Reports of the

Punjab and Haryana High Court

(reported in the Punjab Law Reporter)


 

(2016-3) PUNJAB LAW REPORTER - AUGUST PART

SUBJECT INDEX

Adverse Possession - Suit for declaration claiming ownership on the basis of adverse possession is not maintainable as the plea of adverse possession is available only as a defence. (2016-3) PLR 597

Arbitration Act, 1940 (10 of 1940) Section 30, 34 - Misconduct - As has been laid down, does not always have a moral connotation - To elaborate, it may not have any connection with the individual/personal conduct of the arbitrator - The said conduct would be in sphere of moral misconduct - As far as legal misconduct is concerned, as the authorities would demonstrate, the same must be manifest or palpable from the proceedings before the arbitrator - To substantiate a stance of legal misconduct on the part of the arbitrator, examination of any witness in court is impermissible. (S.C.)(2016-3) PLR 617

Arbitration and Conciliation Act, 1996 (26 of 1996) Section  2(b), 7, 34, - Petition filed before the Civil Court under Section 34 which was withdrawn cannot constitute as estoppel - Award itself was passed by the Union which was incompetent and whose award was on the face of it illegal, there could be no compulsion for any person to seek for setting aside the award - If such a procedure was at same point of time adopted advisedly wrongly, there was no prohibition about the person withdrawing from such an application and taking an objection at the time when the so-called award was put in execution before the Civil Court - The award is not an award in the eye of law and it is not capable of being executed - If it was put in execution as if it were award it was perfectly competent for the petitioners who had not submitted themselves to any such arbitration agreement to raise an objection under Section 47 CPC which in this case has been referred to an objection under O.21 R.97 to 99 -  Civil Procedure Code, 1908 (V of 1908), S. 47, O.21 R.97 to 99. (2016-3) PLR 348

——— S.  8 - Where prima facie,<D> allegations involve complicated question of fact and law and there are allegations of manipulation of accounts, fraud and misrepresentation, rightly so, the reference to the arbitrator has been rejected.  (2016-3) PLR 335

——— S.  9(3) - No doubt Section 17 confers power on the Arbitral Tribunal or Arbitrator to make interim orders, but it would operate only during the existence of the Arbitral Tribunal being functional. (2016-3) PLR 580

——— S. 15(2) - Arbitrator replaced - Any hearings previously held by the replaced arbitrator may or may not be repeated at the discretion of the newly appointed Tribunal, unless parties have agreed otherwise - Equally, orders or rulings of the earlier arbitral Tribunal are not to be invalid only because there has been a change in the composition of the earlier Tribunal, subject, of course, to a contrary agreement by parties - This also indicates that the object of speedy resolution of disputes by arbitration would best be sub-served by a substitute arbitrator continuing at the point at which the earlier arbitrator has left off. (S.C.)(2016-3) PLR 441

——— S. 15(2) - Arbitrator to whom the matter was referred earlier with the consent of the parties withdraws therefrom - Where the mandate of an arbitrator terminates, a substitute arbitrator “shall” be appointed - This can only be done where the arbitration agreement does not show that it was intended that the vacancy caused be not supplied unless it is clear that an arbitration agreement on the facts of a particular case excludes either expressly or by necessary implication the substitution of an arbitrator, whether named or otherwise, such a substitution must take place - Arbitration and Conciliation Act, 1940 (26 of 1940) Section 8(1)(b).  (S.C.)(2016-3) PLR 441

——— S. 15(2) - Once arbitration agreement was entered into between the parties, that too in a pending suit, the intention of the parties was to settle the matter through arbitration and not to come back to the Court again for decision of the same dispute by court adjudicatory process - Civil Procedure Code, 1908 (V of 1908) Section 89. (S.C.)(2016-3) PLR 441

——— S. 31(5), 34(3) - Objection - Limitation - Starting period - Word “delivered” appearing in Section 31(5) cannot be equated with “dispatched” even and as per provisions of sub-section (5) of Section 31 it does not require that a copy of the arbitral award should be sent off by the Arbitrator to the concerned party, but it is required that copy of the arbitral award be handed over to the proper parties and that is the case before this Court.  (2016-3) PLR 503

——— S. 34 - Objections - Limitation - Objection have been filed beyond 120 days i.e. 90 days + 30 days (grace period), as the objections were not accompanied by the application seeking condonation of delay, much less, any affidavit - In the absence of any explanation as to acquisition of knowledge with regard to the passing of Award dated 25.07.2011 on 25.08.2011 and the parties to the lis<D> participated in arbitration proceedings - Objections dismissed - Order upheld. (2016-3) PLR 339

——— S. 34 Sub-section (3) - Objection - Limitation - Would start running from the date when the signed copy of the Award is delivered to the parties by the Arbitrator and not the date of despatch. (2016-3) PLR 338

Attorney - Instances of cruelty being of personal knowledge cannot be proved by the attorney who has no personal knowledge about the alleged instances - Attorney cannot be allowed to appear and depose as witness on behalf of Principal victim in the matters involving personal knowledge. Attorney can appear only as a witness in his own capacity and cannot replace the Principal - Hindu Marriage Act, 1955 (25 of 1955) Section 13(1)(i-a) - Evidence by attorney. (2016-3) PLR 546

Central Excise Rules, 2003, Rule 8(3A) - Rule 8(3A) of the 2002 Rules to the extent it contains the words ‘without utilizing the CENVAT Credit’ is held to be arbitrary and unreasonable and is struck down - In other words, the unamended Rule 8(3A) of 2002 Rules whereby the benefit of CENVAT Credit for all the period till the actual payment was made, stands disallowed in the event of a minor default also is arbitrary and unreasonable.  (2016-3) PLR 509

Civil Procedure Code, 1908 (V of 1908) - Evidence - Rebuttal evidence - Plaintiff has never stepped into the witness box - Application for permisison to lead evidecne  in rebuttal by examining S , plaintiff , whi had institued the suit - Petitioner intends to lead evidence which he failed to lead in affirmative -  Suit, ultimately has been filed through S, though, the other authorized signatory of the Company has deposed - Non-examination of S in affirmative does not accrue cause of action in favour of petitioner to examine him in rebuttal. (2016-3) PLR 527

——— S. 80 - Notice - Extension of period of two months from the date of notice - Since the limitation period for the breach alleged itself ended before the issuing of notice - Provisions is irrelevant - The notice perforce should have been issued before the suit became time barred, and only if so done would the period have been extended for a further two months.  (S.C.)(2016-3) PLR 415

——— Order  6, Rule 17 - Amendment of the plaint - Only to add the relief with respect to the interest on the delayed payments - Certainly, the said amendment will not change the nature of the suit and will also not require any fresh evidence - Moreover, mere addition of the relief with respect to interest will not itself make the petitioner entitled for interest. (2016-3) PLR 420

——— Order  6, Rule 17 - Amendment of written statement - Mere fact that the application for amendment of the written statement has been moved by the petitioner at the belated stage i.e. after closing of the plaintiffs’ evidence, is itself no ground to decline the same - The petitioner has sought to add a preliminary objection regarding the jurisdiction of the Civil Court to entertain the suit, which is a legal plea and can be raised at any stage of the proceedings - That during consolidation khasra member was changed - So only the description of the land is to be mentioned - Both these amendments will not at all change the nature of the case. (2016-3) PLR 430

