 B,
where the accused had conspired to commit an offence and actually
committed the offence with other accused with whom he conspired,
they all shall individually be punishable for the offence for which
such conspiracy was hatched. Thus, we do not find any error in the
judgment of the trial court in convicting the accused for an offence
under Section 120 B read with Section 302, IPC. (Sunil Kumar &
Anr. V. State of Haryana; AIR 2012 SC 2488)
Ss. 235(2), 354(3) and 465 –
Compliance with S. 235(2) – Necessity – “Hearing the accused” on
question of sentence – Implication of
Section 235 Cr.P.C. in its entirety
is extracted for reference:
“235. Judgment of acquittal or
conviction – (1) After hearing arguments and points of law (if any),
the Judge shall give a judgment in the case.
(2) If the accused is convicted, the
Judge shall, unless, he proceeds in accordance with the provisions
of Section 360, hear the accused on the question of sentence, and
then pass sentence on him according to law.”
The scope of the
abovementioned provision has come up for consideration before the
Apex Court on various occasions, Reference to few of the judgments
is apposite. The courts are unanimous in their view that sub section
(2) of Section 235 clearly states that the hearing has to be given
to the accused on the question of sentence, but the question is what
is the object and purpose of hearing and what are the matters to be
elicited from the accused. Of course, full opportunity has to be
given to produce adequate materials before the court and, if found
necessary, the Court may also give an opportunity to lead evidence.
Evidence on what, the evidence which has some relevance on the
question of sentence and not on conviction. But the further question
to be examined is whether, in the absence of adding any materials by
the accused, has the court any duty to elicit any information from
whatever sources before awarding sentence, especially capital
punishment? The psychological trauma which a convict undergoes on
hearing that he would e awarded capital sentence, that is, death,
has to be borne in mind by the court ? The convict could be a
completely shattered person, may not be in his normal senses, may be
dumbfounded, unable to speak anything. Can, in such a situation, the
court presume that he has nothing to speak or mechanically record
what he states, without making any conscious effort to elicit
relevant information, which has some bearing in awarding a proper
and adequate sentence? Awarding death sentence is always an
exception, only in the rarest of rare cases.
In case of Santa Singh
Vs. State of Punjab, (1976) 4 SCC 190, this court has extensively
dealt with the nature and scope of Section 235(2) Cr.P.C. stating
that such a provision was introduced in consonance with the modern
trends in penology and sentencing procedures. The Court noticed that
today more than ever before, sentencing has become a delicate task.
Requiring an interdisciplinary approach and calling for skills and
talents very much different from those ordinarily expected of
lawyers. In this case, the Court found that the requirements of
Section 235(2) were not complied with, inasmuch as no opportunity
was given to the appellant, after recording his conviction, to
produce material and make submissions in regard to the sentence to
be imposed on him. The Court noticed in that case that the Sessions
Court chose to inflict death sentence on the accused and the
possibility could not b ruled out that if the accused had been given
an opportunity to produce material and make submissions on the
question of sentence, as contemplated by Section 235(2), he might
have been in a position to persuade the Sessions Court to impose a
lesser penalty of life imprisonment. The Court, therefore, held that
the breach of the mandatory requirement of Section 235(2) could not,
in the circumstances, be ignored as inconsequential and it can
vitiate the sentence of death imposed by the Sessions Court. In such
circumstances, we are inclined to set aside the death sentence
awarded by the High Court and remit the matter to the High Court to
follow Section 235(2) Cr.P.C. in accordance with the principles laid
down. (Ajay Pandit alias Jagdish Dayabhai Patel and another Vs.
State of Maharashtra; (2012) 8 SCC 43)
S. 299 - Culpable homicide and murder
– Distinction
Section 300 of the code states what
kind of acts, when done with the intention of causing death or
bodily injury as he offender knows to be likely to cause death or
cause death or causing bodily injury to any person, which is
sufficient in the ordinary course of nature to cause death or the
person causing injury knows that it is so imminently dangerous that
it must in all probability cause death, would amount to ‘murder’
when such an act is committed, without any excuse for incurring the
risk of causing death or such bodily injury. Sections 299 and 300 of
the Code deal with the definition of ‘culpable homicide’ and
‘murder’, respectively. In terms of ‘culpable homicide’ is
described as an act of causing death (i) with the intention of
causing death or (ii) with the intention of causing such bodily
injury as is likely to cause death, or (iii) with the knowledge that
such an act is likely to cause death. As is clear from a reading of
this provision, the former part of it, emphasizes on the expression
‘intention’ while the latter upon ‘knowledge’. Both these are
positive mental attitudes, however, of different degrees. The mental
element in ‘culpable homicide’, that is, the mental attitude towards
the consequences of conduct is one of intention and knowledge. Once
an offence is caused in any of the three stated manners noted-above,
it would be ‘culpable homicide’. Section 300, however, deals with
‘murder’ although there is no clear definition of ‘murder’ in
Section 300 of the Code. As has been repeatedly held by this Court,
‘culpable homicide’ is the genus and ‘murder’ is its species and all
‘murders’ are ‘culpable homicides’ but all ‘culpable homicides’ are
not ‘murders’.
The safest way of approach to the
interpretation and application of these provisions seems to be to
keep in focus the keywords used in the various clauses of these
sections. The Court provided the following comparative table to help
in appreciating the points of discussion between these two offences:
Section 299 |
Section 300 |
A person commits culpable homicide if the act by which the
death is caused is done - |
Subject to certain exceptions culpable homicide is murder if
the act by which the death is caused is done – |
INTENTION |
(a) with the intention of causing death; or |
(1) with the intention of causing death; or |
(b) with the intention of causing such bodily injury as is
likely to cause death; or |
(2) with
the intention of causing such bodily injury as the offender
knows to be likely to cause the death of the person to whom
the harm is caused; or |
|
(3) 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 |
KNOWLEDGE |
(c) with the knowledge that the act is likely to cause
death. |
(4) with
the knowledge that the act is so imminently dangerous that
it must in all probability cause death or such bodily injury
as is likely to cause death, and without any excuse or
incurring the risk of causing death or such injury as is
mentioned above.” |
(Rampal Singh vs. State of UP; 2012(5) ALJ 248 (SC)
S. 300 – Evidence Act, S 45 – Murder - Finger print evidence -
Reliability – Accused alleged to have killed entire family of
deceased and stolen valuables kept in almirah - Finger print taken
from almirah found matching with that of accused – Evidence of
witnesses and that of recovery of valuable from accused supporting
evidence of finger print experts – Mere failure of I.O. to state in
his chief examination about taking of finger prints of accused -
Does not call for rejection of finger prints evidence
No suggestion was put to this witness in his cross-examination that he
never went to the site, never collected the finger prints or that
the finger prints of the accused were never sent by the police to
him. We may also notice that, even to the investigating officer,
this suggestion was never put. The attempt on behalf of the accused
to object on the evidence of the finger prints on the ground that
the investigating officer has not told in his examination-in-chief
that he had taken the finger prints of the accused and sent them to
the expert does not carry much weight in view of the above
documentary, ocular and expert evidence. It was expected of the
investigating Officer to make a statement in that behalf, but
absence of such statement would not weight so much against the
prosecution that the court should be persuaded to reject the
evidence of PW 38 along with the clinching evidence of Ext. P 52,
P-72 and p-73 respectively.
In the present case, lifting of chance finger prints and on comparison
being found to be matching with the sample finger prints of the
accused, taken by the Police, is not the only piece of evidence.
There is corroborating evidence of the prosecution witnesses on the
one hand, and on the other, evidence of PW-12, the daughter of the
deceased, who identified the gold ornaments, which were stolen by
the accused from the almirah, as belonging to her deceased mother
and which were recovered from the possession of accused persons.
In light of the above, we have no hesitation in rejecting this
contention of the appellant. The prosecution has by other evidence,
clearly been able to establish the physical contact between the
accused and the articles within the almirah, and therefore, the
almirah door also. (Munna Kumar Upadhyaya alias Munna Upadhyaya
v. State of Andhra Pradesh; AIR 2012 SC 2470)
S. 300, 304 - Culpable homicide
amounting to murder and culpable homicide not murder - Distinction
Section 300 of the Code proceeds with reference to Section 299 of the
Code. ‘Culpable homicide’ may or may not amount to ‘murder’,
in terms of Section 300 of the Code. When a ‘culpable
homicide is murder’, the punitive consequences shall follow in
terms of Section 302 of the Code while in other cases, that is,
where an offence is ‘culpable homicide not amounting to
murder’, punishment would be dealt with under Section 304 of
the Code. Various judgments of this Court have dealt with the
cases which fall in various classes of firstly, secondly,
thirdly and fourthly, respectively, stated under Section 300
of the Code. It would not be necessary for us to deal with
that aspect of the case in any further detail. Of course, the
principles that have been stated in various judgments like
Abdul Waheed Khan @ Waheed and Others v. State of A.P. [(2002) 7 SCC
175], Virsa Singh v. State of Punjab [AIR 1958 SC 465] and Rajwant
and Anr. v. State of Kerala [AIR 1966 SC 1874] are the broad
guidelines and not cast-iron imperatives. These are the cases
which would provide precepts for the courts to exercise their
judicial discretion while considering the cases to determine as to
which particular clause of Section 300 of the Code they fall in.
Section 300 of the Code states what
kind of acts, when done with the intention of causing death or
bodily injury as the offender knows to be likely to cause death or
causing bodily injury to any person, which is sufficient in the
ordinary course of nature to cause death or the person causing
injury knows that it is so imminently dangerous that it must in all
probability cause death, would amount to ‘murder’. It is also
‘murder’ when such an act is committed, without any excuse for
incurring the risk of causing death or such bodily injury. The
Section also prescribes the exceptions to ‘culpable homicide
amounting to murder’. The explanations spell out the elements which
need to be satisfied for application of such exceptions, like an act
done in the heat of passion and without pre-mediation. Where the
offender whilst being deprived of the power of self-control by grave
and sudden provocation causes the death of the person who has caused
the provocation or causes the death of any other person by mistake
or accident, provided such provocation was not at the behest of the
offender himself, ‘culpable homicide would not amount to murder’.
In Ajit Singh v. State of Punjab
[(2011) 9 SCC 462], the Court held that in order to hold whether
an offence would fall under Section 302 or Section 304 Part I of the
Code, the courts have to be extremely cautious in examining whether
the same falls under Section 300 of the Code which states whether a
culpable homicide is murder, or would it fall under its five
exceptions which lay down when culpable homicide is not murder. In
other words, Section 300 states both, what is murder and what is
not. First finds place in Section 300 in its four stated categories,
while the second finds detailed mention in the stated five
exceptions to Section 300. The legislature in its wisdom, thus,
covered the entire gamut of culpable homicide that ‘amounting to
murder’ as well as that ‘not amounting to murder’ in a composite
manner in Section 300 of the Code. Sections 302 and 304 of the Code
are primarily the punitive provisions. They declare what punishment
a person would be liable to be awarded, if he commits either of the
offences. (Rampal Singh vs. State of UP; 2012 (5) ALJ 248 (SC)
S.300—Exception 1—Murder—Grave and
sudden provocation—Question whether provocation was grave and
sudden—Determination of
The meaning of the expressions “grave” and “sudden” provocation has come
up for consideration before this Court in several cases and it is
unnecessary to refer to the judgments in those cases. The expression
“grave” indicate that provocation be of such a nature so as to give
cause for alarm to the appellant. “Sudden” means an action which
must be quick and unexpected so far as to provoke the appellant. The
question whether provocation was grave and sudden is a question of
fact and not one of law. Each case is to be considered according to
its own facts.
Under Exception 1 of Section 300, provocation must be grave and sudden
and must have by gravity and suddenness deprived the appellant of
the power of self-control, and not merely to set up provocation as a
defence. It is not enough to show that the appellant was provoked
into loosing his control, must be shown that the provocation was
such as would in the circumstances have caused the reasonable man to
loose his self-control. A person could claim the benefit of
provocation has to show that the provocation was grave and sudden
that he was deprived of power of self-control and that he caused the
death of a person while he was still in that state of mind. (Sukhlal
Sarkar vs. Union of India & Ors.; 2012 Cr.L.J. 3032 (SC)
S. 302—Murder—Time of
death—Ascertainment from content of stomach not always determinative
Judging the time of death
from the contents of the stomach, may not always be the
determinative test. It will require due corroboration from other
evidence. If the prosecution is able to prove its case beyond
reasonable doubt and cumulatively, the evidence of the prosecution,
including the time of death, is proved beyond reasonable doubt and
the same points towards the guilt of the accused, then it may not be
appropriate for the Court to wholly reject the case of the
prosecution and to determine the time of death with reference to the
stomach contents of the deceased.
This Court in the case of Shivappa vs. State of Karnataka, (1995) 2 SCC
76 stated the dictum that medical opinion is admissible in evidence
like all other types of evidence and there is no hard-and-fast rule
with regard to appreciation of medical evidence. It is not to be
treated as sacrosanct in its absolute terms. Agreeing with the view
expressed in Modi’s book on Medical Jurisprudence and Toxicology,
this Court recorded that so far as the food contents are concerned,
they remain for long hours in the stomach and the duration thereof
depends upon various other factors. Indisputably, a large number of
factors are responsible for drawing an inference with regard to the
digestion of food. It may be difficult, if not impossible, to state
exactly the time which would be taken for the purpose of digestion.
Similarly, in the case of
Jabbar Singh vs. State of Rajasthan, (1994) SCC (Cr) 1745, the Court
while dealing with the evidence of DW-1 who had opined that since
there was some semi-digested food, the occurrence must have taken
place earlier and not at 3.00 a.m. The Court reiterated the
principle that this was an opinion evidence and the possibility of
the deceased having eaten late in the night could not be ruled out.
In view of the above medical references, the view expressed in Modi’s
book (supra) and the principles stated in the judgments of this
Court, it can safely be predicated that determination of the time of
death solely with reference to the stomach contents is not a very
certain and determinative factor. It is one of the relevant
considerations. The medical evidence has to be examined in light of
the entire evidence produced by the parties. It is certainly a
relevant factor and can be used as a significant tool by the Court
for coming to the conclusion as to the time of death of the deceased
but other factors and circumstances cannot be ignored. The Court
should examine the collective or cumulative effect of the
prosecution evidence along with the medical evidence to arrive at
the correct conclusion. (Sunil Kumar & Anr. vs. State of Haryana;
2012 Cr.L.J. 3085 (SC)
S.302 - Death sentence - General
principles for imposition of death sentence – Imposition of death
sentence is an exception and not rule
Awarding death sentence
is an exception, not the rule, and only in the rarest of rare cases,
the court could award death sentence. The state of mind of a person
awaiting death sentence and the state of mind of a person who has
been awarded life sentence may not be the same mentally and
psychologically. The court has got a duty and obligation to elicit
relevant facts even if the accused has kept totally silent in such
situations. In the instant case, the High Court has not addressed
the issue in the correct perspective bearing in mind those relevant
factors, while questioning the accused and, therefore, committed a
gross error of procedure in not properly assimilating and
understanding the purpose and object behind Section 235(2) Cr.P.C.
In such circumstances, we are inclined to set aside the death
sentence awarded by the High Court and remit the matter to the High
Court to follow Section 235(2) Cr.P.C. in accordance with the
principles laid down. (Ajay Pandit alias Jagdish Dayabhai Patel &
another Vs. State of Maharashtra; (2012) 8 SCC 43)
S. 304-B – Criminal P.C., S 386 - Dowry death – Allegation that
deceased committed suicide by taking pills because of ill-treatment
given by accused husband on account of dowry - Father of deceased
though deposed that accused has demanded certain sum for
establishing his business - Such fact however not mentioned in his
statement under S, 161, Criminal P.C. - Such demand even if made may
not necessarily be demand of dowry
This Court in Appasaheb v. State of Maharashtra, (2007) 1 SCC721 (AIR
2007 SC 763), while dealing with the similar issue and definition of
the word ‘dowry’ held as under: “A demand for money on account of
some financial stringency or for meeting some urgent domestic
expenses or for purchasing manure cannot be termed as a demand for
dowry as the said word is normally understood.”
The aforesaid judgment was reconsidered by this Court in Bachni Devi v.
State of Maharashtra, (2011) 4 SCC 427: (AIR 2011 SC 1098), wherein
this Court held that the aforesaid judgment does not lay down a law
of universal application. Each case has to be decided on its own
facts and merit. If a demand for property or valuable security,
directly or indirectly, has nexus with marriage, such demand would
constitute demand for dowry. The cause of raising of such demand
remains immaterial.
We are of the considered opinion that in the instant case there had been
major improvements/embellishments in the prosecution case and demand
of Rs. 10,000/- by the appellant does not find mention in the
statements under Section 161 Cr.P.C. More so, even if such demand
was there, it may not necessarily be a demand of dowry. Further, the
chemical analysis report falsifies the theory of suicide by deceased
taking any pills. In such a fact-situation, the defence taken by the
appellant in his statement under Section 313 Cr.P.C. could be
plausible.
Thus, appeal succeeds and is allowed. The appellant is given the benefit
of doubt and the impugned judgment of the High Court dated 11.1.2007
is set aside. The appellant is acquitted of all the charges.
(Rohtash v. State of Haryana; AIR 2012 SC 2297)
S. 304-B Dowry Death - Proof of
In present case, it is clear that
there was persistent demand of dowry by the accused persons and they
had killed her by sprinkling kerosene on her and putting her on
fire. There can be no dispute that the deceased died an unnatural
death within seven years of her marriage. Thus, the ingredients of
Section 304B are fully satisfied in the present case. We are least
satisfied with the contention of the learned counsel appearing for
the appellants, that merely because the letters on record do not
specifically mention the dowry demands, such letters have to be
construed by themselves without reference to other evidence and
rebutting the presumption of a dowry death, giving the benefit of
doubt to the accused. These letters have to be read in conjunction
with the statements of PW1 and PW2. It is difficult for one to
imagine that these letters should have been worded by the deceased
as submitted on behalf of the accused. She never knew with certainty
that she was going to die shortly. The letters clearly spell out the
beatings given to her, the cruelties inflicted on her and reference
to the conduct of the family. The evidence has to be appreciated in
its entirety. Neither the letters can be ignored nor the statements
of PW1 and PW2. If the letters had made no reference to beatings,
cruelty and ill-treatment meted out to the deceased and not
demonstrating the grievance, apprehensions and fear that she was
entertaining in her mind, but were letters simpliciter mentioning
about her well being and that she and her in-laws were living
happily without complaint against each other, the matter would have
been different. In the judgment relied upon by the learned counsel
appearing for the accused, it has specifically been recorded that
the letters produced in those cases had clearly stated that
relations between the parties were cordial and there was no
reference to any alleged cruelty or harassment meted out to the
deceased by any of the accused in that case. On the contrary, in the
letters, it was specifically recorded that the deceased was happy
with all the members of the family. The oral and documentary
evidence in those cases had clearly shown that the deceased was
never subjected to any cruelty or harassment. In those cases, there
was no evidence of demand of dowry and cruelty to the deceased,
which certainly is not the case here. In the case before us, there
is definite ocular, expert and documentary evidence to show that the
deceased died an unnatural death, she was subjected to cruelty and
ill-treatment, there was demand of dowry of specific items like
refrigerator, television and cooler and she died within seven years
of her marriage. (Rajesh Bhatnagar vs. State of Uttarakhand;
2012(5) ALJ 79 (SC)
S.376—Rape—Testimony of prosecutrix
can be sole basis of conviction and corroboration is necessary only
when it is doubtful
Conviction can be based on sole testimony of the prosecutrix provided it
lends assurance of her testimony. However, in case the Court has
reason not to accept the version of prosecutrix on its face value,
it may look for corroboration. In case the evidence is read in its
totality and the story projected by the prosecutrix is found to b
improbable, the prosecutrix case becomes liable to be rejected. (Narender
Kumar vs. State (NCT of Delhi); 2012 Cr.L.J. 3033 (SC)
BACK TO INDEX
Industrial Disputes Act
Ss. 2(3), 2a, 4k Industrial dispute –
Reference – While making reference of Industrial dispute raised by
employee it has to be examined whether employee was workman
In this case, court has
observed that I now proceed to examine whether the order passed by
the respondent No. 2 making reference satisfies that pre-requisites
of a valid order of reference as expounded by the Apex Court in the
case of Secretary. Indian Tea Association (supra) and Moolchand
Kharati Ram Hospital K. Union (supra).
