Monday, March 15, 2010

Sat Priya Mehamia Memorial Edu.Trust (Regd.) v. State of Haryana
2009(2) LAW HERALD (P&H) 1009 (DB)
IN THE HIGH COURT OF PUNJAB AND HARYANA
(DIVISION BENCH)
Before
The Hon’ble Mr. Justice T.S. Thakur, C.J.
The Hon’ble Mr. Justice Hemant Gupta
CWP No. 8504 of 2003 & CWP No. 21476 of 2008
Sat Priya Mehamia Memorial Education Trust (Regd.)
v.
State of Haryana
{Decided on 17/03/2009}
For the Petitioner: Mr. Puneet Bali, Advocate.
For the Petitioners: Mr. Ashok Aggarwal, Sr. Advocate with Mr. Nilesh Bhardwaj, Advocate.
For the Respondent: Mr. Randhir Singh, Addl. A.G. Haryana
For the Respondent No.3: Mr. Rajesh Lamba, Advocate
For the Respondent No.5: Mr. Arun Walia, Advocate.
For the Respondent No.1: Mr. O.S. Batalvi, Advocate.
For respondent No.2: Mr. Randhir Singh, Addl. A.G. Haryana.
For respondent No.6: Mr. Rajesh Lamba, Advocate
For respondent No.7: Mr. Arun Walia, Advocate
IMPORTANT POINT
Solid waste--Shifting of dumping site of solid waste--Question whether Municipal Authority is complying with standards regarding ground water, ambient air leachate qualify and compost quality as specified in Schedules II, III and IV has to be monitored by State Board or committee.
(A) Environment Law--Dumping of solid waste--Landfill method--Shifting of site--For continued use of landfill sites its is unnecessary for Municipal Authorities to apply to Board or Committee nor is it necessary for Board or committee to take views of other authorities or agencies mentioned in Rule 6 (2) of Rules--No prohibition for use of an existing landfill site by Municipal Authorities--|Environment (Protection) Act, 1986--Municipal Solid Waste (Management and Handling) Rules, 2002, Rules 6(2), Schedule III, para 5. (Para 5)
(B) Environment Law--Shifting of dumpting site of solid waste--Question whether Municipal Authority is complying with standards regarding ground water, ambient air leachate qualify and compost quality as specified in Schedules II, III and IV has to be monitored by State Board or committee--|Municipal Solid Waste) Management and Handling) Rules, 2002, Schedule II, Para 6. (Para 11)
(C) Environment Law--Dumping of solid waste life span of use of and fill site--Para 7 of schedule III stipulates that landfill site has to large enough to last for 20-25 years--It dos not stipulate life span for use of land fill site--No such span can be stipulated by process of judicial interpretation--|Municipal Solid Waste (Management and Handling), Rules 2002, Schedule III, Para 7. (Para 12 & 13)
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Chaman Lal Singhal v. HUDA
2009(2) LAW HERALD (P&H) 1014 (SC)
IN THE SUPREME COURT OF INDIA
Before
The Hon’ble Mr. Justice S.B. Sinha
The Hon’ble Mr. Justice Mukundakam Sharma
Civil Appeal No. 803 of 2009 (Arising out of SLP (C) No. 20651 of 2007)
Chaman Lal Singhal
v.
Haryana Urban Development Authority
{Decided on 09/02/2009}
Land and Property Law--Resumption of plot--Natural Justice--Resumption of plot for non payment--Appellant failed to comply with the clauses of the letter of allotment and, therefore, his allotment stood cancelled and the earnest money deposited by him could be forfeited by the Authority--Enforcement of forfeiture clause incorporated in the allotment letter or conditions of allotment after more than 500 days, does not involve any compliance of principles of natural justice--Contentions that provisions of Section 17 of the Act are violated and that there is non compliance of the principles of natural justice have no merit--Order of cancellation held to be legal and valid--|Haryana Urban Development Authority Act, 1977, Section 17. (Para 14 and 15)
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Madhu Behal v. Rishi Kumar
2009(2) LAW HERALD (P&H) 1019
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice K. Kannan
Civil Revision No. 571 of 2008
Madhu Behal
v.
