9 January 2017


Judgments

Supreme Court

Pepsu Road Transport Corporation, Patiala v. Amandeep Singh and Ors.

MANU/SC/0012/2017

03.01.2017

Service

Notice inviting option need not be personally served to employees unless Regulation or any instruction so provides

Instant appeal has been filed by PEPSU Road Transport Corporation. Appellate Court took the view that, it was obligatory on part of Defendants to have led cogent reasons that, scheme under the PEPSU Road Transport Corporation Employees/Pension Gratuity and General Provident Fund Regulations, 1992/Regulations was circulated between employees of Corporation and they were made to note the same so as to opt within specified period. It was further held that, Plaintiff had never opted out of Regulations. Aggrieved by judgment of Appellate Court, Regular Second Appeal was filed by Corporation in Punjab and Haryana High Court. High Court also dismissed appeal by observing that, there is no evidence that pension scheme was circulated within employees and got noted by them. Suit filed by Plaintiff had been decreed mainly on ground that, notice inviting option has not been personally served on Plaintiff.

Employees of Corporation were governed by Contributory Provident Fund Scheme prior to enforcement of Regulations w.e.f. 15th June, 1992. The pension scheme was introduced w.e.f. 15th June, 1992. Applicability of Regulations to employees who were working immediately before date of issue of Regulations i.e. 15th June, 1992 was dependent on opting for Regulations within a period of six months from date of issue of Regulations as provided under Regulation 4. Further, as per Regulation 4(iii) if an option is not exercised within a period of six months from date of issue of Regulations, it shall be deemed that, employee has to continue with the existing Contributory Provident Fund benefit, thus in the event of non-exercise of option within period prescribed, employee is deemed to continue in existing CPF benefit. There are no exceptions engrafted in deeming provisions and deeming is a legal fiction which embraces all employees who do not opt for new pension scheme. Regulations does not indicate that, period of six months which is provided for submitting an option is dependent on personal service of notice. Although, as noticed, Regulation has been forwarded on 15th June, 1992 itself to General Manager of all Depots and other places and letter dated 15th June, 1992 further contemplates putting on notice board in Head Office and Depots, the Corporation has thus taken care of circulation of Regulation to all concerned including Head Office and all Depots.

It is well settled that, notice inviting option need not to be personally served to employees unless Regulation or any instruction so provides. Regulations which are being considered in present case had already been interpreted in PEPSU Road Transport Corporation v. Mangal Singh. This Court having already held that, Regulations do not contemplate any personal service of notice to employees. From facts of present case, it is clear that although Regulations were in force from 1992, Plaintiff retired on 30th November, 2011 and after retirement received CPF benefits without any protest and at no point of time before retirement, he has raised any grievance. Benefit which was available to him under CPF scheme was received by Plaintiff, he cannot be allowed to another benefit flowing from pension scheme which he never opted. Extending benefit of pension scheme to Plaintiff shall be extending double benefits-CPF benefit as well as pension scheme which was never contemplated by Regulations. Issue in present case is covered by judgment in PEPSU Road Transport Corporation v. Mangal Singh.

Learned Counsel for Respondents has also submitted that in so far as outstanding amount of CPF is concerned, said amount could have been deducted by virtue of Regulation 24 and which amount is to be adjusted against death-cum-retirement gratuity. In present case, Plaintiff having not opted for pension scheme, requirement from refunding advance taken from CPF within six months is not attracted. Judgments of Courts below are unsustainable.

