When the bank failed to return the bounced cheque along with return memo , it amounts to deficiency of the service even though the complainant is not it’s customer-17. Admittedly, petitioner has failed to return the cheque in question to respondent no.1. Under these circumstances, respondent no.1 had been deprived of its legal right to file a case under section 138 of the Negotiable Instrument Act, against the account holder. Thus, respondent no.1 has been made to suffer loss of Rs.2 lakhs for no fault of his own. 18. When cheque in question has been lost at the end of petitioner’s bank, then it is the petitioner alone who is liable to compensate the loss, suffered by respondent no.1.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

REVISION  PETITION  NO.    649   OF   2012

WITH

(IA No. 1 of 2012, for Stay)
(From the order dated  20.10.2011  in  Appeal No. 3356/2011   

  of the State Commission,   Karnataka)

M/S ICICI BANK LTD.

HOSUR BRANCH

HOSUR,

TAMIL NADU                                                                    … Petitioner

Vs. 

1.    SHRI SONNEGOWDA             

S/O LATE SHRI GIDDAPA

R/O KURKI VILLAGE

NEAR NARASAPUR

KOLAR TALUK & DISTRICT

2.    PRAGATHI GRAMIN BANK

NARASAPUR BRANCH

KOLAR TALUK & DISTRICT 

3.    SHRI R. SIVA SANKAR

SRI MARUTHI ENTERPRISES

C/O SIVA SANKAR R

3/130, BAGALUR ROAD CIRCLE

TAMIL NADU - 655124                                             … Respondents

BEFORE:

HON’BLE MR. JUSTICE  V.B. GUPTA, PRESIDING MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER
           

For the Petitioner (s)     :        Mr. T.K.Ganju, Sr. Advocate with

Mr. Rishi Kapoor, Advocate and

Mr. G.G. Padmakar Tripathi

                  

                                                 

Pronounced on  :  16^th April,  2012

 

ORDER

PER JUSTICE V.B. GUPTA, PRESIDING MEMBER

Aggrieved by order dated 20.10.2011, passed by  Karnataka State Consumer DisputesRedressal Commission, Bangalore (for short ‘State Commission’), petitioner has filed this revision petition.

2.      Brief facts are that respondent no.1/complainant was given a cheque for Rs.2 lakhs by ShriR.Siva Sankar - respondent no.3, herein.  Respondent no.1, presented the said cheque to his banker - respondent no.2/opposite party no.1 for collection.   Respondent no.2 sent the cheque for collection to petitioner’s bank/opposite party no.2  on 9.8.2010.  The said cheque was not encashed due to “insufficient fund”  in the account of respondent no.3. Accordingly, petitioner  sent the cheque to respondent no.3.  It is alleged by respondent no.1 that, petitioner ought to have sent the cheque and the endorsement to respondent no.2 and respondent no.2 ought to have handed over the cheque and endorsement to respondent no.1.  Thus, respondent no.1 on the basis of cheque and bank’s endorsement as “insufficient fund”, had to file a private complaint u/s 200 Cr.P.C. before Magistrate’s Court for the offence punishable u/s 138 of the Negotiable Instrument Act, against  respondent no.3. But due to the negligence on the part of petitioner and respondent no.2, respondent no.1 could not get the said cheque and endorsement of the Bank and as such respondent no.1 was not able to prosecute respondent no.3 u/s 138 of the Act due to delay.  The cheque amount is Rs.2,00,000/-.

3.      It is further stated that there is no proper information from the petitioner as well as to respondent no.2.  Thus, there is gross negligence on the part of the petitioner and respondent no.2.  Accordingly, respondent no.1 prayed that petitioner and respondent no.2 be directed to return the above saidcheque as well as endorsement forthwith and settle the matter and pass orders the  Court deems fit and proper in the circumstances of the case.

4.      Respondent no.2 in its reply, admitted all the allegations made by respondent no.1.  It is further stated that cheque was sent for collection.  However, negligence and mistake has been committed by the petitioner in not returning the cheque to respondent no.1 and as such respondent no.2 is not liable for any action.

5.      Petitioner in its reply has stated that there is no privity of contract between it and respondent no.1, as respondent no.1 has not availed any services of the petitioner.  Respondent no.1 is not a consumer as defined under Section 2 (d) of the Consumer Protection Act, 1986 (for short as ‘Act’). 