——— Order  7, Rule 11 - Suit for specific performance of agreement of sale - Merely because of jugglery of words, petitioner sought decree for declaration just to avoid the payment of court fee - The same is not permissible as per law. (2016-3) PLR 572

——— Order  8, Rule 6 - Counter claim - Even in case, the suit is withdrawn, the counter claim as per provisions of Order 8 Rule 6 CPC would continue but the fact remains that the plea of adverse possession by way of counter claim seeking declaration is not permissible as it would be a plea in affirmative. (2016-3) PLR 337

——— Order  9, Rule 4 - Application filed after 15 years - That she was not aware of the fact of passing of the order of dismissal of suit qua<D> defendant No.1 on account of non filing of process fee for summoning and even the delay caused was not intentional in any way - In such like matters, application should not be dismissed on the ground of limitation and a lenient view is to be take while condoning the delay - Court below has accepted the application under Order 9, Rule 4 CPC so as to give finality to the litigation because defendant No.1 may not move any application for de novo trial at a subsequent stage - Order upheld. (2016-3) PLR 568

——— Order 15 Rule 5 - Petitioner also submitted that before passing the impugned order, the Court below has not passed any order asking the petitioner to make payment of amount due, if any - No opportunity has been given to the petitioner to deposit the outstanding amount of lease money at the admitted rate before striking off his defence - Admittedly, the payment of rent on admitted rent has not been made by the petitioner - The cheques, whichsoever were issued in favour of the respondent, were dishonoured and the Court below has already discussed all these facts in the impugned order - Any person who is misusing the process of law is not entitled to seek any relief from the Court on the basis of equity - Petitioner had sought adjournments for effecting compromise and to make the payment of defaulted amount, but still payment was not made - Petitioner cannot take the plea that she was not given any opportunity to make the payment of rent amount, rather she had been availing every opportunity to defer the case. (2016-3) PLR 572

——— Order 37 - If the court has not gone as far as to grant a decree summarily and reject the leave to defend, it has allowed for imposition of terms which will fit with in the fourth contingency - None of the defences in any of the cases of the defendants has any prima facie merit and if the defendants are given an opportunity to defend, it is by way of mercy and, therefore, the condition imposed was tenable - If leave to defend has been granted in a situation where the issuance of cheques are admitted by persons who cannot be said to be illiterate but who are in business and know the effect of issuance of cheques, the direction for furnishing security only upto 50% itself must be taken to be liberal exercise of discretion. (2016-3) PLR 406

——— Order 38, Rule 5 - Suit for recovery instituted - Recovery on the basis of pronote and receipt - Application of Bank for impleadment allowed - Whenever a party is extended the loan by the bank, bank has a first charge - In any case plaintiff succeeds in getting the suit decreed, it would be a second charge and, therefore, there would not in any impediment in seeking recovery - Bank shall be at liberty to bring on record the subsequent events which may occur in DRT proceedings before the trial Court - Order of impleadment set aside. (2016-3) PLR 586

Co-owner - Suit for possession by one of the co-owner is maintainable for eviction of tenant - Even if a tenant purchases part of the premises from some of the co-owners, their tenancy right would not merge with the ownership and the owner, who inducted the tenant, is entitled to evict them, because if the property is held by several co-owners, each co-owner has interest in every inch of the common property - Such a co-owner can also protect his possession against other co-owner. (2016-3) PLR 329

Constitution of India, Article 12, 226 - Sugar Mills - Are not involved in performance of public duty - If the rights are purely of a private character no mandamus can issue - The activity should be engaged in obligations akin to public duties or State functions to bring it within the sphere of Article 226 of our Constitution - The body to become amenable to writ should be financially, functionally and administratively dominated by or under the control of the Government - Petition not maintainable. (2016-3) PLR 467

——— Article 14 - Equality principles in Article 14 do not tolerate vacuum - The cure must immediately be administered to remove right deprivation by rejecting requests made by the State for long adjournment or to await the recommendations of the Pay Commissions - If the Pay Anomaly Committee has been wound up another one could have been set up to enter the dispute and resolve it - If Government has failed it does not mean that the court must also fail in its constitutional duty to tackle the issue. (2016-3) PLR 470

——— Article 14 -Strange anomaly in pay scales in the Department of State Transport where Senior officers are drawing basic pay lower than the feeder cadre post of Assistant Mechanical Engineer etc. - Since the anomaly is not disputed and exists for a long time these petitions deserve to be allowed - They are accordingly partially allowed - A mandamus is issued to the respondents to consider granting pay scale one step higher than that of Assistant Mechanical Engineers with effect from the date the anomaly arose - Meanwhile, the pay of the petitioners will be stepped up to that of their juniors to bring relief to them without prejudice to their rights to a pay scale above the pay scale of Traffic Managers, Works Managers, Assistant Mechanical Engineers - Character of this order is prophylactic in nature to act as a pontoon bridge to the goal till a permanent and abiding solution is found to the vexed problem. (2016-3) PLR 470

——— Article 226 - Alternative remedy - Filed objections to the legality of the draft assessment order - Respondent under Section 144C(5) of the Act upheld the computation of book profit for the purpose of MAT made by the Assessing Officer under section 115JB of the Act in the draft assessment order - Well recognized that when a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of - In the present case, after going through the narration of overall facts and the impugned orders passed by the respondent authorities, we find and it is not disputed by the learned counsel for the petitioner that the orders are appealable - Consequently, the petitioner should avail the alternative remedy of appeal against the orders passed by the authorities - Income Tax Act, 1961 (43 of 1961) Section 144(5), 115 JB.  (2016-3) PLR 433

——— Article 226 - Effort to unsettling a settled seniority after many decades is not prudent exercise of discretionary jurisdiction provided by Article 226 of our Constitution as it would cause administrative chaos and needless disturbance to the vertebral column of the seniority list upon which many promotions may have been based occurring from time to time - Noninterference is the better option legally available especially when the petitioner and the others have retired from service meanwhile. (2016-3) PLR 636

——— Article 226 - Well settled that ordinarily a writ petition can only be filed by someone who is personally aggrieved - The powers under Article 226 of the Constitution of India should be sparingly used and only in those clear cases where the rights of a person have been seriously infringed and he has no other adequate and specific remedy available to him. (2016-3) PLR 365

——— Article 226(2) - Whether the High Court can transfer the investigation from UP to Haryana in the given facts and circumstances - Petitioner who alleged to have cheated the residents of UP while purchasing paddy and not making payment and has further sold his company to another company, which has also registered FIR against the petitioner and its company for cheating, merely because the goods have been transported from UP to Haryana would not give them a cause of action to seek a direction from this Court under Article 226(2) of the Constitution of India for the purpose of transfer of the investigation from UP to Haryana. (2016-3) PLR 560

——— Article 227 - Power under cannot be and should not be exercised by this Court in each and every matter - Court below, in its order, has already observed that the evidence available on the file is sufficient to decide the controversy and it is not the duty of the Court to collect evidence for the parties and for that purpose, the Court below has made reference to the entries in the revenue record as well - Local Commissioner should not be appointed to report party in possession of property in dispute and if the Court has taken such a view, the same order should not be interfered with by invoking constitutional powers of this Court under Article 227 of the Constitution of India. (2016-3) PLR 324

