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Retired employee should not be made to suffer for no fault of his if there is dispute between Management, Secretary & Govt. on who is responsible for delay in settling dues: SC

Read Judgment: Dr. A. Selvaraj V. C.b. M. College And Ors. 

Pankaj Bajpai

New Delhi, March 7, 2022: While hearing a case of delay in payment of pensionary benefits of a retired Associate Professor of a Coimbatore College, the Supreme Court has opined that as there was a delay in making the payment of retirement benefits and settling the dues for which the employee (appellant) was not at all responsible, he was entitled to the interest on the delayed payment.

A Division Bench of Justice M.R. Shah and Justice B.V. Nagarathna observed that because of the inter se dispute between the Management, Secretary and the Government on who is responsible for the delay in making the payment and/or settling the dues, the retired employee should not be made to suffer for no fault of his.

Going by the background of the case, Dr. A. Selvaraj (Appellant), an Associate Professor of Chemistry, retired from C.B.M. College, Coimbatore (first respondent) and the institution in which he was serving is an aided college. Since there was delay in payment of retirement/ pensionary benefits, despite various correspondences and the representations, the appellant approached the High Court. 

However, during the pendency of the writ petition the entire terminal benefits were settled. Therefore, it was requested on behalf of the appellant before the Single Judge that the action be taken against the erring officers for the delay caused in settling his dues and that he be paid interest on the delay in payment of retiral benefits. The Single Judge directed the Director of Collegiate Education to take appropriate action against the erring officers who had delayed in settlement of the payment in time, after hearing the aggrieved persons as expeditiously as possible. However, as no order was passed in respect of the interest on the delayed payment of the retirement benefits, the appellant appealed before the Division Bench. 

The Division Bench observed that one C.M. Ramaraj, the former Secretary of the College was responsible for the delay in disbursement of terminal benefits to the appellant. Thereafter the Division Bench observed that it is ultimately for the Government to take an appropriate decision based on the enquiry report. Hence, the present appeal was filed. 

After considering the submissions, the Top Court found that the Division Bench of the High Court observed that the appellant was entitled to the interest on the delayed payment.

However, there was an inter se dispute between the Secretary, Management and the Government as to who is responsible for the delay in making the payment to the appellant and therefore, he had been denied the interest on delayed payment though entitled to, added the Court. 

Speaking for the Bench, Justice Shah noted that as such pursuant to the interim order dated August 9, 2021, the Government did conduct an enquiry and fastened the liability on the college and observed that the former Secretary, C.M. Ramaraj was responsible for the delay in disbursal of the terminal benefits to the appellant. 

In that view of the matter, subject to the further final order that may be passed by the Government, the College/Management was first liable to pay the interest on the delayed payment of retirement dues subject to the final decision, which might be taken by the Government, after hearing the Management and the former Secretary, added the Bench. 

The Apex Court therefore quashed the order passed by the High Court denying the interest on delayed payment of retirement benefits to the appellant. 

The Top Court also directed the Management / Trustees / College to pay the interest on the delayed payment of retirement benefits to the Appellant, from the date of retirement till the actual payment was made, subject to the final decision that may be taken by the Government on the objections to the enquiry report that may be filed by the former Secretary and/or the College. The Court also stated that it will be open for the College / Management / Trustees to recover the same from the person, who, ultimately is held to be responsible for the delay. 

Partition applications wherein parties are not identical, cannot be consolidated: Punjab & Haryana High Court

Read Order: M/s Fondant Propbuild Private Limited v. State of Haryana and Others

Monika Rahar

Chandigarh, March 7, 2022: While dealing with a Civil Writ petition in a partition matter, the Punjab and Haryana High Court has held that it is settled law that partition applications wherein the parties are not identical cannot be consolidated. 

While arriving at the above-stated observation, the Bench of Justice Sudhir Mittal also made reference to the judgment of this Court in Fateh Ram and others Vs. State of Haryana and others, 2019 (2) Law Herald 1527 (P&H HC)

Herein, the fifth Respondent filed two separate applications for partition of land comprising khewat No. 32 (owned by petitioner and fifth respondent) and khewat No.33 (owned by petitioner, fifth respondent and M/s Fori Propbuild Private Limited). The petitioner’s representative vouched for consolidation of the two applications on the ground that both parcels of land belonged to the same parties. However, the proposed mode of partition was received and the petitioner submitted objections with the claim that both the partition applications be consolidated. 

The Assistant Collector, First Grade however rejected the objection while holding that the owners of the two khewats were different and thus the applications could not be consolidated. Thereafter, Naksha Bay was summoned, to which also the petitioner filed objections while contending that the land given to it did not adjoin other land owned by it. The objections were rejected, thus the petitioner filed an appeal which was again dismissed. 