6.      However, petitioner admits that while dispatching the said cheque and return memo, by inadvertently the same was sent to the account holder i.e. respondent no.3.  Thereafter, petitioner immediately approached respondent no.3 and requested him not to bounce the cheque.  Petitioner has made sincere efforts to get back the bounced cheque.  As such, question of deficiency of service on the part of petitioner does not arise at all.

7.      District Forum, vide order dated 29.7.2011, allowed the complaint and directed the petitioner to return the bounced cheque along with the necessary endorsement to respondent no.1, through respondent no.2, within thirty days from the date of the order. It further directed that in case, petitioner fails to return then, it shall be liable to pay Rs.2 lakhs to the complainant with interest @ 12%  p.a. from 9.8.2010 until actual payment.  In addition, petitioner had to pay compensation of Rs.25,000/- to the complainant for inconvenience caused to him and Rs.5,000/- as costs.

8.      Aggrieved by the order of District Forum, petitioner filed an appeal before the State Commission and the same was dismissed, vide impugned order.

9.      This is how the matter has reached before this Commission.

10.    At the outset, we may point out that in the initial complaint filed by respondent no.1, there were only two respondents.  However, in the present revision, petitioner without seeking any permission from this Commission has impleaded Mr.R.Siva Sankar as respondent no.3.  At the time of hearing, when this fact was brought to the knowledge of learned counsel for the petitioner, he gave a statement that respondent no.3 may be deleted, since it was not a party before the District Forum.    Accordingly, name of respondent no.3, who was not a party before District Forum, was deleted from the array of the parties.

11.    It is contended by learned counsel for the petitioner that respondent no.1 is not a consumer of the petitioner  bank and as such, he is not entitled to any relief.

12.    The second leg of argument is that there was no privity of contract between petitioner and respondent no.1 and as such complaint is not maintainable. 

13.    Another contention made by learned counsel is that petitioner had taken all the necessary steps to retrieve  bounced cheque from the account holder.  Moreover, the disputed cheque has already been dis-honoured due to “insufficient fund” in the account of the account holder. Thus, respondent no.1 is not entitled for the said cheque amount from the petitioner.

14.    Lastly, it is contended that  District Forum has granted reliefs which were not sought for by the petitioner and as such,  impugned order is liable to be set aside. 

15.    It is an admitted fact that respondent no.1 presented the cheque issued in his favour with his banker i.e., respondent no.2.  Respondent no.2 had sent the said cheque to petitioner’s bank for collection.  Though the said cheque is stated  to have been dishonoured due to “insufficient fund” in the account of drawer, thus the said cheque ought to have been sent to respondent no.1, but it was sent to respondent no.2.

16.    Respondent no.1 did not receive the bounced cheque nor did he receive the sum of the chequei.e., Rs.2 lakhs, which was issued in his favour by the account holder.  In this entire transaction there was no fault of the complainant.

17.    Admittedly, petitioner has failed to return the cheque in question to respondent no.1.  Under these circumstances, respondent no.1 had been deprived of its legal right to file a case under section 138 of the Negotiable Instrument Act, against the account holder. Thus, respondent no.1 has been made to suffer loss of Rs.2 lakhs for no fault of his own.

18.    When cheque in question has been lost at the end of petitioner’s bank, then it is the petitioner alone who is liable to compensate the loss, suffered by respondent no.1. 

19.    State Commission in its impugned order has observed ;

“The averments made by the complainant in the complaint that the documents produced in the case remained  un-rebutted.  The District Forum though given an opportunity to the appellants, the appellants failed to contest the case for the reasons best known to them.  At the same time, there is no reason to disbelieve the evidence produced by the respondent.  The reason assigned by the appellants in this appeal for not closely contesting the case in the appeal memorandum cannot be accepted and the prayer made by the appellants for fresh adjudication does not hold water since the District Forum has ordered only for refund of the amount paid by the respondents with interest.  If the appellants have aggrieved of the service rendered by their Advocate, it is for them to take a different footing in that regard if they are so advised, for which the respondent should not suffer. Accordingly we pass the following :-

Order

The appeal is DISMISSED at the state of admission.”