Court - Petitioner has sought to argue on the merits of the order - However the learned counsel for the respondents has pointed out that before the Appellate Authority the petitioner had restricted his argument only to the right of the respondents to sublease the premises and no argument was raised on the merits of the case and in the circumstances the petitioner can not be permitted to now raise any argument on the merits of the case - I find merit in this contention. (2016-3) PLR 333

Court fee - Plaintiff is required to affix the court fee as per valuation of the suit, is to be assessed by the plaintiff - Rightly assessed the valuation of relief being claimed in the main suit, which comes to 1/3rd share of 40% share of the defendants - Court below fell in error while directing the plaintiffs to affix the court fee on the total valuation of the property as shown in the agreement, though the same is not the relief claimed by the plaintiffs. (2016-3) PLR 570

East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948) Section 42 - Since a juristic person like the Gram Panchayat is not expected to transact its day to day business through oral decisions and official record is required to be maintained, it was imperative upon the Director, Land Records to call for such records and satisfy as to whether or not there was any authorization by the Gram Panchayat and whether the then Additional Director had given ample opportunity to the Gram Panchayat to file its reply and if so, whether such opportunity was availed by the then Sarpanch - It will be in the public interest to direct the Director, Land Records to decide the Gram Panchayat’s application afresh.  (2016-3) PLR 413

Education - Ch. Charan Singh Haryana Agricultural University - Policy not to grant permission to any faculty and non-teaching employees for attending evening classes - However, there is a provision in the policy to get education through distance course from approved University and for this purpose leave will be granted for examination - There is no bar to get education but the only bar is that the permission to do for evening classes shall not be granted - This is a reasonable restriction imposed by the  University - Constitution of India, Article 226. (2016-3) PLR 500

Electricity Act, 2003 (36 of 2003) Section 127 - Connection was meant for commercial purposes, the petitioner is not supposed to run the industry on the said connection.  (2016-3) PLR 498

Electrocution - Draft Formula, which is being applied for grant of compensation to a claim under the Motor Vehicle Act.  (2016-3) PLR 405

——— S.  4 - Claim - As per the proceedings initiated under Section 174 Cr.P.C., this fact is admitted that it was not the fault of the appellant or any other person and it was merely an accident, would not make any difference as the statutory provisions do not provide for any exception to the same, rather, it states otherwise according to which, this aspect is not to be looked into. (2016-3) PLR 386

——— S.  4 - Employees Employee Relationship - Accident has taken place on the second floor of the house of the appellant which was being constructed/plastered and deceased was working in the said construction process and further, that he was performing the work for which he was engaged - No evidence on record which would indicate there was contractor - Relationship of employer-employee, thus, keeping in view the specific provisions of the statute, is duly established. (2016-3) PLR 386

Employees Compensation Act, 1923 (8 of 1923) Section 13 - Any stranger who is liable to pay damages may be asked to indemnify the employer and there was no reason as to why the appellant could not implead the UHBVN as a party to the claim application, if he was interested in pressing the said aspect - Permission to implead cannot be granted at this stage, however, he may avail of remedy, if any, in accordance with law against the said party. (2016-3) PLR 386

——— S. 13 - Any stranger who is liable to pay damages may be asked to indemnify the employer and there was no reason as to why the appellant could not implead the UHBVN as a party to the claim application, if he was interested in pressing the said aspect - Permission to implead cannot be granted at this stage, however, he may avail of remedy, if any, in accordance with law against the said party. (2016-3) PLR 386

Evidence Act, 1872 (1 of 1872) Section 65 - Application to prove on record alleged agreement to sell - Trial Court while taking into consideration the facts and circumstances of the case, allowed the application for secondary evidence in a blanket manner instead of giving opportunity to the respondent-plaintiff to prove the existence and loss of the documents particularly the document being a photocopy and not the second copy - Respondent-plaintiff is given chance to prove the existence and loss and thereafter petitioner-defendant would be at liberty to take all possible pleas vis-a-vis<D> the admissibility of the photocopy of the documents - Secondary evidence would be subject to the existence and loss of the documents.

Finance Act, 2012, Section 65B(37) - Were issued common notice under the subject “payment of service tax on renting/leasing of immovable property for commercial purposes” - They were also served separately a notice - Nothing has been shown by the learned counsel for the petitioners that the Parliament was not empowered to define the expression `Person’ in the statute - Once there exists legislative competence in the Parliament to enact a provision, in the absence of the learned counsel for the petitioners to demonstrate that the same is arbitrary, discriminatory or violative of Article 14 of the Constitution of India, it cannot be declared to be unconstitutional. (2016-3) PLR 372

Haryana Affiliated Colleges (Security of Service) Act, 1979  Section 14 - Infighting between the Management or Government, the rights of the petitioners should not suffer in any way and for that the act was enacted for the security of service of such employees - Grant-in-aid, which is payable by the Government to such employees is required to be paid by the Government to the employees except for the share of the management for which the petitioners may also litigate - However, at present, the respondent-State is directed to pay 45% more out of 95% grant-in-aid which is payable to the college and other similarly situated employees. (2016-3) PLR 563

Haryana Agricultural Credit Operation and Miscellaneous Provisions (Banks) Act, 1973 (34 of 1973) - Agricultural Debt Waiver and Debt Relief Scheme, 2008, Clause 4(b)(i) - Eligible amount - Three conditions must be fulfilled viz, J.) (i) the loan must have been disbursed upto 31.03.2007; (ii) the loan was overdue as on 31.12.2007 and (iii) the loan remained unpaid until 29.02.2008 - The first and the third conditions are satisfied in the petitioner’s case but not the second - The petitioner’s loan was not overdue as on 31.12.2007 - Loan was overdue only on 16.03.2008 - The question, therefore, of the amount remaining unpaid until 29.02.2008 does not arise.  (2016-3) PLR 384

Haryana Co-operative Societies Act, 1984 (22 of 1984) Section 28-B - Constitution of India, Article 243ZK - Specifically provides that the election of a board shall be conducted before the expiry of the term of the board so as to ensure that the newly elected members of the board assume office immediately on the expiry of the term of the office of members of the outgoing board - In case the elections are not held before the expiry of term of the committee, the elected members of the outgoing committee shall be debarred from contesting the elections of the committee of any co-operative society for a period of five years from the date of the expiry of the term of the outgoing board Committee. (2016-3) PLR 380

Haryana Compassionate Assistance to the Dependents of Deceased Government Employees Rules, 2003, Rule 2, 8(d) - Petitioner father was serving the Delhi Police as Constable - Still further Rule 8(d) of the 2003 Rules provides that where the spouse of the deceased is already in government service, no other dependent member shall be eligible for appointment or ex-gratia compassionate financial assistance - Rule 8(d) of the 2003 Rules has to be interpreted in accordance with the objects of the 2003 Rules which are to give compassionate appointment or ex-gratia financial assistance to the members of the family of the deceased employee who are in dire need of such help - In case, one of the family member is already in government service, irrespective of the fact whether the service is under the State of Haryana or otherwise, the claim of the family for seeking compassionate appointment or ex-gratia financial assistance would not lie as the same would be against the very objects for which the rules have been promulgated. (2016-3) PLR 401

Haryana Urban Development Authority - Petitioner being a non-privileged individual had applied for allotment of the residential plot under general category and not under the defence/parliamentary forces category - Case was wrongly considered by the respondents in the category of plots reserved for para military forces where the petitioner had been successful in the draw of lots - Allotment cancelled - Respondents are directed to allot the respective plots to the petitioner for which they have been declared successful. (2016-3) PLR 505