Rishi Kumar
{Decided on 07/01/2009}
For the Petitioners: Mr. Vishal Gupta, Advocate.
For the Respondent No.1: Mr. Akshay Bhan, Advocate.
IMPORTANT POINT
Lease and Licence--Distinction between--It is never a nomenclature in the document that would govern the decision when the issue is put-to test as to whether a document as a ‘lease’ or a ‘licence’--The essential feature that distinguishes a lease from licence is always a transfer of interest in the demised property in a transaction of lease while a licensee does not involve any such transfer of interest.
(A) Land and Property Law--Lease and Licence--Distinction between--It is never a nomenclature in the document that would govern the decision when the issue is put-to test as to whether a document as a ‘lease’ or a ‘licence’--The essential feature that distinguishes a lease from licence is always a transfer of interest in the demised property in a transaction of lease while a licensee does not involve any such transfer of interest--Lease is heritable while license is personal to the grantee. The legal possession of the property is inevitably transferred to a tenant under lease while in a transaction of license the legal possession continues with the licensee and the licensee has a mere right of user of the premises in a particular fashion mentioned under the document--Apart from these distinctions, there is another aspect which is the most predominant consideration namely the intention of the parties. (Para 2)
(B) Land and Property Law--Lease and Licence--Distinction of--The possession of the property had been actually handed over to the first respondent and rents had also been paid and receipts issued as ‘rent’--More significantly, the document itself referred to a “licensee” as a person that includes his heirs and assigns--The heritability of the property held in possession by the license is anathema to consider the document as a transaction of license--The exclusive possession of the property with no form of control by the landlord and the heritability of the property are sufficient ingredients to discern that it is only a case of lease and not a licence. (Para 3)
(C) Rent Law--Eviction--Subletting--Contention--That there is no proof of any rent as having been received by the first respondent as sub lessee--Sub letting is invariably a device in secrecy and in a legal regime that prohibits sub tenancy without a written consent of the landlord, the question of sub letting itself could be decided only by reference to the conduct of the parties and the evidence regarding the exclusivity of the sub tenant’s possession (Para 6)

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Ramathal v. Inspector of Police
2009(2) LAW HERALD (P&H) 1022 (SC)
IN THE SUPREME COURT OF INDIA
Before
The Hon’ble Mr. Justice S.B. Sinha
The Hon’ble Mr. Justice Mukundakam Sharma
Criminal Appeal No. 418 of 2009
Ramathal
v.
Inspector of Police
{Decided on 03/03/2009}
For the Appellants: Mr. K.K. Mani, Mr. C.K.R. Lenin Sekar, Mr. Mayur R. Shah, Advs.
For the Respondents: Mr. V. Kanagaraj, Sr. Adv., Mrs. Promila, Mr. S. Thananjayan, Mr. Gurukrishna Kumar, Ms. Srikala Gurukrishna Kumar, Advs.
Criminal Law--Bail--Anticipatory Bail--Onerous condition--Cheating--House sold by accused and got 32.5 lacs as advance--Accused had already mortgaged the house with Bank--Non disclosure of such fact--High Court granted anticipatory bail to accused subject to deposit of Rs. 32 lacs--Court cannot impose unreasonable and onerous condition--Matter remitted to High Court for fresh decision--|Criminal Procedure Code, 1973, Section 439--Penal Code, 1860, Section 420. (Para 17 and 18)

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Tilak Raj v. Baikunthi Devi (D) By Lrs.
2009(2) LAW HERALD (P&H) 1027 (SC)
IN THE SUPREME COURT OF INDIA
Before
The Hon’ble Mr. Justice S.B. Sinha
The Hon’ble Mr. Justice Mukundakam Sharma
Civil Appeal No. 1058 of 2009
Tilak Raj
v.
Baikunthi Devi (D) By Lrs.
{Decided on 16/02/2009}
For the Appellant: Mr. Rakesh K. Khanna, Sr. Adv., Mr. Reetesh Singh, Ms. Jahanvi Wuzah, Ms. Shailza Sinha, Mr. Surya Kant, Advocates.
For the Respondent: Mr. M.L. Varma, Sr. Adv., Mr. S.M. Sarin, Mr. P.N. Puri, Mr. Satya Mitra, Advocates.