20.    It stands clearly from the record that in the absence of the original cheque, respondent no.1/complainant has been deprived of getting his money from the person who has issued the chequein his favour.  Moreover, the return memo returning the cheque on the ground of “insufficient fund” has not been placed on record.

21.    This plea of learned counsel for the petitioner that respondent no.1 has nowhere claimed a sum of Rs.2 lakhs in its complaint, is wholly unfounded.  District Forum in its order has directed the petitioner’s bank to return back the cheque along with necessary endorsement to respondent no.1, within thirty days.  In case, petitioner fails to return the cheque within time, then only it shall be liable to pay Rs. 2 lakhs with interest.   It was only in the event of non-return of the cheque, the cheque amount has been ordered to be paid by the petitioner to respondent no.1.  Thus, there was no illegality or infirmity in the above directions passed by the District Forum.

22.    It is well settled that under Section 21 (b) of the  Act,  scope of revisional jurisdiction is very limited.

23.    Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;

“Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums.  The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts.  This is not the manner in which revisional powers should be invoked.  In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed.  It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.”

24.    Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of the Act.  Since, two fora below have given detailed and reasoned orders which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction. Thus, present revision petition is hereby, dismissed with costs of Rs.10,000/- (Rupees Ten Thousand only).

25.    Petitioner is directed to deposit the costs of Rs.10,000/-, by way of cross cheque, in the name of “Consumer Legal Aid Account” of this Commission, within four weeks from today.  In case, petitioner fails to deposit the said costs within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.

26.    Pending application also stands dismissed.

27.    List on 25.5.2012 for compliance.

……………………………...J

(V.B. GUPTA)

 PRESIDING MEMBER

……………………………...

(VINAY KUMAR)

