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Tuesday, July 5, 2016

Arms Act, 1959 Indian Penal Code, 1860, S.394 & S.397-Evidence Act, 1872, S.9.

S.25—Robbery—Threat with knife—identification of accused—Complainant identified only one accused out of four accused-No other witness was examined-No Test Identification Parade was conducted-No other evidence against rest of three accused-Unidentified accused person were rightly acquitted- Indian Penal Code, 1860, S.394 & S.397-Evidence Act, 1872, S.9.;;

 Harjit Kaur v. State of Punjab & Ors. : 2016(2) Law Herald (P&H) 1010 

Civil & Criminal Proceedings

Damages-Claim for damages and loss due to physical assault by policeman-The judgment in the criminal case cannot govern the determination of the matter in civil suit when the plaintiff-respondent has led cogent and convincing evidence to prove the plea raised by him in the plaint.;;

Roshan Singh & Ors. v. Harpal Singh : 2016(2) Law Herald (P&H) 1338 

S.5 & S.27-Licenced Weapon

S.5 & S.27-Licenced Weapon-Opening fire in the area to scare the aggressors does not fall under the mischief of Section 5 of the Arms Act;;

Piara Singh v. State of Punjab : 2016(1) Law Herald (P&H)  696

Arms Act, 1959 S.4-Right to Religion-Wearing of Kirpan


Sec 4-Right to Religion-Wearing of Kirpan-ln recognition of the fundamental rights of the Sikhs to wear and carry kirpans as part of the profession of Sikh religion, the Kirpans carried or possessed by Sikhs are exempted from the provisions of Section 4 of the Arms Act, 1959-This exemption applies to all parts of India where Section 4 applies-Thus, no licence is required for a Sikh to wear or carry a kirpan-Constitution of India, 1950, Article 25,;;

Dilawar Singh v. State of Haryana : 2016(2) Law Herald (P&H) 971

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.256 - Acquittal - Non appearance of complainant

 2016(2) CIVIL COURT CASES 717 (S.C.)

SUPREME COURT OF INDIA

PINAKI CHANDRA GHOSE & AMITAVAROY, JJ.


Criminal Appeal Nos.184 of 2016 (Arising out of SLP(Criminal) No.6209 of 2011), D/ 29.02.2016.

VKBhat

Vs GRavi Kishore & Anr.


Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.256—Dishonour of cheque - Complaint - Non appearance of complainant - Dismissal in default - Amounts to acquittal as contemplated u/s 256 Cr.P.C.

Having held as above the court granted permission to complainant to pursue remedy of appeal as the revision filed by the complainant was not  and only appeal was maintainable.

"9. Accordingly, we set aside the order passed by the Metropolitan Sessions Judge, Nampally in Second Revision Petition as well as the judgment passed by the High Court upholding the same. We do not intend to give any further comments in the matter.

10. However, observing the amount involved in this case, we only grant liberty to respondent No.l to take such steps as may be advised, in accordance with the provisions available in law and to proceed with the matter before the appropriate forum within a period of two weeks from the date of receipt of copy of this order.


11. The appeal is, accordingly, allowed."

Arbitration Act, 194O


Award—Non-speaking order—The Arbitrator is not required to give reasons for his award under the Arbitration Act, 1940 unless the contract itself provides that the arbitrator shall give reasons and the arbitral reference makes it imperative—Therefore, award cannot be faulted on failure to give reasons.:;


 H.S. Tuli and Sons Builders (P) Ltd. (M/s) v. Union of India : 2016(2) Law Herald (P&H) 1073 :

Allotment of plot

Oustee Quota-Eligibility ~The acquired land must be of the oustee-!n other words, only those lands which a person owned at the time of acquisition can be taken into consideration—The ownership could indeed be acquired in any manner including by purchase or by inheritance.;:

 Gorakh Nath v. State of Punjab & Ors. : 2016(2) Law Herald (P&H) 1195 (DB

Allotment of plot

Eligibility—The expression 'applicant' shall also include and represent a 'spouse', for they are intertwined for the purposes of allotment of house sites.;;

 Manju S, Gupta (Mrs.) v. State of Haryana : 2016(2) Law Herald (P&H) 1273 (DB) 

Allotment of plot

Deemed Cancellation-Allotment letter sent by authorities was not responded by allottee-Before expiry of 30 days from alleged date of delivery of allotment letter, allottee had written to authorities that allotment letter be issued at the earliest-Authorities replied that it has been already issued and time has elapsed for deposit of initial 15% therefore, allotment is deemed to be canceled-Held; conduct of petitioner exhibits that he was awaiting forma! allotment and was ready and willing to perform his part of contract—Authorities could always issue another copy of allotment letter to the petitioner and require him to comply with the terms—In the present case, there is fair presumption that petitioner never received the allotment letter-Authorities had also not issued any formal cancellation letter which shows that they themselves were not sure whether letter was delivered or not-Authorities directed to issue formal letter of allotment.;;

Ashish Yadav v. State of Haryana & Or , : 2016(2) Law Herald (P&H) 1310 (DB) :

Allotment of plot



Cancellation Order-Power of Attorney-Plot allotted to original allottee was resumed due to non-payment of dues-After resumption order allottee appointed a GPAfor pursuing the remedies available as per law-GPA got resumption order set aside on payment on basis of current market price-Thereafter, GPA got sale deed executed in favour of petitioner-Sale deed and allotment letter were executed by authority in the name of petitioner-Thereafter, authority cancelled the allotment on the ground that original allottee and GPA had entered into connivance to commit fraud-Impugned order set aside-Held; GPA was not the beneficiary in any way-He was appointed only to facilitate the proceedings before authorities as he was friend of original allottee and local resident-No consideration ever passed from GPA to allottee-Transaction held to be bonafide-Petitioner held to be bona fide purchaser for consideration—Cancellation order set aside.;; 

Veena Rani v. State of Haryana : 2016(2) Law Herald (P&H) 1288 (DB) 

Monday, July 4, 2016

Section 405 - Ingredients of offence - Penal Code, 1860 (IPC) - Section 420 - Ingredients of offence

(2002) CriLJ 2125
PUNJAB AND HARYANA HIGH COURT
SINGLE BENCH
SMT. SEEMA — Appellant

Vs.