There is nothing in the
impugned order which may show that the respondent No.2 before making
the reference has either taken into consideration the relevant
material on record which was before him in the form of objection
filed by the petitioner in which the petitioner had categorically
denied that the respondent No. 3 was a workman and the application
of the respondent No. 3 filed by him under Section 2A of the Act in
which he had described himself as Senior Cane Officer/Varistha Ganna
Adhikari or he had formed any opinion with reference to the material
before him that the respondent No. 3 was a workman as defined under
Section 2(z) of the Act. In fact the respondent No. 2 in the
impugned order of reference has neither examined the issue nor
recorded any opinion in his order whether the respondent No. 3 is a
workman and has proceeded to make the reference only on the basis of
his satisfaction that an industrial dispute between the respondent
No. 3 and the petitioner existed. The non-application of mind by the
respondent No. 2 to the materials on record while making the
reference is further evident from his own communication dated
31.12.2005 in which he had held that the respondent No. 3 was an
officer of the petitioner’s company and hence, he cannot be a member
of the workers union.
From the above discussion
it is clear that the impugned order fails to fulfill the
pre-requisites of a valid reference as the respondent No.2 in the
impugned order has failed to record any satisfaction that the
respondent No.3 is a workman and hence, the impugned order cannot be
sustained and is liable to be set aside. (Triveni Engineering &
Industries Ltd., Deoband, Saharanpur vs. State of U.P., and others;
2012(4) AWC 3904)
Sec. 6 H - Recovery of money due -
Determination of
It is trite law as held by the Supreme Court that post award wages
cannot be recovered under section 6H(1) more particularly when the
amount claimed is disputed by the employer.
The apex court in Kays Construction Co. Pvt. Ltd., reported in 1965 SC
1488 made it clear that back wages as per the award is "money due"
which could be recovered under section 6-H (1) of the Act even if
the amount is not determined and only a mere arithmetical
calculation is required to be made, but whether post award wages
could be recovered under section 6-H (1) is a moot question which is
required to be decided.
In the present case it will be seen that what the workman claims is post
award wages. As already stated herein above, post award wage does
not come under category of money due and consequently an application
under section 6-H (1) cannot be filed. (Jai Prakash Ahirwar vs.
State of U.P.; 2012 (2) ALJ 54)
BACK TO INDEX
Interpretation of Statutes
Statute is Vernacular language -
Interpretation of
The word ‘distance’ does not occur in the English translation of bye-law
34 placed by the appellants on record. The Hindi version of bye-law
34 quoted by the respondent No. 2 in their counter affidavit before
the High Court does not have the word
‘????’; it contains the word
‘????’.
The authentic version of
bye-law 34 of the Bye-Laws has not been placed before us. In this
view of the matter we do not think it is appropriate for us to place
any interpretation on the language of byelaw 34 when the High Court
has sent the matter back to Zila Panchayat, Muzaffarnagar for
deciding the matter afresh after giving reasonable opportunity of
hearing to all concerned. (Nafis Ahmad vs. State of U.P.; 2012(5)
ALJ 293)
BACK TO INDEX
Juvenile Justice (Care & Protection of Children) Act
Ss. 2(1), 7-A & 20 and Expln. thereto
(as amended by Act 33 of 2006)—Retrospective effect—Juvenile under
2000 Act—Who is—Consideration of
Conviction of the petitioner under Ss. 396, 506, 341 and 379 r/w S.
120-B IPC was confirmed by the Supreme Court. The petitioner prayed
that he was a juvenile at the alleged offence, for the first time
before the Supreme Court. The benefit of juvenility was not claimed
by the petitioner earlier. The petitioner was 16 years, 11 months
and 21 days on the day of occurrence.
Amendment Act 33 of 2006 provided that the benefit of juvenility shall
be extended even to a juvenile who had completed the age of the 18
years on 1.4.2001 and Act shall have retrospective effect. The claim
of juvenility can be raised before any court at any stage, even
after the final disposal of the case. Sections 20 and 7-A set out
the procedure which the court is required to adopt, when such claim
of juvenility is raised. The petitioner was a juvenile in terms of
the 2000 Act because he had not completed 18 years of age and is
entitled to get the benefit of provisions under Ss. 2(1), 7-A, 20
and 64 of the Act. The petitioner has already undergone 12 years in
jail since then, which is more than the maximum period for which a
juvenile may be confined to a special home. Under these
circumstances, the petitioner is directed to be released from
custody forthwith. (Amit Singh vs. State of Maharashtra; (2012) 2
SCC (Cri) 858)
Rule 12—Juvenility—Reliability of
mark-sheet and/or school leaving certificate for determination of
age of accused—Entry relating to date of birth entered in marksheet
as well as school leaving certificate are valid proofs for
determination of age
Entry relating to date of birth entered in the marksheet is one of the
valid proofs of evidence for determination of age of an accused
person. The school leaving certificate is also a valid proof in
determining the age of the accused person. Further, the date of
birth mentioned in the High Court marksheet produced by the
appellant has duly been corroborated by the school leaving
certificate of the appellant of Class X and has also been proved by
the statement of the clerk of Nehru High School. The date of birth
of the appellant has also been recorded as 18.6.1989 in the school
leaving certificate issued by the Principal of Nehru Preparatory
School, as well as the said date of birth mentioned in the school
register of the said School at Sl. No. 1382 which have been proved
by the statement of the Principal of that School recorded before the
Board. (Shah Nawaz vs. State of U.P.; (2012) 2 SCC (Cri) 864)
R.12—Juvenility—Borderline cases—If
two views may be possible on said evidence, court should lean in
favour of holding accused to be a juvenile in borderline cases
In Rajinder Chandra vs.
State of Chhattisgarh, (2002) 2 SCC 287, this Court once again
considered the entry relating to the date of birth in the marksheet
and concluded as under: (SCC pp. 289-90, para 5)
“5. It is true that the age of the
accused is just on the border of sixteen years and on the date of
the offence and his arrest he was less than 16 years by a few
months only. In Arnit Das vs. State of Bihar, (2000) 5 SCC 488, this
Court has, on a review of judicial opinion, held that while dealing
with the question of determination of the age of the accused for the
purpose of finding out whether he is a juvenile or not, a hyper
technical approach should not be adopted while appreciating the
evidence adduced on behalf of the accused in support of the plea
that he was a juvenile and if two views may be possible on the said
evidence, the Court should lean in favour of holding the accused to
be a juvenile in borderline cases. The law, so laid down by this
Court, squarely applies to the facts of the present case.”
In Arnit Das vs. State of
Bihar, (2000) 5 SCC 488, this Court held that while dealing with the
question of determination of the age of an accused, for the purpose
of finding out whether he is a juvenile or not, a hyper technical
approach should not be adopted while appreciating the evidence
adduced on behalf of the accused in support of the plea that he is a
juvenile and if two views may be possible on the same evidence, the
court should lean in favour of holding the accused to be a juvenile
in borderline cases. (Shah Nawaz vs. State of U.P.; (2012) 2 SCC
(Cri) 864)
R. 12—Age—Certificate issued by
school authorities—Validity of
We have already referred
to the entry relating to the date of birth of the petitioner in the
birth certificate (Annexure P-1), entry relating to his date of
birth in the transfer certificate (Annexure P-2), the date of birth
recorded in the marksheet issued by the Council for the Indian
School Certificate Examinations. In all these documents, his date of
birth has been recorded as 10.5.1982 and duly certified and
authenticated by the authorities concerned. In a recent decision of
this Court dated 5.8.2011 in Shah Nawaz vs. State of U.P., (2011) 13
SCC 751, while considering similar documents, namely, certificate
issued by the school authorities and basing reliance on Rule 12 of
the Rules held that all those documents are relevant and admissible
in evidence. (Amit Singh vs. State of Maharashtra; (2012) 2 SCC (Cri)
858)
R. 98 r/w S. 20 of 2000 Act (as
amended in 2006)—Scope of—State Government or Board even after
disposal of cases may review case of a juvenile and pass order u/s.
64 of 2000 Act for immediate release of juvenile whose period of
detention had exceeded maximum period provided in S. 15 i.e. 3 years
Sec. 7-A that the claim
of juvenility can be raised before any court at any stage, even
after final disposal of the case and sets out the procedure which
the court is required to adopt, when such claim of juvenility is
raised. Apart from the aforesaid provisions of the Act as amended,
and the Juvenile Justice (Care and Protection of Children) Rules,
2007 (in short “the Rules”), Rule, 98, in particular, has to be read
along with Section 20 of the Act as amended by the Amendment Act,
2006 which provides that even after disposal of cases of juveniles
in conflict with law, the State Government or the Board could,
either suo motu or on an application made for the purpose, review
the case of a juvenile, determine the juvenility and pass an
appropriate order under Section 64 of the Act for immediate release
of the juvenile whose period of detention had exceeded the maximum
period provided in Sec. 15 of the Act i.e. 3 years. All the above
relevant provisions including the amended provisions of the Act and
the Rules have been elaborately considered by this Court in Hari
Ram. (Amit Singh vs. State of Maharashtra; (2012) 2 SCC (Cri)
858)
Benefit under – Plea of juvenility
can be raised for first time before S.C. – Availability of
Once it was held that accused was child as date of offence, he must
be given benefit of Juvenile Act. Offence took place on 7.4.99 – K
was convicted by trial court on 7.9.2000 – Juvenile Act came into
force on 1.4.2001 – Appeal of K was decided by High Court on
11.7.2006 – Plea of juvenility was not raised before High Court –
High Court confirmed sentence which it could not have done – As K
had already undergone more than 9 years of imprisonment (more than
maximum punishment under Juvenile Act) order of High Court,
regarding sentence of life imprisonment, quashed – Accused K also
not to incur any disqualification because of this order. (Kalu
alias Amit Vs. State of Haryana; (2012) 8 SCC 34)
BACK TO INDEX
Land Acquisition Act
Section 5A – Land Acquisition Act, 1894 -
Sections 5-A and 6 - Land Acquisition - Objection with regard to
public purpose - Section 5 -A(I) gives right to any person
interested in any land notified under section 4(1) as being needed
or likely to be needed for a public purpose to raise objections to
acquisition of the land
Section 5-A(l) of the
L.A. Act gives a right to any person interested in any land which
has been notified under section 4(1) as being needed or likely to be
needed for a public purpose to raise objections to the acquisition
of the said land. Sub-section (2) of section 5-A requires the
Collector to give the objector an opportunity of being heard in
person or by any person authorized by him in this behalf. After
hearing the objections, the Collector can, if he thinks it
necessary, make further inquiry. Thereafter, he has to make a report
to the appropriate Government containing his recommendations on the
objections together with the record of the proceedings held by him
for the decision of the appropriate Government and the decision of
the appropriate Government on the objections shall be final. It must
be borne in mind that the proceedings under the L.A. Act are based
on the principle of eminent domain and section 5-A is the only
protection available to a person whose lands are sought to be
acquired. It is a minimal safeguard afforded to him by law to
protect himself from arbitrary acquisition by pointing out to the
concerned authority, inter alia, that the important ingredient
namely 'public purpose' is absent in the proposed acquisition or the
Acquisition is mala fide. The L.A. Act being an ex-proprietary
legislation, its provisions will have to be strictly construed.
(M/s. Kamal Trading Private Ltd. (Now known as Manav Investment &
Trading Co. Ltd.) v. State of West Bengal & others; 2012(115) RD 821
(SC)
Held- that the acquisition of the Appellant's land is vitiated due
to colourable exercise of power by the State Government. No doubt,
the notifications issued Under Sections 4 and 6 of
the Act recite that the land was acquired for a public purpose,
namely, development of Sector 36, Rohtak, but the real object of the
acquisition was to benefit a colonizer.
The
State Government had misused the provisions of Sections 4 and
6 of
the Act for making land available to a private developer. If the
land was to be acquired for a company, then the official Respondents
were bound to comply with the provisions contained in Chapter 7 of
the Act, which was admittedly not done. (Patasi Devi
Vs. State of Haryana and Ors.; 2012 (5) AWC 5324 (SC)
Sec. 23 - Acquisition compensation -
Determination of - Factors to be considered
While fixing market value of the acquired land, the Land Acquisition
Collector is required to keep in mind the following factors:-
(i)
Existing geographical situation of the land
(ii)
Existing use of the Land
(iii)
Already available advantages, like proximity to national or
State High Way or road and/or developed area
(iv)
Market value of other land situated in the same
locality/village/area adjacent or very near the acquired land.
(Sabhia Mohammed Yusuf Abdul Hamid Mulla vs. Special Land
Acquisition Officer; AIR 2012 SC 2709)
BACK TO INDEX
Limitation Act
S. 5 - Law of
limitation binds everybody including the Government
It is not in dispute
that the person(s) concerned were well aware or conversant with the
issues involved including the prescribed period of limitation for
taking up the matter by way of filing a special leave petition in
this Court. They cannot claim that they have a separate period of
limitation when the Department was possessed with competent persons
familiar with Court proceedings. In the absence of plausible and
acceptable explanation, we are posing a question why the delay is to
be condoned mechanically merely because the Government or a wing of
the Government is a party before us. Though we are conscious of the
fact that in a matter of condonation of delay when there was no
gross negligence or deliberate inaction or lack of bonafide, a
liberal concession has to be adopted to advance substantial justice,
we are of the view that in the facts and circumstances, the
Department cannot take advantage of various earlier decisions. The
claim on account of impersonal machinery and inherited bureaucratic
methodology of making several notes cannot be accepted in view of
the modern technologies being used and available. The law of
limitation undoubtedly binds everybody including the Government.
In view of Court, it is the right time to inform all the government
bodies, their agencies and instrumentalities that unless they have
reasonable and acceptable explanation for the delay and there was
bonafide effort, there is no need to accept the usual explanation
that the file was kept pending for several months/ years due to
considerable degree of procedural red-tape in the process. The
government departments are under a special obligation to ensure that
they perform their duties with diligence and commitment. Condonation
of delay is an exception and should not be used as an anticipated
benefit for Government departments. The law shelters everyone under
the same light and should not be swirled for the benefit of a few.
Considering the fact that there was no proper explanation offered by
the Department for the delay except mentioning of various dates,
according to us, the Department has miserably failed to give any
acceptable and cogent reasons sufficient to condone such a huge
delay. Accordingly, the appeals are liable to be dismissed on the
ground of delay. (Office of Chief Post Master General v. Living
Mediae India Ltd.; 2012 (116) RD 167)
BACK TO INDEX
Motor Vehicles Act, 1988
S. 147(1)(b)(i) - Motor Insurance –
Goods vehicle Gratuitous passenger - Liability of Insurance Company
- Would not be liable for death of a gratuitous passenger in a
truck, owner is alone liable
In this case the appeal was by the owner and driver of the truck which
was involved in an accident in a collision with a bus belonging to
U.P. Roadways. The deceased was a gratuitous passenger in the truck.
The insurance company of the truck was, therefore, discharged from
liability and the owner of the vehicle alone was found responsible.
I cannot fault with the liability cast on the owner of the truck. (Suckhbir
Singh and another v. Ram Mehar and others; 2012 ACJ 1824)
S. 147(o) – Motor Insurance – Private
Vehicle - Risk of Driver and passengers in a private vehicle may be
statutorily cover
Court has held that it would be good idea to statutorily require
insurance of the driver and the passengers in a private vehicle as
is the case for covering the third party risk. The Central
Government may consider suitability/feasibility of amending Chapter
XI of the Motor Vehicles Act, 1988. (New India Assurance Co. Ltd.
v. Uma Devi and others; 2012 ACJ 1917)
Ss. 149, 163A - Liability of insurer – In terms of policy, insurer
undertook to indemnify owner in case vehicle is used by third person
with permission of owner meets with accident and third party claim
arises out of such accident - This undertaking of company to
indemnify would not mean that even for death of such rider or
driver, company would be liable to pay compensation
In terms of the clause in the insurance policy the insurance company
undertook to indemnify the owner, in case, the vehicle which met
with an accident was driven by a person with the consent of the
owner. In other words, it meant in case where the rider or driver of
a vehicle with the permission of the owner happened to use vehicle,
which met with an accident, in that situation the company would
still indemnify the owner. This undertaking of the company to
indemnify the owner cannot and would not mean that even for the
death of such rider or driver, the company would be liable to pay
compensation. In other words, what it says is, if a vehicle handed
over to a person by consent of the owner results in an accident,
then the claims of the 3rd parties against the owner
would be indemnified by the insurer. Only in case where the coverage
of rider is included in the policy or where the owner of the policy
is covered and the permitted rider takes the position of an owner by
virtue of terms of contract then alone the insurer would be liable
to pay compensation.
In the present case it is not the contention of the
respondents/claimants that the owner of the motor cycle had paid
premium covering the personal accident coverage and therefore, by
virtue of terms of policy (Section II), the Insurance Company would
be liable to pay the compensation.
In a case where the rider or driver of a vehicle with the permission or
the owner happens to use vehicle, which met with an accident, in
that situation the company would still indemnify the owner cannot
and would don’t mean that even for the death of such rider or
driver, the company would be liable to pay compensation. In other
words, what it says is, if a vehicle handed over to a person by
consent of the owner results in an accident, then the claims of the
3rd parties against the owner would be indemnified by the
insurer.
If the rider was not covered, question of indemnifying the owner would
not arise. Only in a case where the coverage of rider is included in
the policy or where the owner of the policy is covered and the
permitted rider takes the position of an owner by virtue of terms of
contract then alone the insurer would be liable to pay compensation.
(Oriental Insurance Co. Ltd. Lochi v. Joseph V.V. alias Johny &
Ors.; AIR 2012 Kerala 116)
S. 163-A r/w 2nd Second
schedule – Interpretation of the second schedule and possible
methods of ascertainment of compensation enumerated
Problems do not end
there. What is the relevant amount of compensation payable by resort
to the Table/Chart? This has to be ascertained. Annual income with
the help of clause 6 of the Second Schedule, we have already
concluded, can be assumed to be Rs. 15,000. Surprisingly, of all the
13 columns available in the Table, there is no column referring to
that figure of Rs. 15,000. How then is the relevant figure to be
ascertained? Two methods appear to be possible. The first is to
reckon the entry under column Rs. 3,000 as the compensation payable
in respect of all persons belonging to the income group up to Rs.
3,000. So reckoned, the entry in 13 columns will have to be read as
indicating the range as shown below:
1 |
2 |
3 |
4 |
5 |
Up to Rs. 3,000 |
Above Rs. 3,000 up to Rs. 4,200 |
Above Rs. 4,200 up to Rs. 5,400 |
… |
Above Rs. 36,000 up to Rs. 40,000 |
There is another
possible method also for ascertaining the compensation. As the
amounts payable for various incomes have been specified in the
columns, it is possible to infer the rationale and then ascertain
the compensation payable for a particular income. So reckoned, for a
deceased having annual income of Rs. 15,000, the average of the
amounts prescribed under the column for Rs. 12,000 and Rs. 18,000
can be taken. The average can be ascertained and Rs. 3,00,000 can be
reckoned as the compensation payable for persons earning the income
Rs. 15,000 (Rs. 12,000 + Rs. 18,000)/2, i.e., (Rs.2,40,000 + Rs.
3,60,000) 12 = Rs. 3,00,000, for a person of income Rs. 15,000.
Both methods do not
seem to be unjust or unreasonable. But going by the rationale behind
prescribing the Schedule we feel that the former approach will be
more sound and reasonable coming to the question of income also, it
would be absolutely reasonable to assume that the legislature, in
its anxiety to eliminate unnecessary and avoidable litigation on the
quantum of actual income, wanted to prescribe ranges so that a lot
of unnecessary dispute about the precise and actual income can be
avoided. That is why the same amount of compensation is prescribed
for all persons earning up to an amount of Rs. 3,000. All those
belonging to the range of income up to Rs. 3,000 must get the same
amount of compensation. All those belonging to the income above Rs.
3,000 up to Rs. 4,200 shall also get the same compensation. For
those having income above Rs. 4,200 up to Rs. 5,400 the same
compensation shall be payable. What we are trying to assert is that
when the legislature prescribed Rs. 3,000, Rs. 4,200, Rs. 5,400, Rs.