The Appellate order was challenged by way of a revision but the same was also dismissed. Meanwhile, sanad takseem was issued. The sanad as well as the order of the Assistant Collector, First Grade rejecting objections to Naksha Bay were challenged by way of second revision before the Financial Commissioner. The appellate and revisional orders passed, meanwhile, were also subjected to challenge. However, the petitioner failed and the revision petition was dismissed by the Financial Commissioner. The Review filed was also rejected and thus, the present writ petition was filed. 

The petitioner’s counsel submitted that considering the fact that the petitioner and M/s Fori Propbuild Private Limited were 100% subsidiary companies of Emaar-MGF Limited, the Courts below were in error in rejecting the prayer for consolidating the two separate partition applications. The counsel further argued that the approved mode of partition was not properly implemented in Naksha Bay and thus, the objections thereto should have been allowed. Also, the counsel submitted that the final partition resulted in inequity as the land given to the petitioner was not contiguous with other land owned by him and which was in the immediate vicinity of the land in dispute. 

In response, the counsel for the fifth respondent submitted that the petitioner could not raise the issue of non-consolidation of the two partition applications as the request for consolidation was rejected by an order whereby, the objections to the mode of partition were dismissed. The Counsel contended that Section 118 of the Punjab Land Revenue Act, 1887 (as applicable to Haryana) provided for an appeal against the order accepting the mode of partition within 15 days from the date of the order and the filing thereof operated as an automatic stay of proceedings before the Assistant Collector. 

It was also the counsel’s case that no second appeal was provided against the appellate order and that this remedy was not availed by the petitioner. 

After considering rival submissions, the Court observed that the argument of the petitioner that the two partition applications should have been consolidated could not be accepted as admittedly, no appeal was preferred by the petitioner against the order by which the objections to the proposed mode of partition filed by the petitioner were rejected.

Then the Court went on to make a reference to Section 118 of the Act which provides that a revenue official carrying out partition must frame a mode of partition after conducting an enquiry as deemed fit and record an order stating his reasons for the same. Sub-Section 2 of Section 118 of the Act provides for a statutory appeal and filing thereof operates as an automatic stay of proceedings before the lower revenue official. Thus, the Court opined that having not availed of this remedy, the petitioner was deemed to have waived any objections that he may have had to the proposed mode of partition. 

“If, the order determining the mode of partition is not challenged in appeal then the subsequent orders cannot be challenged”, adjudged Justice Mittal. 

Moreover, the Court noted that the petitioner and M/s Fori Propbuild Private Limited were distinct entities thus, the two separate partition applications could not have been consolidated as it is settled law that partition applications, wherein, the parties are not identical cannot be consolidated. 

Further, the Court asserted that merely because the petitioner and M/s Fori Propbuild Private Limited were 100% subsidiary companies of Emaar-MGF Limited, it cannot be said that the parties were identical because everybody corporate is a separate entity. 

“Emaar-MGF was not a party to the partition proceedings. Thus, the argument of non-consolidation is rejected being not maintainable at this stage as well as on merits”, added the Court. 

Thus, the writ petition was dismissed for lacking merit. 

Confiscation of alleged offender’s vehicle after acquittal from criminal prosecution under M.P. Prohibition of Cow Slaughter Act, amounts to arbitrary deprivation of his property & violation of Article 300A of Constitution: SC

Read Judgment: Abdul Vahab V. State of Madhya Pradesh 

Pankaj Bajpai

New Delhi, March 7, 2022: While hearing a case of confiscation of vehicle on alleged ground of violation of the M.P. Prohibition of Cow Slaughter Act, 2004, the Supreme Court has held that the confiscation of an accused-appellant’s truck when he was acquitted in the criminal prosecution amounted to arbitrary deprivation of his property and violated the right guaranteed to each person under Article 300A of the Constitution.

A Division Bench of Justice K.M. Joseph and Justice Hrishikesh Roy observed that Section 13A of the M.P. Prohibition of Cow Slaughter Act, 2004, which shifts the burden of proof, is not applicable for the confiscation proceedings but for the process of prosecution, and therefore, by virtue of Section 13A of the 2004 Act, the burden on the State authority to legally justify the confiscation order, cannot be shifted to the person facing the confiscation proceeding. 

The observation came in reference to a challenge of the Confiscation Order passed by the District Magistrate, Agra (DM) dated August 9, 2017 for the appellant’s truck, purporting to exercise powers u/s 11(5) of the M.P. Prohibition of Cow Slaughter Act, 2004 and Rule 5 of the M.P Govansh Vadh Pratishedh Rules, 2012. The said Confiscation order was affirmed by the Court of Additional Commissioner, Ujjain the Additional Sessions Judge, Ujjain as well as the High Court while holding that no error has been committed by the District Magistrate in ordering the truck’s confiscation, even after acquittal of the accused persons from the criminal case. 