SATISH SACHDEVA AND ANOTHER — Respondent
( Before : J.S. Khehar, J )
Criminal Miscellaneous No. 7284-M of 2000
Decided on : 03-01-2002
·  Penal Code, 1860 (IPC) — Section 405, 406, 420
Penal Code, 1860 (IPC) - Section 405 - Ingredients of offence - Non - entrustment of property to accused - To constitute an offence of criminal breach of trust it is essential to prove first of all that the accused was entrusted with some property or with any dominion or power over it. It has to be established further that in respect of the property entrusted, there was dishonest misappropriation, or dishonest conversion, or dishonest use, or disposal in violation of a provision of law. So far as the allegations made in the complaint against the petitioner are concerned, it is not even the case of the complainant himself that petitioner had been entrusted the amount in the chit fund in any manner directly or indirectly. It is also not the case of the complainant that there was any agreement between the complainant and petitioner in respect of the money deposited by him in the chit fund. It is, therefore, obvious that the ingredients of the offence under Section 405 of the Indian Penal Code are clearly not made out against petitioner.
Hence, the order of the Judicial Magistrate summoning petitioner is liable to be set aside.
Penal Code, 1860 (IPC) - Section 420 - Ingredients of offence - Absence of dishonest inducement - Before an offence of cheating dishonestly under Section 420 of the Indian Penal Code is made out, it is necessary to establish that the accused must have cheated or dishonestly induced a person to deliver property or a valuable security. Even in the complaint, if taken on its face value and accepted as correct, it is not alleged that the petitioner accused 'S' ever induced the complainant to enroll as a member of the chit fund established by 'S' (who is admittedly her brother). Merely because 'S' is alleged to have purchased certain articles from the amount deposited by the complainant at the time of marriage of the petitioner 'S', would not make any difference insofar as the offence contemplated under Section 420 of the Indian Penal Code is concerned, insofar as 'S' is concerned.
Hence, the order of the Judicial Magistrate summoning petitioner is liable to be set aside.
Counsel for Appearing Parties
Vineet Sharma, for the Appellant;
Cases Referred
Final Result : Allowed
ORDER
J.S. Khehar, J.—Satish Sachdeva (respondent No. 1 herein) made a complaint dated 12-6-1999 to the Superintendent of Police. Amritsar City-II, alleging that Sham Sunder son of Banarai Dass, started a chit fund company under the name and style of M/s. S. Finance, G.T. Road, Near Bus Stand. Amritsar. He claimed that he had enrolled himself as a member of the Chit Fund and made regular contribution of Rs. 10,000/-every month on account of which he was entitled to receive a sum of Rs. 1,50,000/-on 30-9-1998. Despite repeated requests made by him to the aforesaid Sham Sunder, the amount had not been returned. The complainant, on the basis of the aforesaid facts, alleged in his aforesaid complaint that he had been made a member of the chit fund fraudulently by Sham Sunder so as to dishonestly cheat him for personal monetary gains. It was also alleged that the amount deposited by the complainant in the chit fund was dishonestly misappropriated by the aforesaid Sham Sunder. A compromise was entered into between the complainant Satish Sachdeva and the accused Sham Sunder on 22-6-1999 wherein Sham Sunder agreed to pay the complainant Satish Sachdeva all outstanding dues.
2. It is the case of the complainant Satish Sachdeva that despite the aforesaid compromise, Sham Sunder had failed to honour the commitment made despite repeated requests. It is in the aforesaid circumstances that Satish Sachdeva made a complaint under Sections 405/406 and 420 of the Indian Penal Code to the Judicial Magistrate 1st Class, Amritsar, on 27-9-1999. In the instant complaint Satish Sachdeva, the complainant alleges that on account of the deposits made by him, he was to be released a sum of Rs. 30,000/- on 30-6-1998, a sum of Rs. 1,00,000/- on 30-8-1998 and finally a sum of Rs. 2,50,000/- on 25-9-1998 as a consequence of his contribution to three chit funds. It is alleged in the aforesaid complaint that despite his contributions, Sham Sunder accused had failed to release the payments to him. Paragraph 6 of the complaint which is relevant to the present controversy is being extracted hereunder :-
6. That the above amounts along with amounts of other subscribers were utilised by Shri Sham Sunder on the following assets :-
1. Renovation of H. No. 231, Tilak Nagar, Amritsar.
2. Fitting of furniture in the Drawing Room of the H. No. 231. Tilak Nagar, Amritsar.
3. Renovation of factory at Bharat Nagar, Amritsar.
4. Marriage of Seema d/o Shri Banarasi Das for the purchase of Refrigerator, Colour Television, Scooter etc.
5. That the above premises bearing H. No. 231, Tilak Nagar, Amritsar, is in possession of Shri Sham Sunder, Banarasi Das, Naresh Kumar and Deepak Kumar and the factory at Bharat Nagar Amritsar is possessed by Shri Banarsi Das, Shri Sham Sunder and Shri Deepak Kumar and Refrigerator, Colour Television and Scooter are in possession of Smt. Seema.
On the basis of the complaint dated 27-9-1999, the Judicial Magistrate 1st Class, Amritsar, vide his order dated 3-11-1999, arrived at the conclusion that there was sufficient evidence to proceed against the accused under Sections 406 and 420 of the Indian Penal Code. The trial Court accordingly summoned the accused to face the trial under the aforesaid sections. The order of the Judicial Magistrate 1st Class, Amritsar, dated 3-11-1999 has been impugned through the instant petition by Smt. Seema daughter of Banarsi Das.
3. It is the case of the petitioner before this Court that the complainant had made no reference to her in his first complaint dated 12-6-1999 and reference made to her and the second complaint dated 27-9-1999 even if taken on its face value and accepted as correct would be insufficient to fulfil the ingredients constituting the offence under Sections 405 and 420 of the Indian Penal Code.
4. Section 405 of the Indian Penal Code is being extracted hereunder :-
405. Criminal breach of trust :- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriate or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, of of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust.
A bare perusal of the aforesaid section leads to the conclusion that to constitute an offence of criminal breach of trust it is essential to prove first of all that the accused was entrusted with some property or with any dominion or power over it. It has to be estalished further that in respect of the property entrusted, there was dishonest misappropriation, or dishonest conversion, or dishonest use, or disposal in violation of the terms of entrustment or violation of a provision of law. So far as the allegations made in the complaint against the petitioner-Smt. Seema are concerned, it is not even the case of the complainant himself that Smt. Seema had been entrusted the amount in the chit fund in any manner directly or indirectly. It is also not the case of the complainant that there was any agreement between the complainant and Smt. Seema in respect of the money deposited by him in the chit fund. It is, therefore, obvious that the ingredients of the offence u/s 405 of the Indian Penal Code are clearly not made out against Smt. Seema.
5. The impugned order of the Judicial Magistrate 1st Class, Amritsar, requires her to be proceeed against u/s 420 of the Indian Penal Code. The aforesaid section is being extracted hereunder :-
420. Cheating and dishonestly inducing delivery of property :- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.
Before an offence of cheating dishonestly u/s 420 of the Indian Penal Code is made out, it is necessary to establish that the accused must have cheated or dishonestly induced a person to deliver property or a valuable security. Even in the complaint, if taken on its face value and accepted as correct, it is not alleged that the petitioner-Smt. Seema ever induced the complainant Satish Sachdeva to enrol as a member of the chit fund established by Sham Sunder (who is admittedly her brother). Merely because Sham Sunder is alleged to have purchased certain articles from the amount deposited by the complainant-Satish Sachdeva at the time of marriage of the pe-titioner-Smt. Seema, would not make any difference insofar as the offence contemplated u/s 420 of the Indian Penal Code is concerned, insofar as Smt. Seema is concerned.
6. Since the two complaints made by the complainant do not disclose the commission of any offence either u/s 405 or 420 of the Indian Penal Code by the petitioner, the order of the Judicial Magistrate 1st Class, Amritsar, dated 3-11-1999, summoning her to face trial under the aforesaid sections is unsustainable and is liable to be set aside. For the reasons recorded above, the order of the Judicial Magistrate 1st Class, Amritsar, dated 3-11-1999, insofar as it relates to Smt. Seema petitioners, is accordingly quashed.

Saturday, July 2, 2016

THE REAL ESTATE (REGULATION AND DEVELOPMENT) ACT, 2016 

(16 of 2016)

 [25th March, 2016]

 An Act to establish the Real Estate Regulatory Authority for regulation and promotion of the real estate sector and to ensure sale of plot, apartment or building, as the case may be, or sale of real estate project, in an efficient and transparent manner and to protect the interest of consumers in the real estate sector and to establish an adjudicating mechanism for speedy dispute redressal and also to establish the Appellate Tribunal to hear appeals from the decisions, directions or orders of the Real Estate Regulatory Authority and the adjudicating officer and for matters connected therewith or incidental thereto. BE it enacted by Parliament in the Sixty-seventh Year of the Republic of India as follows:—


 CHAPTER I 

PRELIMINARY 


 1. Short title, extent and commencement.—(1) This Act may be called the Real Estate (Regulation and Development) Act, 2016.

 (2) It extends to the whole of India except the State of Jammu and Kashmir.

 (3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint: Provided that different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.

 2. Definitions.—In this Act, unless the context otherwise requires,—

 (a) "adjudicating officer" means the adjudicating officer appointed under sub-section (1) of section 71;

 (b) "advertisement" means any document described or issued as advertisement through any medium and includes any notice, circular or other documents or publicity in any form, informing persons about a real estate project, or offering for sale of a plot, building or apartment or inviting persons to purchase in any manner such plot, building or apartment or to make advances or deposits for such purposes;

 (c) "agreement for sale" means an agreement entered into between the promoter and the allottee;

 (d) "allottee" in relation to a real estate project, means the person to whom a plot, apartment or building, as the case may be, has been allotted, sold (whether as freehold or leasehold) or otherwise transferred by the promoter, and includes the person who subsequently acquires the said allotment through sale, transfer or otherwise but does not include a person to whom such plot, apartment or building, as the case may be, is given on rent;

 (e) "apartment" whether called block, chamber, dwelling unit, flat, office, showroom, shop, godown, premises, suit, tenement, unit or by any other name, means a separate and self-contained part of any immovable property, including one or more rooms or enclosed spaces, located on one or more floors or any part thereof, in a building or on a plot of land, used or intended to be used for any residential or commercial use such as residence, office, shop, showroom or godown or for carrying an any business, occupation, profession or trade, or for any other type of use ancillary to the purpose specified;

 (f) "Appellate Tribunal" means the Real Estate Appellate Tribunal established under section 43;

 (g) "appropriate Government" means in respect of matters relating to,— (i) the Union territory without Legislature, the Central Government; (ii) the Union territory of Puducherry, the Union territory Government; (iii) the Union territory of Delhi, the Central Ministry of Urban Development; (iv) the State, the State Government;

 (h) "architect" means a person registered as an architect under the provisions of the Architects Act, 1972 (20 of 1972); 

(i) "Authority" means the Real Estate Regulatory Authority established under sub-section (1) of section 20;

(j) "building" includes any structure or erection or part of a structure or erection which is intended to be used for residential, commercial or for the purpose of any business, occupation, profession or trade, or for any other related purposes;

 (k) "carpet area" means the net usable floor area of an apartment, excluding the area covered by the external walls, areas under services shafts, exclusive balcony or verandah area and exclusive open terrace area, but includes the area covered by the internal partition walls of the apartment; Explanation.—For the purpose of this clause, the expression "exclusive balcony or verandah area" means the area of the balcony or verandah, as the case may be, which is appurtenant to the net usable floor area of an apartment, meant for the exclusive use of the allottee; and "exclusive open terrace area" means the area of open terrace which is appurtenant to the net usable floor area of an apartment, meant for the exclusive use of the allottee; (1) "Chairperson" means the Chairperson of the Real Estate Regulatory Authority appointed under section 21; (m) "commencement certificate" means the commencement certificate or the building permit or the construction permit, by whatever name

Sunday, May 22, 2011

Damages--Malicious Prosecution--Suit for damages--Damages assessed, were for expenses incurred, as well as for mental agony suffered by plaintiff/respondents

2010(2) LAW HERALD (P&H) 1442
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Vinod K. Sharma
R.S.A. No. 1785 of 2010 (O&M)
Gurmukh Singh & Anr.
v.
Bhagat Singh & Ors.
{Decided on 10/05/2010}
For the Appellants: Mr. G.S. Jaswal, Advocate.
Damages--Malicious Prosecution--Suit for damages--Damages assessed, were for expenses incurred, as well as for mental agony suffered by plaintiff/respondents--It was not possible for plaintiff/respondents to lead evidence showing positive damage suffered due to mental agony--Therefore, for the mental agony there was no alternative with learned Courts, but assess damages on guess work, keeping in view status of the parties, and agony suffered--No interference. (Para 9)

Specific Relief Act, 1963, S.38--Permanent Injunction--Possession--Agreement to sell--Two Agreements to sell

- 2010(2) LAW HERALD (P&H) 1441
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Mahesh Grover
R.S.A.No.1827 of 2010 (O&M)
Magh Singh
v.
Balvir Singh & Ors.
{Decided on 13/05/2010}
For the Appellant: Mr. R.V.S. Chugh, Advocate.
Specific Relief Act, 1963, S.38--Permanent Injunction--Possession--Agreement to sell--Two Agreements to sell do not contain a recital regarding handing over of possession to appellant--No other material to show that possession was ever with appellant--Suit for permanent injunction for possession of land on basis of two agreements to sell rightly dismissed. (Para 7)

Sunday, April 24, 2011

Registration Act, 1908, S.17 (1) (b)--Requires that where the Conveyance Deed has been prepared, such deed should be registered within a period of 4 months after its execution