Relevant

PEPSU Road Transport Corporation, Patiala v. Mangal Singh and Ors MANU/SC/0603/2011
: (2011) 11 SCC 702, Regulation 3, 4, 24 of PEPSU Road Transport Corporation Employees/Pension Gratuity and General Provident Fund Regulations, 1992

Tags : Pension scheme Notice Option Service

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Supreme Court

Vitusah Oberoi and Ors. v. Court of its own motion

MANU/SC/0004/2017

02.01.2017

Contempt of Court

Power to punish for contempt vested in a Court of Record does not extend to punishing for contempt of superior Court

In present appeals, Appellants called in question the correctness of an order passed by a Division Bench of High Court of Delhi whereby Appellants have been found guilty of contempt and directed to remain present in person before High Court for being heard on quantum of sentence to be awarded to them. It was submitted that, High Court could under Article 215 of Constitution of India no doubt initiate proceedings and punish for its own contempt, but it could not, according to learned Counsel, initiate proceedings or punish for contempt of Supreme Court. It was urged that even under Section 10 of Contempt of Courts Act, 1971, High Court could punish only for its own contempt or contempt of a Court subordinate to it.

Genesis of suo motu proceedings initiated by High Court, lay in publication of articles, stories and write ups questioning the propriety of certain orders passed by a two-Judge bench of this Court of which Justice Y.K. Sabharwal was the Presiding Judge. No part of the publications referred to the High Court of Delhi or any other High Court for that matter. Publications did not refer to any Judge or any order of any Court subordinate to the High Court of Delhi. Initiation of proceedings by the High Court in such circumstances was, it is evident, meant to vindicate the Supreme Court more than the High Court who initiated those proceedings.

There is, nothing in Contempt of Courts Act, 1971 or in Article 215 of Constitution which can be said to empower High Court to initiate proceedings suo-motu or otherwise for contempt of a superior Court like the Supreme Court of India. As a matter of fact, Supreme Court under Article 129 and High Court under Article 215 of Constitution are both declared to be Courts of Record. One of recognised attributes of a Court of record is power to punish for its contempt and contempt of courts subordinate to it. Use of expression "including" in said provisions is explanatory in character. It signifies that, Supreme Court and High Courts shall, as Courts of Records, exercise all such powers as are otherwise available to them including power to punish for their own contempt.

Whether or not power to punish for contempt of a subordinate Court was an attribute of a court of record fell for consideration of this Court in Delhi Judicial Service Association v. State of Gujarat MANU/SC/0478/1991
: (1991) 4 SCC 406. It was held that, language employed in Article 129 indicated that, Supreme Court is a Court of Record and was entitled not only to punish for its own contempt but to do all that which is within powers of a Court of Record. This Court held that, since Constitution has designed Supreme Court as a Court of Record, Article 129 thereof recognises the existing inherent power of a Court of Record in its full plenitude including the power to punish for its own contempt and contempt of its subordinate.

Power to punish for contempt vested in a Court of Record under Article 215 does not, however, extend to punishing for contempt of a superior Court. Such a power has never been recognised as an attribute of a Court of record nor has same been specifically conferred upon High Courts under Article 215. Availability of power under Article 129 and its plenitude is yet another reason why Article 215 could never have been intended to empower High Courts to punish for contempt of Supreme Court. The logic is simple. If Supreme Court does not, despite availability of power vested in it, invoke the same to punish for its contempt, there is no question of a Court subordinate to Supreme Court doing so. Order passed by High Court were without jurisdiction, hence, set aside.

Relevant

Delhi Judicial Service Association v. State of Gujarat MANU/SC/0478/1991
: (1991) 4 SCC 406, Article 129, 215 of Constitution of India, Section 10 of Contempt of Courts Act, 1971

Tags : Proceedings Suo-motu Contempt Jurisdiction

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Supreme Court

Harjas Rai Makhija (D) thr. L.Rs. v. Pushparani Jain and Ors.

MANU/SC/0002/2017

02.01.2017

Property

Bald allegation of fraud without proof would not render a decree obtained by a party as fraudulent

Appellant (represented by his legal representatives) is aggrieved by judgment passed by the High Court of Madhya Pradesh whereby his appeal has been dismissed. High Court took the view that, alleged Power of Attorney dated 30th April, 1983 could not be accepted as a valid piece of documentary evidence being a certified copy of a photocopied document. It was also held that, Appellant had an opportunity to raise the same issue when application for leading additional evidence was filed but did not do so and cannot have a second shot for the same purpose. Allegation of fraud leveled by Appellant was not accepted by the High Court.

