High Court of Delhi

Sushil Kumar Khanna Vs. BSES Yamuna Power Ltd.

MANU/DE/2576/2017

31.08.2017

Service

If an issue stood decided, the benefit thereof must be given to similarly placed persons

The present petition has been filed by the Petitioner with prayers for issuance of writ of Mandamus directing the Respondent to allow the Time Bound Promotion Scale of Executive Engineer to the Petitioner w.e.f 26th September, 2000 and the Scale of Superintending Engineer w.e.f. 26.9.2008 and other consequential benefits and interest as per law. The Petitioner was appointed as Inspector in the erstwhile Delhi Electric Supply Undertaking (DESU) on September 26, 1981. DESU later became Delhi Vidyut Board (DVB), which ultimately was restructured into number of separate entities. On July 23, 1997, Time Bound Promotion Scheme (TBPS) was introduced by the then DVB.

According to the Petitioner the Scheme contemplated, all employees shall be entitled to the first TBPS on completion of ten years of regular service and second TBPS on completion of further eight years of service. It is averred, on August 30, 1999 the posts of Inspector (Electrical) and Superintendent (Tech) were merged in one cadre and re-designated as Junior Engineer (JE) in the lower scale of pay. It is the case of the Petitioner that on December 20, 1999, it was clarified that the third TBPS would be granted on the completion of further eight years of service after second TBPS i.e., on completion of 26 years of service.

The judgment in the case of M.K. Saini v. Indraprastha Power Generation Company Ltd. is a judgment not in-personam but a judgment in-rem as that is an adjudication on a particular subject matter (grant of TBPS), rather than an adjudication between the parties claiming personal benefits/rights and as such, is binding in a subsequent proceeding, though the parties are not the same. That apart, on parity with employees of DTL, the Petitioner shall be entitled to the benefits. It is a settled law of the Supreme Court that if an issue stood decided, the benefit thereof must be given to similarly placed persons.

In the present case, concedingly the Respondent was not a party in the petition filed by M.K. Saini but on an interpretation of the circulars, which have also been relied upon by the Petitioner in this case, if a judgment has been rendered, surely the benefit of such an interpretation need to be given to the Petitioner in the case in hand. Moreover, M.K. Saini and the Petitioner herein have started their service in DESU/DVB and the relief has been granted to M.K. Saini from the date he was in DESU/DVB. The relief as being sought by the Petitioner, also from the date when the Petitioner was in DESU/DVB with identical service conditions. The pension/retiral benefits are consequential, which would automatically need to be revised.

The Petitioner in present case shall be entitled to the benefits in the same manner granted in favour of M.K. Saini in his case, as his first TBPS shall relate back to September 26, 1991; second TBPS w.e.f September 26, 1999; and third TBPS w.e.f. September 26, 2007 respectively. As this Court had issued notice limited to the claim of pensionary benefits from three years preceding the filing of this petition and the petition having been filed on September 13, 2013, the Respondents are directed to fix the pay of the Petitioner on September 26, 1991 (first TBPS); September 26, 1999 (second TBPS) and September 26, 2007 (third TBPS) notionally and the actual arrears thereof shall be granted w.e.f September 13, 2010 (three years preceding the date of filing of the writ petition). The pension/retiral benefits shall be refixed and arrears thereof shall be granted to the Petitioner.

Relevant

M.K. Saini v. Indraprastha Power Generation Company Ltd.

Tags : Promotion Scale Grant

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High Court of Orissa

Surendra Panigrahi Vs. Abhiram Sahu and Ors.

MANU/OR/0519/2017

30.08.2017

Property

A minor can bring a suit within a specified time after the termination of his minority and/or during the subsistence of his minority, through his next friend

Defendant is the Appellant against a confirming judgment. Case of the Defendant is that, the suit land is his ancestral homestead. He is in possession of the same for more than twelve years and as such perfected title by way of adverse possession. Trial Court came to hold that, Defendant and his predecessor-in-interest were dispossessed from their ancestral homestead land. The Plaintiffs' vendor took possession over the suit land. The suit is not barred by limitation. Held so, the learned trial Court decreed the suit. Unsuccessful Defendant challenged the judgment and decree of the learned trial Court before Additional District Judge, which was eventually dismissed. Issue involved in present case is whether in the instant case benefit under Section 6 of the Limitation Act, 1963/Act can at all be availed of by the Plaintiffs.