2011(1) LAW HERALD (SC) 788
IN THE SUPREME COURT OF INDIA
Before
The Hon’ble Mr. Justice B. Sudershan Reddy
The Hon’ble Mr. Justice Surinder Singh Nijjar
Civil Appeal No. 550 of 2003
DLF Universal Ltd. & Anr.
v.
Director, T.&C. Planning Haryana & Ors.
{Decided on 19/11/2010}
HUDA--Director Town & Country Planning Haryana is not authorized to interfere with agreements voluntarily entered into by and between the owner/colonizer and the purchasers of plots/flats--It do not require the approval or ratification by the Director nor is the Director authorized to issue any direction to amend, modify or alter any of the clauses in the agreement
Agreement to Sell--Stamp Act or Registration Act has no provision imposing any restriction on the assignment or transfer of rights under a sale/purchase agreement by the purchaser to a third party, before the execution of any conveyance deed in respect of any immoveable property.
(A) Haryana Development and Regulation of Urban Areas Act, 1975-- Ss.2, 3, 5 and R.11 B--Haryana Development and Regulation of Urban Areas Rules, 1976, R.26(2)--Director Town & Country Planning Haryana is not authorized to interfere with agreements voluntarily entered into by and between the owner/colonizer and the purchasers of plots/flats--It do not require the approval or ratification by the Director nor is the Director authorized to issue any direction to amend, modify or alter any of the clauses in the agreement--Held, there is no provision in the Act, Rules or on the license that empowers the director to fix the sale price of the plots or the cost of flats
The appellants were granted license under the Act for setting up residential colonies--The appellants entered into required agreements with the Governor of Haryana--Plot sold--Allotted to various buyers by appellants--under separate agreements--Mutual rights and obligations structured--The Director, Town and Country Planning, Haryana without any notice issued Impugned memo--Challenged before the High Court--The High Court upheld the validity of the impugned memo--Dismissed the writ petition--Now, this appeal--Supreme Court opined that the Director is not authorized to interfere with agreements voluntarily entered into by and between the owner/colonizer and the purchasers of plots/flats--It do not require the approval or ratification by the Director nor is the Director authorized to issue any direction to amend, modify or alter any of the clauses in the agreement--Held, there is no provision in the Act, Rules or on the license that empowers the director to fix the sale price of the plots or the cost of flats--The impugned directions issued by the Director are beyond the limits provided by the Act--Suffer from lack of power--Order which is ultra virus or out side jurisdiction is void in law--The Judgment of the High Court set aside--Appeals allowed. (Para 27, 36, 37, 43)
(B) Haryana Development and Regulation of Urban Areas Rules, 1976, R.26(2)--Director Town & Country Planning Haryana--Function & Duties--Director not to sit in judgment on the perceived fairness of any clauses incorporated in the agreement entered by the parties--License do not prohibit incorporation of clause in the agreement to be entered between the owners and the purchasers--Nor agreement empowers the Director to sit in appeal over the agreement entered by the owners with the purchasers of the plots. (Para 15)
(C) Registration Act, 1908, S.17 (1) (b)--Requires that where the Conveyance Deed has been prepared, such deed should be registered within a period of 4 months after its execution--It does not contain any provision requiring that a Conveyance Deed should be executed within any period of time after the execution of sale agreement between the buyer and the seller. (Para 19)
(D) Agreement to Sell--Stamp Act or Registration Act has no provision imposing any restriction on the assignment or transfer of rights under a sale/purchase agreement by the purchaser to a third party, before the execution of any conveyance deed in respect of any immoveable property. (Para 19)
(E) Haryana Development and Regulation of Urban Areas Act, 1975 and Rules, 1976--Directions issued by the Director suffer from lack of power--If any order which is ultra virus or outside jurisdiction is void in law.
2011(1) LAW HERALD (SC) 788
IN THE SUPREME COURT OF INDIA
Before
The Hon’ble Mr. Justice B. Sudershan Reddy
The Hon’ble Mr. Justice Surinder Singh Nijjar
Civil Appeal No. 550 of 2003
DLF Universal Ltd. & Anr.
v.
Director, T.&C. Planning Haryana & Ors.
{Decided on 19/11/2010}
HUDA--Director Town & Country Planning Haryana is not authorized to interfere with agreements voluntarily entered into by and between the owner/colonizer and the purchasers of plots/flats--It do not require the approval or ratification by the Director nor is the Director authorized to issue any direction to amend, modify or alter any of the clauses in the agreement
Agreement to Sell--Stamp Act or Registration Act has no provision imposing any restriction on the assignment or transfer of rights under a sale/purchase agreement by the purchaser to a third party, before the execution of any conveyance deed in respect of any immoveable property.
(A) Haryana Development and Regulation of Urban Areas Act, 1975-- Ss.2, 3, 5 and R.11 B--Haryana Development and Regulation of Urban Areas Rules, 1976, R.26(2)--Director Town & Country Planning Haryana is not authorized to interfere with agreements voluntarily entered into by and between the owner/colonizer and the purchasers of plots/flats--It do not require the approval or ratification by the Director nor is the Director authorized to issue any direction to amend, modify or alter any of the clauses in the agreement--Held, there is no provision in the Act, Rules or on the license that empowers the director to fix the sale price of the plots or the cost of flats
The appellants were granted license under the Act for setting up residential colonies--The appellants entered into required agreements with the Governor of Haryana--Plot sold--Allotted to various buyers by appellants--under separate agreements--Mutual rights and obligations structured--The Director, Town and Country Planning, Haryana without any notice issued Impugned memo--Challenged before the High Court--The High Court upheld the validity of the impugned memo--Dismissed the writ petition--Now, this appeal--Supreme Court opined that the Director is not authorized to interfere with agreements voluntarily entered into by and between the owner/colonizer and the purchasers of plots/flats--It do not require the approval or ratification by the Director nor is the Director authorized to issue any direction to amend, modify or alter any of the clauses in the agreement--Held, there is no provision in the Act, Rules or on the license that empowers the director to fix the sale price of the plots or the cost of flats--The impugned directions issued by the Director are beyond the limits provided by the Act--Suffer from lack of power--Order which is ultra virus or out side jurisdiction is void in law--The Judgment of the High Court set aside--Appeals allowed. (Para 27, 36, 37, 43)
(B) Haryana Development and Regulation of Urban Areas Rules, 1976, R.26(2)--Director Town & Country Planning Haryana--Function & Duties--Director not to sit in judgment on the perceived fairness of any clauses incorporated in the agreement entered by the parties--License do not prohibit incorporation of clause in the agreement to be entered between the owners and the purchasers--Nor agreement empowers the Director to sit in appeal over the agreement entered by the owners with the purchasers of the plots. (Para 15)
(C) Registration Act, 1908, S.17 (1) (b)--Requires that where the Conveyance Deed has been prepared, such deed should be registered within a period of 4 months after its execution--It does not contain any provision requiring that a Conveyance Deed should be executed within any period of time after the execution of sale agreement between the buyer and the seller. (Para 19)
(D) Agreement to Sell--Stamp Act or Registration Act has no provision imposing any restriction on the assignment or transfer of rights under a sale/purchase agreement by the purchaser to a third party, before the execution of any conveyance deed in respect of any immoveable property. (Para 19)
(E) Haryana Development and Regulation of Urban Areas Act, 1975 and Rules, 1976--Directions issued by the Director suffer from lack of power--If any order which is ultra virus or outside jurisdiction is void in law.

Saturday, September 4, 2010

BREAKING NEWS - - East Punjab Urban Rent Restriction Act, 1949 - - Limitation Act not applicable to proceedings under Section 13 B r/w Section 18-A(2)- - for condoning the delay in filing an application for leave to contest the eviction petition.

SUPREME COURT OF INDIA

SPECIAL LEAVE PETITION (CIVIL) No.24430 OF 2008

Om Prakash
Vs.
Ashwani Kumar Bassi

Date of Decision 27.08.2010

East Punjab Urban Rent Restriction Act, 1949.

Section 13-B is a power given to a Non-Resident Indian owner of a building to obtain immediate possession of a residential building or scheduled building when required for his or her use or for the use of any one ordinarily living with and dependent on him or her. The right has been limited to one application only during the life time of the owner. Section 18-A(2) of the aforesaid Act provides that after an application under Section 13-B is received, the Controller shall issue summons for service on the tenant in the form specified in Schedule II. The said form indicates that within 15 days of service of the summons the tenant is required to appear before the Controller and apply for leave to contest the same. There is no specific provision to vest the Rent Controller with authority to extend the time for making of such affidavit and the application. The Rent Controller being a creature of statute can only act in terms of the powers vested in him by statute and cannot, therefore, entertain an application under Section 5 of the Limitation Act for condonation of delay since the statute does not vest him with such power.
In such case, neither the Rent Controller nor the High Court had committed any error of law in rejecting the Petitioner’s application for seeking leave to contest the suit, since the same had been filed beyond the period prescribed in the form in Schedule II of the Act referred to in Section 18-A(2) thereof.