 MEMBER

Sonia/

Transfer of Property Act, 1882-Sec. 116-Statutory tenant, who is. Sec. 108(q)-Obligation of Sub-tenant to restore possession on determination of tenancy-Sub-tenant must restore possession to sub-tenant, unless tenant is evicted by title paramount. Rent Control & Eviction : Landlord and Tenant-Plea of eviction by title paramount-Meaning and availability of. Rajasthan Premises (Control of Rent and Eviction) Act, 1950-Section 13-Suit for eviction by tenant against sub-tenant for default in payment of rent-At the same time, suit for eviction by landlord against tenant for illegal sub-letting-Plea of direct attornment in favour of landlord by sub-tenant on institution of latter suit-Defence of eviction by paramount title holder- Availability of-Rule of Estoppel-Applicability of-Held, tenant continues to be a tenant until a decree for eviction passed by a Court achieved finality-On facts, defence of eviction of landlord by owner so as to exonerate sub-tenant from liability for eviction not available to the sub-tenant-Rule of estoppel applicable against the sub-tenant-Transfer of Property Act, 1882/Indian Evidence Act, 1872-Section 108/Section 116. Respondent and appellant are tenant and sub-tenant of the suit premises given on rent by landlord-Trust. On default of payment of rent, the respondent filed suits for recovery of arrears of rent and for eviction against the appellant under the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 before Civil Judge. The Trust also filed a suit for eviction against the respondent on the ground of unlawful sub-letting of the shop to the appellant, which is pending. The appellant contended that subsequent to the institution of the suit by the Trust for eviction against the respondent, the appellant has directly attorned in favour of the Trust and that the right of the respondent to recover rent and secure eviction against the appellant had ceased to exist. The Civil Judge by interim order, held the tenant appellant liable to deposit the determined rent in the Court. The Additional District Judge, on appeal by the appellant, held that the respondent was not entitled to claim rent and recover possession since the appellant has attorned in favour of the Trust In appeal by the respondent, the High Court held that the appellant could not directly attorned in favour of the Trust by excluding the principal tenant under the provisions of the Act A review sought by the appellant was also dismissed. Hence these appeals. Dismissing the appeals, the Court HELD : 1.1. Under the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, a tenant in relation to a sub-tenant is a landlord and the sub-tenant is a tenant in relation to the tenant who has inducted him on the premises. Further, in spite of the tenancy having come to an end under the provisions of the Transfer of Property Act, 1882 or by the terms of contract, the tenant does not cease to be a tenant and continues to hold that status until a decree for eviction under the provisions of Rajasthan Act has been passed against him. Where the tenancy premises are governed by a rent control law, merely on termination of tenancy, the tenant cannot be evicted. The tenant is entitled to continue in possession enjoying status almost on par with a person whose contractual tenancy still subsists. He cannot be evicted unless a ground for eviction under the relevant provision of rent control law is made out. He is not a tenant holding over because his tenancy is not continuing by volition or by act of the parties. Such continuance is attributable to the protection conferred by statute and, therefore, he is called a statutory tenant and his tenancy a statutory tenancy. The tenancy would determine only on a decree for eviction being passed against him. [176-H; 177-A-C] Smt. Gian Devi Anand v. Jeevan Kumar & Ors., AIR (1985) SC 796; Damadilal & Ors. v. Parashram & Ors., AIR (1976) SC 2229 and Smt. Chander Kali Bai & Ors. v. Jagdish Singh Thakur & Anr., AIR (1977) SC 2262, relied on. Kewal Ram v. Mangu Mal, AIR (1974) Raj 201, referred to. 1.2. The respondent-tenant holding the premises from the Trust would remain a tenant until the passing of a decree for eviction under Section 13 of the Rajasthan Act in the suit filed by the Trust against the respondent. In spite of a threat for eviction by the Trust against the respondent the respondent is neither liable to be evicted nor his status as tenant liable to suffer adversely except by a judicial pronouncement and that too on having achieved a finality. So far as the appellant sub-tenant is concerned, the title of the respondent-tenant would not come to an end till the passing of such decree for eviction against him. Even if the Trust has instituted a suit for eviction, the respondent-tenant has a right to contest. [177-G-H] 1.3. Rule of estoppel codified under Section 116 of the Indian Evidence Act, 1872 between a landlord and his tenant would mutatis mutandis govern a tenant and his sub-tenant in their relationship inter se. The estoppel continues to operate so long as the tenant has not openly restored possession by surrender to his landlord. The rule of estoppel ceases to have applicability once the tenant has been evicted. His obligation to restore possession to his landlord is fulfilled either by actually fulfilling the obligation or by proving his landlord's title having been extinguished by his landlord's eviction by a paramount title holder. Eviction by paramount title holder is a good defence bringing to an end the obligation of the tenant to put the lessor in possession of the property under Section 108 clause (q) of the Transfer of Property Act The burden of proving eviction by title paramount lies on the party who sets up such defence. [178-F-H] Currimbhoy & Co. Ltd. v. LA. Greet & Ors., AIR (1933) PC 29 and Mt. Bilas Kunwar v. Desraj Ranjit Singh & Ors., AIR (1915) PC 96, relied on. 1.4. To constitute eviction by title paramount so as to discharge the obligation of the tenant to put his lessor into possession of the leased premises, three conditions must be satisfied: (i) the party evicting must have a good and present title to the property; (ii) the tenant must have quitted or directly attorned to the paramount title holder against his will; and (iii) either the landlord must be willing or be a consenting party to such direct attornment by his tenant to the paramount title holder or there must be an event, such as a change in law or passing of decree by a competent court, which would dispense with the need of consent or willingness on the part of the landlord and so bind him as would-enable the tenant handing over possession or attorning in favour of the paramount title holder directly. In other words, the paramount title holder must be armed with such legal process for eviction as cannot be lawfully resisted. The burden of raising such a plea and substantiating the same, so as to make out a clear case of eviction by paramount title holder, lies on the party relying on such defence. [181-D-F] Krishna Prasad Singh v. Advanath Ghatak, ILR (1943) Patnat 513; Pusaram Maniklal Izardar v. Deorao Gopalrao Mali (minor) by guardian mother Parwati W/o Gopalrao, AIR (1947) Nagpur 188; Radheylal v. Ratansingh, (1977) MPLJ 335; Gajadhar Lodha v. Khas Mahatadih Colliery Co. & Ors., AIR (1959) Patna 562 and Sain Dar v. Sant Ram, AIR (1959) Punj 564, approved. 1.5. The respondent cannot be said to have been evicted by title paramount. It cannot be said that the respondent-tenant does not have any defence nor can he lawfully resist the suit filed by the owner Trust The plain and simple legal position which flows is that the appellant must discharge his statutory obligation to put his landlord, that is, the respondent in possession of the premises in view of the latter's entitlement to hold the tenancy premises until his own right comes to an end and the respondent must discharge his statutory obligation to put his own landlord, that is the Trust, in possession of the tenancy premises on his entitlement to hold the tenancy premises coming to an end. [182-C] 1.6. The plea of eviction by paramount title is not available to the appellant for three reasons : (i) it cannot be said that the Trust is armed with a legal process for eviction which cannot be lawfully resisted by the tenant-respondent or to which he has no defence; (ii) the attornment by the appellant in favour of the Trust is voluntary and not under any compulsion; and (iii) it cannot be said that the Trust has such good and present title against the tenant-respondent so as to hold the appellant liable to be evicted against his will. In view of the respondent's relationship with the Trust being one governed by the provisions of the rent control law, his title as tenant and hence as landlord as against the sub-tenant appellant will not come to an end unless and until the suit for eviction filed by the Trust against the respondent is decreed and the decree has achieved finality. [183-E-F] D. Satyanarayana v. P. Jagdish, AIR (1987) SC 2192, distinguished. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5467 of 1998. 2002 AIR 569, 2002( 1 )SCR 171, 2002( 2 )SCC 50, 2002( 1 )SCALE123 , 2002( 1 )JT 97

