Tag: supremcourt

-Report by Ojas Bhatnagar

In the case of Satyendar and ors. vs Saroj and ors, the plaintiff had filed a suit and claimed to be the owners of a certain property. The defendant claimed that not only was the property the plaintiff claimed his own, but he is also in possession of 2 other properties. The counter-claim was allowed in the trial court. The first appeal was dismissed by the appellate court. The second appeal was allowed in Punjab and Haryana. Now the matter was taken by the Supreme Court.

FACTS

The plaintiff’s-initiated proceedings by claiming possession of agricultural land which measured 80 Kanals and 19 Marlas, it comes under Haryana. Defendant no.2 was the tenant who sub-let the land to his son without the consent of the plaintiffs. The 2 defendants are hence liable to be evicted and the land would now be in the possession of the plaintiff. This land was earlier in the possession of Ram Kaur, Ganpat Rai was the tenant (father of defendant no.2). The tenancy was surrendered and the plaintiff had won a case against Ram Kaur and now they claim that the land belongs to them.

PETITIONER’S CONTENTION

It was argued that the agricultural land belonged to them. The tenant has wrongfully given the land to his son. The consent of petitioners was not asked in this regard. This makes eviction their full right and they have total authority over the land. They also rightfully won the case against Ram Kaur in 1994. Ganpat Rai had surrendered his tenancy to Ram Kaur, and now the land belongs to them and the trial court wrongfully gave the decision in favor of the defendants. The appellate court also dismissed their appeal. But now the High Court has rightfully allowed their claim
on 2 plots. The counter-claim by the defendants is dysfunctional.

DEFENDANT’S CONTENTION

The defendants argued that they have no concern with the land in question. The year that the defendant was born is 1966, and he was only 12 at 1978, there was no cultivation done by him or his. The revenue record showing him as a tenant and sub-tenant is completely wrong. Indraj was the original owner of the property, who gave his tenancy to Ganpat Rai. Indraj died and was succeeded by Ram Kaur. When Ganpat Rai died, his 2 brothers took the inheritance of the property. The defendants are also in possession of the 2 other properties and filed a counter-claim from them. The Trial Court rightfully dismissed the suit by the plaintiff. The plaintiff could not even prove that the tenancy of Gupta Rai came to an end in 1976 by surrendering the land, the appellate court rightfully dismissed the appeal. The counter-claim filed by the defendants was rightfully decreed before however, the high court did not allow it as the plaintiffs never claimed it.

COURT’S DECISION

All the arguments about the second appeal being a ‘substantial question of law’ and should not be allowed is not strong argument in this case. This present case is from Haryana and the Governing Provision is Section 41 of the Punjab Courts Act, 1918 and not Section 100 of the CPC. This act was enacted under the Government of India Act, 1935. The Punjab Courts Act has not been altered, repealed, or amended by the State Legislature of Punjab or Haryana, it is still in force. The laws applicable to Punjab are also applicable to Haryana.

Defendant No.2 and his brothers were the tenants of the property and the defendant had not sub-let the property in favor of his son. The revenue entries in 1978 are wrong, there is no basis for those entries. Plaintiffs had failed to prove that they are the owners The pleadings in the appellate court show that the defendants made a general denial of the plaintiffs’ claim for the plots, then the giving of plots by the High Court to the plaintiff comes into question. Also, the counter-claim by the defendant is barred under Order VIII, Rule 6A of the CPC.

“The Legislature permits the institution of a counter claim, in order to avoid multiplicity of litigation. But then it has certain limitations such as that the counter claim cannot exceed the pecuniary limits of the jurisdiction of the court,
and that such counter claim must be instituted before the defendant has delivered his defence or before the time limit for delivering his defence has expired. More importantly, such a counter claim must be against the plaintiff! Evidently, in the present case the counter claim was not against the plaintiffs.”

The counterclaim has been rightfully rejected by the High Courts. The decreed claim of the plots by the order of the High Court is set aside. This appeal stands disposed.