Monday, August 30, 2010

Civil Procedure Code, 1908, O. 21--Execution Proceeding

2010(3) LAW HERALD (P&H) 1922
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice L. N. Mittal
C. R. No. 4033 of 2010
Balraj
v.
Nathu Ram & Ors.
{Decided on 01/07/2010}
For the Petitioner: Mr. Avtar Singh Khinda, Advocate.
Constitution of India, 1950, Art.227--Civil Procedure Code, 1908, O. 21--Execution Proceeding--Objections--Possession--Contention that suit property belong to Cantonment Board and therefore, decree-holder cannot seek possession of suit property in execution of decree is misconceived--No such objection can be raised in execution petition--Petitioner is son and grandson of judgment-debtors and claims through them--Petitioner has no independent right to remain in possession of suit property. (Para 4)

Motor Vehicles Act, 1988--Award--Execution--Objections

2010(3) LAW HERALD (P&H) 1921
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice L.N. Mittal
C. R. No. 7180 of 2008
Nirmal Singh
v.
Charanjit Kaur & Ors.
{Decided on 01/07/2010}
For the Petitioner: Mr. Deepak Aggarwal, Advocate.
For the Respondents no.1 to 3 and 5: Mr. P. K. S. Phoolka, Advocate.
For the Respondent no. 6: Mr. R. P. Dariya, Advocate for Mr. K. K. Garg, Advocate.
Constitution of India, 1950, Art.227--Motor Vehicles Act, 1988--Award--Execution--Objections--Report on warrant of attachment, issued for attachment of land, reveals that, when attachment was sought to be made, it was found land has already been sold by judgment-debtor--Impugned order that attachment of land was effected prior to execution of sale deed in favour of objectors set aside--Matter is remanded for fresh decision of objections. (Para 10 & 11)

Criminal Procedure Code, 1973, S.439 (1)

2010(3) LAW HERALD (P&H) 2080
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Gurdev Singh
Crl. Misc. No. M-12587of 2010
Kuldeep
v.
State of Haryana
{Decided on 27/05/2010}
For the Petitioner: Mr. Anil Ghangas, Advocate.
For the Respondent: Ms. Shalini Attri, Deptuy Advocate General, Haryana
Criminal Procedure Code, 1973, S.439 (1)--Indian Penal Code, 1860, S.147, 148, 307, 506--Arms Act, 1959, S.25--Bail--Change in circumstances since dismissal of petition filed earlier for bail--Statements of complaint and injured recorded before trial court annexed with petition-- Shows that they resiled from their previous statement--They never stated that it was petitioner who caused injuries--Petitioner is ordered to be released on bail. (Para 4, 5 & 6)

Tuesday, August 17, 2010

Land Acquisition Act, 1894, S.4, 6 r/w S.17--Acquisition of land–Public Purpose

2010(3) LAW HERALD (P&H) (DB) 2072
IN THE HIGH COURT OF PUNJAB AND HARYANA
(DIVISION BENCH)
Before
The Hon’ble Mr. Justice M.M. Kumar
The Hon’ble Mr. Justice Jitendra Chauhan
CWP No. 9483 of 2009
Niranjan Singh
v.
State of Punjab & Ors.
{Decided on 21/06/2010}
For the Petitioner: Mr. Kanwaljit Singh, Senior Advocate, with Ms. Prachi Sharma, Advocate.
For the Respondents: Mr. Suvir Sehgal, Additional Advocate General, Punjab.
(A) Land Acquisition Act, 1894, S.4, 6 r/w S.17--Acquisition of land–Public Purpose--Urgency--Whenever land is required for a public purpose which in opinion of appropriate government is of urgent importance then after publication of notice in accordance with provisions of Section 17(1) of Act and with previous sanction of State Government Collector may enter upon and take possession of said land although after 48 hours mandatory notice is required in specified cases as per proviso. (Para 19)
(B) Land Acquisition Act, 1894, S.4, 6 r/w S.17--Acquisition of land –Public Purpose--Urgency--There is no independent application of mind by respondent-State whether urgency is of such a nature that it would not bear even delay which might be required for filing and hearing of objections under Section 5 A of Act--Issuance of notification under Section 4 read with Section 17(2) and Section 6 of Act are liable to be quashed being without jurisdiction. (Para 23)
(C) Land Acquisition Act, 1894, S.4, 6 r/w S.17 and 5-A--Acquisition of land –Public Purpose--Urgency--Hearing of objections--First issue pertains to utility of existing village pond--Other issue is whether land is required for purpose of constructing another pond and whether same is suitable for aforesaid public purpose--All these questions could have been addressed by filing objections under Section 5A of Act and after hearing of those objections a report could have been sent to Government by Collector--Thereafter Government could have considered report of Collector and a final decision could have been taken--This position emerges from withdrawal of earlier notification issued on 16.11.2007--Delay is caused in finalizing present acquisition proceedings is attributable to State Government--Record shows that on account of additions and deletion of certain land some amendment in earlier notification dated 18.11.2007 was required to be published which could be done by initiating acquisition process afresh--Notifications dated 16.11.2007 and 25.1.2008 earlier issued for same purpose were withdrawn--Whole delay is imputable to respondent-State which impinges upon on invocation of urgency clause--Dispensing with Section 5 A of Act was not automatic and opportunity of filing objections and granting hearing to land owners should have been afforded--Had it been done then persons interested in land could have filed their objections which could eventually be decided by Government--Therefore, notification initiating process of acquisition of land under Section 4 read with Section 17(2) (c) and subsequent notification dated 12.6.2009 are not sustainable. (Para 24 & 25)

Indian Penal Code, 1860, S.419, 420, 468 , 471--Cheating

2010(3) LAW HERALD (P&H) 2069
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Kanwaljit Singh Ahluwalia
Criminal Revision No.2224 of 2002
Amar Singh & Ors.
v.
State of Haryana
{Decided on 04/06/2010}
For the Petitioners: Mr. R.N. Kush, Advocate.
For the Respondent – State: Mr. Manish Deswal, DAG, Haryana.
Indian Penal Code, 1860, S.419, 420, 468 & 471--Cheating--Forgery--In view of categoric findings of Civil Court it cannot be said that alleged forged mutation was used for cheating or was fraudulently used as genuine--Therefore, petitioners are entitled to acquittal so far as offences under Sections 468 and 471 IPC are concerned--If land was not mortgaged, then mutation dated 7.3.1983 whereby redemption of land was shown cannot be said that it was used for cheating--Therefore, offence under Section 420 IPC is also not made out--But since in mutation proceedings ‘H’ was impersonated, offence will fall under Section 419 IPC--Petitioners were taken into custody on 30.10.2002--They were ordered to be released on bail on 16.1.2003--They have undergone 2 months and 16 days of actual sentence--Appellate Court had reduced sentence under Sections 420, 468 and 471 IPC to eight months RI--Alleged mutation pertained to year 1983--FIR was registered against petitioner-accused in year 1985--They are in corridors of Courts for last 25 years--Since offence has been converted to Section 419 IPC considering mental pain and agony of protracted trial suffered by petitioners, sentence already undergone by petitioners will serve purpose--Petitioners are acquitted of offence under Section 420, 468 and 471 IPC--They are held liable for offence under Section 419 IPC and awarded sentence of 2 months and 16 days, period already undergone by them. (Para 19, 20 & 21)

Haryana Panchayati Raj Act, 1994, S.166 (6)

2010(3) LAW HERALD (P&H) 2068
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rajan Gupta
Civil Writ Petition No.7791 of 2010
Shobha Ram & Anr.
v.
State of Haryana & Ors.
{Decided on 28/05/2010}
For the Petitioners: Mr. Kul Bhushan Sharma, Advocate.
For the Respondent: Mr. Deepak Jindal, Deputy Advocate General, Haryana.
Constitution of India, 1950, Art.226--Haryana Panchayati Raj Act, 1994, S.166 (6)--Amendment of voter list--Writ Jurisdiction--Disputed question of facts have been arisen in petition with regard to submission of objections by petitioners against voter list issued by official respondents--Cannot be adjudicated upon by High court in writ jurisdiction as no evidence is available to decide such issues--Also, in view of Bar contained is Section 166(6) it is not possible for High court at this stage to direct amendment of voter list--In view of fact that election process had already set in motion, there is no ground to interfere in writ jurisdiction . (Para 5 & 6)

East Punjab Urban Rent Restriction Act, 1949--Rent--Controversy about period for which rent was payable

2010(3) LAW HERALD (P&H) 2067
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice S. D. Anand
Civil Revision No. 7162 of 2009
Sh. Vishva Sharva Talwar Malik
v.
Devinder Singh Aulakh
{Decided on 25/05/2010}
For the Petitioner: Mr. V.K.Jindal, Advocate.
For the Respondent: Mr. S.K.Pipat, Senior Advocate with Mr. Ramanjit Singh, Advocate.
East Punjab Urban Rent Restriction Act, 1949--Rent--Controversy about period for which rent was payable--Landlord claimed rent for period 1.4.2004 to 30.12.2006--Tenant relied upon an order dated 10.3.2009 vide which learned Rent Controller had held that rent had been paid by tenant to landlord for period upto February, 2007--Though learned Rent Controller noticed factum of order dated 10.3.2009, it did not examine and indicate effect thereof upon period for which rent was payable--Impugned order set aside--Learned Rent Controller shall grant an order afresh in matter of assessment of provisional rent. (Para 1, 2 & 3)

Haryana Panchayati Raj Act, 1994, S.166 (6)

2010(3) LAW HERALD (P&H) 2066
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rajan Gupta
Civil Writ Petition No.9877 of 2010
Jubena Khatun
v.
State Election Commissioner Haryana & Ors.
{Decided on 28/05/2010}
For the Petitioner: Mr. Lokesh Sinhal, Advocate.
Haryana Panchayati Raj Act, 1994, S.166 (6)--Amendment in voter list--Belated Claim-- Petitioner sought direction to include her name in voter list--After publication of draft voter- list, official respondents had invited objections from inhabitants of village--Number of objections were received--Despite fact that petitioner is stated to be politically active, she did not submit any objection to draft voter-list within prescribed period--Therefore, her name could not be included in voter-list--Election process has already been set in motion--Moreover, in view of bar contained in section 166(6) of Act, it is not possible at this stage to direct any amendment in voter-list--Interference of in writ jurisdiction not warranted. (Para 5)

ndian Penal Code, 1860, S.420, 467, 468 471--Cheating--Forgery--Conviction-

2010(3) LAW HERALD (P&H) 2064
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Kanwaljit Singh Ahluwalia
Crl. Revision No.2061 of 2002
Satbir
v.
State of Haryana
{Decided on 04/06/2010}
For the Petitioner: Mr. J.S.Hooda, Advocate.
For the Respondent: Mr. Manish Deswal, DAG, Haryana.
Indian Penal Code, 1860, S.420, 467, 468 & 471--Cheating--Forgery--Conviction--Allegation against petitioner was that on 31.8.2000, he produced a forged receipt of fine for release of jeep on supardari issued by Court of Chief Judicial Magistrate, which was of valuable security and HC delivered RC book of jeep--In pursuance to disclosure statement made by him, some forged receipts and rubber stamps were recovered--Police witnesses are not inimical towards accused--Petitioner had not only appeared before HC and produced forged receipt but also handed over registration cover to owner of jeep--Conviction of petitioner for various offences upheld--However Petitioner had already suffered mental pain and agony of protracted trial for a period of 10 years--Taking these facts into consideration, sentence awarded to petitioner for offence under Sections 467, 468 and 471 IPC reduced to 1 ½ years--However, sentence awarded to petitioner under Section 420 IPC maintained. (Para 7, 15, 17 & 18)