Haryana Victim Compensation Scheme, 2013 - Attempt to rape - Since the admitted case of the parties is that the accused in the aforesaid FIR has been convicted for the attempt to rape, therefore, the said act of the accused can be brought within the definition of molestation etc. for which the compensation has been fixed as Rs. 50,000/- and cannot be termed as ‘rape’ for the award of compensation of Rs. 3 lacs. (2016-3) PLR 496

Hindu Marriage Act, 1955 (25 of 1955) Section 13(1)(i-a) - Cruelty has not been defined anywhere - The allegation of cruelty could not be based on trivial issues, rather it should have the origin with reference to time, place and manner in which the occurrence took place - Bald statements and allegations of cruelty cannot constitute cruelty in the eyes of law - Mere irritation or annoyance does not constitute cruelty, rather it is spontaneous change of human behaviour based on problems of human being - The cruelty should be of such nature in which it is not reasonably expected to live together. (2016-3) PLR 546

——— S. 13(1)(i-a) - Dowry - Alleged demand made prior to marriage, even, if taken to be an instance, would have given the wife and her family a chance to cancel the marriage - Even otherwise, asking for honouring with small gifts cannot be taken to be such an incident which would create mental agony in the mind of the appellant after the marriage. (2016-3) PLR 546

——— S. 13(1)(ia) - Cruelty - Allegation of cruelty should not be based on trivial matters, rather such allegations should have the origin in the context of time, place and manner of occurrence - General allegations of cruelty cannot constitute cruelty in the eyes of law so as to part ways in matrimonial house - It be willful and unjustifiably conduct of the spouse of such degree which may endanger the life of other spouse and may cause bodily injury to the spouse and the spouse has a reasonable apprehension of such danger - Mental pain, agony and suffering as would not make possible for the parties to live with each could come within the broad parameters of mental cruelty - Even filing of criminal cases per se are not to be construed in any strict way, directing cruelty - Use of liquor on some occasion cannot be held to be a continuing misconduct on the part of the husband. (2016-3) PLR 410

Interest - Arbitrator has awarded lesser amount of interest @ 9% as there was no stipulation in the Contract qua<D> amount of rate of interest and therefore, in view of the commercial transaction and as well as the provisions of sub-Section 7 of Section 31 of the 1996 Act, the Contractor is entitled for interest @ 18% - This fact has escaped the notice of the Objecting Court and erroneously rejected the claim - Arbitration and Conciliation Act, 1996 (26 of 1996) Section 31(7).

——— If there are no provisions for interest, the respondent-bank would not be entitled to claim the same - Haryana Agricultural Credit Operation and Miscellaneous Provisions (Banks) Act, 1973 (34 of 1973). (2016-3) PLR 384

Issues - That the Court in appeal did not record findings issue-wise, in absence of any prejudice having been shown to be caused to the appellants for failure of the appellate court to do so, the same cannot be a ground to set aside the consistent findings recorded by the courts below. (2016-3) PLR 498

L.P.G. Distributionship - Master of Computer Application - Term professional - Cannot be given restrictive meaning to include only the professional qualification - The petitioner in the present case has been awarded by treating her qualification of MCA as Post Graduate qualification, whereas being in the category of technical qualification - All India Council for Technical Education Act, 1987. Nupur Aggarwal  v. Bharat Petroleum Corporation Ltd.  . (2016-3) PLR 377

Land Acquisition Act, 1894 (1 of 1894) - Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Settlement Act, 2013 (30 of 2013) Section 24(2) - In so far as subsequent vendee who acquires the property after issuance of Section 4 notification, the said transaction is void qua the State and the subsequent vendee has a right only to receive compensation - Once that is so, a void transaction qua State would not confer any right in favour of the subsequent vendee, in the absence of any specific provision in the 2013 Act which transforms a void transaction qua the State into a legally enforceable right - Subsequent vendee cannot lay any right for claiming lapse of acquisition notification under Section 24(2) of the 2013 Act. (2016-3) PLR 522

——— S.  4, 6 - As per the provisions of section 4 of the Act, publication of the notification should be in atleast two daily newspapers having circulation in the concerned locality out of which one should be in regional language - In the present case, this requirement has not been fulfilled by the respondent-authorities - Further, it has been admitted by the State counsel that no publication of the notification under section 4 of the Act was made in any newspaper - On this ground alone, the i——— S.  4, 6 - By applying  doctrine of promissory estoppel and legitimate expectation, in the facts of the present case - We have no hesitation in holding that the purpose i.e. for expansion and systematic development of Surajkund Tourist Complex, is a public purpose - It included development of parking area adjacent to Surajkund Tourist Complex near annual Surajkund Fair - We are of the view that the High Court is incorrect in holding that the State has not acted bonafide, J.) after 1992 acquisition proceedings were dropped. (S.C.)(2016-3) PLR 613

——— S.  4 - Acquisition for a public purpose - Award was passed and compensation was determined though the petitioner did not withdraw the same - Challenge to acquisition proceedings after the announcement of the award has been held to be not maintainable - It clearly falls within the domain of the State to decide whether the land which is being acquired for a public purpose would suit the said public purpose - It is only when the action of the State is actuated by malafides that the same would be amenable to judicial review. (2016-3) PLR 422

——— S. 28-A - Whether the period of limitation for purposes of filing application under Section 28A of the 1894 Act is to be reckoned from the date of passing of the first award by the reference court under Section 18 of the Act or from the date of the award on the basis of which re-determination of compensation is sought - As the Land Acquisition Collector is not a court and acts as a quasi judicial authority while making the award, the provisions of the Limitation Act, 1963 Act (in short, “the 1963 Act”) would not apply and therefore, the application under Section 28A of the 1894 Act has to be filed within the period of limitation of three months from the date of the award of the Court as prescribed under Section 28A of the 1894 Act. (2016-3) PLR 519

Limitation Act, 1963 (36 of 1963) - Incumbent upon the Court to satisfy itself that the suit is not barred by limitation, regardless of whether such a plea has been raised by the parties. (S.C.)(2016-3) PLR 415

——— S.  5 - Arbitration and Conciliation Act, 1996 (26 of 1996) Section 34, 37 - Objection against award, provisions of Section 5 of the Limitation Act are not applicable and the said application is liable to be rejected as per provisions of Section 34(3) of the Arbitration and Conciliation Act, 1996. (2016-3) PLR 503

——— S.  5 - Delay in filing the suit - Cannot be condoned under Section 5 of the Limitation Act. (2016-3) PLR 566

——— S. 14(1) - Were only prosecuting the arbitration proceedings before the Arbitrator, which cannot be equated with the civil proceedings in a Court as Arbitrator is not a Court - Hence, the period spent in the arbitration proceedings cannot be excluded while computing the period of limitation under Section 14 of the Act - Arbitration and Conciliation Act, 1996 (26 of 1996). (2016-3) PLR 374

——— S. 19 - Payment of the Final Bill and Security Deposit could not be construed to accept or acknowledge the damages raised by the Respondent and therefore Section 19 would not per se extend the period of Limitation. (S.C.)(2016-3) PLR 415