After considering the submissions, the Top Court noted that Section 11(4) of the 2004 Act, specifically applies the provisions of CrPC, in relation to search & seizure and Section 11 A(4) empowers the Appellate Authority to release the vehicle at the interim stage itself. 

The Rules 5 and 6 of the MP Govansh Vadh Pratishedh Rules, 2012 empower the police to seize vehicle, the cow progeny and beef in case of violation of Sections 4, 5, 6, 6A and 6B of the 2004 Act, as per Section 100 of the CrPC, added the Court. 

Speaking for the Bench, Justice Roy observed that in the context of the proceedings initiated under the M.P. Prohibition of Cow Slaughter Act, 2004 and there being no bar to exercise the jurisdiction of Criminal Courts including the High Court u/s 482 CrPC, the High Court was competent to entertain the petition u/s 482 CrPC. 

By reason of an order of confiscation, a person is deprived of the enjoyment of his property. Article 300A of the Constitution provides that no person shall be deprived of his property save by authority of law. Therefore, to deprive any person of their property, it is necessary for the State, inter-alia, to establish that the property was illegally obtained or is part of the proceeds of crime or the deprivation is warranted for public purpose or public interest”, added the Bench. 

Justice Joseph further noted that in the present case, the appellant’s truck was confiscated on account of the criminal proceedings alone and therefore, under the applicable law, the vehicle cannot be withheld and then confiscated by the State, when the original proceedings have culminated into acquittal. 

In a case where the offender/accused are acquitted in the Criminal Prosecution, the judgment given in the Criminal Trial should be factored in by the District Magistrate while deciding the confiscation proceeding, added the Bench. 

Accordingly, the Apex Court concluded that the confiscation order of the District Magistrate could not be sustained. 

Any appointment as Vice Chancellor contrary to UGC Regulations is in violation of statutory provisions, warranting writ of quo warranto: SC

Read Judgment: Gambhirdan K Gadhvi V. State of Gujarat & Ors. 

Pankaj Bajpai

New Delhi, March 4, 2022: Finding that the fourth respondent did not fulfill the eligibility criteria as per the UGC Regulations, 2018, namely, having ten years of teaching work experience as a professor in the university system, the Supreme Court has declared his appointment to post of Vice Chancellor of Sardar Patel University (SP University – Second respondent) as illegal, being contrary to University Grants Commission (UGC) Regulations, 2018. 

A Division Bench of Justice M.R Shah and Justice B.V Nagarathna observed that in case of any conflict between State legislation and Central legislation, Central legislation shall prevail by applying the rule/principle of repugnancy as enunciated in Article 254 of the Constitution as the subject ‘education’ is in the Concurrent List (List III) of the Seventh Schedule of the Constitution. 

Therefore, any appointment as a Vice Chancellor contrary to the provisions of the UGC Regulations can be said to be in violation of the statutory provisions, warranting a writ of quo warranto, added the Bench. 

The observation came pursuant to a petition filed by Gambhirdan (Petitioner) challenging the appointment of fourth respondent as a Vice Chancellor of SP University by way notification dated August 29, 2019, bearing No.GH/SH/76/SPY/122010/2626/ KH2 passed by the State of Gujarat (first respondent).

The petitioner also prayed for direction to the respondent authorities to recover from the fourth respondent consequential benefits not limited to pay, with retrospective effect, that had been extended to him by virtue of his illegal appointment as Vice Chancellor of the SP University. 

After considering the submissions, the Apex Court found that the UGC Regulations, 2010/2018 specifically prescribing the qualification / eligibility criteria for the post of Vice Chancellor, and the fourth respondent did not fulfill the eligibility criteria prescribed under the UGC Regulations, as he was not having ten years of teaching work experience as a professor in the university system and moreover, his name was not recommended by the legally constituted search committee, constituted as per the UGC Regulations, 2010/2018.

The provisions of the SPU Act, 1955/provisions under the State legislation are just contrary to the UGC Regulations, 2010/2018, which, are binding on the State Government and the universities thereunder. Even the State Government has not bothered to amend the State legislation – to put at par with the UGC Regulations, 2010/2018 and has continued the appointment in the universities dehors the UGC Regulations”, added the Court. 

Speaking for the Bench, Justice Shah noted that in the present case the UGC had addressed to the Governor of Gujarat, who is also the Chancellor of the University, to ensure that all the appointments of Vice Chancellors in the State are made in accordance with the provisions laid down in the Regulations of UGC.

However, despite the clear instructions from the office Governor of Gujarat, it is unfortunate that till date the State legislation has not been amended by the State Government and the appointments to the post of Vice Chancellor in the Universities in the said State are being made just contrary to the UGC guidelines and Regulations, added the Bench. 