Land Acquisition Act, 1894, S. 4, 6, 5A 9--Objections--Non-filing of

2010(3) LAW HERALD (P&H) (DB) 2057
IN THE HIGH COURT OF PUNJAB AND HARYANA
(DIVISION BENCH)
Before
The Hon’ble Mr. Justice M.M. Kumar
The Hon’ble Mr. Justice Jitendra Chauhan
CWP No. 18931 of 2009 (O&M)
Rishi Pal etc.
v.
State of Haryana etc.
{Decided on 05/04/2010}
For the Petitioner: Mr. N.C.Kinra, Advocate.
For the Respondent: Ms. Palika Monga DAG Haryana
For the Respondent No.2: Mr. Shallie Taneja, Advocate.
Land Acquisition Act, 1894, S. 4, 6, 5A & 9--Objections--Non-filing of--Petitioner unable to produce any receipt of sending objections by registered letter or acknowledgement--He was also not able to show original copy of objections--Identical language in objections filed by petitioners in both set of cases would show that it is an after thought and no objections infact were filed--Notification under Section 4 issued on 15.12.2006 and declaration was made on 14.12.2007 granting ample opportunity to petitioners to file objections and seek their remedy in accordance with law--It cannot be said that no declaration can be made under Section 6 of Act as notification issued under Section 4 has been described as if it is issued by invoking urgency provisions of Section 17(1) of Act--No prejudice could be said to have caused to petitioners--Writ petitions dismissed. (Para 3, 4, 5 & 6)

Removal of President--Transfer and posting of some of employees of Council from one place to another would not amount to abuse of power and further whether postponement of date of receiving of tenders would amount to abuse of power without causing any financial burden or loss on Council.

2010(3) LAW HERALD (P&H) 2060
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Alok Singh
C.W.P. No. 6793 of 2010
Rajinder Singh Rana
v.
State of Punjab & Ors.
{Decided on 28/06/2010}
For the Petitioner: Mr. K.S. Sidhu, Sr. Advocate with Mr. S.C. Pathela, Advocate.
For the Respondent: Mr. Satish Bhanot, Addl. A.G. Punjab for the respondent-State
For the Respondent No.2: Mr. Salil Sagar, Sr. Advocate with Mr. Samarth Sagar, Advocate.
For the Respondent No.3: Mr. Kanwaljit Singh, Sr. Advocate with Mr. H.S. Sethi, Advocate.
IMPORTANT POINT
Removal of President--Transfer and posting of some of employees of Council from one place to another would not amount to abuse of power and further whether postponement of date of receiving of tenders would amount to abuse of power without causing any financial burden or loss on Council.
(A) Punjab Municipal Act, 1911, S.22--Removal of President or Vice President--Govt. can remove President or Vice-President if-
i) Govt. finds that President/Vice President has abused his power or
ii) he guilty of habitual failure to perform his duty or
iii) 2/3rd members of committee have resolved to remove him. (Para 5)
(B) Punjab Municipal Act, 1911, S.22--Removal of President--Whether transfer and posting of some of employees of Council from one place to another would amount to abuse of power and further whether postponement of date of receiving of tenders would amount to abuse of power without causing any financial burden or loss on Council--NO--Mere transfer order by wrongly interpreting bye-laws without any element of ill motive can not be said to be abuse of powers--Neither impugned order nor any material available on record goes to suggest that transfer order was ill motive for wrongful gains for himself or to cause financial loss to council or employees--Likewise postponement of receiving of tender for future date without causing any financial loss to Council does not amount to abuse of powers--Observation of Principal Secretary in impugned order is that postponement of tender strengthens doubt that same was done with intention to accommodate non-eligible contractors--Is unjustified and not supported by any evidence--No name is given who was non-eligible and granted contract subsequently--Impugned order quashed--Petitioner shall be given charge of President--Respondent No. 3 shall cease to occupy office of President of Council. (Paras 6, 9, 10 & 12)
(C) Punjab Municipal Act, 1911, S.22--Removal of President--Removal of elected President only on basis of some suspicion and doubt without any element of illmotive or malafide intention to gain wrongfully or to cause loss to Council will not amount to abuse of power under Section 22 of Punjab Municipal Act. (Para 6)

FIR--Compromise--Cruelty to wife

2010(3) LAW HERALD (P&H) 2059
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice S.S. Saron
Criminal Misc. No.M-15942 of 2010
Sukhdevinder Singh & Ors.
v.
State of Haryana & Ors.
{Decided on 28/06/2010}
For the Petitioner: Mr. Anil Kumar Ahluwalia, Advocate.For the Respondent-State: Mr. K.C. Gupta, Sr. Deputy Advocate General, Haryana.
For the Respondent No.3: Mr. Deepak Sharma, Advocate.
Criminal Procedure Code, 1973, S.482--Indian Penal Code, 1860, S.498-A, 406 & 506--Quashing of FIR--Compromise--Cruelty to wife--Parties of their own have settled matrimonial dispute amongst them--They have decided to part ways amicably--In circumstances, no useful purpose would be served in continuing with criminal prosecution any further--Impugned FIR and consequential proceedings quashed. (Para 6 & 7)

Civil Procedure Code, 1908, O.39, R.1 and 2-

2010(3) LAW HERALD (P&H) 2054
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice L. N. Mittal
C.R. No. 5857 of 2009
Iqbal Singh & Ors.
v.
Karan Podar & Anr.
{Decided on 25/01/2010}
For the Petitioners: Mr. J. S. Chahal, Advocate.
For the Respondents: Mr. Anil Chawla, Advocate.
Civil Procedure Code, 1908, O.39, R.1 and 2--Specific Relief Act, 1963--Temporary Injunction--Agreement to sell--Purchaser affirmed affidavit regarding his presence before Sub-Registrar on 16.04.2007--But he did not mention in said affidavit that he had brought requisite amount for getting sale deed executed and registered as per agreement--Seller was also present before Sub-Registrar on 16.04.2007and affirmed affidavit regarding his presence and readiness and willingness to execute sale deed as per agreement--Thereafter, Seller moved another application regarding his presence before Sub-Registrar--There is endorsement of Sub-Registrar thereon made at 05:00 P.M.. on 16.04.2007 regarding presence of Seller and his readiness to execute document--It has further been noticed by Sub-Registrar in his endorsement that purchaser has not shown transaction money required--It would prima facie depict that purchaser was not ready with requisite amount to get sale deed executed and registered as per agreement--This explains omission in affidavit affirmed by purchaser regarding amount being with him--In addition seller even served notice dated 23.04.2007 by registered post on purchaser to get sale deed executed and registered as per agreement--Purchaser alleged that they were forcibly dispossessed by seller in November 2007--However, inspite thereof, they did not file suit immediately, but filed after waiting for another five months--Even before November 2007, purchaser did not file suit after seller had allegedly failed to execute sale deed in April--No prima facie case for grant of temporary injunction in favour of purchaser is made out--However, since purchaser have advanced huge amount of Rs.1crore as earnest money directions required to be issued to protect interest of purchaser--Seller directed to inform prospective alienees about pendency of suit so that alieness may not take plea of being bona fide transferees--Application for temporary injunction dismissed.
(Para 11, 12, 15 & 16)

Motor Vehicles Act, 1988, S.166

2010(3) LAW HERALD (P&H) 2051
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rajesh Bindal
FAO No. 642 of 1988 (O&M)
Satish Kumar
v.
Rattan Lal Ors.
{Decided on 17/02/2010}
For the appellant-claimant Satish Kumar: Mr. Sanjay Mittal, Advocate.
For the Respondent: Mr. Ashish Gupta, AAG Haryana.
(A) Motor Vehicles Act, 1988, S.166--Compensation--Negligence--As per the medical evidence injury was at the shoulder joint and arm--In normal circumstances it cannot be expected that a person will keep his entire arm outside window--Bus and truck were so close that it hit shoulder of claimant, as a result of which he suffered serious injuries on account of which his arm had to be amputated--Fact that both vehicles crossed each other so closely that it resulted in causing injury to occupant of the bus itself show rash and negligent driving--No Interference. (Para 10)
(B) Motor Vehicles Act, 1988, S.166--Compensation--Enhancement of--Right arm of appellant amputated from shoulder resulting in disability to extent of 70%--Appellant is entitled to Rs. 5,000/- as compensation on account of medical expenses, Rs. 2,000/- on account of conveyance charges and Rs. 2,000/- on account of special diet and Rs. 40,000/- on account of pain and suffering and Rs. 40,000/- on account of loss of income and extra expenditure to be made by him on account of his being handicapped, making it a total of Rs. 89,000/-.--Amount of enhanced compensation shall be payable to appellant along with interest @ 6% per annum from date of filing of claim petition till disbursement of compensation. (Para 18)

Friday, August 13, 2010

Compensation--Dependency--Amount of contribution to General Provident Fund is not be reduced from salary of deceased for purpose of calculation of dependency.