A decree was passed in favour of Respondent by District Judge on 4th October, 1999 after a full-fledged trial and that decree was upheld not only by High Court but also by this Court. Appellant made an application before High Court to produce additional evidence to suggest that, agreement for sale entered into by him with Respondent through her attorney on 16th October, 1988 was genuine and based on Power of Attorney given by her to attorney on 30th April, 1983. Not only was the application for bringing on record additional evidence dismissed by the High Court but the decree dismissing the suit for specific performance of the agreement for sale filed by Makhija was dismissed by the High Court. That dismissal attained finality, when petitions for special leave to appeal filed by Appellant were dismissed by this Court.

Apex Court noted that, Appellant has not sought (and indeed could not seek) to reopen proceedings pertaining to dismissal of his suit for specific performance. As such, decree dismissing his suit for specific performance of agreement dated 16th October, 1988 has become final. Therefore, under no circumstances can Appellant now collaterally pray for a decree of specific performance in respect of that agreement.

Through a collateral attack, Appellant has now sought to deprive Respondent of her allotment of the suit property by alleging that she had concealed the Power of Attorney executed by her in favour of Attorney on 30th April, 1983 and had thereby committed a fraud on the Courts. In plaint filed by Appellant in Suit No. 471-A of 2008, he has nowhere made any specific allegation of a fraud having been played by Respondent on trial Court while obtaining decree dated 4th October, 1999.

When there is an allegation of fraud by non-disclosure of necessary and relevant facts or concealment of material facts, it must be inquired into. It is only after evidence is led coupled with intent to deceive that a conclusion of fraud could be arrived at. A mere concealment or non-disclosure without intent to deceive or a bald allegation of fraud without proof and intent to deceive would not render a decree obtained by a party as fraudulent. To conclude in a blanket manner that in every case where relevant facts are not disclosed, the decree obtained would be fraudulent, is stretching the principle to a vanishing point.

Fraud has a definite meaning in law and it must be proved and not merely alleged and inferred. Appellant had an opportunity to prove allegation of fraud, when he filed an application under Order XLI Rule 27 of Code of Civil Procedure. However, he missed that opportunity right up to this Court. Appellant took a second shot at alleging fraud and filing another suit against Respondent. However, evidence that he relied upon was very thin and could not even be considered as secondary evidence. Accordingly both trial Court as well as High Court rejected allegation of fraud. Supreme Court dismissed the appeal and held that, fraud not having been proved but merely alleged, there is no reason to differ with judgment and order passed by High Court and trial Court.

Relevant

Bhaurao Dagdu Paralkar v. State of Maharashtra and Ors. MANU/SC/0495/2005
: (2005) 7 SCC 605 and State of Orissa and Ors. v. Harapriya Bisoi MANU/SC/0835/2009
: (2009) 12 SCC 378, Order XLI Rule 27 of Code of Civil Procedure, 1908

Tags : Fraud Allegation Proof

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High Court of Delhi

Residential Welfare Association, Utsav Vihaar v. Delhi Development Authority & Ors.

MANU/DE/0003/2017

03.01.2017

Land Acquisition

Effect of Enactment can be determined by Competent Court only when approached by owner in accordance with law

Prayer in present writ petition is for an order restraining Respondent No. 1 from making any encroachment on Petitioner’s colony and from dispossessing any member of Petitioner-association from his land in colony as well as for a direction directing Respondent Nos. 2 and 3 to decide Petitioner’s representation dated 22nd September, 2012 and to proceed under Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013/ Act, 2013 in case any land of Petitioner-Association was required for public purpose like construction of a road. Land in question was acquired pursuant to a Notification dated 21st March, 2003 under Section 4 of Land Acquisition Act, 1894/Act, 1894 as well as Declaration dated 19th March, 2004 under Section 6 of Act, 1894 and Award issued in 2005. On 21st February, 2007, possession was taken over by Respondent-DDA after effecting some demolition. It is also admitted position that part of alleged Petitioner’s colony falls within the alignment of roads proposed by Respondent/DDA.