Justice Shah further found that as per Section 9 of the Sardar Patel University Act, 1955, the Governor of Gujarat is the Chancellor of the University and he shall, by virtue of his office, be the head of the University and the President of the Senate, and therefore, his advice was/is binding upon the University. 

Therefore, observing that the members of the Search Committee, who are given the privilege and honour of selecting and suggesting names for the appointment of Vice Chancellor are directly or indirectly responsible for the achievement of the University, the Apex Court allowed the petition. 

Any evidence which may facilitate decision of suit can be permitted to be led even at stage of rebuttal, says Punjab & Haryana HC

Read Order: Baldev Singh v. Amrik Chand and Others

Monika Rahar

Chandigarh, March 4, 2022: While dealing with a revision petition, the Punjab and Haryana High Court has held that any evidence which may facilitate the decision of a suit can be permitted to be led even at the stage of rebuttal. 

In this suit, there was a dispute regarding a document executed by the first defendant. The said document allegedly bore his thumb impression. At the stage of rebuttal, the plaintiffs came in possession of a document that allegedly contained the admitted thumb impression. Thus, during the rebuttal evidence, the plaintiffs filed an application for leading additional evidence by way of examination of an expert which was allowed. Hence, this revision petition was filed.

The petitioner’s counsel argued that the application could not be allowed as it was highly belated and was filed only for the purpose of delaying the trial. It was also argued that the document sought to be produced for comparison was never produced earlier and only a photocopy thereof was produced. Thus, the trial Court was in error in allowing the application, added the counsel. 

The above-stated argument was rejected by the Court on the ground that any evidence which may facilitate the decision of a suit could be permitted to be led even at the stage of rebuttal. 

Considering the factual situation of the case, Justice Sudhir Mittal added, “Delay would not be fatal in such cases, especially, when the plaintiffs have shown that the document came into their possession only at the stage of rebuttal. Had the document been in their possession earlier, there was no difficulty in producing the same in original rather than producing a photocopy.”

Thus, the revision petition was dismissed. 

State has power to levy excise duty in respect of alcoholic liquor for human consumption but it cannot levy such duty on wastage of liquor after distillation: SC

Read Judgment: State of Odisha & Ors. Vs. M/s Utkal Distilleries Ltd.  

Pankaj Bajpai

New Delhi, March 4, 2022 While hearing an appeal challenging demand notice issued to Utkal Distilleries calling upon it to pay excise duty on the weak spirit, which was more than 2% allowable wastage, the Supreme Court has held that the State has power to levy excise duty only in respect of the alcoholic liquor for human consumption, by virtue of Section 27(1) r/w/s 2(6) of the erstwhile Bihar and Orissa Excise Act, 1915. 

A Division Bench of Justice B.R. Gavai and Justice L. Nageswara Rao observed from perusal of Section 27(1) of the said Act that the State’s power to impose duty on import, export, transport and manufacture is only in respect of any excisable articles imported, exported, transported and manufactured. 

Going by the background of the case, the Commissioner of Excise, Orissa (second appellant) granted licence in favour of Utkal Ditilleries (Respondent – Company) for manufacturing, bottling, blending and reduction of Indian Made Foreign Liquor (IMFL) from rectified spirit, subject to the respondent Company installing one rectification column to rectify/ purify the rectified spirit to be used in manufacturing of IMFL.

As per the condition in the license, the respondent installed Extra Natural Alcohol Column. It was the case of the respondent that the manufacturing process resulted in generation of certain weak spirit, which was not potable, and since the rules did not provide for allowing such a waste product, a representation was made by the respondent to the TRAI (second appellant). Later, the Committee recommended allowing 2% loss of spirit during the process of redistillation in the State of Orissa (first appellant). Since the appellant did not take any decision on the report of the Committee, the respondent approached the High Court.

However, demand notice was issued to the respondent calling upon it to pay excise duty on the weak spirit, which was more than 2% allowable wastage. 

After considering the submissions, the Top Court found that ‘excisable article’ has been defined to be any alcoholic liquor for human consumption or any intoxicating drug.

Speaking for the Bench, Justice Gavai found that the Constitution Bench of this Court in the case of Synthetics and Chemicals Ltd. and others vs. State of U.P. and Others, (1990) 1 SCC 109 , has held that the State Legislature had no authority to levy duty or tax on alcohol, which is not for human consumption as that could be levied only by the Centre. 

Similarly, a three Judge Bench of this Court in the case of State of U.P. and others vs. Modi Distillery and others, (1995) 5 SCC 753, following the Constitution Bench decision of this Court in case of Synthetics and Chemicals Ltd. (supra), observed that the State has no power to levy excise duty on wastage of liquor after distillation, added the Bench.  