2010(3) LAW HERALD (P&H) 2048
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rajesh Bindal
F.A.O. No. 2049 of 1994 (O&M)
Smt. Anguri Devi & Ors.
v.
Ramesh & Ors.
{Decided on 05/04/2010}
For the Appellants: Mr. R. N. Lohan, Advocate.
For the Respondent: None.
IMPORTANT POINT
Compensation--Dependency--Amount of contribution to General Provident Fund is not be reduced from salary of deceased for purpose of calculation of dependency.
(A) Motor Vehicles Act, 1988, S.166--Compensation--Dependency--Amount of contribution to General Provident Fund is not be reduced from salary of deceased for purpose of calculation of dependency--Contribution by deceased on account of Group Insurance Scheme is a kind of expense of premium paid for which benefit of insurance must have been paid to family was rightly reduced by Tribunal for purpose of calculation or dependency. (Para 8 & 9)
(B) Motor Vehicles Act, 1988, S.166--Compensation--Calculations--Claimants being five reducing 1/3rd on account of personal expenses for purpose of calculation of dependency is set aside--Dependency directed to be calculated by reducing 1/4th therefrom--Considering age of deceased to be 30 years plus, multiplier of 16 would be quite reasonable--Monthly income of deceased is Rs. 3,379/- i.e., Rs. 40,548/- per annum--After application of cut of 1/4th, dependency comes to Rs. 30,411/- per annum--Applying multiplier of 16, compensation payable to claimants comes out to Rs. 4,86,576/-, which is rounded off to Rs. 4,87,000/-.--In addition, a sum of Rs. 5,000/- on account of funeral expenses and Rs. 5,000/- on account of consortium awarded--Amount on account of loss of consortium shall be paid to widow only--Enhanced amount of compensation shall carry interest @ 6% per annum from date of filing of claim petition till its payment--Out of enhanced amount of compensation, Rs. 25,000/- each along with interest shall be paid to parents of deceased and rest of compensation shall be paid to widow considering fact that she had been taking care of family all along ever since death of husband. (Para 10 & 11)

Guardians and Wards Act, 1890, S.25

2010(3) LAW HERALD (P&H) 2047
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr.Justice Rakesh Kumar Jain
FAO 358 of 2010 (O&M)
Jasbir Singh
v.
Krishna Devi
{Decided on 03/05/2010}
For the Appellant: Mr. Atul Jain, Advocate, for Mr. Padam Jain, Advocate.
For the Respondent: None.
Guardians and Wards Act, 1890, S.25--Custody of minor--Territorial Jurisdiction--Minors have been removed from custody of father from Kapurthala ,therefore, Court at Kapurthala had territorial jurisdiction and not Court at Jalandhar where minors are residing with mother as children were ordinarily residing at Kapurthala--Matter remanded back to Court of Guardian Judge, Kapurthala, with a direction to decide between parties. (Para 6 & 10)

Expected Matter--Jurisdiction of arbitrator--When regarding certain disputes remedy had already been provided in agreement itself, then said matter cannot be decided by arbitrator.

2010(3) LAW HERALD (P&H) 2044
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rakesh Kumar Jain
FAO No.2064 of 2009 (O &M)
Punjab State Civil Supplies Corp. Ltd through its Manager & Anr.
v.
Dharampal & Ors.
{Decided on 14/05/2010}
For the Appellant: Mr. Ritam Aggarwal, Advocate.
For the Respondent No.1: Mr. H.R. Nohria, Advocate.
IMPORTANT POINT
Expected Matter--Jurisdiction of arbitrator--When regarding certain disputes remedy had already been provided in agreement itself, then said matter cannot be decided by arbitrator.
Arbitration and Conciliation Act, 1994, S.4 & 34--Objections--Expected Matter--When regarding certain disputes remedy had already been provided in agreement itself, then said matter cannot be decided by arbitrator--Dispute of short supply of rice which is part of agreement--Matter has to be decided by Managing Director and not by Arbitrator. (Para 5 & 6)

Motor Vehicles Act, 1988, S.166

The Hon’ble Mr. Justice Rajesh Bindal
F.A.O. No. 919 of 2009 (O&M)
Bajaj Allianz General Insurance Company Ltd.
v.
Biri Bai & Ors.
{Decided on 17/02/2010}
Present: Mr. Ashwani Talwar, Advocate for the Appellant
Mr. Sunil K. Sharma, Advocat for the Respts No. 1 to 7 in FAO Nos. 919 and 1251 of 2009, respondent No. 1 in FAO No. 1256 of 2009 and repoets No. 1 to 3 in FAO No. 921 of 2009
Motor Vehicles Act, 1988, S.166--Compensation--Liability of Insurance Company--Award challenged on ground that in spite of fact that Insurance Company was not held liable, still it has been directed to satisfy award first and thereafter recover same from owner of offending vehicle--Recently in National Insurance Co. Ltd. and others v. Paravatheni and another a Bench of Hon’ble Supreme Court referred matter to Hon’ble Chief Justice of India for constituting a larger Bench to decide following questions:
1) If an Insurance Company can prove that it does not have any liability to pay amount in law to claimants under Motor Vehicles Act or any other enactment, can Court yet compel it to pay amount in question giving it liberty to later on recover same from owner of vehicle.
2) Can such a direction be given under Article 142 of Constitution, and what is scope of Article 142. (Para 5, 7 & 8)

Motor Vehicles Act, 1988, S.166

2010(3) LAW HERALD (P&H) 2039
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rajesh Bindal
F.A.O. No. 150 of 1998 (O&M)
Devinder Kumar alias Sonu
v.
State of Haryana & Anr.
{Decided on 22/01/2010}
Present: Mr. N.L. Sammi, Advocate for the appellants in FAO Nos. 150, 159 and 236 of 1998 and for the driver and owner in FAO Nos. 203 and 205 of 1998.
Mr. Pritam Saini, Advocate for the appellants in FAO Nos. 203 and 205 of 1998 and for the claimants in FAO Nos. 150, 159 and 236 of 1998.
Mr. Inderjit Sharma, Advocate for the Insurance Company.
Mr. Ashish Gupta, Assistant Advocate General, Haryana.
(A) Motor Vehicles Act, 1988, S.166--Compensation--Enhancement of--Claim that appellant suffered head injury is not borne out from any evidence produced on record--She had suffered only fracture in her arm, which was plastered--On account of that, Tribunal has already awarded compensation to tune of Rs.24,600/-.--Manner, in which amount of compensation has been determined, on account of pain and sufferings, which will take care of special diet, which appellant had to take during period she remained under treatment--On account of medical treatment and loss of income for period she remained bed ridden, sufficient amount has already been awarded--Claimant not entitled to further enhancement. (Para 6)
(B) Motor Vehicles Act, 1988, S.166--Compensation--Enhancement of--Only oral statement of claimant that he received injury on his left eye--No medico-legal report was produced in support of claim--Evidence of some private doctor sought to be produced, which was not found to be trust worthy--Though appellant had registered a criminal case against driver of vehicle, but even in that appellant did not state before police that he had received injury in his left eye or same was completely damaged in accident--In investigation got conducted by Insurance Company, it was found that claimant had lost sight of his left eye after he got operated same--Tribunal did not find substance in claim of appellant that he suffered any damage to his eye on account of accident and finding to that effect cannot be faulted with--Appeal dismissed. (Para 12)
(C) Motor Vehicles Act, 1988, S.166--Compensation--Valid Driving License--Liability of Insurance Company--Tribunal has found as a fact that driver of vehicle, was born on 15.10.1978--In support thereof, documents were produced from school where he was studying, which are in form of school leaving certificate, application form for admission and copy of school register etc--In all these documents, date of birth was mentioned as 15.10.1978--Date of issuance of driving licence was found as 4.1.1994 and date of accident is 28.7.1994--Two new documents, sought to be produced on record by appellants along with application for additional evidence shows that entry in register of births was got made on 22.12.1997 by showing date of birth as 4.3.1974, for which a certificate was got issued--It was after decision of claim petitions by Tribunal on 28.8.1997--A fresh certificate was got issued from school showing his date of birth as 4.3.1974, which could not possibly be relied upon considering evidence already on record from school where he was studying, which is not in form of one or two documents, rather, at four different places and one of them being application form for admission where his father had himself mentioned his date of birth as 15.10.1978--No illegality has been committed by learned Tribunal in holding that driving licence held by driver of vehicle on date of accident was not valid--Insurance Company could not be made liable to indemnify insured. (Para 18, 19 & 20)

Easement Act, 1882, S.52, 59 and 60

2010(3) LAW HERALD (P&H) 2034
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rakesh Kumar Jain
RSA No.2780 of 2009 (O&M)
Om Parkash & Ors.
v.
Umed Singh & Ors.
{Decided on 21/05/2010}
For the Appellants: Mr. Ashok Aggarwal, Sr. Advocate, with Mr. Amit Aggarwal, Advocate.
For the Respondents: Mr. Sanjay Vij, Advocate.
Easement Act, 1882, S.52, 59 and 60--License--When revocable--After death of predecessor-in-interest of plaintiffs licence came to an end as it was not annexed to property in respect to which it was to be enjoyed and was also not transferable or heritable--Plaintiffs are not held to be licensees in view of fact that rights under licence are not inheritable--They are rather totally strangers to suit property and as licence in their favour is not sustainable as it is not irrevocable--Provisions of Section 59 of Act apply to facts and circumstances of these cases with full rigour as it provides that where grantor of a licence transfers property, transferee is not bound by said licence, meaning thereby that transferee is not bound by license. (Para 28 & 29)

Sunday, August 8, 2010

Temporary Injunction--Admission--At stage of interim injunction, the affidavit filed in the Court, with caveat application cannot be ignored as it contains an admission on the part of the defendants that plaintiff is in possession as a tenant.