Civil Procedure--Correction of mistake--Decree for possession of land passed by Court--Incorrect Khasra number mentioned in the judgment by mistake--Mistake was of clerical nature which could be corrected under Section 125 Cr.P.C.--|Civil Procedure Code, 1908, Section 152 (Para 14 to 17)
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HUDA v. M/s Zuari Industries
2009(2) LAW HERALD (P&H) 1032 (DB)
IN THE HIGH COURT OF PUNJAB AND HARYANA
(DIVISION BENCH)
Before
The Hon’ble Mr. Justice T.S. Thakur, C.J.
The Hon’ble Mr. Justice Jasbir Singh
Letters Patent Appeal No.88 of 2007
Haryana Urban Development Authority
v.
M/s Zuari Industries
{Decided on 20/03/2009}
For the Appellant: Mr. Arun Walia, Advocate.
For the Respondent: Mr. Arun Khosla and Mr. Manish Behl, Advocates.
IMPORTANT POINT
Return of plot--Estoppel--By making surrender, respondent itself from resumption proceeding--After refund of 90% amount he is estopped from claiming return of plot in question.
(A) Land and Property Law--Surrender of plot--Return of plot--Constructive Resjudicata--Prayer for return of plot never made in successive applications made--Said relief also not claimed in writ petitions earlier filed--Even in representation made under orders of Court no prayer made for return of plot--Principles of constructive resjudicata applicable--After receipt of 90% of amount paid on surrender of plot respondent cannot claim remaining 10% amount and further to claim return of plot on previous grounds--|Haryana Urban Development Authority Act, 1977--Civil Procedure Code, 1908, Section 11. (Para 18 & 20)
(B) Land and Property Law--Return of plot--Estoppel--By making surrender, respondent itself from resumption proceeding--After refund of 90% amount he is estopped from claiming return of plot in question--|Haryana Urban Development Authority Act, 1977--Civil Procedure Code, 1908. (Para 22)
(C) Land and Property Law--Surrender of plot--Respondent failed to utilize the plot for a long period of more than six years as stipulated--It was open to appellant to accept surrender of plot as per allotment letter and resolution of HUDA--|Haryana Urban Development Authority Act, 1977. (Para 24)


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Sukhdev Kaur v. Fina
ncial Commissioner (Appeals), Punjab, Chd.
2009(2) LAW HERALD (P&H) 1039
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Ranjit Singh
Civil Writ Petition No.1685 of 1985
Sukhdev Kaur
v.
Financial Commissioner (Appeals), Punjab, Chd.
{Decided on 17/03/2009}
For the Petitioners: Mr. I. S. Vimal & Mr. Onkar Rai, Advocates.
For the State: Mr. Palwinder Singh, Sr.DAG, Punjab.
Revenue Law--Surplus Area--Determination of--38 standard acres of land declared surplus on 6.4.1974 not utilised--On redetermination in view of Punjab Land Reform Act no area was found surplus--Since there is not land surplus left land gifted by land owner to his wife in lieu of maintenance will no come under any dispute--There is no requirement for exempting gifted and from utilization--Land gifted and from utilization--Land gifted to petitioner would continue in their ownership--|Punjab Land Revenue Act, 1887--Punjab Land Reforms Act, 1972. (Para 9 & 10)

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Gurmin
der Singh v. Dr. Rajni Kumari
2009(2) LAW HERALD (P&H) 1041 (DB)
IN THE HIGH COURT OF PUNJAB AND HARYANA
(DIVISION BENCH)
Before
The Hon’ble Mr. Justice Adarsh Kumar Goel
The Hon’ble Mr. Justice Jitendra Chauhan
FAO No.240 of 1992 & Cross Objections No.75-CII of 1992
Gurminder Singh
v.
Dr. Rajni Kumari
{Decided on 06/03/2009}
For the Appellants: Ms. Radhika Suri, Advocate.
For the Claimant/cross-objector: Mr. Ashit Malik, Advocate.
For the Insurance Company: Ms. Vandana Malhotra, Advocate.
IMPORTANT POINT
Composite Negligence--Claimant chosen to proceed only against owner and driver of tempo--Driver of Maruti van who was husband of claimant not impleaded--In such as situation claimant cannot claim compensation from owner of tempo for fault of her husband.