6,600, etc., as the annual income, the legislature was certainly
prescribing only the range of income and not the precise income. If
such a rigid view were taken, for a person getting Rs. 3,001 as
annual income, section 163-A of the Motor Vehicles Act cannot
operate at all as there is no entry relating to his income. That
cannot obviously be the intention. When the legislature prescribed
amounts under various columns specifying the income, it could only
have meant that those getting income up to the figure specified will
all get the same compensation. We do note that the anxiety of the
legislature to avoid unnecessary and needless litigation can be
clearly deciphered when we reckon the income as ranges of income and
not any specified income. So understood, we accept that it will be
appropriate to reckon the same compensation to be payable for all
belonging to a particular income group. (United
India Insurance Co. Ltd. V. Madhavan and others; 2012 ACJ 1986)
S. 163-A r/w Second Schedule -
Structured formula - Whether in a claim u/s 163-A compensation
should be awarded strictly in accordance with the second schedule -
Held, “Yes”
Bajaj Allian:
General Ins. Co. Ltd. Li't£vati Devi,
2012 ACJ 1251 (Delhi),
this court while dealing with section 163-A of the Motor Vehicles
Act, 1988, has held as under:
"(3) The question
whether the compensation in a petition under section 163-A of the
Motor Vehicles Act ('the Act') can be claimed and awarded
strictly in accordance with the structured formula given in the
Second Schedule has vexed the courts in the country. The High Courts
and the Apex Court have been requesting the legislature to come out
with an amendment to the Second Schedule which was incorporated way
back in the year 1994 so that adequate and just compensation may be
awarded to the persons in the lower income bracket.
In Oriental
Insurance Co. Ltd. v. Pataso, M.A.C. Appeal No. 962 of
2005; decided on 1.9.2008, it was held that considering the
inflation and depreciation in the value of the rupee, there was no
justification to restrict the award of general damages to the Second
Schedule under section 163-A of the Act. (Oriental Insurance Co.
Ltd. V. Usha and other; 2012 ACJ 1754)
S. 165 – Claim Tribunal –
Jurisdiction - Consideration of
The appeal is at the instance of the owner-insured making a claim for
damage to the vehicle against his insurer. It was stated in the
petition that there had been a settlement but it was contended by
the owner that the amount had not been paid. If the amount had not
been paid, the owner’ right of enforcement will be available in a
civil court or in the contest of the provision under Consumer
Protection Act, it could be complained of a deficiency of service
and made the insurer liable for damages. There is no provision in
law for an insured to make a claim against his own insurer in an
application filed under section 165 or through an adjudication
through section 168. The Claims Tribunal has power to dispose of a
claim for compensation arising out of damage to any property of a
third party in a motor accident a claim for damages for his own
vehicle does not lie before a Tribunal. (Tek Ram v. Narinder
Singh and others; 2012 ACJ 2016)
Fatal accident – Principles of
assessment – Choice of Multiplier - whether multiplier of “17” based
on age of deceased be applied - ‘Held, “Yes”, the age of depend on
has no nexus with computation of compensation
Deceased son of the appellant Nos. 1 and 2, was going to Thanod on
20.7.2008 by Maruti Swift car bearing registration No. CG 04-HA 6905
from Naharpara in Raipur, Chhattisgarh. While he was coming back at
about 4.30 p.m. near Thanod, one Scorpio car bearing registration
no. CG 04-HA 5372 coming rashly and negligently form Abhanpur dashed
against Maruti Swift car. Due to the said accident, Ritesh Bhanu
Shali and on Jaspreet died on the spot and another Shivam received
injuries. The appellant No. 1, is the father appellant No. 2,
Sarlaben, is the mother and appellant No. 3 Mamta Bhanu Shali, is
the sister of the deceased. Claiming to be dependent on the deceased
they filed Motor Accident Claim Case No 80 of 2008 before the
Tribunal under Section 166 of the Motor Vehicles Act, 1988 (for
short, ‘the Act’) for award of compensation to the tune of Rs.
25,50,000
The non-applicants, owner of the car, driver and National Insurance Co.
Ltd. Appeared and defended their case.
In support of the claim application, the appellant No. 1 in his
statement stated that at the time of accident his son Reitesh Bhanu
Shali was 26 years old, as his date of birth is 24.8.1982 and he was
doing the business of real estate and used to sell handset mobiles
and he also took tuition and used to earn Rs. 10,000 per month. The
deceased Ritesh Bhanu Shali also used to file income tax return. The
appellant No. 1 Armit Bhanu Shali, AW 1, stated that both the
appellants, father and mother, were not earning and appellant none.
3 was unmarried at the time of accident and was dependent on the
deceased. It is stated that Mamta Bhanu Shali has also got married.
The Tribunal on appreciation of oral evidence and analysis of
documentary evidence set the issue No. 1 in the affirmative and held
that the accident was caused due to rash and negligent driving by
the driver of Scorpio car.
The Tribunal taking into consideration the fact that the deceased was an
unmarried young man of 26 years at the time of accident and his
income was Rs. 99,000 per annum, deducted 50 per cent of the income
and applying the multiplier of 17 as per the decision of this court
in Sarla Verma v. Delhi Transport Corporation, 2009 ACJ 1298 (SC),
held that the appellants are entitled to get compensation of Rs.
8,66,000.
The appellants challenged the award of claims Tribunal by filing
Miscellaneous Appeal (C) No. 765 of 2010 before Chhattisgarh High
Court for enhancement of compensation. National Insurance Co. Ltd.
Also challenged the same award by filing miscellaneous Appeal (C)
No. 515 of 2010 before Chhattisgarh High Court. Therefore, the
appellants withdrew their Miscellaneous Appeal (C)No 765 of 2010 on
2.8.2010 with a liberty to file the cross- objection for enhancement
of compensation in Miscellaneous Appeal (C) No. 515 of 2010. the
permission was granted. The appellants filed cross-objection in
Miscellaneous Appeal (C) No. 515 of 2010 for enhancement of
compensation.
The High Court by impugned order dated 12.11.2010 reduced the
compensation to Rs. 6,68,000 by applying the multiplier of 13 ….
Appeal filed in SC.
The selection of multiplier is based on the age of the deceased and not
on the basis of age of dependant. There may be a number of
dependants of the deceased whose age may be different and,
therefore, the age of dependants has not nexus with the computation
of compensation.
In the case of Sarla Verma, 2009 ACJ 1298 (SC), this court held that
multiplier to be used should be as mentioned in column (4) of the
Table of the said judgment which starts with an operative multiplier
of 18. as the age of the deceased at the time of death was 26 years,
multiplier of 17 ought to have been applied. The Tribunal taking
into consideration the age of the deceased rightly applied the
multiplier of 17 but the High Court committed a serious error by not
giving the benefit of multiplier of 17 and bringing it down to the
multiplier of 13. (Amrit Bhanu shali and others v. National
Insurance Co. Ltd. and others; 2012 ACJ 2002)
Fatal Accident – Principles of
assessment – Future prospect –Consideration of
As far as the future prospects are concerned, in the case of Sarla Verma
v. Delhi Transport Corporation, 2009 ACJ 1298(SC), the Hon’ble
Supreme Court has held that the future prospects should be
considered only in cases of government employee, but should not be
considered in a case of self-employed person, however, the Apex
Court has not placed a blanket ban on consideration of the future
prospects of a person who is self-employed. After all, the Apex
Court is of the opinion that in exceptional cases future prospects
can be taken into account.
If this be the guiding principle in a case of compensation, obviously
future prospects of increase in the income of an advocate would have
to be kept in mind. Undoubtedly, at the beginning of his practice, a
lawyer has to struggle to establish his reputation and to increase
his practice. The professional life of a lawyer, unlike case of
government servants, is a life of hardship and of struggle. The
fruits of his labour come to him during the course of time. (Sangeeta
Parihar v. Suraj Parihar & others; 2012 ACJ 1725)
Ss. 166, 168, 173, 168-A and Sch. II
– Appropriate multiplier – Choice of
The husband of the first appellant died in an accident on 4.1.1995 when
he was returning from the plant site on a scooter bearing
Registration No. or 06 7703 around 6.30 a.m. near NALCO Nagar on NH
42 at a place called Smelter Chhak, due to rash and negligent
driving of the driver of the truck bearing Registration No. ORA
4241. The appellants being the wife and children of the deceased
preferred the claim before the Motor Accidents Claims Tribunal in
MAC Case No. 21 of 1995. The Tribunal, after analyzing the entire
evidence placed before it, awarded a sum of Rs. 10,08,000 as
compensation along with interest @ 7% per annum with effect from
3.2.1995 to 22.8.1995 and again from 16.1.2007 till the payment
within one month.
While the appellants were aggrieved insofar as the Tribunal applied the
multiplier 12 instead of 17, having regard to the fact that the
deceased at the time of his death was 35 years old as well as
non-grant of interest for certain period, the first respondent was
aggrieved by the very award of compensation itself. The High Court
while disposing of the appeal reduced the compensation awarded by
the Tribunal and also the rate of interest.
The impugned order of the High Court being a non-speaking order calls
for interference in these appeals. Therefore, the only question to
be examined is as to what is the multiplier to be applied, which
ground though raised before the High Court, we find that the High
Court has not ventured to answer the said question.
This question has time and again been considered by this Court. In a
recent decision of this Court, namely, Santosh Devi V. National
Insurance Co. Ltd. (2012) 6 SCC 421, to which one of us (Hon’ble G.S.
Singhvi, J.) was a party, after referring to the decision in Sarla
Verma V. DTC, (2009) 6 SCC 121, wherein the formula under different
headings including the one relating to selection of multiplier was
quoted with approval. The said formula has been set out in Sarla
Verma in para 42 which read as under: (p 140)
“42.
We therefore hold that the multiplier to be used should be as
mentioned in Column 4 of the table above [prepared by applying
Susamma Thomas (Kerala SRTC V. Susamma Thomas (1994) 2 SCC 176,
Trilok Chandra (UP SRTC v. Trilok Chandra (1996) 4 SCC 362 and
Charlie (New India Assurance Co. Ltd. V. Charlie, (2005) 10 SCC
720], which starts with an operative multiplier of 18 (for the ge
groups of 15 to 20 and 21 to 25 years), reduced by one unit for
every five years, that is, M-17 for 26 to 30 years, M-16 for 31 to
35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13
for 46 to 50 years, then reduced by two units for every five years,
that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61
to 65 years and M-5 for 66 to 70 years.”
The said part of the formula was applied in the said reported decision
Santosh Devi V. National Insurance Co. Ltd. Referred to above while
working out the compensation payable to the claimants therein. We,
therefore, follow the above referred decisions and when the said
formula is applied, since the deceased was stated to be 35 years old
at the time of his death, the multiplier would be 16 which has to be
applieid for calculating the compensation. The Tribunal after
examining the materials before it, found that after deducting 1/3rd
of personal expenses, the monthly income of the deceased was Rs.
7000 and the net contribution to the family was ascertained at Rs.
84,000 per annum,. Applying the multiplier of 16, the compensation
works out to Rs. 13,44,000. Therefore, while setting aside the order
of the High Court insofar as it reduced the quantum of compensation,
we modify the compensation payable to the appellants in a sum of Rs.
13,44,000 (84,000 x 16). The said sum of Rs. 13,44,000 should carry
interest @ 7% per annum from the date of application till the date
of realisation. (Rebeka Minz and Others Vs. Divisional Manager,
United India Insurance Company Limited and another; (2012) 8 SCC
145)
Ss. 166 and 163-A - Conversion of -
Whether claimant has a right to convert his claim filed u/s/. 166 to
one us/s/ 163-A – Held “Yes”
The right of the
claimant to request that his claim lodged initially under section
166 of the Motor Vehicles Act may be converted and treated as
one under section 163-A of the Motor Vehicles Act cannot
possibly be doubted. If there be any doubt on that aspect, the last
trace of such doubt must be held to have been set at rest by the
recent decision of the Supreme Court in Oriental Insurance Co.
Ltd. v. Dhanbai Kanji Gadhvi, 2011 ACJ 721 (SC). That
decision is authority for the proposition that until an award is
passed either under section 166 or under section 163-A of the
Motor Vehicles Act, the claimant has the right to request that
his claim may be considered under either of the two sections. That
decision refers to the earlier decision in Deepal Girishbhai Soni
v. United India Insurance Co. Ltd., 2004 ACJ 934 (SC). It
is clarified that Deepal Girishbhai Soni does not fetter the
option of the claimant who chooses to press the claim either under
section 166 or under section 163-A of the Motor Vehicles Act
if the claim under the other section has not been decided and
ordered earlier.
Therefore, it is
crystal clear that the exercise of option by claimants to reckon
their claim as one under section 163-A of the Motor Vehicles Act
is absolutely justified. That conversion of the claim cannot
possibly be faulted. (United
India Insurance Co. Ltd. V. Madhavan and others; 2012 ACJ 1986)
Ss. 166 and 168 – Fatal accident –
Quantum of compensation – Consideration of
Shri Swaran Singh (the appellant’s husband) died in a road accident when
the Maruti car in which he was travelling with Varinder Singh
(husband of Respondent 2 and the father of Respondents 3 and 4) went
out of control. Varinder Singh, who was driving the vehicle also
suffered multiple injuries and died on the spot. The appellant and
other legal representatives of Swaran Singh filed a petition under
Section 166 of the Motor Vehicles Act. 1988 (for short “the Act”)
for award of compensation to the tune of Rs. 4 lakhs. They pleaded
that the accident was caused due rash and negligent driving of the
Maruti care by VArinder Singh; that at the time of his death, the
age of the deceased was about 45 years and that he was earning Rs.
5000 per month by running a mil dairy and doing agriculture. The
legal representatives of Varinder Singh denied that the accident had
occurred due to rash and negligent driving of the Maruti car.
In the written statement filed on behalf of Respondent 1, it was pleaded
that the claim petition was not maintainable because the deceased,
who was travelling in the car cannot be treated as a third party and
that the person driving the vehicle did not have valid driving
licence. Respondent 1 also controverted the claimant’s assertion
about the income of Swaran Singh.
On the pleadings of the parties the Tribunal framed the following
issues:
“(1) Whether the death of Swaran
Singh not amounting to culpable homicide took place on account of
the rash and negligent driving of Maruti Car No. PB 035A 0090 driven
by Varinder Singh?
(2) To what amount of
compensation the applicants are entitled? If so, from whom?
(3) Relief ”
After analyzing the evidence produced by the parties, the Tribunal
decided Issue 1 in the affirmative and held that the accident was
caused due to rash and negligent driving of Maruti care by Varinder
Singh.
While dealing with Issue 2, the Tribunal adverted to the statement made
by the appellant in cross-examination that the deceased did not own
any agricultural land and that he was cultivating land on lease
basis and proceeded to determine the amount of compensation assuming
his income as Rs. 1500 per month. The Tribunal was also of the view
that two sons of the appellant, namely, Sulakhan Singh and Surjit
Singh cannot be treated as dependants of the deceased because their
age was 26 years and 23 years respectively. The Tribunal deducted
Rs. 500 towards personal expenses of the deceased and held that
dependency of the appellant and other family members would be Rs.
1000 per month. The Tribunal then applied the multiplier of 11 and
declared that the claimants are entitled to compensation of Rs.
1,32,000 with interest at the rate of 12% per annum from the date
of application.
The High Court relied upon the judgment of this Court in Sarla Verma v.
DTC, (2009) 6 SCC 121, applied the multiplier of 14 and held that
the claimants are entitled to total compensation of Rs. 1,77,500
with interest at the rate of 7% per annum on the enhanced amount
from the date of appeal till realization.
The courts below, in the present case, were totally oblivious of the
hard realities of life. It will be impossible from a person whose
monthly income is Rs. 1500 to spend 1/3 on himself 2/3rd
for the family consisting of five persons,. Ordinarily, such a
person would, at best, spend 1/10 of his income on himself or use
that amount as personal expenses and leave the rest for his family.
The Tribunal’s observation that the two sons of the appellant cannot
be treated as dependent on their father because they were not minor
is neither here not there. In the cross-examination of the appellant
wife of the deceased, o question was put to her about the source of
sustenance of her two sons. Therefore, there was no reason for the
Tribunal to assume that the sons who had become major cannot longer
be regarded dependent on the deceased.
In the result, the appeal is allowed, the impugned judgment as also the
award of the Tribunal are set aside and it is declared that the
claimants shall be entitled to compensation of Rs. 2, 94,840 [Rs.
1500+30% of Rs. 1500 = Rs. 1950 less 1/10th towards
personal expenses = Rs. 1755x12x14=Rs. 2,94,840]. The claimants
shall also be entitled to Rs. 5000 for transportation of the body,
Rs. 10,000 as funeral expenses and Rs. 10,000 in lieu of loss of
consortium. Thus, the total amount payable to the claimants will be
Rs. 3,19,840-Rs. 1,77,500) shall carry interest of 7% from the date
of application till realization. (Santosh Devi Vs. National
Insurance Co. Limited & Others; (2012) 6 SCC 421)
Ss. 166 and 168 – Compensation for
injuries sustained in motor accident – When offending vehicle being
operated on rout without route permit – Effect of
The case set-up in the claim petition
was that on 20th November, 2008 at about 11 a.m., a Truck bearing
Registration No. U.P.- 17C 5271 (hereinafter also referred to as
“the vehicle in question”) being driven by its driver rashly and
negligently, hit the motor-cycle of the claimant- respondent No. 1
near New Sabji Mandi on G.T. Road under the Police Station-Dadri,
Gautam Buddh Nagar, as a result of which, the claiment-respondent
No. 1 sustained serious injuries.
The respondent No. 2 was
the driver of the vehicle in question and the respondent No. 3 was
the owner of the vehicle in question. The appellant-insurance
company was the insurer of the vehicle in question.
Having considered the
material on record, the Tribunal recorded its findings on various
issues.
The Tribunal, inter
alia, held that the accident in question took place on account of
rash and negligent driving by the driver of the vehicle in question
(i.e., Truck) resulting in serious injuries to the
claimant-respondent No. 1.
The Tribunal further
held that there was no contributory negligence on the part of the
claimant-respondent No. 1.
The Tribunal further
held that the driver of the vehicle in question was having valid and
effective driving licence at the time of the accident.
The Tribunal further
held that the vehicle in question was insured with the
appellant-insurance company on the date and at the time of the
accident.
The Tribunal further
held that at the time of the accident, there was no Route Permit in
respect of the vehicle in question for plying on the road on which
the accident took place.
In view of
the above discussion, we are of the opinion that the Tribunal did
not commit any illegality in directing the appellant-insurance
company to make deposit of the amount of compensation, and recover
the same from the insured person, i.e., the owner of the vehicle in
question-respondent No. 3 herein.
After making deposit of
the amount awarded under the impugned award, it will be open to the
appellant-insurance company to initiate appropriate proceedings for
recovery of the amount from the owner of the aforesaid vehicle in
question (respondent No. 3 herein). (New India Assurance Co. Ltd.
vs. Ghulfam Saifi & others; 2012(4) AWC 3684)
S. 166 (1) (c) – Legal representative
– Married sister – Whether married sister of deceased is entitled to
any share in compensation along with her parents held, “No”
Admittedly both the parents, appellant No. 1 Amrit Bhanu Shali (Father)
and Appellant No. 2 Sarlaben (mother), have been held to be
dependants of deceased Ritesh Bhanu Shali and, therefore, the
Tribunal held that the appellant No. 1 and the appellant No. 2 have
the right to get the compensation. On the date of the accident the
appellant No. 3, Mamta, was not married but by the time the case was
heard by the Tribunal the appellant No. 3, Mamta, had already been
married. In these circumstances, she is not found to be dependent
upon the deceased. Thus, both the parents being dependants, that is,
father and the mother, the Tribunal rightly restricted the personal
and living expenses of the deceased to 50 per cent and contribution
to the family was required to be taken as 50 per cent as pert the
decision of this court in the case of Sarla Verma, 2009 ACJ 1298
(SC). (Amrit Bhanu Shali & others v. National Insurance Co. Ltd.