-Report by Riddhi Ray

The Supreme Court upheld the decision of the Armed Forces Tribunal in the case of K. S. SAHU vs. UNION OF INDIA & ORS., wherein an order of withdrawal of navy officer was delivered, as he was in possession of objectionable material.

FACTS

The Appellant joined the Navy as a sailor on 31st July 2002. His Initial training started on 7th July 2002 for 2 years at INS Mandovi, Goa. On 21st June 2009, he was sent to INA EZHIMALA for the completion of the 5th and 6th terms of training. On 1st December 2010 integrated headquarters of the ministry of defense notified that the competent authority approved his withdrawal from INA and reverted him back to the sailor position.

Appellant’s contention:

Learned counsel raised three questions in front of the court:

a. Whether the appellant who was a service cadet could be withdrawn from the course in INA without following the principles of natural justice
b. Whether Regulation 216 of the Navy and Miscellaneous Provisions Regulations, 1965 (for short ‘the said Regulations’) could be invoked against a service cadet.
c. After completion of the course and receipt of the certificates, the applicant could be withdrawn.

He contended that this withdrawal was contrary to the rules in Enclosure–1 of Naval Headquarters’ letter dated 11th November 1988 as it has been fixed by a subordinate authority instead of the government. And even after the withdrawal he was not sent back home and allowed to continue the course. The naval authority pointed out that the withdrawal was done on disciplinary grounds, later it was stated that the withdrawal was for lacking basic character and officer-like qualities in reality. It was contended that the officers victimized the appellant just because he was from a poor family. The appellant was influenced to sign the documents accepting his mistake under the threat of disciplinary action. Further, his parents were invited to the valedictory ceremony but they were unaware of such withdrawal of their son.

Respondent’s contention:

Ms. Aishwarya Bhati, the learned Additional Solicitor General of India stated that Regulation 216 has not been invoked upon the appellant so the question of following principles of natural justice does not arise. The withdrawal has been made as per ground ‘c’ mentioned in the rules issued by the Integrated Headquarters of Ministry of Defence (Navy), New Delhi vide letter dated 11th November 1988. The ground is of basic character deficit and lacks officer-like qualities.

She further contended that written warnings on 16th July 2009 and 11th May 2010 and a chance was given to the appellant for giving an explanation. Although a proposal for withdrawal was submitted on 24th August 2009, he was appellant was relegated on 6th November 2009. It was only after 26th June 2010 that the action of withdrawal was taken.

Consideration of submission:

As per regulation 216, two things must be done for the withdrawal of an officer from a post. As per clause a., a show cause notice must be given to the appellant and as per clause b., the appellant must have given some time to file his defence against the allegations and to improve his conduct. In this case, he has been withdrawn only after two subsequent notices from authority and after a reasonable time has also been given to improve his conduct.

After an investigation, a report had been filed against the appellant on 19th April 2010 by Lt. Praveen Kumar. On 9th July 2009, a notice has been issued against him on the basis of the investigation of 5th July. During the investigation, he was found in the possession of pornographic magazines, cigarettes, a lighter and a mobile phone, a Garuda Pay office stamp and a large number of seamens’ knives, a stabilizer, a multimeter as well as a BSNL phone. In response to the question, the appellant stated that he has committed a wrong for the first time and was ready to take any punishment.

Another show cause notice was issued to the appellant on 11th May 2010, which is based on the investigation carried out by Lt.Commodore Ashutosh Bobade for tampering with official documents.

On 14th January 2011 appellant’s father requested the authority to reconsider the decision of withdrawal. But the authority denied such a request and stated he has been awarded a B.sc degree from the University of Goa as he was fit for that.

And as the inquiry report against him clearly states his misconduct and his audacity not to change himself even after notice. And as far as the notion that the government is only able to relegate any cadet from INA, then the government has conferred power in the hand of the Chief of Personnel to do the same. So, the withdrawal was completely in
accordance with the law. And the decision was made by the tribunal consisting of experts like a lieutenant general. It was observed:

“While taking action of withdrawal of the appellant from training, the competent authority made the assessment of the performance and conduct of the cadet in INA during his training. There was material on record to come to a subjective satisfaction that the appellant was deficient in basic character and officer like qualities. Two show cause notices were served upon the appellant before taking the action of withdrawal. There was an opportunity given on two occasions to the appellant to explain his conduct and improve his conduct. His conduct as reflected from record certainly supports the conclusion that he lacked the qualities which an officer of Navy must possess.”