High Court opined that, effect of the Act, 2013, if any, can be determined by Competent Court only when it is approached by an owner in accordance with law after setting out detailed facts with regard to his ownership, possession and non-receipt of compensation, which will have to be tested on touchstone of law. In fact, if members of Petitioner-Association seek to rely on Act, 2013, they would have to file individual writ petitions like other similar situated persons who have already sought a declaration that, acquisition under the Act, 1894, had lapsed under Act, 2013. Till the time, appropriate Court does not declare that, acquisition proceeding has lapsed, High Court is of view that, right of DDA to the land cannot be questioned.

If members of Petitioner-Association can file petitions for release of their lands in their individual capacity, they should also file individual petitions with respect to their respective lands for relief sought in present writ petition. Upon a detailed reading of writ petition, it is apparent that, gravamen of petition is that Petitioner’s representation dated 22nd September, 2012 should be disposed of by Respondent No.2 before any coercive action is taken by Respondents. It is pertinent to mention that Petitioner in petition submits that petitioner had made various representations resting with the representation dated 22nd September, 2012 seeking regularisation of colony. With rejection of representation dated 22nd September, 2012 and same having not been impugned by Petitioner or any or its members for more than two years, this Court is of view that, it is not open for Petitioner to seek any relief in relation thereto. Consequently, prayers in present writ petition cannot be granted in relation to 2013 Act.

Relevant

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013

Tags : Encroachment Dispossession Validity

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High Court of Delhi

B.L.S. International Services Ltd. v. Ministry Of External Affairs, Government Of India & ANR.

MANU/DE/0013/2017

03.01.2017

Contract

In commercial matters, judicial interference is warranted only when administrative action of Government is illegal or irrational

BLS international services limited, a public limited company, involving itself in providing visa, passport, consular and attestation related services to various diplomatic missions, has challenged order passed by Respondents whereby Petitioner Company has been disqualified at technical stage for not having obtained 70% marks at that stage which was fixed as threshold eligibility criterion for consideration of financial bid in tender for outsourcing of visa services at Madrid, Barcelona and Las Palmas in Spain. Petitioner grieves that under all three heads, marks were wrongly awarded as Petitioner could not have been penalised for any ground for which he was disqualified in the earlier round of bidding.

Criteria, which was adopted by Respondents for marking under various heads was not unknown to Petitioner and it was not now open for him to challenge it when it had participated in the bid process. Order dated 13th October, 2015 does not put any embargo on Respondents in assessing and marking Petitioner for its past conduct.

Supreme Court has cautioned that in commercial matters, judicial interference is warranted only when an administrative action of the Government is illegal, irrational or the process through which such action is taken is beyond procedural propriety. Such judicial restraint is actuated by elements of moderation and measure which, is much more preferable to limitlessness or interminableness in the judicial sphere.

In Tata Cellular vs. Union of India: (1994) 6 SCC 651; Raunaq International ltd. vs. I.V.R. Construction Ltd.: (1999) 1 SCC 492; and Jagdish Mandal vs. State of Orissa: (2007) 14 SCC 517 Supreme Court observed that, a court of law ought to limit itself in only assessing infirmities in “decisions making process” on touchstone of reasonableness and rationality and should ensure that it is not arbitrary or violative of Article 14 of Constitution of India. Recently, in Central Coalfields ltd. vs. SLL-SML (Joint Venture Consortium): 2016 (8) SCALE 1999, Supreme Court, relying on a catena of decisions, held that decision making process of employer or owner of project in accepting or rejecting bid of a tenderer should not be interfered with in absence of any malafides or such arbitrariness which would be apparent on face of it. No such extreme case has been made out by Petitioner warranting any interference.