The Top Court further found that the license, which was granted to the respondent – Company, is for the purpose of manufacturing, bottling, blending and reduction of IMFL, and as required under the license, the respondent has installed one ENA column to rectify the rectified spirit to be used in the manufacturing of IMFL.

It is also not in dispute that the sample of wastage generated in the manufacturing process was sent for examination to the State Drugs Testing and Research Laboratory, Orissa, which stated that the wastage generated has been found to be unfit and unsafe for potable purpose, added the Court. 

Accordingly, in view of the legal position as settled by the Constitution Bench of this Court in Synthetics and Chemicals Ltd.’s Case (Supra) and the three Judge Bench in Modi Distillery’s Case (Supra) and the statutory provisions contained in the said Act, the Apex Court dismissed the appeals. 

It is time to shift perspective from didactics of orthodox society shackled with strong strings of morality, to one that values individual’s life above all: P&H HC while allowing Protection Plea

Read Order: Jai Nrain & Another v. State of Punjab and Others 

Monika Rahar

Chandigarh, March 4, 2022: While allowing a Protection Plea of a live-in couple, the Punjab and Haryana High Court has held that in the ever-evolving society, evolving the law with it, the time is to shift perspective from didactics of the orthodox society, shackled with the strong strings of morality supported by religions to one that values an individual’s life above all.

The Bench of Justice Anoop Chitkara made the above-stated observations when it encountered a petition filed by a live-in couple who were faring for their lives and liberty at the hands of the private respondents and were seeking protection through the State, by invoking their fundamental rights of life guaranteed under Article 21 of the Constitution of India.

The petitioners’ counsel had clarified that the second petitioner was a married woman and she voluntarily went to the company of the first petitioner. The counsel submitted that the petitioners were facing grave danger from the private respondents and thus prayed was made for protection of their life and liberty. 

At the very outset, the Court reflected upon how times are changing fast even in those lands that were left behind and stuck with the old ethos and conservative social milieu. 

The Court asserted, “We are governed by the rule of law and follow the Constitutional dharma. In the ever-evolving society, evolving the law with it, the time is to shift perspective from didactics of the orthodox society, shackled with the strong strings of morality supported by religions to one that values an individual’s life above all. 

Further, echoing the cherished ideals of Life and Liberty, the Court stated, “Every person in the territory of India has an inherent and indefeasible fundamental right to life flowing from Article 21 of India’s constitution and the State is duty-bound to protect life.”

Coming to the factual aspects of the case, the Court observed that if the allegations of apprehension of threat to their (petitioners’) lives turn out to be true, it might lead to an irreversible loss. 

Thus, without adjudicating on the validity of petitioner’s marriage or her decision of cohabiting with the first petitioner, but adhering to its fundamental duty of guarding their lives, the Court ordered the concerned Police officials to provide appropriate protection to the petitioners for a specified time. 

The Court also clarified that there was no adjudication on merits and that the order was not a blanket bail in any FIR. It was further clarified that this order was to not come in the way if the interrogation of the petitioners was required in any cognizable case. The petitioners were also given the liberty to approach the Court again in case of any fresh threat perception. 

Top Court dismisses Loop Telecom’s claim for refund of Entry Fee paid for 2G licence; Criticizes Telecom’s forum-shopping approach and calls it confederate of fraud

Read Judgment: Loop Telecom And Trading Limited V. Union of India And Anr. 

Pankaj Bajpai

New Delhi, March 4, 2022: Observing that the decision of this Court in Centre for Public Interest Litigation v. Union of India, (2012) 3 SCC 1, left no manner of doubt that the telecom licensee (Loop Telecom – Appellant) was among the group of licensees who were found to be complicit in obtaining benefits under the “First Come First Serve” policy of the Union government at the cost of the public exchequer, the Supreme Court has held that the appellant was not entitled to claim a refund of its Entry Fee paid to TRAI for grant of UASL license, even on the principle of restitution embodied in Section 65 of the Indian Contract Act

A Larger Bench of Justice Dr. D.Y Chandrachud, Justice Surya Kant and Justice Vikram Nath observed that the course of action adopted by telecom licensee in fair withdrawing the civil appeals which were instituted against the first order of the TDSAT without obtaining specific liberty or permission to move the TDSAT, and instituting a second round of litigation before the TDSAT, and then obtaining a revival of the first set of civil appeals, is not justified. 

A party must not be allowed to conduct litigation in this manner, and such a course of action is subject to grave abuse since it lays bare an effort at forum-shopping and selectively deciding where and before whom it would pursue its remedies, added the Bench. 

Going by the background of the case, the Appellant applied for the grant of Unified Access Service Licences (UASL) for twenty-one service areas. Since a Letter of Intent was issued, the appellant paid the circle wise Entry Fee of Rs 1.1 crores and furnished a Performance Bank Guarantee and Financial Bank Guarantee for the twenty-one areas. The appellant accordingly entered into UASL agreements for the twenty-one service areas with the TRAI (Respondent). 