(A) Accident Law--Compensation--Negligence--Composite Negligence--Tempo was being driven at high speed and necessary care was not taken in controlling vehicle which was responsible for causing accident--Negligence of tempo driver was thus patent while driver of Maruti Van was also partly responsible--Finding of Tribunal that driver of tempo was negligent in driving to extent of 67% and van driving was negligent to extent of 33% in matter of causing accident upheld--|Motor Vehicles Act, 1988, Section 163. (Para 6 & 7)
(B) Accident Law--Compensation--Composite negligence--Claimant chosen to proceed only against owner and driver of tempo--Driver of Maruti van who was husband of claimant not impleaded--Contention that even in absence of other wrong doer being party entire amount could be recovered from the driver and owner of tempo who has been held negligent to extent of 2/3rd not tenable--In such as situation claimant cannot claim compensation from owner of tempo for fault of her husband--|Motor Vehicle Act, 1988, Section 163. (Paras 12 & 14)
CASE CITED:
1. A.P.S.R.T.C. v. K. Hemalatha, 2008(4) LAW HERALD (SC) 2369 (Para 11)

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Jaswinder Singh v. State of Punjab
2009(2) LAW HERALD (P&H) 1044 (DB)
IN THE HIGH COURT OF PUNJAB AND HARYANA
(DIVISION BENCH)
Before
The Hon’ble Mr. Justice T.S. Thakur, C.J.
The Hon’ble Mr. Justice Hemant Gupta
CWP No. 69 of 2006
Jaswinder Singh
v.
State of Punjab
{Decided on 17/03/2009}
For the Petitioner: Mr. A.P. Kaushal, Advocate.
For the Respondent Nos. 1 to 4: Mr. Amol Rattan Singh, Additional AG., Punjab, with Ms. Sonu Chahal, DAG, Punjab.
For the Respondent No.5: Mr. J.S. Bhandaul, Advocate.
For the Respondent No.6: Mr. Arun Bakshi, Advocate.
Revenue Law--Village Common Land--Exchange of Land--Approval--Validity of--Process of exchange initiated with resolution of Gram Panchayat recommended by Departmental Authorities and approved by Financial Commissioner--Contention that there will be no land left for Garha Khad for use of inhabitants not tenable as land measuring 40 kanal 11 marla reserved for Gair Mumkn Garha Khad though land measuring 5-6 kanals actually being used for such purpose--No illegality in order approving exchange of land measuring 3 kanals 6 marla with equivalent land owned by respondents no 6 & 7--Exchange of land not against interest of inhabitance of village--|Punjab Village Common Lands (Regulation) Act, 1961. (Paras 4 & 5)
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Surinder Gupta v. Hukam Chand
2009(2) LAW HERALD (P&H) 1046
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice K. Kannan
CR No.5979 of 2007
Surinder Gupta
v.
Hukam Chand
{Decided on 24/02/2009}
For the Petitioner: Mr. M.L. Sarin, Sr. Advocate with Mr. Hemani Sarin, Advocate.
For the Respondent: Mr. Arun Jain Sr. Advocate with Mr. Amit Jain, Advocate and Mr. Chetan Salathia, Advocate.