——— S. 55, 113 - Limitation - Suit for Damages - Facially the suit claims are damages incurred due to the extension of the contract period and the resultant damages are incurred by the Respondent - The suit would therefore fall within the ambit of Article 55 - Article 113, which is a residuary provision, cannot be resorted to. (S.C.)(2016-3) PLR 415

——— S. 55 - Breach of Contract - Damages as a result of the additional costs due to delays - Factual matrix presents a situation of successive or multiple breaches, rather than of a continuous breach, as each delay in handing over the canal/site by the Appellant State constituted to a breach that was distinct and complete in itself and gave rise to a separate cause of action for which the Respondent could have rescinded the contract - For each breach, a corresponding amount of damages for additional costs could have been sought - Contemporaneous with the extensions granted, it was essential for the Respondent to have initiated legal action - Since this was not done, there would be a reasonable presumption that the claim for damages had been abandoned and given a go-by the respondent. (S.C.)(2016-3) PLR 415

——— Article 112 - Punjab State Warehousing Corporation - Article 112 of the Limitation Act is only applicable to the suit filed by the Central Government or any State Government - Admittedly, the plaintiffs are not the Central Government or State Government and they cannot be granted the benefit of Article 112 of the Act. (2016-3) PLR 374

——— Article 19 - Suit was not for payment on account of a debt or of interest on legacy, but is a suit for damages for additional costs incurred as a result of the extension of the contract period - Provisions not applicable.  (S.C.)(2016-3) PLR 415

——— Part VII, Article 72 - Compensation/damages for suffering injuries and permanent disablement at the behest of the defendants by criminally trespassing into his house, causing annoyance and harming reputation - Suit is to be filed within one year from the date when the Act or omission takes place with regard to compensation for doing such an Act. (2016-3) PLR 566

Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (56 of 2007) Section 23(2) - Transfer deed - Property is agricultural land which is an immovable property - Transfer has been made for the services being rendered by the petitioner and respondent in present’s and there was no condition that they would keep on providing basic _amenities and basic physical needs to transferor in future as well - Thus, it was a _gift - Transfer deed is totally silent regarding the provision of basic amenities and basic physical needs - In future as well which could attract the provisions of Section 23 of the Act. (2016-3) PLR 486

——— S. 23, 27 - Son and daughter-in-law are only licencees - Jurisdiction of the Civil Court is barred in respect of all matters falling within the jurisdiction of the Act in terms of Section 27 thereof - Since the protection of life and property falls within the jurisdiction of the District Magistrate, therefore, the District Magistrate is competent authority to take steps for the protection of life and property of the senior citizen and has rightly passed the impugned order regarding their in claim - Since the parties are already before civil court, their respective claims and rights will be adjudicated in those proceedings. (2016-3) PLR 455

MBBS Course - Did not secure 50% marks in Physics, Chemistry and Biology in 10+ 2 examination and had secured only 49.66% (149/300)- - Prayer that University may be directed to round off the marks of the petitioner from 49.66% to  50% - Petitioner has failed to show from any documentary evidence about the provisions contained either in the Prospectus or Calendar of the University to round off the marks. (2016-3) PLR 637

Medical Reimbursement - PEPSU Road Transport Corporation - Claim for reimbursement as outdoor patient - Financial stringency may not be a ground for not issuing requisite directions when a question of violation of fundamental Rights arises - Right to medical reimbursement is right to life protected by Article 21 of the Constitution of India and is therefore in the nature of a fundamental right - It is an obligation of the State to look after its employees in the days of sickness - Constitution of India, Article 21. . (2016-3) PLR 484

Motor Vehicles Act, 1988 (59 of 1988) Section 149 - Driving TATA Ace - Was not holding the driving licence to drive the transport or goods vehicle and TATA Ace, which he was driving at the time of accident, was the goods vehicle and the appellant was paying taxes for this vehicle, as is required for a transport vehicle - Award that Insurance Company may recover the amount paid to the claimant towards compensation from the owner by initiating proceedings before the executing court and the Tribunal - Upheld. (2016-3) PLR 360

——— S. 149 - Mere fact that the truck in question was being operated in U.T. Chandigarh, though it has route permit only for the State of Haryana will not constitute the violation of the condition of the permit as the insurance Company has not been able to establish that the vehicle in question was being used for a purpose not allowed by the permit. (2016-3) PLR 399

——— S. 149 - Tractor - Name of the Company was written on the Trolley and the Trolley was loaded with bricks - Since the tractor was being used for commercial purposes and the driver was not having valid driving licence, the learned Tribunal was fully justified in transferring the burden of paying the amount of compensation from the Insurance company to the appellants herein. (2016-3) PLR 540

——— S. 149(4) - Principle of pay and recover would be available only in a situation where the Insurance Company is liable in the first place under the terms of policy but if it is able to establish violation of terms of policy which is anyone of the grounds which is available under Section 149 - By operation of the proviso to clause 4 of Section 149 - Passenger in a goods vehicle is not required to be covered for risk - Question of making the insurer payable in the first place does not also arise. (2016-3) PLR 344

——— S. 163-A - In order to maintain the claim petition under Section 163-A of the Act, the claimant was required to establish that he has suffered the permanent disablement due to the injuries suffered by him in the present accident - But absolutely, no evidence has been adduced by the claimant in order to establish that he has suffered any permanent disablement - Doctor simply deposed about the fracture of right leg bone suffered by the claimant along with injuries of chin and lips - He has nowhere mentioned in his testimony that the claimant has suffered any permanent disablement - Petitioner was not maintainable under Section 163-A of the Act. (2016-3) PLR 601

——— S. 166 - Accident - FIR was registered - Investigation Officer to prove the version of informant was not examined - In his cross-examination witness has deposed that he had not witnessed the accident in question and does not know about the vehicle involved and the manner of  accident - Identity of the vehicle cannot be relied upon. (2016-3) PLR 635

——— S. 166 - Compensation - Future Prospects - Awarded separately - To be deposited by the insurance company with the Tribunal, along with interest accruing thereupon, running from the date of the filing of the claim petition till the date of deposit -  Tribunal directed further to have the said amount deposited in a fixed deposit carrying maximum interest, in a nationalized bank -  Thereafter, it shall be paid if eventually held payable by the ratio of the judgment of the Supreme Court (to be pronounced in National Insurance Company v. Pushpa<D>) where issue of payability of loss of future prospects of income, to dependents of victims of motor vehicle accidents, where the victim was not in a permanent salaried employment, has been referred - If the ratio of the judgment of their Lordships is to the effect that loss of future prospects of income are not payable to the dependents of victims of motor accidents, where such victims were not in permanent salaried employment, then the Insurance Company, would be entitled to have the entire sum, including obviously the interest accrued in the bank on the sum deposited, refunded to itself, on making an application to that effect to the Tribunal, without further reference to this Court. (2016-3) PLR 528

——— S. 166 - HUF - Not in agreement that even the HUF income should be added to the individual income to arrive at the total income earned by the deceased(2016-3) PLR .528

——— S. 166 - Injured - Assessment of Rs.1 lakh for loss of prospect of marriage - Reduced to Rs.25,000/-. (2016-3) PLR 344