The Appellant thereafter instituted first telecom petition before TDSAT claiming a refund of Rs. 1454.94 crores representing the Entry Fee paid by it for 2G licences for twenty-one service areas, since, by the judgment of this Court in CPIL’s Case (Supra), the 2G licences which were granted by the Union of India, including to the appellant, stood quashed. 

The TDSAT however, dismissed the appeal, observing that quashing of the appellant’s licences by this Court in its judgment in CPIL’s Case (Supra) cannot be brought under the Indian Contract Act, since the UASL agreements had not become void u/s 23 & 56 of the Indian Contract Act. The appellant then instituted another petition before the TDSAT raising the issue of a refund of the Entry Fee, on the ground that it had been exonerated by the Special Judge, CBI. The TDSAT however, dismissed the Second Telecom Petition noting that the appellant had made a second attempt for claiming the same relief which had been sought earlier in the First Telecom Petition. 

After considering the submissions, the Larger Bench found that the decision of this Court, in CPIL’s Case (Supra) which was rendered on February 2, 2012, arose from petitions under Article 32 of the Constitution, which questioned the grant of UASLs to the private respondents in those proceedings, on the ground that the procedure which was adopted by Department of Telecom (DoT) was arbitrary, illegal and in violation of Article 14 of the Constitution. 

While dealing with the grounds of challenge, in the course of the judgment, this Court in CPIL’s Case (Supra) underscored that natural resources, such as spectrum, are public goods and the doctrine of equality and public trust must guide the State in determining the actual mechanism for their distribution. Although in the course of its decision, it held that the then Minister for Communications and Information Technology had acted to favour some companies at the cost of the public exchequer, added the Bench. 

Speaking for the Bench, Justice Chandrachud noted that the decision of this Court in CPIL (Supra) held that the “First Come First Serve” policy was writ large with arbitrariness, and was intended to favour certain specific entities at a grave detriment to the public exchequer. 

Undoubtedly, the authors of the “First Come First Serve” policy were the official actors comprised within the Union government. But equally, the decision did not exculpate the private business entities who obtained UASLs and became the beneficiaries of their decision, added the Bench. 

Justice Chandrachud found that while directing the cancellation of the licences and ordering a fresh auction, this Court in CPIL (Supra) imposed costs of Rs. 5 crores on one set of licensees and Rs 50 lakhs on another set, after assessing their culpability in wrongly benefitting from the “wholly arbitrary” and “unconstitutional exercise” of license and spectrum allocation. 

Therefore, “it would be an improper reading of the judgment to postulate that the decision leaves open a claim for the refund of the Entry Fee. The payment of the Entry Fee was one element in the overall financial conspectus which led to the award of licences. The adjudication before this Court in CPIL (supra) must be construed as a one composite whole from which its parts cannot be separated”, added the Bench. 

The Top Court observed that since the policy on the allocation of spectrum and the licences were quashed on the grounds of mala fides and arbitrariness in the Union government’s policy, the subsequent enquiry into viability of the refund of the Entry Fee would have to be agitated before the same Court. 

It must be noted that the appellant made no effort to urge during the course of the submissions before the Court in CPIL (supra) that they should be allowed a refund of Entry Fee in the event that the Court were to quash the process and the award of licences. Significantly, the appellant did not seek the permission of this Court at that stage to reserve their liberties of agitating a claim for refund of Entry Fee in separate proceedings”, added the Court. 

Accordingly, the Apex Court dismissed the appeals. 

Powers to quash prosecution can be invoked to set aside order declaring accused to be proclaimed offender, if it is required to achieve ends of justice & prevent abuse of process of law: P&H HC

Read Order: Rajan Saini and Others v. State of Haryana and Another

Monika Rahar

Chandigarh, March 4, 2022: While dealing with a quashing plea arising from a matrimonial dispute, the Punjab and Haryana High Court has held that it cannot be said that the powers to quash the prosecution is limited only to the matrimonial dispute alone and the same cannot be invoked to set aside the order declaring the petitioner to be proclaimed offender, in the event, the same is required to be exercised to achieve ends of justice and prevent the abuse of process of law. 

Further, Justice Vivek Puri added that it may be true that the inherent powers under Section 482 Cr.P.C. cannot be exercised to quash the criminal proceedings where the offence is heinous, but in the event, the matter is overwhelmingly and predominantly of civil nature and particularly arising out of the matrimonial dispute, it shall be appropriate to quash the FIR and the entire subsequent proceedings to put a quietus to the matter. 