(A) Rent Law--Eviction petition--Withdrawal of--Order of withdrawal must be always understood under particular circumstance when withdrawal was sought--If tenant himself invited a second petition by his objection that earlier petition was premature or not maintainable, he cannot be heard to contend second petition was not maintainable--It will be case of estoppels operating against tenant to contend that second petition was barred--|Civil Procedure Code, 1908, Order 23, Rule 1--East Punjab Urban Rent Restriction Act, 1949, Section 13-A. (Para 4)
(B) Civil Procedure--Affidavit--Verification--Contend of affidavit were subjected to lengthy cross-examination and case was decided not merely on basis of affidavits but on basis of evidence that flows out of cross examination and averments in affidavit--All averments in affidavits are fully met by person against whom evidence is used--Therefore, no prejudice could be said to be caused to a person by any deficiency in manner of verification--Contention of tenants that affidavit is not proper and could not be relied rejected--|Civil Procedure Code, 1908, Order 19. (Para 5)
(C) Rent Law--Eviction--Specified landlord--Certificate of retirement from Government service--In earlier petition tenant taking objection only on ground that landlord was due for retirement on 31.7.2005--Office order that landlord retired on 31.7.2005--Satisfies the legal requirement--|East Punjab Urban Rent Restriction Act, 1949, Section 13-A. (Para 6)
(D) Rent Law--Eviction--Specified landlord--Proof of sale deed--Genuineness of sale deed itself cannot be questioned by tenant in any rent control proceedings--Tenant accepting landlord as person entitled to receive rent and such a person cannot impeach genuineness of the sale in favour of his landlord--|East Punjab Urban Rent Restriction Act, 1949, Section 13-A. (Para 7)

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Om Kumar Jain v. Raj Kumar Saini
2009(2) LAW HERALD (P&H) 1050
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice K. Kannan
Civil Revision No.108 of 2002 (O&M)
Om Kumar Jain
v.
Raj Kumar Saini
{Decided on 03/02/2009}
For the Petitioner: Mr. Alok Jain, Advocate.
For the Respondent: Mr. Suvir Sehgal, Advocate.
(A) Rent Law--Eviction--Relationship of landlord and tenant--Petitioner claiming to be purchaser of premises--Tenant himself producing rent receipts containing signature of petitioner landlord--Finding of Appellate court that there is no relationship of landlord and tenant is perverse and contrary to documentary evidence produced before court--|Haryana Urban (Control of Rent and Eviction) Act, 1973. (Para 3)
(B) Rent Law--Eviction--Personal necessity--Finding by court below that landlord who had retired from military service required premises for establishing his office as an advocate Claim of landlord for ejectment on this ground upheld. (Para 4)
(C) Rent Law--Eviction--Building unfit for human habitation--Proof of--If landlord’s version of old age of the construction and his imminent need for demolition goes unchallenged in cross-examination such person could be justified in not letting any more evidence--In circumstances reasoning of appellate authority that case of requirement of landlord for demolition should fail for want of evidence though expert is meaningless. (Para 5)
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Delhi Public School Society v. HUDA
2009(2) LAW HERALD (P&H) 1052 (DB)
IN THE HIGH COURT OF PUNJAB AND HARYANA
(DIVISION BENCH)
Before
The Hon’ble Mr. Justice M.M. Kumar
The Hon’ble Mr. Justice Jora Singh
C.W.P. No. 10990 of 2007
Delhi Public School Society
v.
Haryana Urban Development Authority
{Decided on 24/02/2009}
For the Petitioners (in CWP No. 10990 of 2007): Mr. M.L. Sarin, Senior Advocate, with Mr. Sumeet Goel, Advocate.
For the Petitioners (in remaining cases): Mr. Aashish Chopra, Advocate.
For the respondents: Mr. Ajay Nara, Advocate.
Land and Property Law--Resumption of site--On ground of running pre-primary classes in schools in violation of allotment letter--Specific purpose of allotment specified in letter of allotment i.e. High School, Higher secondary school alone--Similar stipulation incorporated in lease deed executed between petitioners and HUDA--Therefore, petitioners cannot be permitted to use allotted sites for purposes of running pre-nursery/nursery classes--However, petitioners using premises for running pre- nursery and nursery classes over a period ranging from 10 to 23 years it would not be equitable to permit resumption of their plots on that basis--In facts and circumstances petitioners directed to file undertaking that they would not run pre-nursery/nursery classes in allotted premises--In case petitioners fail to file undertaking then notice of resumption may be taken to its logical end--|Haryana Urban Development Authority Act, 1977, Section 17(3).
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U.T. Chandigarh Administration v. Amarjeet Singh
2009(2) LAW HERALD (P&H) 1058 (SC)
IN THE SUPREME COURT OF INDIA
Before
The Hon’ble Mr. Justice R.V. Raveendran
The Hon’ble Mr. Justice Markandey Katju
Civil Appeal No. 1994 of 2006
U.T. Chandigarh Administration
v.
Amarjeet Singh
{Decided on 17/03/2009}
IMPORTANT POINT
Auction of Plot--Delayed payment of premium and installments on the ground that Administration failed to provide basic amenities--Auction purchases liable to pay penal interest.
