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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