——— S. 166 - Negligence - Driver had been irresponsible by allowing for persons to hang out of the vehicle - The driver of a vehicle must at all times conduct himself in such a way that no passenger exposes himself to any serious risk without being appropriately offloaded from the vehicle or strict instructions from the driver to keep their arms inside so that no untoward incident took place - If the driver had not exercised that caution that ultimately resulted in serious injuries to two young persons who have lost a portion of their arms, the driver of the vehicle must be seen to be responsible and make the owner vicariously responsible. (2016-3) PLR 344

Northern India Canal and Drainage Act, 1873 (8 of 1873) Section 2 - It only applies to the claim of the applicants for the supply of water which has to be conveyed through some existing watercourse - The section does not at all refer to the making of a new watercourse or the construction, closing or shifting of an outlet and extension of water channels. (2016-3) PLR 458

——— S. 3(1)(a), (2) - Definition of “Canal” as referred to above in interpretation clause of the Act begins as `canal’ includes all canals, channels, and reservoirs constructed, maintained or controlled by the State Government for the supply or storage of water; all works, embankments, structures, supply and escape-channels connected with such canals, channels or reservoirs; all water-courses as defined in the second clause of this section; all parts of a river, stream, lake or natural collection of water or natural drainage-channel, to which the State Government has applied the provisions of Part II of this Act - Water Course, is also included in the definition of canal so watercourses as defined in Section 3(2) of the Act are canals, whereas every canal is not a Water Course. (2016-3) PLR 458

——— S. 30-A - It cannot be held that extension of water channel or sub minor cannot be done by framing a scheme under Section 30-A of the Act - As per the definition, all watercourses are included in the term of ‘canal’ and it certainly includes the channel which is to be extended and to be fed from canal. As such, Section 30-A of the Act will apply.  (2016-3) PLR 458

Partition - Final decree - No doubt, while passing the final decree for partition, the possession of the respective parties is to be respected only to the extent possible in the manner without causing any prejudice to the rights of the other co-sharers - The appellants are claiming the entire land adjoining the main road, which is valuable piece of land simply on the ground that they were in possession of that portion and has also raised the huts therein - The said plea is not permissible under law, because even a co-sharer out of possession is entitled to the share in every inch of the land. (2016-3) PLR 388

Passport Act 1967 (15 of 1967) - Merely on the ground of pendency of the FIR and that the cancellation report submitted by the police has not yet been accepted by the Trial Court, a passport cannot be refused or cancelled or impounded. (2016-3) PLR 457

Plaintiff - Death of one of the plaintiff - Suit on behalf of a plaintiff (since deceased during pendency of proceedings) can continue even without impleading his legal representative in view of State amendment in the Code of Civil Procedure. (2016-3) PLR 567

Protection of Women from Domestic Violence Act, 2005 (43 of 2005) - Is a a beneficial as well as assertively affirmative enactment for the realisation of the constitutional rights of women and to ensure that they do not become victims of any kind of domestic violence. (S.C.)(2016-3) PLR 624

——— Is a detailed Act - Definition of “domestic violence” covers a range of violence which takes within its sweep “economic abuse” and the words “economic abuse”, as the provision would show, has many a facet. (S.C.)(2016-3) PLR 624

——— Once the decree of divorce is passed, the status of the parties becomes different, but that is not so when there is a decree for judicial separation - Thus, finding recorded by the courts below which have been concurred by the High Court that the parties having been judicial separated, the appellant wife has ceased to be an “aggrieved person” is wholly  unsustainable - Hindu Marriage Act, 1955 (25 of 1955) Section 10. (S.C.)(2016-3) PLR 624

——— S. 12 - Stridhan - Aggrieved person - As long as the status of the aggrieved person remains and stridhan remains in the custody of the husband, the wife can always put forth her claim under Section 12 of the 2005  Act - Concept of “continuing offence” gets attracted from the date of deprivation of stridhan, for neither the husband nor any other family members can have any right over the stridhan and they remain the custodian. (S.C.)(2016-3) PLR 624

Provincial Insolvency Act, 1920 (5 of 1920) Section 8 - Legal question regarding maintainability of the petition in view of Section 8 of the Act can be allowed to be raised in this Regular Second Appeal, as no new facts or evidence is required to determine this legal plea. (2016-3) PLR 603

——— S. 8 - Not disputed that the appellant-HFC is a financial corporation - Respondent No.1 has availed the loan facilities from the appellant-HFC - As per Section 8 of the Act, no insolvency petition shall be presented against any corporation or against any association or company registered under any enactment for the time being in force - This fact is not disputed that the appellant-HFC has been set up under the Act of Parliament known as State Financial Corporation’s Act 1951 - So, appellant-HFC will fall under Section 8 of the Act. As per Section 8 of the Act, no insolvency petition can be presented against the appellant-HFC - State Financial Corporations Act, 1951 (63 of 1951). (2016-3) PLR 603

Punjab Civil Services Rules, Volume II, Part Rule 2.2(a) - State has not apparently passed any such order and has withheld the pension on its own without resorting to the provisions of Rule 2.2(a) or hearing the petitioner - Petition is allowed with a direction that the competent authority shall take action as per Rule 2.2(a) and thereafter proceed and decide as to what is the quantum of cut it proposes to make on the pension in view of the conviction recorded - Petitioner shall be paid complete arrears of pension and other retiral dues alongwith interest @ 8% p.a. from the date the pension fell due. (2016-3) PLR 341

——— Rule 54-C(6) Form S - Demand notice, issued in Form ‘S’, under Rule 54-C(6) - Needless to assert, the notice in Form ‘S’ is issued post assessment of the amount of royalty - Therefore, it cannot, by any stretch of imagination, be construed as an order of assessment, which under the rules has to be passed in Form  ‘O’ - Order rendered by the appellate authority itself reveals that the order of assessment, in terms of Rule 54-C(5), rendered by the Mining Officer was not available on the record - In the absence thereof, notice issued in Form ‘S’ dated 05.05.2011 (Annexure P-1) and also the notices issued by the Collector to recover the amount of royalty pale into insignificance. (2016-3) PLR 535

Punjab Panchayat Election Rules, 1994, Rule 33 - Recount of votes - No material on record to show that any objection was raised with respect to any irregularity or illegality in the counting of the votes - Even after the result was declared, he did not make any complaint to the higher authorities - Nowhere pleaded and proved as to how the rejection of votes was illegal - No material on record to show that any request was made by the election petitioner to the Presiding Officer for recounting of the votes - Just oral/bald statement of the petitioner to this effect cannot be prima facie relied upon - Order of recount of votes - Set aside.  (2016-3) PLR 392

Punjab Security of Land Tenures Act, 1953 (10 of 1953) Section 9 - Punjab Tenancy Act, 1881 (16 of 1881) Section 40 - Both the enactments i.e. the 1887 Act and the 1953 Act are in force and continue to operate in their respective fields - Insofar as common spheres are concerned, the 1953 Act by virtue of the non obstante<D> clause in the relevant provisions prevail over the pari materia<D> provisions of the 1887 Act - Section 40 of the 1887 Act dealing with ejectment of tenants and Section 9 of the 1953 Act is one instance where such an interplay between the provisions of the two Acts occur. (S.C.)(2016-3) PLR 607

——— S. 9 - Transfer of Property Act, 1882 (16 of 1882) Section 107 - Appellant  tenant remained in possession of the land for the fixed term envisaged in the lease  agreement and even thereafter - Lease was not registered - Consent ceased to exist only upon institution of the cross objection in the suit filed by the tenant, as mentioned earlier - The tenant, therefore, acquired the status of a tenant holding over or a tenant at will, which would confer on him protection under the 1953 Act requiring the landlord to establish proof of any of the conditions specified in Section 9 of the 1953 Act before being entitled to a decree of eviction. (S.C.)(2016-3) PLR 607