& others; 2012 ACJ 2002)
S. 166(1)(c) - Legal Representative –
Married daughter – Whether daughter who got married during pendency
of claim proceedings is entitled to share in compensation – Held
“Yes”
In the case of Manjuri Bera v. Oriental Insurance Co. Ltd., 2007 ACJ
1279 (SC), the Hon’ble Apex Court has clearly held that a married
daughter of the deceased would be entitled to maintain a claim
petition as she is a beneficiary of the estate. Moreover, even if
the claimants were not dependent on the deceased, being a legal
representative, she will be entitled to compensation. Bhawna Patel
being unmarried daughter at the time of the accident was naturally
dependent both financially and emotionally on her father. Merely
because she has been married during the pendency of the proceedings,
it would not disentitle her form compensation. (Sangeeta Parihar
v. Suraj Parihar & others; 2012 ACJ 1725)
S. 169 and 173 - UP Motor Vehicles
Rules (1998) R. 221 - Ex-parte order by tribunal - Setting aside of-
Rejection - Appeal will not be against order of rejection under O.
43 of CPC and appeal is also not maintainable under S. 173 of above
Act - Since it is interlocutory order and not award
Motor Vehicles Act, 1988 is a self contained Code in itself. Section 169
of the Act provides that the tribunal shall have all the powers of a
Civil Court for the purposes of taking evidence on oath, for
enforcing the attendance of witnesses, for compelling the discovery
and production of documents and material objects and for such other
purposes as may be prescribed. The other purposes which have been
prescribed are enumerated under Rule 221 of the U.P. Motor Vehicles
Rules, 1998. The said Rule provides for the applicability of the
provisions of Order XLIII CPC. Thus, though an application under
Order IX Rule 13 CPC for setting aside ex-parte award of the
tribunal is maintainable but as Order XLIII Rule 1 (d) is not
applicable, no appeal would lie against any order passed on such an
application. Section 173 of the Act provides for an appeal against
the award of the tribunal. The order rejecting or allowing an
application under Order IX Rule 13 CPC would only be an
interlocutory order and not an award. Therefore, it is not amenable
to appeal under Section 173 of the Act. (Shahazdey Khan vs. Union
of India; 2012 (5) ALJ 63)
S. 169 (1) – Claim Tribunal –
Procedure and powers – Consideration of
The practice of
summoning doctors even for merely marking the MLR reports must be
stopped. It must be remembered that the procedure under the Motor
Vehicles Act is summary in character and documents which are
maintained in the government hospitals in the regular course of
business require no more proof and a mere copy produced at the trial
shall be received as public documents satisfying the requirements
under section 76 of the Indian Evidence Act. The summoning of
the documents from lawful custody or copy of the document duly
authenticated by the seal of the hospital which has issued the MLR
must themselves be taken as sufficient proof for the same and the
procedures that go to prolong the proceedings or delay them must be
immediately curtailed by the Tribunals.
Even as regards the
examination of doctors, it should be confined only to securing
appropriate proof of disability and in special circumstances where
there is a prolonged treatment or a requirement for a continuous
treatment even beyond the period of trial, the attempt of the
Tribunal must be to elicit from the doctors the prognosis for cure
and the likely expenses that may have to be incurred in future. With
a view to devise a procedure adopted in the manner of assigning
dates for doctors and the need to save time for professionals like
doctors, they must stay confined to what are most essential features
to assist the court to understand the nature of injuries and assess
disability, if any, to the claimant. They shall not be merely called
to the courts for exhibiting some documents like MLR, period of
treatment, etc. A hospital document produced by a party which is
duly authenticated must be taken as sufficient proof of the
documents themselves and the requirement to produce the doctor for
mere production of hospital documents must be immediately given up.
Some directions as
regards the procedure become necessary only because it is a
recurrent theme in our Tribunals that they reject the medical bills
or keep out of reckoning the hospital records only because either
the chemist is not examined or the doctor is not before the court to
speak about the hospital records. The presence of doctors or the
chemists must be confined only to extraordinary situations where the
documents themselves are seriously in doubt. (Parsanni
v. Sube Singh and another; 2012 ACJ 1847)
S. 173 (1) – Appeal – Dismissal in
default whether appeal of claimant for enhancement of compensation
should be dismissed in default for wait of representation Held,
“No”, it may be disposal of a merit
In this case court observed that there is no representation for the
appellant when the matter is called. The case is of the year 1991
and I do not think it is possible to adjourn the case to await the
presence of the counsel or dismiss it for default and I proceed to
dispose of the case on merits. (Sarwan Singh v. Palwinder Singh &
others; 2012 ACJ 1823)
S. 173 (1) – C.P.C., O. 41, R. 33 –
Appeal for just compensation – Law postulates determination of just
compensation
This court in the case of Kunibala Sahoo v. Jagmohan Majhi, 2011 (1) ILR
115 (Orissa), held as follows:
“Section 168 of the Motor Vehicles
Act deals with award of Claims Tribunal. The said section empowers
the Claims Tribunal to determine the amount of
compensation which
appears to it to be just. Therefore, the Tribunal is duty-bound to
determine the just compensation under section 168 of the Motor
Vehicles Act in the given circumstances in a particular case.
There is no restriction that the compensation could be awarded only
up to the amount claimed by the claimants. This being the intention
of the legislature, the determination of just compensation as
required under section 168 of the Motor Vehicles Act is
nothing to do with the amount of compensation claimed by the
claimants. Amount of just compensation determinable under section
168 of the Motor Vehicles Act may be less or more than the
amount of compensation claimed by the claimant depending upon the
facts and circumstances of a particular case. In the case of
Nagappa v. Gurudayal Singh, 2003 ACJ 12 (SC), the Supreme
Court held that under the provisions of Motor Vehicles Act,
1988, there is no restriction that compensation could be awarded
only up to the amount claimed by the claimants. In an appropriate
case where from the evidence brought on record if the Tribunal/court
considers that the claimant is entitled to get more compensation
than the amount claimed, the Tribunal may pass such award. Only
embargo is-it should be 'just' compensation, that is to say, it
should be neither arbitrary, fanciful nor unjustifiable from the
evidence. This would be clear by reference to the relevant
provisions of the Motor Vehicles Act. This court in Mulla
Md. Abdul Wahid v. Abdul Rahim, 1994 ACJ 348 (Orissa),
held that the Tribunal has the duty to determine the amount of
compensation which appears to it to be just. The expression 'just
compensation' would obviously mean what is reasonable, moderate and
fair and awardable in the proved circumstances of a particular case
and the Tribunal has the power to award compensation more than the
amount claimed by the claimants."
Law postulates
determination of just compensation. Therefore, even in absence of an
appeal by the claimant in an appropriate case this court can enhance
the quantum of compensation payable. (Divisional Manager, New India Assurance Co. Ltd. V. Manjulata Jena &
others; 2012 ACJ 1993)
BACK TO INDEX
National
Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental
Retardation and Multiple Disabilities Act
S. 2(g) – Mental Health Act, Ss. 52,53, 98 - Lunacy Act, S. 3
–Appointment as guardian of mentally retarded person – Though person
with mental disorder was covered within definition of ‘mentally ill
person’ in Act on 1987, but person with mental retardation had been
specifically excluded from said definition - Therefore, in case of
person with mental retardation, provisions of Act of 1999 would
govern - Therefore, applicant could not have approached under Health
Act, 1987 or Guardians and Wards Act, 1987 being appointed as
guardian of mentally retarded person
With reference to the rival legal
contentious urged on behalf of the parties, we have carefully
considered the same with a view to find out as to whether the
petitioners are entitled for the reliefs sought for in the writ
petitions? What order?
Our answer to the aforesaid point is
in favour of the borrower and guarantor for the following reasons.
It is an undisputed fact that OJC
No. 4037 of 2002 was filed before this Court seeking for issuance of
a mandamus for replacement of the installments to clear the
outstanding loan amount borrowed by the borrower. When the matter is
pending before this Court after issuing notice in these writ
petitions, the vehicle was seized on 26-5-2006 and the same was sold
on 12-1-2007 at Rs. 1,51,0001- which is lower than the off-set price
of Rs. 2,50,0001- and also much lower than the insured value valued
at Rs. 3,25,0001- covering the period from 3-9-2005 to 2-9-2006
including the date of seizure. Therefore, the sale of the seized
vehicle from the possession of the principal borrower is not for a
valid consideration. Since, the State Financial Corporation is the
Trustee of the property and sold the same in public auction in
voting Section 29 of the SFC Act sale is bad It in law accordingly
we have to set aside the same. Since the vehicle has already been
sold in public auction five years back, it would not be appropriate
to direct the State Financial Corporation to re-sell the same.
Having regard to the undisputed fact of sale of the vehicle for
lesser value, we have to accept the sale value of the vehicle at Rs.
3, 25, 0001- as the vehicle has been insured with the New India
Insurance Company, which is a Government owned company. Therefore,
the said amount is taken as the amount received by the State
Financial Corporation on 12-1- 2007 and the same should be taken as
the amount which is realized towards the loan amount and for the
remaining amount the principal borrower shall be allowed to have the
One Time Settlement Scheme as the same was in force on the date of
filing of the writ petition being OJC No. 4037 of 2002 and extend
the benefit to him by adjusting the requisite amount received out of
the sale consideration amount. The same shall be considered and
disposed of within a period of four weeks from the date of receipt
of certified copy of this order. Since we have answered that the
sale of bus is bad in law for the reasons recorded above, during
pendency of the writ petition prayers sought for in the writ
petition No. 4046 of 2009 is required to be allowed as the principal
borrower has rightly challenged the same. The sale of the co-lateral
security property has been questioned in W. P. (C) No. 4046 of 2009
by the guarantor, since she is entitled to challenge the same as she
is an aggrieved party for sale of the vehicle which is hypothecated
in favour of the State Financial Corporation in realization of the
valid consideration. Certainly gross illegality has been done by
OSFC and its officers upon the guarantor and she will lose her
immovable property which has been mortgaged with the OSFC as
co-lateral security towards the loan borrowed by the borrower.
Therefore, the relief sought for in W. P. (C) No. 4046 of 2009 is
required to be allowed. Accordingly, we allow the said writ
petition. The reliefs sought for in OJC No. 4037 of 2002 is
subsequent to the event that had taken place during the pendency of
the writ petition proceedings, the reliefs sought for in the
aforesaid writ petition need not be granted. Therefore, the writ
petition bearing OJC No. 4037 of 2002 is dismissed having become
infructuous. The reliefs sought for in W. P. (C) No. 4046 of 2009
has to be granted giving direction to the principal borrower to file
application seeking for One Time Settlement under the OTS Scheme,
2002 as he was before this Court seeking for re-placement of the
loan amount and at that point of time OTS Scheme was invoked. The
said benefit should be extended to the principal borrower. Further
the petitioner in W. P. (C) No. 3001 of 2009 is entitled to get the
relief. We make it very clear that if the principal borrower
approaches the State Financial Corporation including a petition for
relief under the One Time Settlement Scheme, 2002, for the balance
loan amount to be re- covered from him as well as from the
guarantor, the same shall be considered on its own merit and
disposed of within a period of four weeks from today. All the
calculation with regard to the loan amount shall be made after
accepting the value of the bus of the borrower at Rs. 3, 25,000/-
which was sold on 12-1-2007. From that date, the earlier period and
subsequent period, the rate of interest that will be accrued at 6%
yearly to be calculated in view of the Constitution Bench decision
of the Supreme Court in the case of Central Bank of India v.
Ravindra, reported in (2002) 1 SCC 367: (AIR 2001 SC 3095) Section
34 of the CPC may be applied to the case. It is not quarterly
pendente lite interest, yearly simple interest must be calculated on
the principal amount and the same must be calculated towards loan
amount and strictly enforced as per the guidelines laid down in the
aforesaid case. If after examination, the petitioner is entitled for
one time settlement, the same shall be extended to the principal
borrower.
With the aforesaid observation and direction to the Orissa State
Financial Corporation, W. P. (C) No. 4046 of 2009 is allowed. O. J.
C.No. 4037 of 2002 is dismissed as infructuous. W. P. (C) No. 3001
of 2009 is also allowed as per the direction given in W. P. (C) No.
4046 of 2009. Learned counsel for the petitioner in W. P. (C) No.
4046 of 2009 is directed to file application under OTS Scheme, 2002
within a period of two weeks and within four weeks thereafter the
Orissa State Financial Corporation shall dispose of the same keeping
in view the directions given to it and observations made. (Amit
Toppo v. None; AIR 2012 Ori. 123)
BACK TO INDEX
Persons
with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act
S. 47(2) – No promotion should be denied to a person merely on the
ground of his disability - It would mean that where a person
otherwise found eligible and suitable for promotion, the State
should not deny him promotion on the ground of his disability -
Hence, in view of protection given in Section 47(2), could not be
claimed as matter of right for reservation for persons suffering
with disabilities for promotion
Sub-section (2) of Section 47 of the
Act No. 1 of 1996 is couched in negative terms, namely, that no
promotion shall be denied to a person merely on the ground of his
disability. This would mean that where a person is otherwise found
eligible and suitable for promotion, the State shall not deny him
promotion on the ground of his disability. In our view the
protection given in sub-section (2) of Section 47, cannot be claimed
as a right in a positive manner, for reservation for persons
suffering with disabilities for promotion.
We further find that the
consideration for affirmative action, providing reservation for
physically handicapped persons under U.P. Act No. 1 of 1996 in
direct recruitment cannot be extended, interpreting these Acts, to
claim a right for reservation, in promotions.
The provisions for reservation in
promotions, may be provided by the State as a matter of policy. The
Courts do not either make policy, or ordinarily interfere with the
policy decisions of the State. The Courts would not by interpreting
the provisions providing for reservations, provide or cull out a
policy favouring reservation for physically handicapped persons for
promotion in public services.
(Bhanu
Pratap Singh v. State of U.P.; 2012 (2) ESC 1103 (All) (DB)
BACK TO INDEX
Practice and Procedure
Practice and Procedure – If statute
provides to do a thing in particular manner – Then that thing has to
be done in that very manner
It is settled law that if
a Statute provides to do a thing in a
particular manner then that thing has to be done In that very
manner, In case the petitioner was not having requisite
qualification as provided under the Statute or In the advertisement,
certainly it would have been a case where the petitioner could be
held ineligible for appointment. But here the case is different, the
petitioner possess essential qualification as provided under the
relevant Statute of the University and the advertisement inviting
the application for the appointment on the aforesaid post of
Assistant Professor. The qualification prescribed by I.C.A.R. may be
there but unless it is inserted in the Statute of the University.
that can have no binding force, In the event of non-insertion of the
said qualification in the statute, the I.C.A.R. may take action
against the University (if it is so permissible) but unless the
alleged instruction of I.C.A.R. of the year 2003 (which has not even
been brought on record), is inserted in the Statute, that will not
vitiate the selection in question and the petitioner's right to
continue on the post would be unaffected, as his selection was made
as per prescribed qualification given in the Statute. (Dr. Shiv
Kumar Singh vs. State of U.P. and others; 2012(4) AWC 3721)
Title of plaintiff/respondent – When
can be challenged – Consideration of
The law is settled by the
Court in D. Satyanarayana v. P. Jagdish; 1987 (4) SCC 424 that the
tenant who has been let into possession by the landlord cannot deny
the landlord’s title however defective it may be, so long as he has
not openly surrendered possession by surrender to his landlord.
Although, there are some exceptions to this general rule, none of
the exceptions have been established by the appellants in this case.
Hence, the appellants who were the tenants of the respondents will
have to surrender possession to the respondents before they can
challenge the title of the respondents. (State of A.P. & others
v. D. Raghukul Parshad (D) by LRs; 2012(3) ARC 185 (SC)
BACK TO INDEX
Prevention of Corruption Act
S.7—Bribery—Recovery of tainted money
from accused—Not by itself sufficient to record conviction, demand
of money by accused to be proved
It is settled principle
of law that mere recovery of the tainted money is not sufficient to
record a conviction unless there is evidence that bribe had been
demanded or money was paid voluntarily as a bribe. Thus, the only
issue that remains to be addressed is whether there was demand of
bribe and acceptance of the same. Be it noted, in the absence of any
evidence of demand and acceptance of the amount as illegal
gratification, recovery would not alone be a ground to convict the
accused. This has been so stated in T. Subramanian vs. The State of
Tamil Nadu. (Narendra Champaklal Trivedi vs. State of Gujarat;
2012 Cr.L.J. 3025 (SC)
S.7—Bribery case—Reduction of
sentence below minimum prescribed cannot be done in exercise of
power U/A 142
Where minimum sentence is
provided, it would not be at all appropriate for Supreme Court to
exercise jurisdiction under Article 142 of Constitution of India to
reduce the sentence on the ground of mitigating factors as that
would tantamount to supplanting statutory mandate and further it
would amount to ignoring the substantive statutory provision that
prescribed minimum sentence for criminal act relating to demand and
acceptance of bribe. The bribe amount may be small but to curb and
repress this kind of proclivity the legislature has prescribed the
minimum sentence. It should be paramountly borne in mind that
corruption at any level does not deserve either sympathy or
leniency. In fact, reduction of the sentence would be adding a
premium. (Narendra Champaklal Trivedi vs. State of Gujarat; 2012
Cr.L.J. 3025 (SC)
Ss.7, 13—Trap case—Presence of shadow
witness in trap party—Desirable but not must, mere absence of such
witness would not vitiate whole trap proceeding
So far as the infant case is concerned, the appellants had been working
under the health department of the State of Rajasthan. No provision
analogous to the paragraphs contained in Railway Vigilance Manual,
applicable in the health department of the State of Rajasthan at the
relevant time had been brought to the notice of the courts below,
nor had been produced before us.
Therefore, it can be held that it is always desirable to have a shadow
witness in the trap party but mere absence of such a witness would
not vitiate the whole trap proceedings. (Mukut Bihari vs. State
of Rajasthan; 2012 Cr.L.J. 3370 (SC)
S.7—Investigation—Competent
Authority—Effect of
Investigation of offence under S. 3(1)(x) was carried out by
Sub-Inspector. Sub—Inspector was not competent authority under S. 7
to carry out investigation. Conviction of accused liable to be set
aside. (Sunder Lal vs. State of M.P.; 2012 Cr.L.J. (NOC) 391 (MP)
BACK TO INDEX
Provincial Small Causes Court Act
S. 25 – Provisions under –
Revisional Court had no jurisdiction to reassess or re-appreciate
evidence and to reverse finding of trial court on questions of fact
– Explained
In the case of Smt. Prem
Kumari Mehrotra v. XIIIth Addl. District Judge and another; 2004(2)
ARC 88 in para 5 had held as under:
“5. In my opinion even if the
findings recorded by the trial court are erroneous in law the
Revisional Court has no jurisdiction to allow the revision out
rightly after reassessment of the evidence. The only option left for
the Revisional Court in exercise of power under Section 25 of PSCC
Act was to remand the matter to the trial court as held in 1979 AWC
746”
Thus, from perusal of the
aforementioned decisions, it is explicit that under section 25 of
Provincial Small Causes Courts Act, the revisional court has no
jurisdiction to reassess and reappraise the evidence and to reverse
the findings of trial court on the questions of fact. (Ram Shabd
Singh v. Additional District Judge, Kanpur Nagar and Another; 2012
(2) ARC 795 (All HC)
S. 25 Revision - Raising of Pleas of
subletting for first time at revisional state would not be proper
Two ingredients are required to be pleaded to establish subletting
namely (1) parting of exclusive possession by the tenant to the
alleged sub tenant and (2) receiving of rent from the alleged sub
tenant by the tenant. None of the aforesaid ingredients find place
in the aforesaid paragraph. In a hotel, letting of dormitory to
customers is its very nature. There is no pleading of parting
exclusive possession by the tenant. The subletting is a mixed
question of fact and law. In absence of proper pleadings and
evidence, it will not be proper to permit a person to raise a new
issue beyond the scope of pleadings at the revisional stage
specially. Suffice it to say that this Court is not inclined to
investigate and record any finding on the question of subletting at
this stage of proceeding and it shall be open to the landlords to
raise it, if so advised, in a proper proceeding before a forum of
competent jurisdiction. (Ashwani Kumar Kohli vs. Rajesh Prasad
Agarwal; 2012 (5) ALJ 146)
BACK TO INDEX
Railway Accident & Untoward Incidents (Compensation) Rules, 1990
Rules 3 and 4 r/w schedule – law
reform – Award of compensation –Tribunal can award Rs. 400000 for
the death of a passenger in untoward incident under rule and it
should be enhanced upto Rs. 10000 Statutory amendment recommended
The deceased Yogendra Kumar Sharma, while travelling by train in 8LKM
passenger from Fatehgarh to Lucknow, with second class ticket dated
19.4.2002, issued by the Military Hospital, Fatehgarh, accidentally
fell down from the train, due to sudden push by rush of passengers
at Harauni Railway Station, Lucknow and in consequence thereof,
sustained serious injuries which resulted into his death on the
spot. Inquest report was prepared and post-mortem of dead body was
done at Medical College, Lucknow. After his death, the parent of the
deceased approached the Tribunal for payment of compensation.