Relevant

Tata Cellular vs. Union of India: (1994) 6 SCC 651; Raunaq International ltd. vs. I.V.R. Construction Ltd.: (1999) 1 SCC 492; and Jagdish Mandal vs. State of Orissa: (2007) 14 SCC 517, in Central Coalfields ltd. vs. SLL-SML (Joint Venture Consortium): 2016 (8) SCALE 1999

Tags : Tender Eligibility Interference Scope

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High Court of Madras

P. Vaidyanathan v. K. Sundaram

MANU/TN/0001/2017

02.01.2017

Contract

If Court finds that transaction is not for agreement of sale, no relief of refund of advance can be granted

Principal District Judge accepted case of Defendant in toto and rejected relief of specific performance. However granted decree for refund of a sum of Rs. 2,00,000/- with subsequent interest at 12% per annum from 12th November, 2001 till date of realization. Plaintiff’s suit for specific performance accompanied by an alternative prayer for refund of advance amount was decreed in part granting the prayer for refund of advance amount alone, as against claim of Rs. 5,50,000/-.

Recently in judgment in Rajammal and another v. M. Senbagam reported in MANU/TN/2873/2016
: 2016 (6) CTC 225, this Court held that, plea to the effect that, agreement was not intended to be acted upon can be entertained by Courts. Defendant cannot be precluded from taking the plea that, agreement was not intended to be acted upon as an agreement of sale, but it was executed for some other purposes namely, as security for loan transaction. Such plea would fall within exceptions under Section 92 of Evidence Act,1872 because, it is actually a invalidating circumstance which is pleaded before Court of law and by pleading so, Defendant is not attempting to vary terms of contract. Actual attempt is to show that, contract is not one, which was intended to be acted upon.

In instant case, there are three agreements, under all three agreements balance of sale consideration payable is only Rs. 50,000/-, which is comparatively a small portion of total consideration. However, under all three agreements unusually long period of 15 months, 12 months and 11 months have been fixed for performance. This by itself would show that, actual purpose of the agreement is not that of sale. According to plaint and evidence, categorical case of the Plaintiff is that he paid Rs. 3,00,000/-, Rs. 2,00,000/- and Rs. 50,000/- totalling to Rs. 5,50,000/-. Whereas a perusal of agreements marked as Exs. A1 to A3 would show that there is no reference to earlier agreements in Ex. A2 and Ex. A3. Exs. A2 and A3 are so worded that, parties enter in an agreement for first time. It is also categorically stated that, a sum of Rs. 5,00,000/- was paid on date of Ex. A2 and Rs. 5,50,000/- was paid on the date of Ex. A3. Whereas, pleadings as well as evidence is different.

Agreements in question were not intended to be acted upon as agreements for sale. They were executed only for the purpose of securing loan transaction. The learned Principal District Judge, had on examination of evidence on record has come to the conclusion that the plaintiff has claimed contradictorily and has obtained the above documents as security to secure the principal amount with exorbitant interest.

Pleadings and oral evidence relating to payments of advance, are totally different from contents of documents. Neither Plaintiff nor witnesses have come forward to speak the truth. Therefore, no decree could be passed on basis of documents. In V.P. Murugesan v. P. Shiek Mideen reported in MANU/TN/4123/2015
: 2015 (6) CTC 810, it was held that if Court finds that transaction is not for agreement of sale, no relief of refund of advance can be granted. Therefore, Plaintiff cannot seek relief of refund of advance Rs. 5,50,000/-. But, however in case on hand, on admission of borrowings Rs. 2,00,000/-, trial Court granted a decree for Rs. 2,00,000/- with interest at 12% per annum. Defendant has not filed any appeal against said decree. Therefore, Court affirmed the decree that has already been granted in favour of Plaintiff.

Relevant

Rajammal and another v. M. Senbagam MANU/TN/2873/2016
: 2016 (6) CTC 225, V.P. Murugesan v. P. Shiek Mideen MANU/TN/4123/2015
: 2015 (6) CTC 810, Section 92 of Indian Evidence Act, 1872

Tags : Agreement Nature Specific performance

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