In Sardar Vijaysingh Rao Ghorpade v. Jeewan Lal Ram Das Jaiswal, the Madhya Pradesh High Court held that, a minor has two rights: (1) he can bring a suit within a specified time after the termination of his minority (Section 6 Limitation Act, 1963), (2) that even during the subsistence of his minority, he can institute a suit through his next friend. In Lalji Sah and others v. Sat Narain Bhagat and others, the Patna High Court held that the privilege given to a minor under the section is not one that could be availed of by him only but while the minor's disability lasts his guardian or next friend also can being a suit or make an application through the ordinary period of limitation for such a suit or application has run out.

Section 8 of Orissa Survey And Settlement Act, 1958 is a proviso to Section 6 or 7 of Act. A combined effect of Section 6 and 8 read with third column of the appropriate article would be that, a person under disability may sue after cessation of disability within the same period as would otherwise be allowed from the time specified therefore in the third column of the schedule. But such extended period would not be beyond three years from the date of the cessation of the disability. A minor is entitled to institute a suit or make an application for the execution of a decree within the statutory period of three years after attaining his majority and it was never intended by the Legislature to restrict the protection given to a minor by the acts of his guardian in the matter of making an application for execution. The privilege given to a minor under the section is not one that could be availed of by him only, but while the minor's disability lasts his guardian or next friend also can being a suit or make an application through the ordinary period of limitation for such a suit or application has run out.

A minor can bring a suit within a specified time after the termination of his minority and/or during the subsistence of his minority, through his next friend. Moreover a minors’ right cannot be curtailed by any other process of strained construction of the afore-mentioned provisions of Act. Admittedly, the Plaintiffs were minors, when the Record of Rights (ROR) was published in the year 1968. They instituted the suit through their next friend in the year 1978. They could have instituted the suit in the year 1981, i.e., within three years of attaining majority. Thus, the suit was filed within the prescribed period of limitation. The appeal is dismissed.

Relevant

Sardar Vijaysingh Rao Ghorpade v. Jeewan Lal Ram Das Jaiswal, MANU/MP/0033/1963
: AIR 1963 MP 100, Lalji Sah and others v. Sat Narain Bhagat and others, MANU/BH/0043/1962
: AIR 1962 Patna 182

Tags : Suit Minor Maintainability

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NATIONAL COMPANY LAW APPELLATE TRIBUNAL

Cinepolis India Pvt. Ltd. and Ors. Vs. Registrar of Companies, NCT of Delhi & Haryana, New Delhi

MANU/NL/0076/2017

29.08.2017

Company

Tribunal has jurisdiction to compound the offence where alternative punishment of fine is prescribed in place of imprisonment and where no case is pending before the Special Court

Present appeal is filed against impugned order passed by the National Company Law Tribunal. The Appellants failed to file its Annual Return for the financial year ended 31st March 2013 within 60 days of holding the Annual General Meeting resulting in non-compliance of statutory requirement under Section(s) 92, 137, 96 and 129 of the Companies Act, 2013/Act. In view of the alleged failure, as penal action under Section 92(5), 137(3), 99 and 129(7) of the Companies Act, 2013 were attracted, the Appellants preferred an application under Section 441 of the Companies Act, 2013 for compounding the offences. The Tribunal dismissed the application by impugned order observing and directing that, the provisions of Companies Act, 2013 mandate that offence which is punishable with imprisonment even in the alternative of fine, should be dealt with by the Special Court constituted for violation of the Companies Act. This application is therefore being returned to the applicant to file it before the proper forum. The question involved in this appeal is whether the Tribunal had jurisdiction to compound the offences under Section 441 for the alleged violation of Section(s) 92, 137, 96 and 129 of the Companies Act, 2013.

An offence committed by an accused under the Act, not being an offence punishable with imprisonment only or imprisonment and also with fine, is permissible to be compounded by the Company Law Board either before or after the institution of any prosecution. Ordinarily, the offence is compounded under the provisions of the Code of Criminal Procedure and the power to accord permission is conferred on the Court excepting those offences for which the permission is not required. However, in view of the non-obstante clause, the power of composition can be exercised by the Court or the Company Law Board. The legislature has conferred the same power to the Company Law Board which can exercise its power either before or after the institution of any prosecution whereas the criminal court has no power to accord permission for composition of an offence before the institution of the proceeding. Thus, if an offence is punishable under the Act with imprisonment only or with imprisonment and also with fine cannot be compounded by Tribunal in view of clause (b) of sub-section (6) of Section 441.