Parties have led their evidence before the Tribunal for payment of
compensation. Parties have led their evidence before the Tribunal
and after framing of the issues with regard to accidental death and
considering the evidence led by the parties, the Tribunal awarded
compensation of Rs. 400000. The Tribunal arrived at the conclusion
that the accident in question is an untoward incident and claimants
are entitled for payment of compensation.
While assailing the impugned award, submission of appellants’ counsel is
that the deceased was not a bona fide passenger and injuries caused
were self-inflicted injuries.
On the other hand, learned counsel for the respondents pointed out that
the finding recorded by the Tribunal reveals that it was untoward
incident and presumption under Section 114 of the Evidence Act is
available to the claimants that deceased was a bona fide passenger,
since he was possessing a ticket. It appears that no evidence was
led by respondents to establish the exception provided under Section
124-A of the Railways Act. Burden was on the appellant-respondent to
establish that the case in hand is covered by exception provided
under the Act. Appellant has failed to discharge the obligation
under the Act. Hence the evidence led by the claimant respondent
seems to make out a case of bona fide passenger and so far as the
self inflicted injuries are concerned, it appears that no evidence
was produced, which may reveal that the deceased has suffered
self-inflicted injuries.
Repeatedly, we are recommending Railways to provide an automatic
mechanised door closer in the compartment to check such incident but
it appears that no decision has yet been taken. In case manual or
mechanised provision had been made to close the door, such incident
would not have occurred. It is statutory as well as have
constitutional obligation of Railways to ensure that the door of the
moving train is open whenever it reached the platform and at the
time of leaving it is closed automatically, so that safety and
security or passengers are secured.
In the present case, the deceased had accidentally fallen down from the
train in question due to sudden push by rush of the passengers. On
one hand Railways seems to be careless in discharge of its duty to
provide safety and security to passengers travelling in train by
providing mechanised or manual door closer or by regulating entry of
the passengers in the compartment of the train and on the other
hand, appeals are filed in a routine manner against the compensation
awarded by the Tribunal.
The maximum amount of Rs. 4,00,000 provided under the statute is too
meagre, when the price index is very high and life has become
costly, though the compensation awarded by the Tribunal is not final
and the claimants may approach the other forum for payment of more
compensation but the things, as they stand, reveal that the members
of deceased’s family are indulged in litigation for years to get the
meagre amount of Rs. 4,00,000, leaving no room to knock the other
door for higher compensation. In such a situation, it is appropriate
for the Union of India to amend the statutory provision and make a
provision that the compensation provided in the Schedule of Rs.
4,00,000 should be enhanced. (Union of India v. Ram Swaroop
Sharma and others, 2012; ACJ 1876)
BACK TO INDEX
Right
of Children to Free and Compulsory Education Act
Section 23(1) - After enforcement of
Act, 2009, no appointment can be made on post of Assistant Teacher
in a Primary institution if person does not possess qualification
prescribed by NCTE in Regulations notified under Section 23 of Act,
2009
Since the provision does not contemplate appointment of a Teacher who is
not qualified as per Regulations of N.C.T.C., any provisions made
earlier even if permit unqualified persons to be appointed in
certain cases, cannot be followed after framing of Regulations by
Authorised Authority. In absence of a statutory provision prior to
Act, 2009, the provisions permitting appointment of untrained
persons could have been complied with since the same had no occasion
to infringe any other statute having overriding effect but after
Act, 2009 and Regulations framed thereunder, the situation has
undergone a wide change. It is not disputed that National Council of
Teachers Education has been notified as Authorised Academic
Authority under Section 23(1) and the said body has framed
Regulations laying down minimum qualification and eligibility
conditions for appointment of Teachers in Primary Schools. In the
light of said provisions, which have been made under Act, 2009; the
same have overriding effect and, therefore, the otherwise provisions
under provincial legislation would sub-serve. (Committee of
Management, Mahavir Singh Solanki Memorial Krishi Junior High
School, Aliganj, District Budaun v. State of U.P.; 2012 (2) ESC 1082
(All)
BACK TO INDEX
Right
to Information Act
Central or State
information commission has no jurisdiction to pass an order
providing for access to the information, can only pass an order of
penalty
It has been contended before us by the respondent that under section
18 of the Act the Central Information Commission or the State
Information Commission has no power to provide access to the
information which has been requested for by any person but which has
been denied to him. The only order which can be passed by the
Central Information Commission or the State Information Commission
as the case may be, under section 18 is an order of penalty provided
under section 20. However, before such order is passed the
Commissioner must be satisfied that the conduct of the Information
Officer was not bona fide. (Chief Information Commissioner v.
State of Manipur; 2012 (116) RD 505 (SC).
BACK TO INDEX
Service Laws
Constitution of India – Articles 235
and 227 – Judiciary - Proper recording confidential report –
Necessity of recording ACR carefully with due diligence and caution
– Emphasized
The present system of
recording the ACRs leaves much to be desired and needs to be
revamped. Experience has shown that it is deficient in several ways,
being not comprehensive enough to truly reflect the level of work,
conduct and performance of each individual on the one hand and
unable to check subjectivity on the other. This undoubtedly breeds
discontent in a section of the judicial service besides eroding
proper and effective superintendence and control of the High Court
over subordinate judiciary. The process of evaluation of a judicial
officer is intended to contain a balanced information about his
performance during the entire evaluation period, but it has been
noticed that many a times, the ACRs are recorded casually in hurry
after a long lapse of time (in some cases even after the expiry of
one year from the period to which it relates), indicating only the
grading in the final column. It needs no elaboration that such
hurried assessment cannot but, be either on the basis of the
assessment/grading of the preceding year(s) or on personal
subjective views of the Inspecting Judges(s), which is unfair to the
judicial officer. Undoubtedly, ACRs play a vital and significant
role in the assessment, evaluation and formulation of opinion on the
profile of a judicial officer, particularly, in matters relating to
disciplinary action against a judicial officer. The ACRs of such
officer hold supreme importance in ascertaining his conduct, and
therefore, the same have to be reported carefully with due diligence
and caution. Hence, there is an urgent need for reforms on this
subject, not only to bring about uniformity but also to infuse
objectivity and standardization. (Registrar General, High Court
of Patna Vs. Pandey Gajendra Prasad and Others; (2012) 6 SCC
357)
Constitution of India, Article 235 –
Compulsory retirement - Nature of – Not a form of punishment
involving penal consequences and differs from dismissal and removal
from service
Compulsory retirement
from service is neither dismissal nor removal, it differs from both
of them, in that it is not a form of punishment prescribed by the
rules and involves no penal consequences inasmuch as the person
retired is entitled to pension and other retiral benefits
proportionate to the period of service standing to his credit. An
order of compulsory retirement being not an order of adverse
consequence, principles of natural justice have no application. (R.C.
Chandel Vs. High Court of Madhya Pradesh and another; (2012) 8 SCC
58)
Art. 235 – Control of High Court over subordinate court – Whether
Full Court recommendation regarding compulsory retirement of officer
of Subordinate Judiciary could be given priority over view taken by
Administrative Committee – Held “yes” since administrative
committee’s view is not final but it is recommendatory in nature.
It was argued by the
learned Senior Counsel for the appellant that Administrative
Committee I had recommended the appellant’s continuation in service
and there was no justification for the Full Court to take a contrary
view. The view of the Administrative Committee is not final. It is
recommendatory in nature. It is open to the “Full Court to accept
the Committee’s report or take a different view. In the present
case, the Full Court on the basis of the entire service record of
the appellant formed a unanimous opinion that the appellant must be
compulsorily retired and recommended to the Government, accordingly.
On the basis of the material which existed and which we have
referred to above, it can hardly be said that the recommendation by
the Full Court to the Government for compulsory retirement of the
appellant was arbitrary or based on material not germane for such
recommendation.
Judicial independence
and courage – Credibility of judicial system dependent upon Judges
who made it
Judicial service is not
an ordinary government service and the Judges are not employees as
such. Judges hold the public office; their function is one of the
essential functions of the State. In discharge of their functions
and duties, the Judges represent the State. The office that a Judge
holds is an office of public trust. A Judge must be a person of
impeccable integrity and unimpeachable independence. He must be
honest to the core with high moral values. When a litigant enters
the courtroom, he must feel secured that the Judge, before whom his
matter has come, would deliver justice impartially and uninfluenced
by any consideration. The standard of conduct expected of a Judge is
much higher than an ordinary man. This is no excuse that since the
standards in the society have fallen, the Judges who are drawn from
the society cannot be expected to have high standards and ethical
firmness required of a Judge. A Judge, like Caesar’s wife, must be
above suspicion. The credibility of the judicial system is dependent
upon the Judges who man it. For a democracy to thrive and the rule
of law to survive, justice system and the judicial process have to
be strong and every Judge must discharge his judicial functions with
integrity, impartiality and intellectual honesty. (R.C. Chandel
Vs. High Court of Madhya Pradesh and another; (2012) 8 SCC 58)
Departmental enquiry –
Acquittal in criminal proceedings not on merit but on insufficiency of
evidence – Department proceeding would be continue against person
who suspected of rape even though he acquitted due to insufficiency
of evidence.
In R.P. Kapur V. Union of
India, AIR 1964 SC 787, the Constitution Bench of this Court has
held that if the trial of a criminal charge results in conviction,
disciplinary proceedings are bound to follow against the public
servant so convicted, but even in case of acquittal departmental
proceedings may follow, when the acquittal is other than honourable.
We are not aware whether any disciplinary proceedings are pending
against the appellant. But, if they are, the authority concerned
shall proceed with them independently, uninfluenced by the judgment
and in accordance with law. (K. Venkateshwarlu Vs. State of
Andhra Pradesh; (2012) 8 SCC 73)
Employment – Recovery – Benefit
already accrued under relevant G.O. cannot be recovered from them
under group of adjusting same
The petitioners were
granted the benefits in terms of G.O. dated 2.12.2000, as explained
by the G.O. dated 10.4.2001 and 3.9.2001. It is not the case of the
respondents in their counter-affidavit that these G.Os. were not
applicable to the petitioner or that the benefits granted to the
petitioners were not covered by and contrary to the provisions of
the above G.Os. The G.O. dated 15.2.2000 relied on by the
respondents only relates to the period of wages received from
1.1.1996 to 31.3.1996 but does not in any manner fetter the rights
and benefits already accrued to the petitioners nor does it even
refer to the G.Os. dated 2.12.2000 or 10.4.2001 or 3.9.2001 and
therefore, the G.O. dated 15.2.2000 has no application in the case
of the petitioners.
In view of the above
position and the law laid down by the Supreme Court, in the court’s
opinion the benefits already accrued and actually received by the
petitioners cannot be recovered from them under the garb of
adjusting the same. (Rai Ravindra Kishore Srivastava and others
vs. State of U.P. and others; 2012(4) AWC 3932)
Regulations –
Regulation 351A - Employment – Retirement – Punishment – If in
disciplinary proceedings, no oral enquiry held, principles of
natural Justice are violated
It is fairly
well settled, that the pension- is neither a bounty nor reward. It
is earned by a Government servant under the statutory rules after
rendering satisfactory services. The pension or part thereof can be
withdrawn under Article 351A, whether permanently or for specified
period, where a pensioner under any departmental or judicial
proceedings is found to be guilty of grave misconduct or to have
caused pecuniary loss to Government by misconduct or negligence
during his services rendered on re-employment. The proceedings of
departmental enquiry have to be held in accordance with law serving
principle of natural justice, The orders passed by withdrawing or
reducing the pension have permanent effect, and thus such
proceedings are of the nature of awarding major penalty in which the
rules of enquiry must be strictly followed. When the State
Government has framed rule under the proviso to Article 309 for
imposing penalty including major penalty, namely the U. P.
Government Servant (Discipline and Appeal) Rule. 1999 the rules must
be strictly followed. Article 351A authorizes the punishment to be
given even after retirement. It does not in any way curtail or take
away the right of the pensioner, which is otherwise given to a
serving Government servant, to defend himself in the enquiry. The
punishment under Article 351A of withdrawing or reducing the pension
can be given only if the pensioner, while she was serving as
Government servant is found to have committed gross misconduct or to
have cause pecuniary loss to the Government by misconduct or
negligence during the services.
The Court
found further find that the departmental enquiry did not comply with
the principles of natural justice inasmuch as no oral enquiry was
held nor any witnesses were led or opportunity was given to the
petitioner to lead oral evidence. There was no finding recorded by
the enquiry officer or by the disciplinary authority that the
petitioner has committed acts of gross misconduct or have caused any
loss to the State Government to exercise powers under Article 351A
of the Civil Services Regulation for making deductions for her
pension. (Smt. Ahmadi Usman Retd. Asstt. Director (Basic) vs.
State of U.P. & others; 2012(5) AWC 4410)
Regularisation –
Grounds of
As no
appointment letter having been issued by respondent No. 3 for
appointing the petitioner on the post of Lecturer at any point of
time is appended along with writ petition. The certificates dated
27.3.1992 and 16.3.2001, which have been issued by the Principal of
the Degree College having been brought on record, show that the
petitioner was teaching in B. Com. Classes on period wise contract
basis @ Rs.25 per lecture since December, 1991 and that certificate
dated 16.3.2001, which is alleged to have been issued by the said
Degree College in which the petitioner is said to have been working
for certain sessions, it appears that it does not bear either the
seal or the signature of the issuing authority. In our view, a
certificate showing period of contractual work, alleged to have been
issued on behalf of the degree college, cannot take place of
appointment letter issued by the college appointing the petitioner
as Lecturer neither on a substantive post nor vests him with any
legal right for regularisation. The claim of the petitioner for
regularising his services as Lecturer in the said Degree College is
not maintainable as the petitioner's appointment was only as
part-time Lecturer on contractual basis. His engagement was neither
on any substantive post nor through any selection process under any
statutory rules or laws. The petitioner is also not working in the
said Degree College after the year 2002 when he filed the present
writ petition claiming his regularization.
It is well-settled law as
has been laid down by the Supreme Court that regular pay scale
connote appointment on a substantive post and is permanent in
nature. It follows that the law has undergone a sea of change and
ad-hoc or temporary or part-time employee cannot be directed to be
placed in the minimum of pay scale of regular employee. Therefore,
the cases cited by the petitioner has been diluted by the Supreme
Court and direction for placing the petitioner in the minimum of pay
scale cannot be given as it has also not even pleaded by the
petitioner. The petitioner has only prayed for regularisation in
service which would mean that if he is appointed in accordance with
law, he would be placed in the regular pay scale of the post.
However, we find, that the petitioner has claimed that his services
have been orally terminate, and as such, he cannot be regularised on
service for this reason also. Eve) otherwise, the principle of law
is settled by the Supreme Court that the High Court should not
normally direct regularization of a person in service as it has to
be factually determined whether there are any post vacant and that
person is qualified. (Dr. Dinesh Rai vs. State of U.P. and
others; 2012(5) AWC 4512)
BACK TO INDEX
Specific Relief Act
S. 14(1)
& 20
Held that
acceptance of refund of earnest money paid by Appellant to
Respondents was not considered by Trial Court as also High Court in
its proper perspective as said amount was received under protest had
not been considered either by Trial Court or by High Court.
Appellant had
actively involved himself in the matter of obtaining the sale
permission as well as Income Tax Clearance Certificate. The fact
that the Appellant had made several requests to the Respondents to
file a proper affidavit, as requested by the DDA, is another
indication that the Appellant was ready and willing to complete the
sale transaction.
Appellant
compensated for the time spent by him in pursuing his remedy in
respect of the Agreement to Sell. Accordingly, the suit is decreed,
but instead of decreeing the suit for specific performance of the
Agreement, Respondents shall pay the Appellant costs for the
litigation right throughout, assessed at Rs. 25,00,000/-, to be paid
by the Respondents to the Appellant within one month from date. (Rattan
Lal (D) through LRs Vs. S.N.
Bhalla & ors.; 2012 (5) AWC 5197 (SC)
Ss. 17 and 58 – Admission –
Evidentiary value – Admission is substantive evidence and not
conclusive can be decisive
Admission is the best piece of substantive evidence that an opposite
party can rely upon, though not conclusive, is decisive of the
matter, unless successfully withdrawn or proved erroneous Admission
may in certain circumstances, operate as an estoppel. The question
which is needed to be considered is what weight is to be attached to
an admission and for that purpose it is necessary to find out as to
whether it is clear, unambiguous and a relevant piece of evidence,
and further it is proved in accordance with the provisions of the
Evidence Act. It would be appropriate that an opportunity is given
to the person under cross-examination to tender his explanation and
clear the point on the question of admission. (Union of India Vs.
Ibrahim Uddin and another; (2012) 8 SCC 148)
Ss. 34 and 5 – Discretion of court
regarding declaration of relief
Declaration of relief is always discretionary. If the discretion is not
exercised by the lower court “in the spirit of the statute or fairly
or honestly or according to the rules of reasons and justice”, the
order passed by the lower court can be reversed by the superior
court. (Union of India Vs. Ibrahim Uddin and another; (2012) 8
SCC 148)
BACK TO INDEX
Stamp Act
S. 47A(3) and 56 (1A) - U.P. Stamp
(Valuation of property) Rules, 1997 - Rule 9(d) – Stamp duty –
Deficient – Imposition of penalty without following provision under
rule 9(d) – Effect of
The provisions of Rule 9 of the U.P. Stamp (Valuation of Property)
Rules, 1997, whereby mode of service of notice is provided. Rule 9
(d) is quoted hereunder:
“9. Service of
notices, etc.-All notices, orders and other documents required to be
served upon any person shall be deemed to be duly served:
(d) In any other
case, if it is addressed to the person. to be served, and
(i) is given or
tendered to him or his authorised agent, or
(ii) is sent by
registered post to that person, or
(iii) if such person
cannot be found and notice or order or the document sent to him
through registered post is received back undelivered, is affixed on
some conspicuous part of his last known place of residence or
business, or is given or tendered to some adult member of his
family.”
From the aforesaid rule
it is clear that affixation is permissible only when the notice
could not be served through registered post. That exercise having
not been undertaken by the authority concerned, the petitioner is
justified in claiming that no notice has been served upon him and
the appellate authority in not considering this aspect of the matter
regarding proper service of notice to the petitioner has erred in
law.
Under the circumstances,
in absence f notice to the petitioner, the proceedings initiated
under Section 47A (3) cannot be said to be justified and
consequentially, the appellate order cannot also be sustained.
Accordingly, the order passed und Section 56 (l-A) of the Indian
Stamp Act is set aside as well as the order passed under Section 47A
(3) dated 27.5.2009 is quashed and the matter is remanded back to
the Collector before whom the petitioner will furnish his objection
within one month from the date of the certified copy of this order.
(Aruba Khan vs. Chief Controlling Revenue Authority/
Commissioner, Moradabad and others; 2012(4) AWC 3746)
Provisions of stamp Act will prevail
over Administrative order
The provisions of the Stamps Act will prevail over the
administrative order passed by the Special Secretary and it is
evident that both the Courts below have exceeded the jurisdiction
vested in them by imposing deficient stamp duty on the basis of
circle rate along with penalty as well as on the amount of loan and
interest thereon. It view of the provisions of Article 18(c)
aforesaid, the stamp duty has to be paid as conveyance. (M/s.
Steel Engineers v. State of Uttarakhand; 2012 (116) RD 239)
BACK TO INDEX
Transfer of Property
Act
S. 105 – Easement Act, S. 52 –
Words “lease” & “license” – Meaning of
In the case of Qudrat Ullah v.
Municipal Board, Bareilly; (1974) 1 SCC 202: AIR 1974 SC 396, it was
observed thus:
“........If an interest in immovable
property, entitling the transferors to enjoyment is created, it is a
lease; if permission to use land without right to exclusive
possession is alone granted, a license is the legal result.”