Punjab State Education Class-III (School Cadre) Service Rules, 1975 - Her sports certificate has been rejected on the ground that it has been issued by the Sports Department, Haryana - Therefore, she is not entitled for reservation in the sports quota in the State of Punjab - According to para 4(1) of Sports Gradation Policy, 1997, sports certificates are issued to those sports persons of the State of Punjab who are domicile of/belong to Punjab and have represented the State of Punjab as per the criteria mentioned in the Rules - Plain reading of Rule 2 (d) (b) (i) & (ii) of the Rules removes the base of the petitioner’s _case - Right to appointment for sports category persons is not indefeasible just as other appointment are not and in the present case right is governed by the provisions of the Punjab Recruitment of Sportsmen Rules, 1988, Rule 2(d) - Constitution of India, Article 15. (2016-3) PLR 477

Punjab Tenancy Act, 1887 (16 of 1887) Section 59 - Right to succession of occupancy tenant is strictly to the male lineal descendents only and certainly, daughter is not an heir to such tenancy. (2016-3) PLR 542

Punjab Town Improvement Act, 1922 (4 of 1922) - Benefit of provisions of Section 24(2) of the 2013 Act is not available to the landowner in respect of acquisition under 1922 Act - Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 (30 of 2013) Section 24(2). (2016-3) PLR 365

——— S. 42 - Acquisition - Challenge to the acquisition proceedings and the award at this belated stage after the announcement of the award would not be maintainable under Articles 226/227 of the Constitution of India. (2016-3) PLR 365

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961) Section 13 - Plaintiff was claiming himself to be the owner in possession of the site in dispute whereas the respondent-Gram Panchayat was alleging the same to be the public chowk which vests in it - So, certainly the jurisdiction of the Civil Court was barred under Section 13 of the Act - Proper order to be passed is not the dismissal of the suit but return of the plaint for presentation to the proper Court. (2016-3) PLR 431

——— S. 13 - The Sarpanch acting on behalf of Gram Panchayat had entered into a collusive decree - Once, the Civil Court had returned a finding that the decree was on account of fraud and misrepresentation, the executing Court has rightly dismissed the objections filed by the defendants-petitioners - Under Section 13-A of the Punjab Village Common Land Act, there was a bar to decide the question of title by the Civil Court - Trial Court has rightly set aside the judgment and decree which were obtained on the basis of fraud and misrepresentation in respect of shamlat deh land. (2016-3) PLR 358

Railways Act, 1989 (24 of 1989) Section 79 - Since there was no document of proof of protest and demand for weighment at the destination station as envisaged under Section 79 of the Act of 1989 the allegation of shortage in delivery of goods is completely devoid of merit - In the above premise, the finding of learned Tribunal that the consignment was delivered at destination station as it was loaded and handed over to railways at the originating railway station calls for no intervention. (2016-3) PLR 350

Relief and Rehabilitation of Women Acid Victims (Haryana) - Husband of the petitioner threw acid on her - Keeping in view that the fact that she had suffered 40% burn injury on her face - Shall be entitled to Rs. 6,00,000/- as compensation - That monthly financial assistance of Rs.8,000/- to acid victims who come in the definition of disability under Section 2(i) of the Persons with Disabilities (Equal Opportunities Protection of Rights of Full Participation) Act, 1995 - Financial assistance of Rs.75,000/- towards compensation - Medical bills to be reimbursed - If the petitioner, after having recovered, applies for allotment of fair price shop, the Food and Supply Department, Haryana shall give preference to her in that matter, as provided in the Scheme dated 25.03.2016. (2016-3) PLR 353

Rent Matter - Finding of the Civil Court regarding the relationship between the parties is binding on the Rent Controller. (2016-3) PLR 577

Reserve Bank of India Guidelines - Debts Restructuring Scheme (Dated 12.09.2011) - The guidelines, however, do not make it mandatory for the banks to extend such facilities irrespective of the facts and circumstances of the units concerned - The second respondent had on an earlier occasion restructured the petitioner’s accounts on terms and conditions accepted by the petitioner - The petitioners failed to comply with the terms and conditions and their accounts were yet again classified as NPA - The decision was taken after a visit to the petitioner’s unit by the Central Statutory Auditors of the RBI alongwith officials of the second respondent - The accounts were examined and the stocks were assessed - It is only thereafter that the second respondent took steps under the SARFESI Act - Interference in such circumstances is not warranted - Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002). (2016-3) PLR 361

Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 (30 of 2013) Section 24(2) - Plea that earlier notification under Sections 4 and 6 of the Land Acquisition Act, 1894 (in short, “the 1894 Act”) have lapsed on the ground that no compensation has been given for the acquired land - Petitioners after the expiry of more than five decades have made prayer based on the plea that no compensation has been paid to them without substantiating the same - A stale claim is sought to be raked up by way of present petition - In view of the above, the claim of petitioners could not be considered - Constitution of India, Article 226. (2016-3) PLR 517

Sale Deed - Fact that the sale deed is a registered document and a presumption of correctness is attached to the endorsement of the Sub Registrar goes a long way to negate plea of the appellants that the sale deed in question is the result of misrepresentation - Mere fact that a person is a villager or illiterate is not sufficient to accept plea of the appellants that either he was not competent to transfer his property or could not understand the consequences of transaction of Sale. (2016-3) PLR 498

Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002) - Reserve Bank of India - Master Circular issued by respondent No.1-RBI as as follows:- “4.2.5 Upgradation of loan accounts classifies as NPA’s - To have an account upgraded from an NPA to a standard account, it is not necessary that the entire amounts due from the borrower to a creditor are paid in full - It is sufficient if the amounts due at the material time towards principal and interest are paid - Reserve Bank of India, Master Circular.

——— Security Interest (Enforcement) Rules, 2002, Rule 9(6) - Punjab Government Instructions - Property was sold by way of public auction by the authorized person of the Bank, pursuant to an order passed by the Debts Recovery Tribunal - _Authorized officer would not be a civil or revenue officer and thus the sale certificate issued by him would require registration - Registration Act 1908 (16 of 1908) Section 17(4). (2016-3) PLR 490

——— S.  3(j) - Manner in which the account is to be upgraded from NPA to standard is stipulated in the Master Circular itself - The account can be so classified only in the event of the borrower paying the arrears of interest and principal due to the lender under all the accounts - Title to Clause 4.2.7 itself states the asset classification to be borrower-wise and not facility wise - The petitioner has admittedly not paid the arrears due in respect of his first account - The petitioner’s account, therefore, cannot be upgraded from an NPA to a standard account - Reserve Bank of India, Master Circular Clause 4.2.4.