However, if any offence which is punishable under the Act "with imprisonment or fine or with imprisonment or fine or with both" can be compounded by the Tribunal but only with the permission of the Special Court in accordance with the procedure laid down by the Act for compounding of offences as prescribed in clause (a) of sub-section (6) of Section 441. In the present case, apart from violation of Section 96, where punishment fine has been prescribed, for violation of Section(s) 92, 137 and 129 of the Companies Act, 2013, alternative punishment of imprisonment or fine or imprisonment with fine, have been prescribed. In view of such provision wit is held that, for offences under Section(s) 92, 137 and 129 etc., where alternative punishment of fine has been prescribed, apart from imprisonment, the Tribunal is empowered to compound the offence only with the permission of the Special Court.

The Appellants have specifically pleaded that, no case for alleged violation is under investigation or pending before any Special Court. This fact has not been disputed by the Registrar of Companies, NCT of Delhi & Haryana. It is also clear from impugned order, wherein the Tribunal has directed the Registrar of Companies to file their report to the concerned Court (Special Court). In such a situation, in absence of investigation or pendency of any case before any Court of law for alleged violation of Section(s) 92, 137, 96 and 129 of the Companies Act, 2013, it is held that, there is no requirement for the Tribunal to seek any permission from Special Court for the purpose of compounding any of such offence. It is well within the jurisdiction of the Tribunal to compound the offence where alternative punishment of fine is prescribed in place of imprisonment and where no case is pending before the Special Court. Tribunal is also empowered to compound such offence(s) under Section(s) 92, 137 and 129 etc., where the alternative punishment of fine in place of imprisonment has been prescribed even where case(s) are pending before the Special Court, but in such cases, permission of the Special Court is required to be obtained prior to compounding the offence.

The Tribunal was not correct in returning the file to the Appellants to move application before the Special Court constituted at Dwarka, New Delhi nor it had jurisdiction to direct the Registrar of Companies to file their report in the concerned Special Court. In the facts and circumstances of the case, the Tribunal, was required to decide as to whether alternative punishment of line can be imposed on the company and/or the Managing Director, Director(s), CFO or any officer, after taking into consideration the report, called for from the Registrar of Companies. Impugned order passed by the Tribunal is set aside. The case is remitted back to the Tribunal, New Delhi Bench, to decide the quantum of penalty as may be imposed on the Company and its officers like Managing Director, Director, CEO, CFO etc., for alleged violation after calling for report from the Registrar of Companies, Delhi & Haryana, New Delhi and notice to the parties.

Tags : Offence Compounding of Jurisdiction

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Supreme Court

Harbanslal Malhotra & Sons Pvt. Ltd. Vs. Kolkata Municipal Corpn. and Ors.

MANU/SC/1082/2017

05.09.2017

Municipal Tax

Machinery provision which enables the Assessee to avail concession or benefit conferred by substantive provision in the Act need to be construed liberally

In facts of present case, The Appellant is the owner of the premises. It consists of two-storey building and some land appurtenant thereto ("the premises"). This premises is assessed to payment of tax under the provisions of the Calcutta Municipal Corporation Act, 1980/Act. By two orders, the Assessing Officer determined the valuation of the premises. The Appellants (Assessee), felt aggrieved of the orders of Assessing Officer, filed two appeals before the Tribunal. Tribunal allowed the appeal in part.

The Municipal Corporation, felt aggrieved of the order of the Tribunal, filed revision petition before the High Court. By impugned order, the High Court allowed the revision and remanded the case to the Tribunal to re-determine the annual value of the premises. The High Court held that, the Tribunal was not right in making an assessment of the premises by clubbing land and building. According to the High Court, it should have been done separately, i.e., building and land should have been assessed separately for determining their respective annual value under Section 174(1) and (2) of the Act. The owner (Assessee), felt aggrieved of the order of the High Court, filed this appeal by way of special leave before this Court.