Auction of plots-- Delayed payment of premium Purchaser/lessee is not a consumer, the owner is not a 'trader' or 'service provider'--Any grievance by the purchaser/lessee will not give rise to a complaint or consumer dispute
(A) Land and Property Law--Auction of plots--Delayed payment--Interest--Auction was for grant of a lease of sites for 99 years--Respondents 1 to 4 were the successful bidders--Auction purchaser delayed payment and premium on the ground that administration failed to provide basic amenities--Once with open eyes, a person participates in an auction, he cannot thereafter be heard to say that he would not pay the balance of the price/premium or the stipulated interest on the delayed payment, or the ground rent, on the ground that the site suffers from certain disadvantages or on the ground that amenities are not provided--Auction purchaser liable to pay penal interest/penalty on delayed installments--Neither the terms of lease nor the provisions relating to auction of leasehold rights in the Development Act and the Leasehold Rues, cast any obligation upon the appellants to provide the basic amenities--|Chandigarh Leasehold Sites and Building Rules, 1973, Rule 12 and 3(2)--Capital of Punjab (Development and Regulation) Act, 1952, Section 6, 7 and 2(b). (Para 2, 3, 5, 14 and 24)
(B) Land and Property Law--Auction of plots-- Amenities--Delayed payment of premium and installments on the ground that Administration failed to provide basic amenities--Providing amenities is not linked to auction of plots on lease basis and the premium paid is not for providing any amenity--The Central Government is required to provide amenities by levying fees and taxes in respect of sites/plots on the transferees/ occupiers thereof-- |Chandigarh Leasehold Sites and Building Rules, 1973, Rule 12 and 3(2)--Capital of Punjab (Development and Regulation) Act, 1952, Section 6, 7 and 2(b). (Para 24)
(C) Consumer Law--Auction of plots-- Maintainability of Complaint--Delayed payment of premium and installments on the ground that Administration failed to provide basic amenities--A 'complaint' is maintainable before a consumer forum under the Consumer Protection Act, 1986, by a 'complainant' ('consumer' or others specified) against a 'trader' or 'service provider'--Purchaser/lessee is not a consumer, the owner is not a 'trader' or 'service provider'--Any grievance by the purchaser/lessee will not give rise to a complaint or consumer dispute and the fora under the Act will not have jurisdiction to entertain or decide any complaint by the auction purchaser/lessee against the owner holding the auction of sites--|Consumer Protection Act, 1986, Section 2.(Para 10 and 14)
(D) Land and Property Law--Auction of plots-- Default in payment of interest--Auction was for grant of a lease of sites for 99 years--Rate of default interest on date of auction was 12% per annum--Amended Rule providing for payment of default interest @24% per annum--Rate of default interest mentioned in Rule 12(3A) as on the date of auction, would alone apply--If Rule 12(3A) was not amended increasing the rate of default interest from 12% P.A. to 24% per annum as on the date of auction, then the rate of interest stipulated in Rule 12(3A) as it stood on the date of auction will apply--The appellants could not charge default interest at a rate higher than what was provided in the said rule--|Chandigarh Leasehold Sites and Building Rules, 1973, Rule 12 and 3(2)--Capital of Punjab (Development and Regulation) Act, 1952, Section 6, 7 and 2(b). (Para 25)
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Urmila Devi v. Dinesh
2009(2) LAW HERALD (P&H) 1072
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rakesh Kumar Garg
CR No.4501 of 2008 (O&M)
Urmila Devi
v.
Dinesh
{Decided on 10/02/2009}
For the Petitioners: Mr. Saurabh Dala, Advocate.
For the Respondents No.1 and 2: Mr. Vijay Pal Singh, Advocate for Mr. Ajit Malik, Advocate.
For the Respondent No.3: Mr. D.R. Singla, Advocate.
Accident Law--Claim petition--Change in Section--By making amendment petition, Initial claim under Section 166 of M.V. Act was converted to Section 163-A--After attaining finality of that order, petitioner again want to convert it to under Section 166--Petitioner cannot be allowed to approbate and reprobate--|Motor Vehicles Act, 1988, Section 166 and 163.
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