——— S. 13(4), 13(2) - Scheme under Section 13(4) of the Act, permits the secured creditor to proceed only against the secured assets - Of course, the secured creditor is free to proceed against the guarantors and the pledged assets, notwithstanding the steps under Section 13(4) and without first exhausting the recovery as against secured assets referred to in the notice under Section 13(2) - But such guarantor, if aggrieved, is not entitled to approach DRT under Section 17 - That right is restricted only to persons aggrieved by steps under Section 13(4) proceeding for recovery against the secured Assets. (S.C.)(2016-3) PLR 551

——— S. 17 - Is titled as a ‘Right to appeal’, the liberty granted to the aggrieved person is to make an application to the DRT and the parties are at a liberty to lead evidence before the tribunal - And thus, it is actually a trial before the DRT on the grievances of the aggrieved persons in the respect of the measures taken by the secured creditor for recovery of dues of the borrower in proceeding against the secured assets. (S.C.)(2016-3) PLR 551

——— S. 18 - Partial deposit before the DRAT as a pre-condition for considering the appeal on merits in terms of Section 18 of the Act, is not a secured asset - It is not a secured debt either, since the borrower or the aggrieved person has not created any security interest on such pre-deposit in favour of the secured creditor - If that be so, on disposal of the appeal, either on merits or on withdrawal, or on being rendered infructuous, in case, the appellant makes a prayer for refund of the pre-deposit, the same has to be allowed and the pre-deposit has to be returned to the appellant, unless the Appellate Tribunal, on the request of the secured creditor but with the consent of the depositors, had already appropriated the pre-deposit towards the liability of the borrower, or with the consent, had adjusted the amount towards the dues, or if there be any attachment on the pre-deposit in any proceedings under Section 13(10) of the Act read with Rule 11 of The Security Interest (Enforcement) Rules, 2002, or if there be any attachment in any other proceedings known to law. (S.C.)(2016-3) PLR 551

——— S. 18 - Unable to agree with the contention that the Bank has a lien on the pre-deposit made under Section 18 of the SARFAESI Act in terms of Section 171 of the Indian Contract Act, 1872 (9 of 1872). (S.C.)(2016-3) PLR 551

——— S. 31(j) - Words “interest thereon” indicate that the ceiling of 20% is with respect to the aggregate amount due to the bank towards principal and/or interest - The ceiling of 20% is not with respect to the principal amount alone or to the interest alone - This would be so even if pursuant to an arrangement between the parties, the receipts are adjusted towards principal and no amount towards principal is due.

Service Law - Petitioners reinstatement was upheld while only the monetary benefits were modified by a lump sum amount - The continuity of service by the Tribunal along with reinstatement held the ground - Rights were declared on that date of termination which order was set aside as illegal - The effect of which is that the petitioner is deemed to have continued in service as though the order was never passed - However, on the date of the award, the copetitioners were already in receipt of full pay and allowances of the post of Ledger Keeper since their services had been and regularized retrospectively - Had the services of the petitioner not been wrongly terminated he would have continued in service like his co-petitioners and received the same treatment inevitable - There is thus no reasonable classification between the two classes of cases to justify different _treatment - Writ of mandamus is in addition issued to the respondents to grant equal pay for equal work and pay at par with juniors/colleagues with effect from the date of the award - Constitution of India, Article 14. (2016-3) PLR 480

Service Matter - Angan Wari Worker - A condition has been put for counting the experience after 3 years of possessing the graduate qualification, for appointment to the post of Supervisor from the post of Angan Wari Worker - Work experience is, thus, to be seen after the acquisition of the educational qualification and not prior to that. (2016-3) PLR 340

——— Driver - Once the petitioner has been released on probation for a period of one year and no person died in the accident - Has been convicted under Sections 279/337/338 IPC and was sentenced to undergo simple imprisonment substantially for a period of one  year - Had served the department for 19 years - Length of the service rendered in the department is one of the ground which has to be taken in to consideration by the punishing authority while dismissing an employee from service apart from the conduct of an employee - Directed to give all the service benefits to the petitioner. (2016-3) PLR 639

Specific Relief Act, 1963 (47 of 1963) Section 21 - In case the suit property is only residential constructed property of the defendant, the relief of specific performance of agreement of sale is not to be granted and the Court is to exercise discretion in favour of the defendant and give limited relief to the plaintiff as indicated in Section 21 of the Specific Relief Act, 1963. (2016-3) PLR 322

——— S. 6 - If the petitioner plaintiff had any grievance with regard to relinquishment deed, simpliciter suit under Section 6 of 1963 Act, was not maintainable - Remedy has by seeking declaration and consequential relief, if permissible in law but not in the manner and mode which has been adopted. (2016-3) PLR 526

Stamp Act 1899 (2 of 1899) Section 47A(3) - Action initiated by the Collector-cum-District Revenue Officer suo motu rather it has been taken on the reference made by the Sub Registrar - Who is not a competent authority under Section 47A(3) of the Act to make even the reference - Thus, the action initiated against the petitioner on the reference made by the Sub Registrar, Jind in terms of Section 47A(3) of the Act is patently illegal. (2016-3) PLR 492

Suit for Specific Performance - Appellant is a money lender and the respondent being a small farmer, used to secure loan from the appellant - That the similar agreements had been entered into between the parties, the arguments put forth by the learned counsel for the appellant to the extent of readiness and willingness do not hold any the ground - Clearly suggestive of the fact that there was no intention to transfer the land in question - Relief of specific performance of contract is a discretionary relief. (2016-3) PLR 544

——— Law on the point is settled that for seeking specific performance of agreement, a party has to make out a clear cut case and to prove the same and if there is any variance in the pleadings and prove the same, specific performance of agreement of sale of suit property cannot be ordered - Plaintiff plea in the original plaint and amended plaint as well as legal notice are at a quite variance and it is not a case where specific performance of such an agreement should be ordered and the Court of first appeal has rightly declined the relief of specific performance of the agreement - At the same time, the Court of first appeal ordered for payment of Rs.2,00,000/- as a discretionary relief in a suit for specific performance as per the provisions of Section 20(1)(c) of the Specific Relief Act, 1963 (47 of 1963). (2016-3) PLR 326

Tax Deduction at Source (TDS) - Amount deducted as TDS from the compensation of the petitioners was 20% of the compensation assessed on account of interest awarded under Section 28 of the Land Acquisition Act, 1894 (1 of 1894) - Interest component on the amount of compensation or enhanced compensation would be eligible to tax in the year of receipt irrespective of the method of accounting being employed by the assessee - Tax at source has been rightly deducted and the petitioners can claim the refund, if any, admissible to them by filing the income tax returns in accordance with law - Income Tax Act, 1961 (43 of 1961) Section 194-A. (2016-3) PLR 436

Will - Active participation in the execution of the Will by the beneficiary itself does not create doubt regarding testamentary capacity of the executor or on the genuineness of the Will until and unless the pressure or coercion is proved - That no witness of the Will is from the village of the deceased is of no consequence as the witness of the Will are Sarpanch - Where the suit land is situated. (2016-3) PLR 424

Workmen Compensation Act, 1923 (8 of 1923) Section 4-A(3) - Interest - Is to be granted with effect from the date of the accident. (2016-3) PLR 539

——— “During the course of Employment” - Driver of CTU bus - Drivers are entitled to Travelling Allowance and even night allowance when they are to take the bus out of station and have to stay overnight for the return of trip - Communication from the General Manager, Chandigarh Transport Undertaking, Chandigarh that there is no arrangement to take rest at night time for drivers and conductors at the place of accident - Driver after taking his meals, he slept on the roof of the bus from where he fell down while sleeping - It cannot be accepted that the accident which has occurred is not arising out of and in course of his employment. (2016-3) PLR 587

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