Reading of Section 174 of Act shows that, it deals with two types of assessment for determining the annual value of land or building. One is in relation to the "land on which the building is built" and the other is in relation to the "open land", i.e., the "land on which no building is built". So far as former is concerned, i.e., land on which building is built, it is governed by Sub-section (1) of Section 174 whereas so far as the latter is concerned, i.e., open land on which no building is built, it is governed by Sub-section (2) of Section 174.

In the case of former, the Assessing Authority is required to take land and building as "single unit" for determination of its gross annual rent which is reasonably expected to fetch at the time of assessment from year to year. To illustrate, if the building has some appurtenant land which is exclusively used by the owner for garden or/and parking the vehicles, such building or/and land may fetch more rentals as compared to a building, which does not have these facilities or has very small land appurtenant to the building. In any case, such building and the land cannot be separated for determining their gross annual rent. Such case, therefore, would fall in Sub-section (1) of Section 174. The annual value and gross annual rent of such premises have to be, therefore, determined as per the procedure prescribed in Sub-section (1) of Section 174 of the Act. The proviso to Sub-section (1) of Section 174, deals with the cases of "transfer" of the building and land. In such case, the Assessing Officer is required to take the amount (sale consideration) mentioned in the transfer deed as the basis for determining its annual value and then to determine the gross annual rent of such premises as per the procedure prescribed in Sub-section (1) of Section 174 of the Act.

However, in a case where no amount is mentioned in the transfer deed, the proviso says that the Assessing Officer is required to take the estimated market value of such premises as the basis and then to determine its gross annual rental as per the procedure prescribed in Sub-section (1) of Section 174 of the Act. In a situation, where the gross annual rent of any land or building or any part thereof cannot be easily estimated for the purpose of Sub-section (1) of Section 174, then a procedure is prescribed in Sub-section (4A) of Section 174 as to how gross annual rent of such land or building is to be determined.

Supreme Court opined that, Section 174(1) and (2) operate in separate field. Both cannot be clubbed for determination of the gross annual rental value of land or building. In other words, both the Sections have to be applied independently depending upon the fact as to whether the premises is "building with land" or it is an "open land" and accordingly their gross annual rental value would be determined. When the Legislature itself has carved out two categories of cases namely, (1) "land or building" (2) "open land with no building thereon" and has accordingly provided different rates and different methods of assessment, it does not appear logical to club both the categories of cases.

It is a settled Rule of interpretation in relation to taxing laws that, a machinery provision which enables the Assessee to avail of a concession or benefit conferred by substantive provision in the Act, such provisions are required to be construed liberally. This Rule applies to the case on hand and hence, benefit of the interpretation must go to the Assessee rather than to the taxing man. It also serves the purpose for which Section 174 of Act, is enacted. The Tribunal followed proper procedure by applying Section 174(1) of Act, for determining the gross annual value. The impugned orders passed by High Court are set aside and the order of the Tribunal is restored.

Tags : Valuation Premises Tax Payment

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Supreme Court

The State of Punjab and Ors. Vs. Dharam Pal

MANU/SC/1084/2017

05.09.2017

Service

If a person is put to officiate on a higher post with greater responsibilities, he is entitled to salary of that post

The present appeal, by special leave, calls in question the legal acceptability of the order passed by the High Court whereby the Division Bench placing reliance on the decision in Pritam Singh Dhaliwal v. State of Punjab and Anr. has acceded to the prayer made by the Respondent for getting the benefit of the pay scale for the post he was holding on officiating basis. Criticising the impugned order, it is submitted that, the High Court has committed gross illegality in granting the benefit to the Respondent totally ignoring the restrictions incorporated in the orders dated 9th December, 2004 and 26th May, 2007 which clearly stipulated that, the Respondent official will work in his own pay scale and his officiating promotion would be subject to the recommendations of the Departmental Promotion Committee and on the approval of the Committee, he shall be given the financial benefits.

Punjab Civil Services Rule postulates that, the government employee appointed to an officiating post shall not draw pay higher than his substantive pay in respect of a permanent post unless the post in which he is appointed to officiate is one enumerated in the Schedule to the Rules and further the officiating appointment involves assumption of duties and responsibilities of greater importance than those attached to the post. It is not in dispute that the posts of Superintendent Grade II and Grade I are covered under the Schedule. Be it mentioned, the extension of benefit is subject to the provisions of Rules 4.22 and 4.24.