2010(3) LAW HERALD (P&H) 2032
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rakesh Kumar Jain
CR No.1208 of 2009 (O&M)
Ajmel Singh
v.
Kulwinder Singh & Anr.
{Decided on 14/05/2010}
For the Petitioner: Mr. M.P.S. Mann, Advocate.
For the Respondent: Mr. Avnish Mittal, Advocate.
IMPORTANT POINT
It is well settled that admission is the best mode of proof--Once a tenant always a tenant until and unless the tenancy is terminated and the tenant is evicted from the premises by an order of competent Court of law.
Temporary Injunction--Admission--At stage of interim injunction, the affidavit filed in the Court, with caveat application cannot be ignored as it contains an admission on the part of the defendants that plaintiff is in possession as a tenant.
Civil Procedure Code, 1908, O.39, R.1 and 2--Temporary Injunction--Application filed by the defendants before the trial Court under Section 148-A of the CPC, at the time of lodging caveat application along with an affidavit of the General Power of Attorney of both the respondents, it has been admitted that the plaintiff is a tenant over the shop in dispute without stating that his tenancy has been terminated or he has been evicted by any order of the competent Court of law--Therefore, at stage of interim injunction, the affidavit filed in the Court, though, with the caveat application cannot be ignored as it contains an admission on the part of the defendants that plaintiff is in possession as a tenant--It is well settled that admission is the best mode of proof--It is also well settled that once a tenant always a tenant until and unless the tenancy is terminated and the tenant is evicted from the premises by an order of competent Court of law--Learned Court below should not have directed parties to maintain status quo rather plaintiff should have granted interim injunction to restrain defendants from interfering in his possession especially when there is an allegation that they had already tried to dispossess them forcibly as defendants had come to premises in question along with their henchmen and had removed certain articles belonging to plaintiff lying in his almirah--Defendants are restrained from interfering in possession of the plaintiff over shop in dispute till decision of the main suit. (Para 7 & 8)

2010(3) LAW HERALD (P&H) 2032 IN THE HIGH COURT OF PUNJAB AND HARYANA Before The Hon’ble Mr. Justice Rakesh Kumar Jain CR No.1208 of 2009 (O&M) Ajmel Singh v. Kulwinder Singh & Anr. {Decided on 14/05/2010} For the Petitioner: Mr. M.P.S. Mann, Advocate. For the Respondent: Mr. Avnish Mittal, Advocate. IMPORTANT POINT It is well settled that admission is the best mode of proof--Once a tenant always a tenant until and unless the tenancy is terminated and the tenant is evicted from the premises by an order of competent Court of law. Temporary Injunction--Admission--At stage of interim injunction, the affidavit filed in the Court, with caveat application cannot be ignored as it contains an admission on the part of the defendants that plaintiff is in possession as a tenant. Civil Procedure Code, 1908, O.39, R.1 and 2--Temporary Injunction--Application filed by the defendants before the trial Court under Section 148-A of the CPC, at the time of lodging caveat application along with an affidavit of the General Power of Attorney of both the respondents, it has been admitted that the plaintiff is a tenant over the shop in dispute without stating that his tenancy has been terminated or he has been evicted by any order of the competent Court of law--Therefore, at stage of interim injunction, the affidavit filed in the Court, though, with the caveat application cannot be ignored as it contains an admission on the part of the defendants that plaintiff is in possession as a tenant--It is well settled that admission is the best mode of proof--It is also well settled that once a tenant always a tenant until and unless the tenancy is terminated and the tenant is evicted from the premises by an order of competent Court of law--Learned Court below should not have directed parties to maintain status quo rather plaintiff should have granted interim injunction to restrain defendants from interfering in his possession especially when there is an allegation that they had already tried to dispossess them forcibly as defendants had come to premises in question along with their henchmen and had removed certain articles belonging to plaintiff lying in his almirah--Defendants are restrained from interfering in possession of the plaintiff over shop in dispute till decision of the main suit. (Para 7 & 8)

Punjab State Election Commission Act, 1994, S.76 and 89

2010(3) LAW HERALD (P&H) 2029
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr.Justice Rakesh Kumar Jain
FAO No.492 of 2010 (O&M)
Amrik Singh
v.
Election Tribunal, Gurdaspur & Ors.
{Decided on 05/05/2010}
For the Appellant: Mr. H.S.Sethi, Advocate.
For the Respondent Nos.4 to 6: Mrs. K.K. Kahlon, Advocate.
Punjab State Election Commission Act, 1994, S.76 and 89--Civil Procedure Code, 1908, O.5 R.17--Election of Sarpanch--Notice of meeting--Service of notice--Summons bear the endorsement of serving officer that appellant and respondent Nos. 4 to 6 have refused to take summons which were served upon them for purpose of attending meeting dated 19.7.2008--CPC provides a procedure in case of refusal of service of summons by defendant--In case defendant refused to sign acknowledgment, serving officer shall affix a copy of summon on outer door or some conspicuous place of his house in which defendant ordinarily resides or carries on business or personally works for gain--No such procedure has been adopted by serving officer--Procedure carried out on 19.7.2008 in which members of minority group have elected Sarpanch on basis of report of refusal of summons by appellant and respondent No. 4 to 6 has to be set aside--Deputy Commissioner directed to hold fresh meeting for purpose of election of Sarpanch, after giving due notice to all concerned in accordance with law.

Accident--Compensation--While defining pain and sufferings and loss of amenities of life, special circumstances of claimant have to be taken into account including age, unusual deprivation he has suffered and affect thereof on his future. Accident--Deceased was house wife--Courts while taking into consideration entire circumstances should asses value of their services rendered to family--While assessing her income @ Rs.1000/- per month as she was rendering services towards family worth Rs.1000/-, no deduction requires to be made qua her own dependency.

D.S. Jaspal & Ors. v. State of Punjab & Anr.
2010(3) LAW HERALD (P&H) 2020
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice A.N. Jindal
F.A.O. No. 179 of 1990
D.S. Jaspal & Ors.
v.
State of Punjab & Anr.
{Decided on 20/04/2010}
For the Appellant: Mr. A.S. Chahal, Advocate.
For the Respondent: Mr. C.S. Brar, DAG, Punjab.
IMPORTANT POINT
Accident--Compensation--While defining pain and sufferings and loss of amenities of life, special circumstances of claimant have to be taken into account including age, unusual deprivation he has suffered and affect thereof on his future.
Accident--Deceased was house wife--Courts while taking into consideration entire circumstances should asses value of their services rendered to family--While assessing her income @ Rs.1000/- per month as she was rendering services towards family worth Rs.1000/-, no deduction requires to be made qua her own dependency.
(A) Motor Vehicles Act, 1988, S.166--Accident--Negligence--Accident not denied--Specific case set up that due to failure of brakes he could not control bus--Bus was coming from hilly area, therefore, certainly, it must have started with a pre-check up of whole machinery including brakes--Driver has admitted that during journey brakes of bus were in order--Mechanical report showing failure of brakes has not been proved--Driver must have applied brakes on earlier occasions even while crossing railway track--It is not his case that brakes were not working at that time--Thus, it does not appeal to reasons that brakes had failed only at juncture where he was also to stop bus for traffic checking on barrier--From consistent testimony of injured witnesses as well as from circumstances of case, an inescapable conclusion could be arrived that driver was driving bus at high speed, having failed to control same, it dashed in to a car causing one casualty, rendering three occupants as seriously injured--Photographs reveal that car has been completely smashed therefore speed of bus could be well assessed--Plea that bus was being driven at speed of 5-6 kms per hour--No tenable. (Para 18)
(B) Motor Vehicles Act, 1988, S.166--Compensation--Determination of--Principle of determination of compensation was considered on rule of restitution in intergrum which means that compensation is measured at cost of repair or repairing original position applies only when if and so far as original position can be restored--If not possible, Tribunal must endeavour to give fair equivalent in money--Bodily injury shall be treated as deprivation which entitled claimant to damages--Compensation awarded should not be token but should be an adequate and reasonable to achieve statutory goal. (Para 24)
(C) Motor Vehicles Act, 1988, S.166--Compensation--While defining pain and sufferings and loss of amenities of life, special circumstances of claimant have to be taken into account including age, unusual deprivation he has suffered and affect thereof on his future. (Para 26)
(D) Motor Vehicles Act, 1988, S.166--Compensation--Enhancement of--Calculation--Claimant remained admitted in P.G.I. for two months with an advice of a second operation for hip fracture of left hip bone--He continued attending hospital as an out door patient for two months after his discharge from hospital--Due to hip fracture, he could not lift his left leg nor could he drive four wheeler--He spent about Rs.6000/- on medicines and Rs.5000/- on special diet--He needed a sum of Rs.1,25,000/- for operation of hip fracture in Sweden--He remained away from job for three months and suffered loss of Rs.9000/-.--According to doctor, there was dis-location of both hips and he was operated upon on 14.4.1987--Also testified that he was advised physiotherapy till 18.7.1987 and on 10.11.1987, he determined his disability as 20% because he was having difficulty in lifting his left lower limb--Compensation awarded under different heads for which Tribunal not awarded any compensation--Compensation enhanced to Rs. 2,00,000 from Rs. 1,20,000--Claimant is entitled to interest from date of application till realization. (Para 28)
(E) Motor Vehicles Act, 1988, S.166--Compensation--Enhancement of--Calculation--According to medical evidence claimant suffered permanent partial disability to extent of 40%--Her leg was shortened by 1- ½ inches--Injured was 31 years of age at time of accident--As per Sarla Verma’s case multiplier of 18 should be applied--Therefore, Tribunal should have awarded a sum of Rs.51840/- on account of permanent disability suffered by her instead of Rs.43200/-.--Claimant is entitled to compensation to tune of Rs.1,74,000/-.
(F) Motor Vehicles Act, 1988, S.166--Compensation--Non-pecuniary loss--Claimant was having injury on his left wrist for which plaster was applied--Thereafter, he was admitted in hospital again on 22.5.1987 for his operation qua fracture of corpal bone of left wrist--Again he was put under plaster for three months--Injured suffered permanent partial disability as 35%--Since doctor has no where stated that claimant was in any way incapacitated to work for whole of his life and was unable to perform his job, no pecuniary loss could be assessed, but, while calculating non-pecuniary loss, compensation awarded enhanced to Rs.40,000/-. (Para 32, 34 & 35)
(G) Motor Vehicles Act, 1988, S.166--Compensation--Deceased was house wife--Courts while taking into consideration entire circumstances should asses value of their services rendered to family--Appellant was spending Rs.1000/- per month for maintaining her children, cooking food and to leave children to school and then certainly her notional income even in absence of any data and taking into consideration his multifarious services and duties rendered to family could be assessed at Rs.1000/- per month--
Though in case Lata Wadhwa and others vs. State of Bihar and others assessed notinal income of a house wife @ Rs.3000/- per month and Rs.36,000/- per annum, keeping in view that accident took place in year 1987 and value of money was higher at that time, income of deceased assessed @ Rs.1000/- and per month Rs.12,000/- per annum--Thus, while assessing her income @ Rs.1000/- per month as she was rendering services towards family worth Rs.1000/-, no deduction requires to be made qua her own dependency--Deceased was 29 years old and was very active in life, maintaining whole of family including her husband and children--Multiplier of 18 to be applied--Claimants would be entitled to receive compensation to tune of Rs.2,16,000/-.--Besides, claimants who are husband and children are also to some amount of compensation on account of lose of love and affection and consortium, therefore, a sum of Rs.14,000/- is awarded on these heads--Claimants would be entitled to receive compensation to tune of Rs.2,30,000/-. (Para 36)