(Rakesh Gupta v. Harish Chand
Gandhi & another; 2012 (2) ARC 815, All HC)
S. 114 – Benefit under – Question
of entitlement considered
With regards to the
benefit of the provisions of section 114 of the Transfer of Property
Act, the law is well settled, that the protection is at the
discretion of the Court (kindly see Hindustan Petroleum Corporation
Limited v. Chandra Prakash Bubna; 1995 Suppl (4) SCC 167: 1996
SCFBRC 174). The courts below after taking into consideration the
conduct of the defendant have denied the discretionary relief to
him. Court noticed and considered the reasons recorded by the courts
below for denying the benefit of section 114 of the Transfer of
Property Act. (Kishori Raman Shiksha Samiti v. Ashok Chaturvedi;
2012 (2) ARC 785) (All HC)
The
principle question to be considered is as to whether the document of
allotment of land in dispute was in any way a lease or a license.
Held - that the document of allotment merely granted a permission to
use the concerned parcel of land in a particular manner, and without
creating any interest therein. Hence, the document will have to read
as granting a license, and not a lease.
As
far as the land meant for the Children’s amusement park is
concerned, the same was hardly put to the full use. In as much as
this entire parcel of land of about 7 acres was not utilized, and
since it was an open parcel of land, there was nothing wrong in the State Government
deciding to retain it as an open parcel of land, and to change the
land-use thereof from commercial to a regional park.
The notification cannot be faulted on that count. Thus there was no
error in impugned judgment of High Court - Appeal dismissed. (Mangal Amusement Park (P) Ltd.andAnr.
Vs. State
of Madhya Pradesh and Ors.; 2012 (5) AWC 5186 (SC)
BACK TO INDEX
U.P. Municipal Corporation Act
Sec 177 (c) - Payment of House Tax -
Exemptions – Entitlement
Court found that the building of 'Holy Trinity School', used solely for
the purposes of school, even if it is not getting any aid from the
State Government is exempt from payment of house tax. The exemption
under Section 177 (c) of the U.P. Municipal Corporation Act, 1959,
is not qualified, or conditional and thus the school is not liable
to pay any house tax.
So, the impugned assessment and the bill of house tax and the order
dated 28.10.2002 passed by the Tax Superintendent, Nagar Nigam,
Allahabad is set aside. (A.R. Stephan, Bishop of Lucknow vs.
Nagar Nigam, Allahabad; 2012 (2) ALJ 206)
BACK TO INDEX
U.P. Consolidation of
Holdings Act
Ss. 11C and 48 – Scope of
consolidation authorities under duty to protect property of gaon
sabha under section 11-C of U.P. Consolidation of Holding Act, 1953
In this case, since the land recorded is that of the
Gaon Sabha. Under Section ll-C of the 1953 Act, it is the duty of
every consolidation authority to protect the property of the State
and of the Gaon Sabha and in such a situation, the Deputy Director
of Consolidation was well within his jurisdiction to have restored
the correct entries in favour of the Gaon Sabha. (Anil Kumar and
others vs. State of U.P. & another; 2012(4) AWC 3830)
BACK TO INDEX
U.P.
Cooperative Societies Act
S. 69 - Powers -
Conferred upon the Registrar for remedying of defects - Discussed
and explained
The administrative powers under section 69 of the Act have been
conferred upon the Registrar for remedying of defects. The powers of
the Registrar had been delegated under a notification dated
24.7.1969 but these powers can be exercised only in cases where as a
result of audit held under section 64 of the Act or an inquiry under
section 65 of the Act or on an inspection under section 66 of the
Act the Registrar is of the opinion that the society is not working
on sound lines or its management is defective, then he may without
prejudice to any other action under this Act, order directing the
society or its officers to take such action not inconsistent with
this Act, the rules and bye-laws to remedy the defects within the
time specified therein. The definition of Joint Registrar under Rule
2(f) of the U.P. Cooperative Societies Rules, 1968 defines Joint
Registrar as an officer appointed as a Joint Registrar of
Cooperative Societies under sub-section (2) of section 3.
Sub-section (2) of section 3 provides that the State Government may,
for the purposes of this Act, also appoint other persons to assist
the Registrar and by general or special order confer on any such
person all or any of the powers of the Registrar. Therefore, even if
it is presumed that respondent No. 3 was exercising delegated powers
of Registrar in passing the impugned order under section 69 of the
Act, then also he had no jurisdiction to pass the impugned order
because under section 69 of the Act the order can be passed for
remedying the defects directing the society or its officers to take
such action not inconsistent with the act, rules and bye-laws. In
the instant case, no such directions have been issued by respondent
No. 3 for remedying the defects either to society or to its
officers. Further respondent No. 3 cannot issue such directions when
respondent No. 4 exercising delegated powers of Registrar has
already ordered for holding fresh inquiry under section 65 of the
Act. (Committee of Management, Bhartiya State Bank Karmachari
Vetan Bhogisahkari Rin Samiti Ltd., through its Chairman Peitioner
v. State of IT.P. through Principal Secy., Co-operative, I.T.P.
Shasan, Lucknow & others; 2012 (115) RD 849 (All HC).
BACK TO INDEX
U.P. Government Servant (Dispute and
Appeal) Rules
Non issuance of any charge-sheet to petitioner so far fortify and
justify an inference to be drawn by High Court that order of
suspension passed in instant case is stigmatic, Arbitrary and even
otherwise illegal, gross abuse of power conferred upon appointing
authority regarding suspension-And, such a prolonged suspension
cannot be held valid and justified and respondents cannot be allowed
to keep an employee under suspension for an indefinite period
Moreover, such a
prolonged suspension cannot be held valid and justified and the
respondents cannot be allowed to keep an employee under suspension
for an indefinite period as held by this Court in Smt. Anshu Bharti
v. State of U.P. and others, 2009(1) AWC 691 where in paras 9, 10,
12 and 13 this Court has observed as under:
“9 . . . . The prolonged suspension
of the petitioner is clearly unjust and unwarranted. The question
deals with the prolonged agony and mental torture of a suspended
employee where inquiry either has not commenced or proceed with
snail pace. Though suspension in a contemplated or pending inquiry
is not a punishment but this is a different angle of the matter,
which is equally important and needs careful consideration. A
suspension during contemplation of departmental inquiry or pendency
thereof by itself is not a punishment if resorted to by the
competent authority to enquiry into the allegations levelled against
the employee giving him an opportunity of participation to find out
whether the allegations are correct or not with due diligence and
within a reasonable time. In case, allegations are not found
correct, the employee is reinstated without any loss towards salary,
etc., and in case the charges are proved, the disciplinary authority
passes such order as provided under law. However, keeping an
employee under suspension, either without holding any enquiry, or in
a prolonged enquiry is unreasonable. It is neither just nor in large
public interest. A prolonged suspension by itself is penal.
Similarly an order of suspension at the initial stage may be valid
fulfilling all the requirements of law but may become penal or
unlawful with the passage of time, if the disciplinary inquiry is
unreasonably prolonged or no inquiry is initiated at all without
there being any fault or obstruction on the part of the delinquent
employee. No person can be kept under suspension for indefinite
period since during the period of suspension he is not paid full
salary. He is also denied the enjoyment of status and therefore
admittedly it has some adverse effect in respect of his status, life
style and reputation in society. A person under suspension is looked
with suspicion in the society by the persons with whom he meets in
his normal discharge of function.
10. A Division Bench of this
Court in Gajendra Singh v. High Court of Judicature at Allahabad,
2004(3) UPLBEC 2934, observed as under:
“We need not forget that when a
Government officer is placed under suspension, he is looked with
suspicious eyes not only by his collogues and friends but by public
at large too.”
11. Disapproving unreasonable
prolonged suspension, the Apex Court in Public Service Tribunal Bar
Association v. State of U.P. and others, 2003(1) UPLBEC 780 (SC),
observed as under:
“If a suspension continues for
indefinite period or the order of suspension passed is mala fide,
then it would be open to the employee to challenge the same by
approaching the High Court under Article 226 of the Constitution
....... (Para 26)
12. The statutory power
conferred upon the disciplinary authority to keep an employee under
suspension during contemplated or pending disciplinary enquiry
cannot thus be interpreted in a manner so as to confer an arbitrary,
unguided an absolute power to keep an employee under suspension
without enquiry for unlimited period or by prolonging enquiry
unreasonably, particularly when the delinquent employee is not
responsible for such delay. Therefore, I am clearly of the opinion
that a suspension, if prolonged unreasonably without holding any
enquiry or by prolonging the enquiry itself, is penal in nature and
cannot be sustained.
13. The view I have taken is
supported from another Judgment of this Court in Ayodhya Rai and
others v. State of U.P. and others, 2006(3) ESC 1755.
(Rakesh Bhusan Mishra v. State of
U.P.; 2012 (2) ESC 1057 (All)
U.P. Regularization of daily wages
Appointment on Group D posts Rules, 2001 – Rule 4 – Employment –
Daily wager – Regularization – Consideration of
Petitioner admittedly was
appointed on 1.1.1987 as such the aforesaid rule is clearly applied
in his case. The requirement of the rule is that the petitioner
should have continued in service on the date of commencement of this
rule. What has been contemplated is that on the date when the
aforesaid rule has come into force, he should be in the service. The
rule making Body was aware of the fact that the appointment made on
daily wage basis, such interruption of periodical breaks are
inherent. What is emphasized is that the persons who are working
continuously even though with breaks are required to be given
benefit of regularization. A person, who is entitled to be
regularized under the said Rules should have been appointed prior to
June, 1991 and was working on the date when the said Rule came into
force. Their continuance in the department from 1991 to 2001 even
with breaks is itself an indication that their services are required
by the department. Very nature of their appointment being of daily
wager, does not contemplate uninterrupted tenure. It is why
expression has been used in the Rule that a person should be
continued in service on the date when the Rule came into force. The
rule does not contemplate uninterrupted continuous service. The
contention raised on behalf of the respondent is reading something
into the rule which is not intended thereby.
In the facts and
circumstances of the case, the respondents are directed to issue an
order for regular appointment in favour of the petitioner provided
he is eligible and qualified to hold the said post within a period
of two months from the date of presentation of a certified copy of
this order before him. (Ram Chandra Yadav vs. State of U.P. and
others; 2012(4) AWC 3915)
BACK TO INDEX
U.P. Land Revenue Act
S. 17(3) – U. P. Krishi Utpadan Mandi
Adhiniyam, 1964 - Explanation to Section 17(3) - Presumption under
Explanation - Appellants failed to rebut presumption by adducing
sufficient and cogent evidence
The orders
passed by the Mandi Samiti and the Director exercising powers of the
Mandi Parishad on revision clearly show that there was no clear and
convincing evidence to establish that the presumption arising under
Explanation to Section 17 (iii) of the U. P. Krishi Utpadan Mandi
Adhiniyam, 1969 stood rebutted and that the actual was not, what was
presumed under the said provision.
The Mandi
Samiti appreciated each piece of evidence and found the same to be
insufficient to hold that the sale transactions had, in fact, taken
place outside the mandi area so that the presumption arising under
Explanation to Section 17 (iii) of the Act stood rebutted. The
Director exercising powers of the Mandi Parishad has in its order
dated 25th September, 2004 on revision once again evaluated the
evidence and concurred with the view taken by the Mandi Samiti.
So long as the finding recorded by the Mandi Samiti and the Mandi
Parishad are not irrational or perverse, and so long as the view
taken by them is a reasonably possible view, the Supreme Court would
not interfere. (Heinz India (P) Ltd. and another vs. State of U.P.
and others; 2012 (4) AWC 3662 (SC)
Ss. 30, 34, 35, 40 and 54 – Mutation
proceeding – Nature of – Proceedings summary in nature
The, law is well-settled that:
(i) mutation
proceedings are summary in nature wherein title of the parties over
the land involved is not decided;
(ii) mutation order
or revenue entries are only for the fiscal purposes to enable the
State to collect revenue from the person recorded;
(iii) they neither
extinguish nor create title;
(iv) the order of
mutation does not in any way effect the title of the parties over
the land in dispute; and
(v) such orders or
entries are not documents of title and are
subject to decision of the competent court.
It is equally settled that the orders for mutation are passed on the
basis of the possession of the parties and since no substantive
rights of the parties are decided in mutation proceedings,
ordinarily a writ petition is not maintainable in respect of orders
passed in mutation proceedings unless found to be totally without
jurisdiction or contrary to the title already decided by the
competent court. The parties are always free to get their rights in
respect of the disputed land adjudicated by competent court. (Mathura
vs. State of U.P. and others; 2012(4) AWC 3825)
Ss. 33, 39 and 40 –
Correction of revenue entry – Dispute as to little – Dispute to
title cannot be adjudicated upon by collector in view of proviso to
section 39 of U.P. Land Revenue Act
It is not in
dispute that the petitioner's name is recorded in the revenue
records' as is established from the extract of khatauni of 1410
fasli issued in her favour, on the t basis of which the petitioner
is in possession over the land in dispute. The Tehsildar only on the
ground that the name of Mr. Ravinda Kumar whose sons; namely; Vinay
Kumar and Vineet Kumar were recorded in the revenue records in the
forged manner passed the order to delete their names.
It is not in
dispute that Collector concerned proceeded to
pass the order impugned only on the basis of report submitted by the
“Tahsildar without providing opportunity of hearing to the
petitioner” whereas keeping in view the judgments referred
hereinabove I am of the view that the respondents were under
obligation to provide opportunity of hearing to the petitioner
before passing the order. Moreover since the petitioner is a bona
fide purchaser, her name is recorded in the revenue records as is
evident from extract of khatauni of 1410 fasli and is also in the
possession over the land in dispute, I find that prima facie, the
entry in the revenue records cannot be said to be forged one rather
it leads towards the dispute of title, for which the Collector
concerned is not empowered to adjudicate upon in light of proviso of
Section 39 of the Act. (Smt. Usha Srivastava vs. Sub-Divisional
Magistrate/ Assistant Collector (Ist Class), Sadar, Lucknow &
others; 2012(5) AWC 4503 (LB)
BACK TO INDEX
U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act
U.P. Urban Buildings (Regulations of Letting Rent & Eviction) Act
Sec. 2(1) (d) – Applicability of Act
Exemption – Provision of Act exempts building used for industrial
purposes - But hotel does not fall in category of Industry - Hence
Act would be applicable
The State Government has declared hotel as tourism industry, the
provisions of the U.P. Act No.13 of 1972 will not be applicable to
the building in question. Section 2 of the Act provides that certain
buildings are exempt from operation of Act. Clause (d) of section
2(1) states that nothing in this Act shall apply to any building
used or intended to be used for any other industrial purpose (that
is to say for the purposes of manufacture, preservation or
processing of any goods). The hotel industry does not fall in any of
these categories of industrial purposes and therefore, clause (d)
would not be available to the landlords. Under clause (C) any
building used or intended to be used as a factory within the meaning
of Factories Act, 1948 where the plant of such factory is leased out
along with the building is exempt. There being no such case of
letting any plant to the tenant, the said clause would also not be
applicable. (Ashwani Kumar Kohli vs. Rajesh Prasad Agarwal; 2012
(5) ALJ 146)
S 2(2) – Provisions under – Explained
A suit for recovery of
arrears of rent and ejectment i.e. S.C.C. Suit No. 11 of 1987 was
filed by the petitioner on the ground that the shop in question was
damaged in a riot which took place in 1978 and thereafter it was
reconstructed by the landlord himself at his own cost hence Uttar
Pradesh Urban buildings (Regulation of Letting, Rent and Eviction)
Act, 1972 (U.P. Act No. 13 of 1972) (hereinafter referred to as
“Act, 1972”) was not applicable in view of Section 2(2) of Act, 1972
wherein it is provided that Act, 1972 would not be applicable to a
new construction for a period of 10 years. The Courts below have
held that question whether cost of construction was incurred by
landlord or tenant is wholly irrelevant for the purpose of Section
29 of Act, 1972 which is for the benefit of tenant and irrespective
of the fact who got the reconstruction made, mere fact that the shop
was reconstructed in 1978 it shall not make the Act inapplicable
when the tenant was occupying premises in question before enactment
of Act, 1972 and before such reconstruction, the Act, 1972 was
applicable to the shop in question. It is contended that these
finding of Courts below are patently illegal. Sri Dayal contended
that the Courts below have committed patent error in construing
Section 29 of Act, 1972 which does not apply to a case where
reconstruction has been made by the landlord himself incurring cost
on his own and is confined to those cases only where reconstruction
of damaged accommodation has been made by tenant incurring his own
expenses.
A new construction made would attract the exemption under Section 2(2)
read with Explanation thereof where “construction” has been defined
as under:
“construction” includes any new construction in place of an existing
building which has been wholly or substantially demolished. (Fazal
Ahmad Khan v. XIVth ADJ & Others; 2012 (3) ARC 345 (All HC)
Sections 3(a) and 3(j) –
Expression “tenant and landlord” – Meaning of explained
Section 3(j) of the Act
defines ‘landlord’ to mean a person to whom the rent of a building
is payable or would be payable and includes his agent or attorney
except those mentioned in clause (g) i.e., his family members.
Therefore, definition of the landlord is quite wide under the Act
and the landlord need not necessarily be the owner of the property.
Section 3(a) of the Act defines a
‘tenant’ in relation to a building to mean a person by whom rent is
payable. The word ‘rent’ has not been defined under the Act but it
means total payment made under an instrument of letting, if any, or
mandatory compensation payable by the tenant for consideration for
the grant. (Rakesh Gupta v. Harish Chand Gandhi and another; 2012
(2) ARC 815) (All HC)
S.20 – Eviction – Tenant
let into possession by landlord – Cannot deny land lords title
however defective it surrendered possession to landlord
The respondents herein
filed O.S. 2379 of 1990 in the Court of 5th Assistant Civil Judge,
City Civil Court, Hyderabad against the appellant’s No. 1 to 4 for
ejectment and resumption possession of the suit land. The case of
the respondents in the plaint was that the appellants had taken
lease of the suit land from 'their common ancestor late Shri Dwaraka
Parshad who had purchased the suit land from Nawab Raisyar Bahadur.
The further of the respondents in the plaint was that as the
appellants failed to pay any rent from 1986 and renewed the lease
after 1986, the respondents gave a notice to the appellants on
30.11.1989 to vacate the suit land. The appellants filed written
statement pleading, inter alia, that the suit land actually belonged
to the appellants and the lease deed had been executed and the rent
had been paid to the respondents by mistake of fact. The learned
Civil Judge decreed the suit for eviction after recording a finding,
inter alia, that the appellants have not been able to prove the
title to the land. The appellants filed first appeal before the 3rd
Additional Chief Judge, City Civil Court. Hyderabad which was
numbered as A.S. No. 294 of 2005. The first appellate court held
that the appellants were stopped from setting up title in them so
long as they have not surrendered possession of the land to the
lessees. namely, the respondents and further held that the
appellants have not been able to establish their title to the suit
land.
Aggrieved,
the appellants filed Second Appeal S.A. No. 270 of 2009 before the
High Court and by the impugned order, the High Court has dismissed
the second appeal after holding that the appellants cannot be
permitted to deny the title of the respondents under the provisions
of Section 116 of the Indian Evidence Act and also holding that the
appellants have not been able to adduce any evidence to prove that
the suit land belonged to the appellants.
The law is
settled by this Court in D. Satyanarayana v. P. Jagdis. 1987 (4) SCC
424, that the tenant who has been let into possession by the
landlord cannot deny the landlord's title however defective it may
be, so long as he has not openly surrendered possession by surrender
to his landlord. Although, there are some exceptions to this general
rule, none of the exceptions have been established by the appellants
in this case. Hence, the appellants who were the tenants of the
respondents will have to surrender possession to the respondents
before they can challenge the title of the respondents.