The case stemmed from an FIR lodged under Sections 323, 354-A, 377, 498-A and 506 of the Indian Penal Code (Section 354-A IPC was deleted and Section 406 IPC was added later on), by a woman against her husband Rajan Saini and his family members. The Court was approached by the accused- petitioners with a quashing plea filed under Section 482 Cr.P.C. seeking quashing of the said FIR and other incidental proceedings, after the matter was compromised. A divorce decree was obtained between the first petitioner and his wife (the informant). 

On being directed by the High Court, the Illaqa Magistrate prepared its report on the nature of the compromise and the report was indicative of the fact that the first petitioner was declared as a Proclaimed Offender. This order of proclamation was also sought to be quashed by the petitioners.  

It was stated on behalf of the petitioners that no prosecution under Section 174-A of the Indian Penal Code was initiated against the first petitioner. 

After hearing the counsel for the parties and going through the record of the case, the Court was of the considered opinion that it was a fit case for exercising the inherent jurisdiction of the Court under Section 482 Cr.P.C. to secure the ends of justice because the private parties arrived at an out-of-court settlement by way of compromise. The Court also found the compromise to be genuine.

On the legal position governing the quashing plea of the kind brought up in this case, the Court opined that although, the first petitioner was declared as proclaimed offender it could not be said that the powers to quash the prosecution was limited only to the matrimonial dispute alone and the same could not be invoked to set aside the order declaring the petitioner to be proclaimed offender, in the event, the same was required to be exercised to achieve ends of justice and prevent the abuse of process of law. 

Regarding the factual scenario of the present controversy, the Court opined that the case was not heinous, the matrimonial dispute was sought to be amicably settled and the chances of conviction of the accused were remote and minimal. 

Thus, it was concluded,“Although the petitioner was declared as a proclaimed offender but keeping in view the fact that an amicable settlement was effected, the entire subsequent proceedings which arose arisen out of matrimonial dispute should come to an end by exercising inherent powers of this Court in order to secure the ends of justice. In such a situation, the continuation of prosecution would result in sheer abuse of the process of law.”

In arriving that the above-stated decision, the Court found support in the case of Kulwinder Singh and others Vs. State of Punjab and another, 2007(3) RCR (Criminal) 1052 (P&H HC), upheld by the Apex Court in Gian Singh Vs. State of Punjab and others, (2012) 10 SCC 303 and Narinder Singh and others Vs. State of Punjab and another, 2014(6)SCC 466. 

Thus, to secure the ends of justice, the FIR along with subsequent proceedings arising from it including the order declaring the first petitioner as a proclaimed offender, were quashed. 

Appeal against Divorce Decree obtained by way of mutual consent u/s 13-B of Hindu Marriage Act, is maintainable: Punjab & Haryana High Court

Read Order: Rupinder Kaur and Kuljit Singh 

Monika Rahar

Chandigarh, March 4, 2022: While dealing with a case where a divorced couple after reconciling differences, started cohabiting with each other along with their children, the Punjab and Haryana High Court has held that an appeal against the decree of divorce obtained by the parties by way of mutual consent under Section 13-B of the Hindu Marriage Act, is maintainable.

The above ruling of the Bench of Justices Ritu Bahri and Justice Ashok Kumar Verma has come in light of what was held by the Division Bench of Punjab and Haryana High Court in the case of Jyoti V/s. Neeraj Kumar Saini, 2019 (1) R.C.R. (Civil) 748. In this case, while referring to the judgment passed in Krishna Khetarpal, Headmistress, Government Girls High School, Bhuna, Tehsil Fatehabad, District Hisar v. Satish Lal; 1986 (2) PLR 608, the Division Bench held that under Section 28 of the Act, an appeal against the consent decree of divorce under Section 13-B of the Act by either party is maintainable as a matter of right. 

The factual background of the case is such that the marriage of the appellants was solemnized in 2002 and out of this wedlock two children were born. On account of temperamental differences, they started living separately in 2012. Ultimately, a petition under Section 13-B of the Hindu Marriage Act, 1955 (HMA) for dissolution of marriage by way of mutual consent was filed and the same was allowed by the impugned order. 

However, after getting a decree of divorce with mutual consent under Section 13-B of the Act, the appellants reconciled their differences and started living together as husband and wife along with their children. Thus, the present appeal challenging the decree of divorce was filed by the appellants jointly, which was supported by their respective affidavits. 

While holding that their appeal was maintainable and in light of the fact that the parties were staying together happily since March 2021, the Court opined that it was never too late to mend ways.

Thus, keeping in view the peculiar facts and circumstances of the case, the instant appeal was allowed and the impugned judgment & decree were set aside.

Injunction cannot be issued against true owner or title holder and in favour of trespasser or person in unlawful possession, rules Apex Court

Read Judgment: Padhiyar Prahladji Chenaji (deceased) Through L.r.s V. Maniben Jagmalbhai (deceased) Through L.r.s And Ors. 