Rule 4.22 and Rule 4.24 of Rules, categorically convey that, the employee who holds the higher post must fulfill the requisite qualifications and conditions for service for both the posts. It is not controverted at the Bar that the Respondent was eligible to hold the post of Superintendent Grade II and Grade I.

Respondent herein was holding higher posts and further he was performing the duties of higher responsibility attached to the posts. In Secretary-cum-Chief Engineer, Chandigarh v. Hari Om Sharma, Court held that, if a person is put to officiate on a higher post with greater responsibilities, he is normally entitled to salary of that post. An agreement that if a person is promoted to the higher post or put to officiate on that post or, as in the instant case, a stop-gap arrangement is made to place him on the higher post, he would not claim higher salary or other attendant benefits would be contrary to law and also against public policy. It would, therefore, be unenforceable in view of Section 23 of the Contract Act, 1872.

In the instant case, the Rules do not prohibit grant of pay scale. Supreme Court clearly stated that by an incorporation in the order or merely by giving an undertaking in all circumstances would not debar an employee to claim the benefits of the officiating position. The controversy is covered by the ratio laid down in Hari Om Sharma and resultantly, it is held that, view expressed by the High Court is absolute impeccable. There is no merit in this appeal and accordingly the same stands dismissed.

Relevant

Pritam Singh Dhaliwal v. State of Punjab and Anr. 2004 (4) RSJ 599; Secretary-cum-Chief Engineer, Chandigarh v. Hari Om Sharma and Ors.MANU/SC/0337/1998
: (1998) 5 SCC 87

Tags : Officiating position Benefit Legality

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Supreme Court

Apparaju Malhar Rao Vs. Tula Venkataiah (dead) and Ors.

MANU/SC/1073/2017

01.09.2017

Property

High Court cannot proceed to hear a second appeal without formulating the substantial question of law

Respondent No. 1-Plaintiff filed a suit for perpetual injunction against the Defendants restraining them from interfering with the peaceful possession and enjoyment of the Plaintiff in respect of suit land. Defendants filed written statement and denied the claim of the Plaintiff. It was contended that, the Plaintiff is not the owner and possessor of suit land. The Trial Court decreed the suit in favour of the Plaintiff. Aggrieved by the said judgment/decree, the Defendants filed first appeal before the Additional District Judge. By judgment/decree, Additional District Judge allowed the first appeal, set aside the judgment/decree of the trial Court and dismissed the suit. Against the said judgment/decree, the Plaintiff filed second appeal before the High Court. The High Court, by the impugned judgment allowed the appeal and set aside the judgment/decree passed by the First Appellate Court and restored the judgment/decree passed by trial Court.

Supreme Court allows the appeal and remands the case to the High Court for deciding the second appeal afresh. The reasons to remand the case to the High Court has occasioned because the High Court while allowing the second appeal filed by the Plaintiff (Respondent No. 1 herein) did not frame any substantial question of law as is required to be framed at the time of admission of the second appeal and proceeded to allow the appeal filed by the Plaintiff.

A three Judge Bench of this Court in Santosh Hazari v. Purushottam Tiwari (Deceased) by L.Rs. had examined the scope of Section 100 of the Code of the Civil Procedure, 1908/CPC laid down the proposition of law that, the High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty case on Court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of the CPC. In the absence of any substantial question of law arising in appeal, the same merits dismissal in limine on the ground that the appeal does not involve any substantial question of law within the meaning of Section 100 of the CPC.

Perusal of the impugned order shows that, no such question was formulated except to note the submissions of learned Counsel for the Appellant that, it so arises but not beyond that as to whether it actually arises and, if so, what is that question. In view the law laid down in the case of Santosh Hazari, Supreme Court is of view that, impugned order is not legally sustainable. Impugned order is set aside. The case is remanded to the High Court for deciding the second appeal afresh in accordance with law keeping in view the law laid down in the case of Santosh Hazari. Appeal allowed.

Relevant

Santosh Hazari v. Purushottam Tiwari (Deceased) by L.Rs. MANU/SC/0091/2001
: (2001) 3 SCC 179

Tags : Question of law Formulation Second appeal

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