In plaint as
framed by the respondents in the present case, the relief of
eviction against the appellants was not based on the title of the
respondents. Mr. M. L. Varma, learned senior counsel appearing for
the respondents vehemently submitted that on a reading of the
plaint, it will appear that the respondents had claimed to be owners
of the land. We find that although an averment has been made in the
plaint that the respondents were the owners of the suit land, no
relief for declaration of title as such has been claimed by the
respondents. Only the relief of eviction was sought in the plaint on
the ground that the lease had not been renewed after 1986 and the
rent had not been paid since 1986. In our considered opinion,
therefore, this being not a suit of declaration of title and
recovery of possession but only a suit for eviction, the trial
court, the first appellate court and the High Court were not called
upon to decide the question of title. (State of A.P. and others
vs. D. Raghukul Parshad (D) by L.Rs. and others; 2012(5) AWC 4378
(SC)
Sec 20 (4) - Protection form Eviction
Here is a case where the suit was validly instituted for ejectment of
the defendant on two grounds and one of them is that the defendant
tenant is in arrears of rent for a period more than four months, a
fact which is not in dispute. On the contrary, said fact is admitted
by the defendant as per his pleading in the written statement. It
has been referred above that the defendant-tenant was in arrears of
rent since January, 1980 and failed to clear the arrears in spite of
notice of demand which led the filing of suit for ejectment in the
year 2004. The defendant-tenant cleared the arrears of rent etc. by
making the deposit as required under section 20(4) of the Act.
Section 20 (4) of the Act is a paramateria provision and akin to section
114 of the T.P. Act. The same principle will also be applicable
herein. The material part of section 20(4) and 114 of the T.P. Act
are worded identically which also lends support to the view that
discretion vests in the Court not to relieve a tenant against his
liability for eviction on the ground of default in payment of rent
in appropriate cases. The yardstick to judge an appropriate case
would be as laid down by the Apex Court, noted herein above, the
conduct of tenant, delay and hardship to which the landlord was put.
It would be clear that in the present case, the trial Court proceeded on
the wrong assumption that as soon as the requisite deposit under
section 20(4) has been made, the court has no option but to refuse
passing of decree of eviction on that ground. Looked from this angle
the order of the trial Court is vitiated for the reason that in the
case on hand, the tenant has not paid the rent, admittedly, for the
last more than two decades. He is enjoying the property on a paltry
sum of Rs.1000/- which was fixed in the year 1946 and is earning
many times more than that from the property in dispute on his own
showing. On the attending facts and circumstances of the case, the
rent @ Rs.1, 000/- per month is not a meaningful rent. The
reprehensible conduct of the tenant does not entitle him to get
equitable relief from the Court but on the condition of enhancement
of rent the relief, is being granted. (Ashwani Kumar Kohli vs.
Rajesh Prasad Agarwal; 2012 (5) ALJ 146)
S. 21(1) (a) – Release of shop – Bona
fide consideration of – Land Lord has right to establish his
business – His age would not be bar in considering his bona fide
need
Is so far as
the release application filed against Sri Satish, another tenant in
one of the four shops is concerned, suffice it to say that Satish
had not purchased or acquired any vacant shop during pendency of the
proceedings nor he had any other alternative shop, as such his case
is different. In so far as the question of age is concerned, in view
of law laid down by the Court in the case of Jai Raj Agarwal
(supra), no further comment is required by the Court in that regard.
Thus, from the perusal of
the judgment it is apparent that landlord has a right to establish
his business and his age would not be a bar in considering his bona
fide need particularly when the tenant has acquired a shop of his
own. In such circumstances, even the tenant has to establish his
bona fide need for retaining the shop. This has neither been pleaded
nor established by the tenant in the instant case. A tenant cannot
suggest his landlord what business to do and whether the space
required by him shall be sufficient or not. Once Ram Pratap Jaiswal
(petitioner No. 7) who himself has filed affidavit in the writ
petition as tenant, has acquired a shop of his own in backdrop of
the case that he and his son both had become tenant or the death of
Smt. Sankari Devi, who inherited tenancy of her father, he cannot
claim that the shop under his tenancy cannot be released because his
son is in occupation of the said shop. (Anand Kishore and others
vs. Lakshmi Kant Shukla and another; 2012(4) AWC 3762)
Ss. 21(1) (a) and 22 – Release of
shop decreed – Appeal dismissed – Writ petition – Legality of
The petitioner is the
owner and landlord of the shop in dispute along with Pucca Chabutra.
The petitioner filed a release application under Section 21(1) (a)
of the U.P. Act No. 13 of 1972 (in short “Act”) on the ground that
at the time when the shop in dispute was let out to the Respondent
No. 2 he was only 27 years of age and he used to sell utensils as a
hawker without any requirement of a fixed shop.
As a hawker he used to go from door
to door to sell the utensils. However, since the petitioner was
suffering from appendicitis, he was operated upon and was advised to
do only light work and not to carry and load especially while
walking. As a result of which, the petitioner became incapable to
carry on his business by hawking and therefore required the shop in
dispute for carrying on business from the fixed place. It was
further pleaded in the release application that his family consists
of self, wife and four children and has to support his entire family
from his utensils aged about 70 years. His father has been assisting
his younger brother in the shop, who is carrying on his independent
business. The petitioner is living separately and he has no concern
with the business of his father/brother.
It was pleaded in the release
application that the Respondent No. 2 was carrying on a business of
cloth on a small scale from the shop in dispute. It was further
pleaded that the Respondent No. 2 has two sons and since both of
them are employed, the Respondent No.; 2 is not at all likely to
suffer any hardship in case the disputed premises is vacated by him.
It was specifically mentioned in the said application that the
petitioner will utilize the shop in dispute after its vacation by
the Respondent No. 2 only for the purpose of establishing himself in
business.
The Respondent No. 2 filed his
written statement denying and disputing the allegations made in the
release application. It was stated in the written statement that the
petitioner, his brothers and father were living together and the
petitioner who is already in possession of a shop is carrying on
business of utensils with the help of his brother. It was also
pleaded that the petitioner was not operated upon for appendicitis.
The prescribed authority after
careful appreciation of entire evidence available on record vide its
judgment and order dated 30.8.1985 allowed the release application
of the petitioner and also held that the need of the petitioner to
be genuine and bonafide and found the balance of comparative
hardship in favour of the petitioner.
Being aggrieved and dissatisfied with
the judgment and order dated 30.8.1995, the Respondent No. 2
preferred an appeal under Section 22 of the U.P. Act No. 13 of 1972
(in short “Act”). The said appeal was allowed. Hence, the present
writ petition.
The prescribed authority has very
specifically recorded a finding that the petitioner after being
operated for appendicitis was unable to carry on the business by
hawking on public street and also that the petitioner does not have
any other source of income. It further held that the petitioner had
to support his entire family. There are a number of vacant shops in
the vicinity which can be taken on rent by the Respondent No. 2. The
Prescribed Authority had recorded the findings of fact holding the
need of the petitioner to be bonafide and genuine and found the
comparative hardship in his favour. The said findings are based on
the evidence available on record. The Prescribed Authority has given
cogent, convincing and satisfactory reason while passing the order
in favour of the landlord. The findings recorded by the Prescribed
Authority are neither perverse nor based on any extraneous or
irrelevant material. The Prescribed Authority has non meticulous
evaluation of evidence and material available on the record, found
the need of the petitioner to be bonafide and genuine.
The reasons assigned by the appellate
court are superficial and it has applied a very casual approach and
has committed manifest error of law and procedural illegality. The
impugned order passed by the appellate court is based on complete
misreading of the case and misconception of the legal position
relevant to the matter. The appellate court had drawn inferences
only on the basis of speculation and the impugned order looked from
any angle cannot stand the scrutiny of law. The findings recorded by
the prescribed authority with regard to bonafide need and
comparative hardship in favour of the petitioner are upheld.
It is true that in writ jurisdiction
the Court would be reluctant to interfere in the finding of fact
given by the Appellate Court but it the Appellate Court has arrived
at such a finding on wrong legal assumption or approach the said
finding would not be conclusive finding of fact. In the instant
case, the Appellate Court has overlooked several facts and had drawn
a conclusion which is not at all supported by any evidence on record
and the said conclusion would not, therefore, amount to a finding of
fact but in fact it would be an illegality in its approach. Thus,
the findings of the appellate court appear to be manifestly unjust
and erroneous. (Jan Mohammad v. Special Judge & Another; 2012
(2) ARC 791 (All HC)
S. 29 – Provisions under –
Applicability of
A bare perusal of Section 29 sub-section (1), (2) and (3) clearly shows
that it protect interest of tenant where building was under his
tenancy, wholly or partly, has been destroyed for the reasons not
attributable to the tenant. It has conferred a right upon him to
get it reconstructed wholly or partly, as the case may be, at his
own expenses. Sub-section (3) further says, that, where such a
reconstruction has been made by the tenant in exercise of power
under Sub-section (1) and (2), such reconstruction shall not be
treated to be new construction and therefore exemption under Section
2(2) of the Act, 1972 shall not be applicable to such reconstructed
building. However, the entire Section 29 nowhere talks of a
situation where the building under tenancy has been reconstructed by
the landlord himself at his own expenses.
In view of Court, Section 29 of Act, 1972 would have no application at
all and it shall not be attracted where for any reason whatsoever a
building has been damaged, partly or wholly, and the same has been
reconstructed by the landlord himself incurring his own expenses. In
that circumstance, applicability of Act, 1972 will have to be
considered by excluding Section 29.
The view, Court have taken here at, may at first flush appears to be
slightly hard to those tenants who have suffered on account of a
building under their tenancy destroyed, wholly or partly, for the
reasons not attributable to them that is mentioned in sub-section
(1) and (2) of Section 29 of Act, 1972 but reconstruction/new
construction has been made by landlord voluntarily.
Legislative intention in enacting Section 29 of Act, 1972 appears to be
that tenant, it has incurred substantial expenses in construction of
a building under his tenancy, damaged for certain reasons for which
he is not responsible, such a tenant after incurring substantial
expenses should not be allowed to be ejected without enjoying
property for a reasonable time after its reconstruction. However,
where the landlord himself has constructed the building, that
situation does not arise. It further recognizes the principle that
destruction of property under tenancy would have the consequence of
destruction of lease, and, relationship of landlord and tenant would
disappear immediately thereupon. Section 29 of Act, 1972 in fact is
an exception to the said principle giving an option left with the
tenant or lessee to continue with the lease by getting the destroyed
building reconstructed incurring his own expenses but when the
tenant has not exercised such option and building is constructed
again by landlord himself, tenant cannot claim either continuance of
lease rights or a kind of right of re-entry therein by relying upon
Section 29 of Act, 1972 which does not contemplate a situation where
construction has been made after destruction of building under
tenancy wholly or partly, cost of which has been incurred by the
landlord. (Fazal Ahmad Khan v. XIVth ADJ & Others; 2012 (3) ARC
345 (All HC)
Sec. 30(2) - Deposit of Rent in Court
- Validity of
It would be appropriate to quote Section 30(2) of the Act which runs as
under:
“30(2) Where any bona fide doubt or
dispute has arisen as to the person who is entitled to receive any
rent in respect of any building, the tenant may likewise deposit the
rent stating the circumstances under which such deposit is made and
may, until such doubt has been removed or such dispute has been
settled by the decision of any competent court or by settlement
between the parties, continue to deposit the rent.”
The aforesaid provision clearly stipulates that where any bona fide
doubt or dispute has arisen as to the person who is entitled to
receive any rent in respect of any building, the tenant may likewise
deposit the rent stating the circumstances under which such deposit
is made and may, until such doubt has been removed or such dispute
has been settled by the decision of any competent court or by
settlement between the parties, continue to deposit the rent.
In view of the aforesaid provisions, the petitioner had rightly
deposited the rent in the court under section 30(2) of the Act as
bonafide doubt had arisen as to the person who was entitled to
receive rent in respect of the building in dispute. It is also
noteworthy that the suit for arrears of rent and ejectment was filed
within a month after receiving a reply to the notice issued under
Section 106 of the T. P. Act by the respondent. (Dinesh Chandra
Joshi vs. Meera Devi; 2012(5) ALJ 128)
BACK TO INDEX
Workmen’s Compensation Act
S. 4-A(3) - Interest Liability of
Insurance company whether ‘insurance company is liable for payments
of interest of the amount of compensation- held, “Yes”
In present case Court has …
“(i) whether the Commissioner, Workmen’s Compensation, has
committed an error of law in not holding the respondent No. 2,
insurance company, liable for payment of interest on the amount of
compensation from the date of accident till its realization as per
section 4-A(3) of the workmen’s Compensation Act 1923?”
In respect of payment of interest the issue has been decided by the
Apex Court in the case of Ved Prakash Garg v. Premi Devi; 1998 ACJ 1
(SC), therefore, insurance company is liable to pay the interest to
the claimants. (Basantabai & another v. Shamim Bee & another
2012; ACJ 1858)
BACK TO INDEX
Words & Phrases
“Cognizance”—Meaning of
The expression “cognizance” in Sections 190 and 204 CrPC is entirely a
different thing from initiation of proceedings; rather it is the
condition precedent to the initiation of proceedings by the
Magistrate or the Judge. Cognizance is taken of cases and not of
persons. Under Section 190 CrPC, it is the application of judicial
mind to the averments in the complaint that constitutes cognizance.
At this stage, the Magistrate has to be satisfied whether there is
sufficient ground for proceeding and not whether there is sufficient
ground for conviction. Whether he evidence is adequate for
supporting the conviction can be determined only at the trial and
not at the stage of enquiry. If there is sufficient ground for
proceeding then the Magistrate is empowered for issuance of process
under Section 204 CrPC. (Bhushan Kumar vs. State (NCT of Delhi),
(2012) 2 SCC (Cri) 872)
“Custody”— Meaning of
Firstly speaking about the formal arrest, for the accused being in
custody of the investigating agency he need not have been formally
arrested. It is enough if he was in custody of the investigating
agency meaning thereby his movements were under the control of the
investigating agency. A formal arrest is not necessary and the fact
that the accused was in effective custody of the investigating
agency is enough. It has been amply proved that the accused was
apprehended, searched and taken into custody. (Mohd. Arif @
Ashfaq vs. State (NCT of Delhi); (2012) 2 SCC (Cri) 766)
“Grave” and “sudden provocation”—
Meaning of
The expression “grave” indicate that provocation be of such a nature so
as to give cause for alarm to the appellant. “Sudden” means an
action which must be quick and unexpected so far as to provoke the
appellant. The question whether provocation was grave and sudden is
a question of fact and not one of law. Each case is to be considered
according to its own facts. (Sukhlal Sarkar vs. Union of India &
others; (2012) 2 SCC (Cri) 732)
“Loss of estate” and “loss to the
estate” - Distinction Explained
There is a fundamental distinction between “loss of estate”, and “loss
to the estate”. This is highlighted in Chairman, Andhra Pradesh
State Road Trans. Corpn. v. Shafiya Khatoon, 1985 ACJ 212 (AP). In
para 10, it is held that loss of ‘benefit to the estate’ of the
deceased is the loss arising to the estate under the heads of mental
and physical pain, loss of expectation of life and loss of
amenities. The said amounts are payable of the legal heirs under the
provisions of the Legal Representatives suits Act, 1855 read with
section 306 of the Indian Succession Act, 1925. Section 1-A of the
Fatal accidents Act deals with the right of legal heirs to claim
compensation as referred to therein. (Omana and others v. Francis
Edwin and others; 2012 ACJ 1765)
Malice in law – Meaning of
In brief malice in law is
when a power is exercised for an
unauthorized purpose or on a fact which is claimed to exist but in
fact, is non-est or for the purpose for which it is not meant though
apparently it is shown that the same is being exercised for the
purpose the power is supposed to be exercise. (Mohammad Maroof
vs. State of U.P. and others; 2012(4) AWC 3729)
“Negligence” – Negligence means more
than headless or careless conduct, whether in omission or commission
Negligence is conduct, not a state of mind – conduct which involves an
unreasonably great risk of causing damage. Negligence is the
omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human
affairs, would do, or doing something which a prudent and reasonable
man would not do. In strict legal analysis, negligence means more
than heedless or careless conduct, whether in omission or
commission. It properly connotes the complex concept of duty, breach
and damage thereby suffered by the person to whom the duty was
owing. It is a question of law whether in any particular
circumstance a duty of care exists. (North East Karnatak Road
Trans. Corpn. v. Vijayalazmi and others; 2012 ACJ 1968)
“Summon”—Meaning of
A “summons” is a process issued by a court calling upon a person to
appear before a Magistrate. It is used for the purpose of notifying
an individual of his legal obligation to appear before the
Magistrate as a response to violation of law. A person who is
summoned is legally bound to appear before the court on the given
date and time. Wilful disobedience is liable to be punished under
Section 174 IPC. It is a ground for contempt of court.
Section 204 CrPC does not mandate the Magistrate to explicitly state the
reasons for issuance of summons. Section 204 CrPC mandates the
Magistrate to form an opinion as to whether there exists a
sufficient ground for summons to be issued but it is nowhere
mentioned in Section 204 that the explicit narration of the same is
mandatory, meaning thereby that it is not a prerequisite for
deciding the validity of the summons issued. Therefore, the order
passed by the Magistrate cannot be faulted with only on the ground
that the summoning order was not a reasoned order. (Bhushan Kumar
vs. State (NCT of Delhi); (2012) 2 SCC (Cri) 872)
(i)
Sterling witness – Meaning of.
A “sterling witness” should be of a
very high quality and caliber, whose version should, therefore, be
unassailable. The court considering the version of such witness
should be in a position to accept it for its face value without any
hesitation. To test the quality of such a witness, the status of the
witness would be immaterial and what would be relevant is the
truthfulness of the statement made by such a witness. What would be
more relevant would be the consistency of the statement right from
the starting point till the end, namely, at the time when the
witness makes the initial statement and ultimately before the court.
It should be natural and consistent with the case of the prosecution
qua the accused. There should not be any prevarication in the
version of such a witness.
(ii)
Substantial cause - Meaning
The inadvertence of the party or his
inability to understand the legal issues involved or the wrong
advice of a pleader or the negligence of a pleader or that the party
did not realize the importance of a document does not constitute a
“substantial cause” within the meaning of this Rule. The mere fact
that certain evidence is important, is not in itself a sufficient
ground for admitting that evidence in appeal.
(iii)
Substantial question of law and question of fact – Meaning of
Section 100 CPC provides for a second
appeal only on the substantial question of law. Generally, a second
appeal does not lie on question of facts or of law. In SBI Vs. S.N.
Goyal, (2008) 8 SCC 92 this Court explained the terms “substantial
question of law” and observed as under: (SCC p. 103, para 13)
“13.
…… The word ‘substantial’ prefixed to ‘question of law’ does not
refer to the stakes involved in the case, nor intended to refer only
to questions of law of general importance, but refers to impact or
effect of the question of law on the decision in the lis between the
parties. “Substantial questions of law’ means not only substantial
questions of law of general importance, but also substantial
question of law arising in a case as between the parties , ……… any
question of law which affects the final decision in a case is a
substantial question of law as between the parties. A question of
law which arises incidentally or collaterally, having no bearing on
the final outcome, will not be a substantial question of law.
……There cannot, therefore, be a straitjacket definition as to when a
substantial question of law arises in case.”
There may be a question, which may be
a “question of fact”, “question of law”, “mixed question of fact and
law” and “substantial question of law”, Question means anything
inquired; an issue to be decided,. The “question of fact” is whether
a particular factual situation exists or not. A question of fact, in
the realm of jurisprudence, has been explained as under:
“A question of fact is one capable of
being answered by way of demonstration. A question of opinion is one
that cannot be so answered. An answer to it is a matter of
speculation which cannot be proved by any available evidence to be
right or wrong.”
(Union of India Vs. Ibrahim Uddin &
another; (2012) 8 SCC 148)
(iv)
“Torture”, “Harassment”, “Inhuman torture”, “Mental and
Psychological torture”
The term “harassment” in its
connotative expanse includes torment and vexation. The term
“torture” also engulfs the concept of torment. The word “torture” in
its denotative concept includes mental and psychological harassment.
The accused in custody can be put under tremendous psychological
pressure by cruel, inhuman and degrading treatment. Police officers
should have the greatest regard for personal liberty of citizens as
they are the custodians of law and order and, hence, they should not
flout the law by stooping to bizarre acts of lawlessness.
Inhuman treatment has many a facet. It fundamentally can cover such acts
which have been inflicted with an intention to cause physical
suffering or severe mental pain. It would also include a treatment
that is inflicted that causes humiliation and compels a person to
act against his will or conscience. Torture is not merely physical
but may even consist of mental and psychological torture calculated
to create fear to submit to the demands of the police. (Mehmood
Nayyar Azam Vs. State of Chhattisgarh and others, (2012) 8 SCC 1)
BACK TO INDEX
Statutory Provisions
Ministry of Law and Justice (Deptt. of Legal Affairs), noti N. G.S.R.