Pankaj Bajpai

New Delhi, March 4, 2022: The Supreme Court has held that once the dispute with respect to title is settled and it is held against the plaintiff, then the suit by the plaintiff for permanent injunction shall not be maintainable against the true & absolute owner. 

The Court also observed that once the suit is held to be barred by limitation qua the declaratory relief and when the relief for permanent injunction was a consequential relief, then prayer for permanent injunction, which was a consequential relief can also be said to be barred by limitation. An injunction cannot be issued against a true owner or title holder and in favour of a trespasser or a person in unlawful possession, added the Division Bench of Justice M.R. Shah and Justice B.V. Nagarathna.

The Bench opined that when the execution of the registered sale deed and the payment of full sale consideration mentioned in the registered sale deed is believed and accepted by all the courts, then there is no reason for the trial court not to believe the averments in the registered sale deed of handing over the possession to the purchaser.

Going by the background of the case, the dispute was with respect to the land situated at District Deesa. The husband of Maniben (First Respondent – original plaintiff) had executed a Sale Deed in favour of Padhiyar (Appellant – original defendant) by which he sold his agricultural land in question. On the basis of the sale deed, the name of first defendant was mutated in the Revenue record in the year 1976 itself. Thereafter, between 1975 till 1997, defendants authorized and completed construction projects on the land. He also availed a bank loan where the suit property was given as a collateral security. 

In the year 1999, the husband of the original plaintiff, who executed the registered sale deed died and after a period of approximately 22 years, first respondent filed a civil suit seeking reliefs of cancellation of the registered sale deed, declaration and permanent injunction. 

The case on behalf of first respondent was that her husband was addicted to liquor and as the family was in need of finances, her husband decided to sell 1 acre of the land out of total 6 acres and 15 gunthas to the first defendant, who took advantage fraudulently and got the sale deed registered of the entire suit property. However, as per the first defendant, the plaintiff had no right, title or interest in the suit property, as the registered sale deed was duly executed by the husband of the plaintiff. 

On appreciation of evidence, both oral as well as documentary, the Trial Court partly allowed the suit, but declined to grant the relief of cancellation of the sale deed and declaration and held that the first defendant purchased the entire land under the registered Sale Deed. However, the Trial Court believed the plaintiff to be in possession of the suit land and accordingly granted the relief of permanent injunction. 

The matter reached the High Court, which held that the relief of permanent injunction sought by the original plaintiff can be said to be substantive relief and not a consequential relief and therefore, the Trial Court was justified in granting the permanent injunction in favour of the plaintiff as the plaintiff was/is found to be in possession of 5 acres and 15 gunthas of land out of total area ad-measuring 6 acres and 15 gunthas. 

After considering the submissions, the Top Court found that there are concurrent findings by the Trial court as well as the First Appellate Court that the plaintiff is in possession of the disputed land in question.

However, in the Revenue record, right from 1976 onwards and after the registered sale deed in favour of the first defendant, the name of first defendant was mutated in the Revenue record and in the column of farmer and the cultivator, the name of the first defendant was mentioned, and even the crops being cultivated by the cultivator were mentioned in the Revenue record, added the Court. 

Speaking for the Bench, Justice Shah noted that after the execution of the registered sale deed in favour of first defendant, which has been believed by all the courts, the name of first defendant was mutated in the Revenue record as an owner and cultivator and the plaintiff, who claimed to be in possession of the land and cultivating the same, was deemed to have the knowledge of the said entry. 

In the present case, as observed hereinabove and it is not in dispute that the suit filed by the plaintiff for cancellation of the registered sale deed and declaration has been dismissed and the registered sale deed in favour of the defendant No.1 has been believed and thereby defendant No.1 is held to be the true and absolute owner of the suit land in question. The judgment and decree passed by the trial court in so far as refusing to grant the relief for cancellation of the registered sale deed and declaration has attained finality. Despite the fact that the plaintiff has lost so far as the title is concerned, still the Courts below have granted relief of permanent injunction against the defendant No.1 – the absolute owner of the land in question, which is unsustainable, both, on law as well as on facts”, added the Bench. 

Justice Shah further observed that once the first defendant was held to be the true and absolute owner pursuant to the registered sale deed executed in his favour and the plaintiff was unsuccessful so far as the declaratory relief was concerned, thereafter, it couldnot be said that there was a cloud over the title of the plaintiff and/or even the defendant.

Therefore, once the plaintiff had failed to get any substantive relief of cancellation of the sale deed and failed to get any declaratory relief, relief of injunction could be said to be a consequential relief, and therefore, the prayer for permanent injunction must fail. 

The Apex Court concluded that in the instant case, as the plaintiff could not be said to be in lawful possession of the suit land, i.e., the possession of the plaintiff was “not legal or authorized by the law”, thus the plaintiff should not be entitled to any permanent injunction.