In light of the above, the court dismissed the appeal for being void of purpose.

-report by Ojas Bhatnagar

The Supreme Court in the case of Janabai vs M/S I.C.I.C.I. Lambord Insurance made it clear that when seeking compensation in vehicle accidents, the evidence to prove it must be decided on basis of evidence led before it and not on evidence that should have been or could have been held in a criminal trial.

FACTS

On June 1st, 2007, Dinkar Shankarrao Ghorpade was riding a motorcycle when suddenly a Maruti 800 car came dashing towards him and hit him. The car was coming from the opposite direction. Mr. Ghorpade received serious injuries and was admitted to a Government Hospital (Ghati Hospital). On 2nd June he was shifted to Kamal Nayan Bajaj Hospital but he succumbed to his injuries on 25th June 2007. An FIR was lodged on 2nd July 2007.

PETITIONER’S CONTENTION

The heirs of Dinkar Shankarrao Ghorpade were not provided compensation by the Motor Accident Claims Tribunal for a sum of Rs.8,90,000 with an interest of @7% p.a on the orders of The High Court of Bombay. Hence the need for appeal is there at the Supreme Court. The deceased got hit by a Maruti 800 car while he was riding a bike, he was seriously injured and died in the hospital due to a head injury. In an appeal filed by the insurance company, the High Court did not accept the findings that the accident happened due to negligence occurred by the driver. The high court could not establish a link between the accident and the car that had crashed. The petitioner argued that getting help for the heavily injured husband was the first priority and filing an FIR could have been done later. The petitioner claimed compensation on the account of love and affection and compensation on account of the spousal consortium for the wife and for the parental consortium for children.

RESPONDENT’S CONTENTION

The respondent which is an insurance company did not accept the findings that the accident happened due to the car owned by the owner and negligence caused by the driver. The appellant falsely filed an FIR that had no mention of her
husband being taken to the hospital in a Maruti 800 car, the vehicle that caused the accident was also not disclosed. Another important fact to be noted is that claimant Janabai in her evidence never revealed her source of information as to how on 20th August 2007 she got knowledge about the registration number of the offending car which was disclosed to police. The investigating officer is not examined by the claimant to prove his source of information regarding the offending car. The bona fide was also doubtful. Taking all these factors the high court rightfully dismissed the petition filed by the appellant. Hence the petitioner is not entitled to get any sort of compensation.

COURT’S DECISION

The SC found the order of the high court unsustainable. The primary concern of the appellant was to take care of Mr. Ghorpade. The well-being of the appellant mattered the most at that time. The HC has wrongfully proceeded only on the basis of evidence given to the police which does not even mention the name of the driver in the FIR. The wife was in a mentally unstable state as she was brought to the hospital after the crash and did not file an FIR at that time. The owner of the vehicle had taken it on superdari and he had not filed an FIR against his driver Sanjay. According to him, there is no false implication. In its own words the Supreme Court said:

“We find that the rule of evidence to prove charges in a criminal trial 5 cannot be used while deciding an application under Section 166 of the Motor Vehicles Act, 1988 which is summary in nature. There is no reason to doubt the veracity
of the statement of appellant No. 1 who suffered injuries in the accident. The application under the Act has to be decided on the basis of evidence led before it and not on the basis of evidence that should have been or could have been led in a criminal trial. We find that the entire approach of the High Court is clearly not sustainable.”

The appellants are entitled to enhanced compensation. The appellant wanted compensation on basis of love and affection but as decided in the case of United India Assurance Company Limited vs Satinder Kaur and Ors. compensation under love and affection cannot be granted, however, compensation on other grounds can be granted. The tribunal assessed the deceased monthly salary as Rs 10000 and keeping in view the age and other factors the total compensation turns out to be Rs. 11,63,000 with an interest of 7% p.a. from the date of claim. The appeal was hence allowed.