Transfer of Property Act, 1882, S.106

2010(3) LAW HERALD (P&H) 2009
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Vinod K. Sharma
RSA No.2578 of 2002
M/s Ram Murti & Sons & Anr.
v.
Punjab Wakf Board & Ors.
{Decided on 28/05/2010}
For the Appellants: Mr.M.L.Sarin Sr.Advocate, Advocate, with Mr.Nitin Sarin, Advocate.
For the Respondents No.1: Mr. S.K. Pipat Sr., Advocate, with Mr. Manoj Kumar, Advocate.
For the Respondent No. 3: Mr. K.S. Dadwal, Advocate.
(A) Transfer of Property Act, 1882, S.106--Punjab Wakf Act, 1995, S. 56--Possession--Whether Section 56 of Punjab Wakf Act, could have retrospective effect to determine lease executed in 1978--NO--Held, that provisions of Section 56 of Punjab Wakf Act, were not applicable to lease executed in favour of defendants/appellants in 1978 nor it was governed by Section 56 of Act, but by terms of lease deed as Section 36 of 1954 Act was not enforced. (Para 50 & 55)
(B) Transfer of Property Act, 1882, S.106--Possession--Whether there was any violation of provisions by Secretary of Board in granting sanction for construction or in alternative whether acts of Secretary stood rectified by necessary implication as defendants were allowed to continue in his possession on payment of enhanced rent--Lease deed in favour of defendants/appellants was not void, as after execution of lease deed defendants/appellants were allowed to raise construction and Board accepted rent at revised rate till 1985 i.e. after expiry of lease period--There was thus, implied consent of Board to lease executed by secretary to Board, action of secretary stood rectified. (Para 50 & 56)
(C) Transfer of Property Act, 1882, S.106--Possession--It is always open to courts to grant lesser relief than claimed, in facts and circumstances of case--Decree of learned lower appellate court, cannot be said to be bad merely because in a suit for possession along with superstructure, learned lower appellate court had decreed suit for possession by directing defendants/appellants to hand over possession of plot leased out, after removing malba which belonged to defendants/appellants. (Para 50 & 74)
(D) Transfer of Property Act, 1882, S.106--Possession--Notice--Notice of termination of lease, cannot be said to be bad in law as by raising additional construction over and above shops and stair qua which permission was given, defendants-appellants violated specific terms of lease deed--Furthermore, as per amended law, defendants/appellants could not be allowed to continue even though amended law was not retrospective in operation, but by way of specific term, defendants/appellants had agreed to abide by any change in law--Notice cannot be said to be invalid so as to hold that lease deed continued to subsist--Owner under general law is competent to seek eviction of lessee by issuing notice of termination of lease--Appeal dismissed. (Para 50, 75 & 76)

Special Leave Petition--Dismissal of--An order rejecting the Special Leave Petition at the threshold without detailed reasons does not constitute any declaration of law or a binding precedent.

2010(3) LAW HERALD (P&H) (SC) 2001
IN THE SUPREME COURT OF INDIA
[VACATION BENCH]
Before
The Hon’ble Mr. Justice Dr. B.S. Chauhan
The Hon’ble Mr. Justice Swatanter Kumar
Civil Appeal No. 5292 of 2004
Fuljit Kaur
v.
State of Punjab
{Decided on 03/06/2010}
For the Petitioner/Appellant : Mr. Sanjay Sarin and Mr. Ashok Mathur, Advocates.
For the Respondents : Mrs. Rachana Joshi Issar and Mr. Shailendra Kumar, Advocate

(A) Punjab Urban Estate (Sale of Sites) Rules, 1965--Punjab Urban Estates (Development and Regulation) Act, 1964--Allotment of residential plot--Appellant made an application on 23.02.1987 for allotment of a residential plot--Administration issued the allotment letter in favour of the appellant within 48 hours of submission of application making it clear that as the proper calculation could not be made and tentative price had not been determined, the allottee has to deposit provisional price of Rs. 93000/-. Subsequently additional demand of Rs. 2,19,000/- was made, however, instead of depositing the said amount, appellant challenged the said Demand Notice contending that the additional demand was arbitrary and unreasonable--However, the said writ petition been dismissed by the High Court-- Appeal--High Court considered all statutory provisions and calculations made by the respondents as under what circumstances the "tentative- price" had been fixed and concluded that the demand was justified--Nothing produced on record to show that the tentative price determined by the State could be unreasonable--Even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief. (Paras 8, 15, 26 & 27)
(B) Constitution of India, 1950--Special Leave Petition--Dismissal of Special Leave Petition in limine--Whether an order of withdrawal passed by Supreme Court amounts to confirmation/approval of the judgment and order of the High Court--Held that an order rejecting the Special Leave Petition at the threshold without detailed reasons does not constitute any declaration of law or a binding precedent. (Para 8)
(C) Constitution of India, 1950, Art. 14--Punjab Urban Estate (Sale of Sites) Rules, 1965--Punjab Urban Estates (Development and Regulation) Act, 1964--Land & Property--Allotment of residential plot--Legality--Unique case which reveals that an influential person can have allotment of a residential plot in discretionary quota within 48 hours of submission of application and then assert in Court that she has a right to have a land on a throwaway price and not to deposit the sale price for quarter of a century--Allotment had been made to the appellant within 48 hours of submission of her application though in ordinary cases, it takes about a year--Appellant had further been favoured to pay the provisional price of Rs. 93,000/- in four installments in two years--Making the allotment in such a hasty manner itself is arbitrary and unreasonable and is hit by Art. 14 of the Constitution--Appeal dismissed. (Para 16)
(D) Words and Phrases--"Tentative price" means the price determined by the State Government from time to time in respect of a sale of site by allotment and while doing so, the Government has to take into consideration various factors including the amount paid as compensation

Tuesday, July 20, 2010

Accident--Limitation--Claim petition filed after deletion of Sub-section 3 of S.166 of 1988 Act for claiming compensation arising out of an accident which had taken place before enforcement of 1988 Act on 1.7.89 could not be dismissed as time barred. Accident--Claim Petition--Dismissed-in-default--Fresh Petition--Not maintainable.

2010(2) LAW HERALD (P&H) 990
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rajesh Bindal
FAO No. 290 of 1989 (O&M)
Smt. Gul Devi & Anr.
v.
Surjit Singh & Ors.
{Decided on 09/03/2010}
For the Appellants: Mr. Suvir Sehgal, Advocate.
For the Insurance Company; Mr. Ravinder Arora, Advocate.
IMPORTANT POINTS
Accident--Limitation--Claim petition filed after deletion of Sub-section 3 of S.166 of 1988 Act for claiming compensation arising out of an accident which had taken place before enforcement of 1988 Act on 1.7.89 could not be dismissed as time barred.
Accident--Claim Petition--Dismissed-in-default--Fresh Petition--Not maintainable.
(A) Motor Vehicles Act, 1939--Motor Vehicles Act, 1988, S.166 & 58(6)--Claim Petition--Limitation--Whether claim petition filed after deletion of Sub-section 3 of S.166 of 1988 Act for claiming compensation arising out of an accident which had taken place before enforcement of 1988 Act on 1.7.89 could be dismissed as time barred--Held,NO
Issue stands authoritatively concluded by Hon’ble Supreme Court holding that even in the cases where the accident had taken place when the 1939 Act was in force and a claim petition had been filed after the enforcement of the 1988 Act, especially after the deletion of Sub-section 3 Section 166 of the 1988 Act, the claim petition cannot be dismissed on account of limitation--It was opined considering the fact that it was a piece of beneficial legislation, where mere delay should not be a ground to non-suit the claimant, who may have lost the bread earner of the family or suffered grievous injuries--In fact, to take care of such situation and also delay in filing of claim petitions and also the disposal thereof, Hon’ble the Supreme Court in Jai Parkash’s case has issued certain directions to the police authorities as well as the Tribunals in the country to take steps strictly in terms of Section 158(6) of the 1988 Act by recording the Accident Information Report in Form No. 54 and submitting the same to the concerned Tribunal within 30 days of the registration of FIR mentioning requisite details therein--The Tribunals have also been directed to consider such reports as claim applications under Section 166 of the 1988 Act and decide without waiting for formal claim petitions. (Para 9, 15 & 16)
(B) Motor Vehicles Act, 1988, S.166--Claim Petition--Dismissed-in-default--Fresh Petition--Not maintainable--Earlier Petition filed by father of deceased dismissed in default--No further proceedings initiated to get that petition restored--Fresh petition filed on his behalf not maintainable--Once claim on his behalf is dismissed, apportionment on account of compensation in his favour will also go. (Para 17)
(C) Motor Vehicles Act, 1988, S.166--Compensation--Enhancement of--Mother of deceased granted compensation of Rs. 40,000/--She is also entitled Rs.10,000/- on account of transportation, funeral expenses, loss of estate etc.--She is also entitled to interest @ 6% from date of filing of claim petition till realization of amount. (Para 18)