904(E), dated December 27, 2011, published in the Gazette of India,
Extra, Part, II, Section 3(1), Dated 27th December, 2011,
pp.3-4, no.689
[F.No.A-60011/16/2010-Admin.1 (LA)[L]
In exercise of the power conferred
by the proviso to article 309 of the Constitutions, the president
hereby makes the following rules further to amend the Indian
legal Service Rules, 1957, namely—
1.
(1) These rules
may be called the Indian Legal Service (Amendment) Rules, 2011
(2) They shall come into force on
the date of their publication in the official Gazette.
2.
In the Indian Legal Service Rules, 1987—
(a) In Rule 8, in
sub-rule (1), for clause (iv) and the Note there under, the
following shall be substitute, namely—
“(iv) to a duty post in Grade IV,
unless he has held one or more post specified in the third schedule;
and—
‘possesses six years’
regular service in post of the Superintendents (Legal) (PB-2 Rs
9300-34,800 plus Grade pay of Rs 4800) failing which eight years’
combined regular service in the post of Assistant (Legal) (PB-2 Rs
9300-34,800 Plus Grade Pay of Rs 4600) and Superintendent (Legal)
(PB-2 Rs 9300-34,800 Plus Grade Pay of Rs 4800) out of which three
years regular service shall be in the post of Superintendent
(Legal);
Or
‘Possesses seven years’ regular
service in the post of Junior Central Government Advocate/librarian
Grade-1 (PB-2 Rs 9300-34,800 Plus Grade Pay of Rs 4600):
provided that for
promotion to a duty post in Grade- IV in the Government Advocate
Service Cadre in the Department of Legal Affairs, the person shall
be eligible for enrolment as an advocate in the Supreme Court under
the Supreme Court Rules, 1966, as amended from time to time, and for
registration as an Advocate-on-Record of that court under the said
rules.
Note 1.- In the
case of officers who are holding any of the posts mentioned in the
Third Schedule on regular basis on the date of commencement of the
Indian Legal Service (Amendment) Rules, 1987, the eligibility
service for promotion to posts in Grade IV shall be three years’
regular service in the feeder grade.
Note 2.- Where
juniors who have completed their qualifying or eligibility service
are being considered for promotion, their seniors shall also be
considered provided they are not short of the requisite qualifying
or eligibility service by more than half of such qualifying or
eligibility service for two years, whichever is less, and have
successfully completed their probation period for promotion to the
next higher grade along with their juniors who have already
completed such qualifying or eligibility service.
Note 3.-
The eligibility list for promotion to the grade of Assistant Legal
Adviser shall be prepared with reference to the date of completion
of the prescribed qualifying service by the officers in the
respective grade of post.’’
(b) in the Third Schedule, under the
heading “Legislative Department”, the words “and Confidential
Superintendent” shall be omitted.
Ministry of Home Affairs, Noti. No. S.O. 62 (E), dated January
12,2012, published in the Gazette of India, Extra., Part II, Section
3(ii), dated 12th January, 2012, pp.1-2, No. 53
[F. No. 11011/124/2011-NE-V]
Whereas, (The Unlawful Activities
(Prevention) Act, 1967 37 of 1967)
(hereinafter referred to as the said Act) has been enacted to
provide for more effective prevention of certain unlawful activities
of individuals and associations and for dealing with terrorist
activities and for matters connected therewith;
2.
And whereas,
clause (m) of Section 2 of the said Act defines the terrorist
organisation to mean an organisation listed in the Schedule or an
organization operating under the same names as an organisation so
listed;
3.
and whereas, the
Schedule to the said Act specifies the list of terrorist
organisations;
4.
And whereas the
Garo National Liberation Army (GNLA), a militant outfit of Garo
Hills, which came into existence in early 2010 has been
consolidating its position in the three Garo Hills Districts both
organisationally and in terms of weapons and cadres and to achieve
the objective of a separate Garo State, the outfit is resorting to
terrorism in the from of killing of innocent civilians and security
forces in addition to engaging in other violent activities like
physical assault on Government employees, lobbing grenades in
Government buildings and other violent activities and extortions.
5.
and whereas, the
Central Government believes that the Garo National Liberation Army (GNLA)
is involved in terrorism;
6.
Now, therefore, in
exercise of the power conferred by clause (a) of sub-section (1) of
Section 35 of the Unlawful Activities (Prevention) Act, 1967, the
Central Government hereby makes the following to add the Garo
Naitional Liberation Army (GNLA) and all its formations and front
organisations as terrorist organisation in the Schedule to the said
Act and for the said purpose makes the following amendments, namely—
In the Schedule to the said Act,
after Serial Number 35 and the entries relating thereto, the
following serial number and entries shall be inserted, namely—
“36 Garo National Liberation
Army (GNLA), all its formations and front organization.”
Ministry of Women and Child development, Not. No. G.S.R 903(3),
dated December 26, 2011, published in the Gazette of India, Extra.,
Part 11, Section 3(i), dated 27th December, 2011,, p.2,
No. 688
[F. No.
1-2/2004/-CW.II][L]
In exercise of the powers
conferred by the proviso to sub-section (1) of the Section 68 of the
Juvenile Justice (Care & Protection of Children) Act, 2000 (56 of
2000), the Central Government hereby makes the following rules
to amend the Juvenile Justice (Care and Protection of Children)
Rules, 2007, namely—
1-
Short title and commencement. – (1) These rules may be called
the Juvenile Justice (Care and Protection of Children) Amendment
Rules.
(2) They shall come into force on
the date of their publication in the Official Gazette.
2. In the Juvenile Justice (Care and
Protection of Children) Rules, 2007 (Hereinafter referred to as the
principal rules), in Rule 45, for clause (p), the following clause
shall be substituted, namely—
“(p) refer such children who are
addicted to alcohol or other drugs which lead to behavioral changes
in a person, to an Integrated Rehabilitation Center for Addicts
similar centers maintained by the State Government for mentally ill
persons (including the persons addicted to any narcotic drug or
psychotropic substance) for the period required for in-patient
treatment of such juvenile or child.”
3. In Rule 46 of the principal
rules, for sub-rule (10), the following sub-rule shall be
substituted, namely—
“(10) no juvenile or child shall be
administered medication for psychiatric problems without a
psychological evaluation and diagnosis by a trained medical health
professional.”
4. In Rule 61 of the
principal rules,--
(a) in sub-rule (1), for the words
“mental health problems requiring prolonged medical treatment, or is
found addicted to a narcotic drug or psychotropic substance”, the
words “psychiatric problems requiring prolonged medical treatment,
or is found addicted to alcohol or other drugs which lead to
behavioral changes in a person: shall be substituted:
(b) In sub-rule (2), for the words
“mental health” the word “psychiatric”, shall be substituted;
(c) sub-rule (3) shall be omitted;
(d) in sub-rule (4), the words “and
infection” shall be omitted.
English Translation of Nyaya
Anubhag-2 (Adhinashth Nyayalaya), Noti. No. 175/VII-
Nyaya-2-2012-201G-95T.C-4, dated April 17, 2012, published in the
U.P. Gazette, Extra, Part 4, Section (Kha), dated 17th
April, 2012, p.2 [A.P. 30]
In exercise of the powers under
Section 13 of the Code of Criminal Procedure, 1973 (Act No.
II of 1974), read with sub-rule (ii) of Rule 4 of the Uttar Pradesh
Petty Offences Trial by Special Judicial Magistrates Rules and
Section 21 of the General Clauses Act, 1897 (Act No. X of 1897),
the Governor on the recommendation of the High Court of Judicature
at Allahabad, is pleased to make, the following amendment in
Government Notification No. 1063/VII-Nyaya-2-2010-201G-95, dated
July 26, 2010, No. 662/VII –Nyaya-2-2011-201G-95, dated July 28,
2011 and No. 1348/VII-nYAYA-2-2011-201G-95, dated August 30, 2011—
AMENDMENT
In the schedule to the
aforesaid notification, dated July 26, 2010 the entries appearing at
Serial No. 8, notification, dated July 28, 2010 the entries
appearing at Serial No. 4 and notification, dated August 30, 2011
the entries appearing at Serial No. I shall be omitted.
High Court of Judicature at
Allahabad, Not. NO. 1475/VII-Nyaya-2-2011-83G-2011, dated April 16,
2012, published in the U.P. Gazette, Extra., Part 4, Section (kha),
dated 16th April, 2012, pp. 1-2
The General Rules (Civil),
1957 Vol. I (Correction Slip No. 119) framed by the High Court of
Judicature at Allahabad in exercise of the powers conferred by
Article 227 of the Constitution of India and Section 122 of the Code
of Civil Procedure, 1908 read with Section 21 of the General Clauses
Act, 1897 are hereby published for the general information—
In exercise of the powers
conferred by Article 227 of the Constitution of India and Section
122 of the Civil Procedure code, 1908 read with Section 21 of
General Clauses Act, 1897, the High Court of Judicature at Allahabad
with the previous approval of the Government of Uttar Pradesh, is
pleased to make the following amendment in General Rules, (Civil),
1957 Vol. I with effect from the date of their publication in the
official Gazette of Uttar Pradesh,
Amendment in Rule 615—Rule 615
of the rules shall be amended as follows—
(1)
The existing provisions of Rule 615 of the rules shall be
numbered as sub-rule (1)
(2)
After the existing Rule 615, numbered as sub-rule (1),
following sub-rule (2) shall be added—
“(2) The Readers / Peshkars,
Executive Assistants / Stenographers and employees of Class IV cadre
in the Courts Subordinate to the High Court of Judicature at
Allahabad shall wear Uniform / Costumes as indicated below:
(i)
Readers/Peshkars, Executive Assistants/Stenographers shall
wear black Coat with black neck Tie or a buttoned up black Coat,
Sherwani or Achkan with shirt and trousers or Paijama of sober
colour. The ladies can wear traditional white Sari and Blouse or
Shalwar suit etc. in place of Shirt/trousers along with coat.
(ii)
All the Class IV employees in the Courts shall wear white
buttoned up Coat, Sherwani or Achkan with white trouser or Paijama
in summer and woollen buttoned up Coat of Navy blue colour in
winter. The Ladies can wear traditional white Sari with Blouse or
shalwar suits along with Coat:
Provided that the orderlies attached
with the Presiding Offices of the courts shall in addition wear cap
or turban along with belt with Monogram of the Judgeship:
Provided further that the
drivers shall wear white coat in summer and wollen Navy blue colour
coat in winter with Badge/Monogram of the Judgeship and a felt cap.”
BACK TO INDEX
Legal Quiz
Q. 1 Offence committed
u/s. 363, 366, 504 and 506 I.P.C. after investigation I.O. submitted
charge-Sheet. But after taking evidence u/s 164 Cr.P.C. I.O. has
obtained order u/s 173 for further Investigation. After
investigation I.O. has now submitted final report in the same case.
Accused has prayed to the Court for inclusion of charge-sheet in
this case. The main question of P.O. is that what appropriate order
should be passed in this case?
Ans.
Pertaining to section 173(2), 173(8)
and 190 Cr.P.C. relating to cognizance of offence where the police
has submitted final report after further investigation, whereas
earlier cognizance is taken by the Magistrate on the charge sheet
submitted by police in the same case.
It is to inform you that
a Magistrate is not bound by the conclusions drawn by investigating
officer during investigation. It is clearly held by Supreme Court,
in Dharmatma Singh vs. Harminder Singh & Ors 2011 (74) ACC 266 SC
that “where the police report forwarded to the Magistrate under
section 173(2) of the Cr.P.C. states that a person has committed an
offence, but after investigation the further report under section
173(8) of the Cr.P.C. states that the person has not committed the
offence, it is for the Magistrate to form an opinion whether the
facts, set out in the two reports, make out an offence committed by
the person.” Further case laws referred:-
(1) Gangadhar Janardhan Mahatre vs. State of Maharashtra (2004)
7 SCC 768.
(2) State of Orissa vs. Habibullah Khan (2003) 12 SCC 129.
(3) Jagdish Ram vs. State of Rajashthan AIR 2004 SC 1734.
(4) H.S. Bains vs. State AIR 1980 SC 1883.
(5) Mahendra Pal Sharma vs. State of U.P. 2003 Cr.LJ. 698.
(6) Mahesh Chand vs. State of Rajasthan 1985 Cr.LJ 301 (Raj.).
(7) Suresh Kumar Thakur vs. Smt. Dropadi Devi 1977 Cr.LJ. NOC
133.
(8) State of Karnataka vs. Papi Reddy (1988) 2 Crimes 194.
(9) Sukha Ram vs. State 2007 Cr.LJ. 644 Raj.
(10) Tarkashwar Singh vs. State of Bihar 2007 CrLJ. 1281.
(11) Minu Kumari vs. State of Bihar AIR 2006 SC 1937.
(12) Ram Naresh Prasad vs. State of Jharkhand (2009) 11 SCC 299.
(13) District Manager F.C.I. vs. Jayashankar 1989 Cr.LJ. 1578.
(14) Dinesh Dalmia vs. C.B.I. (2007) Orissa 8 SCC 770.
(15) State of U.P. vs. Har Pal Singh 1982 Cr.LJ. 881 All.
(16) Abhinandan Jha and others v. Dinesh Mishra AIR 1968 SC 117.
Q. 2 Whether u/s 372 of
the Indian Succession Act 1925 the succession can be granted for
bank locker also?
Ans. For above query, The Hon’ble
Calcutta High Court, Hon’ble Chhatisgarh High Court & Hon’ble Madhya
Pradesh High Court in the following cases have held that for access
to Bank locker or to receive ornaments kept in safe deposit locker
in the Bank, same not being a debt or security within meaning of S.
370, Succession certificate cannot be granted.
1. AIR 1982 Cal. 92; State Bank of
India v. Netai Ch. Porel (DB)
2. AIR 2007 Chh. 36; Bimla Devi v.
Shobha Wali
3. AIR 1997 MP 196; Sharda Chopra
v. State Bank of India
4. AIR 1991 Cal. 128; Rama
Chakraborti v. Manager, Punjab Nation Bank (Para 11 12)
Q. 3
D;k
dysDVªsV ds fjdkMZ :e esa U;k;ky; dh fu.khZr dh x;h i=kofy;ka U;k;ky;
ds vfHkys[kkxkj esa LFkku vHkko ds dkj.k yh tk ldrh gSA
Ans. I intend to inform you that
the query is related to Rule 108 of General Rule (Criminal) and
Circular No. C.E. No. 44 dated 21st April, 1969, which
are self explanatory. It is therefore advised that the relevant rule
& circular order be applied accordingly.
Q. 4
¼v½ ;fn ;w0ih0 ,DV la.&13 lu~ 1972 dh /kkjk&30 ¼1½ ds v/khu
fjk;k tek jdus ds fy;s izkFkZuk i= ds uksfVl dh rkehy edkunkj ij gks
x;h gks rFkk edkunkj bl felysfu;l okn esa mifLFkfr gqvk gks o
O;fDrxr :I ls fdjk;k yus dh ckr dgs fdUrq fQj Hkh fdjk;snkj /kkjk&30¼1½
ds vUrxZr gh fdjk;k tek ds rks D;k ;g oS/k tek gksxk?
¼c½
;fn /kkjk 30¼1½ ds v/khu i’pkrorhZ fdjk;k tek djrs le;
;w0ih0 ,DV 13 lu~ 1972 dh fu;ekoyh ds fu;e 21 mi fu;e ¼5½ ds v/khu
uksfVl fn;s fcuk fdjk;k tek fd;k tkrk gS rks D;k ;g oS/k tek gksxkA
¼l½ ;fn
csn[kyh dk ckn yfEcr jgrs gq;s fdjk;snkj fdjk;k csn[kyh ds ckn es
tek ugha djrk vfirq /kkjk 30¼1½ ds v/khu tek djrk gSA rFkk mldh
izfrj{kk lekIr ugh dh x;h gSA rks D;k bl vk/kkj ij mls csn[kyh fd;s
tkus dk vkns’k ikfjr fd;k tk ldrk gS
Ans. Answer to Query No. 1:-
When a notice is given by land lord to tenant to accept rent, any
amount deposited thereafter u/s 30(1) of Act No. 13 of 1972, cannot
be taken for the benefit of tenant. Please see following case lawas
on the points:
(1) Ram Prasad Vs. VIII A.D.J.,
Merrut, 1992 A.L.J. 974
(2) Bhola Nath Gupta Vs.
Special Judge & Others, 2008 (1) A.L.J. (NOC) 21 All.
(3) Sushil Kumar Srivastava v.
IVth ADJ, Gorakhpur, 2005 (3) A.L.J. 2004
Answer to Query No. 2:-
The purpose of deposit of process fee and notice in form “F” is to
give notice of the deposit to the land lord, if tenant fails to take
necessary steps as per sub Rule (4) of R. 21, the application shall
be rejected and amount be refunded to the tenant. For treating the
deposit u/s 30 as valid deposit to absolve the tenant from the risk
of the default in payment of rent, the provisions of R. 21 should be
complied strictly. For depositing of amount subsequent to the first
deposit process fee and notice in form “F” is necessary and
mandatory requirement. Please see following case laws on the point:
1. Chameli Devi v. IV ADJ Pilibhit, 2003 A.R.C. 788
2. Pashupati Singh Vs. Ist A.D.J., 1981 A.R.C. 222
3. Hari Shanker Kapoor v. 2nd ADJ, 1985 ARC (1)
260
4. Chhotey Lal Vs. XIV A.D.J., Kanpur, 1994 AWC 813
Answer to Query No. 3:-
In Khursheed Begum v. ADJ, Varanasi, 2004 (1) ARC 269, it is held
that after knowledge of pendency of suit for ejectment, a tenant
cannot continue to deposit rent under S. 30 of the Act.
However, in Ram Praksh Mishra v. IV ADJ, Etah, 1999 (1) ARC 7, Buniyad
Hussain v. Raj Kumari; 1999 (1) ARC 384, Pyare Miyan v. VIII ADJ,
Bareilly; 1999 (2) ARC 756, Chaudhary Badridas v. ADJ, Dehradun,
2000(3) AWC 2229 , Kailash Chand v. III ADJ, Jalaun, 1999 (1) AWC
302 deposit made by tenant under S. 30(1) of the Act, which was well
above the demand in ejectment suit, was held good deposit.
Q. 5
tgka ;FkkfLFkfr
vksn’k (Status quo)
ds vuqikyu ds fy, iqfyl lgk;rk vUrxZr /kkjk 151 lh-ih-lh- iznku dh
x;h gks ogka ,slh iqfyl lgk;drk ij gksus okyk O;; D;k lEcfU/kr
i{kdkj }kjk ogku fd;k tk;sxk ;k fu’kqYd :i esa mls iqfyl lgk;rk
iznku dh tk;sxhA
Ans. It is stated that police help
is an extra ordinary measure or procedure to step implement the
execution of the order. In other words, it is to be regarded as an
extreme where the court is convinced of the existence of a grave
emergency. As a General Rule the expenses of the Police Aid or help
in carrying out the execution of an injunction order passed by a
civil court is on a party who has applied for the same. However,
there can be an exception to it and a decision to this effect will
have to be taken keeping in view all the facts and circumstances of
a particular case.
Further Case Laws
referred:
1. AIR 1995 Bom 61- Ratna v. Satwa
Rao
2. AIR 2004 Bom 225 Neerabai J.
Patil v. Narayan D. Patil
3. AIR 2002 Cal 91- STP Ltd. v.
Nirmal Jeet Singh
4. AIR 1993 Ker 62 –Kochupennu Ambuj
Akshj v. Veluthakunju Vasu Challar
5. AIR 1999 Raj 6- Mango Lal v.
Ichku Devi
6. AUR 1983 Cal 266 –Sunil Kumar v.
Nishikanta
7. AIR 1984 Raj 98- Ganga Ram v.
Devi Singh
8. AIR 1986 Cal 220- Sujit Pal v.
Pravir Kumar Son (DB)
9. 2006(3) AWC 2600- Smt.
Jagannithia v. State of U.P. & Ors, (DB)
BACK TO INDEX
|