CASE NO.:
Appeal (civil) 5467  of  1998



PETITIONER:
VASHU DEO

Vs.

RESPONDENT:
BAL KISHAN

DATE OF JUDGMENT: 11/01/2002

BENCH:
R.C. Lahoti & Brijesh Kumar




JUDGMENT:

WITH
CIVIL APPEAL No.5468 OF 1998

JUDGMENT

R.C. Lahoti, J.

The suit property consists of a shop.  It forms part of a building
owned by Sarvjanik Sampati Trust (hereinafter, the 'Trust', for short).
On 1.1.1973 the shop was taken on rent by Balkishan, the plaintiff -
respondent on a monthly rent of Rs.30/-.  On 25.12.1975 Balkishan
sub-let the shop to Vasudev, the defendant-appellant, on a monthly
rent of Rs.150/-.  The suit shop is governed by the provisions of the
Rajasthan Premises (Control of Rent and Eviction) Act, 1950
(hereinafter the 'Act', for short).

The appellant fell into arrears of rent for the period 1.1.1981 to
31.12.1982.  The respondent served a notice on the appellant and then
filed a suit for recovery of arrears of rent as also for eviction on the
ground available under clause (a) of sub-section (1) of Section 13 of
the Act.  On 30.3.1983, the Trust also filed a suit for eviction, against
its own tenant- the respondent, on the ground of unlawful sub-letting
of the premises by the latter. That suit is still pending.  In any case,
the result thereof is not known.  So far as the case before us is
concerned, the defendant-appellant raised a dispute putting in issue
the rate of rent at which the respondent could recover rent from the
appellant submitting that the agreed rent was in excess of the standard
rent and hence was not recoverable.  Another plea taken by the
defendant-appellant was that subsequent to the institution of suit on
30.3.1983 by the Trust against the respondent, the appellant has on
1.4.1983 directly attorned in favour of the Trust and entered into a
direct tenancy agreement and therefore, w.e.f. 1.4.1983, the right of
the respondent to recover rent and secure eviction of the appellant had
come to an end. On 25.7.1985, the learned Civil Judge, Bhilwara
passed an order under Section 13(3) of the Act determining
provisionally the rate of rent at which the appellant was required to
deposit rent in the Court.  This order dated 25.7.1985 was put in issue
by the appellant by filing an appeal in the court of Additional District
Judge, Bhilwara. Vide  order dated 14.5.1992, the learned Additional
District Judge allowed the appeal, and set aside the order of the trial
court, forming an opinion that in view of the appellant having attorned
and entered into direct tenancy with the Trust, the respondent was not
entitled to claim rent and recover possession from the appellant, and
therefore, the suit filed by the respondent could not be treated as a suit
for eviction; it remained only a suit for recovery of arrears of rent for
the period upto 31st March, 1983.  The respondent preferred a Civil
Revision Petition to the High Court which was resisted by the
appellant placing reliance on a Single bench decision of Rajasthan
High Court in Kewal Ram v. Mangu Mal, AIR 1974 Raj. 201. When
the Revision Petition came up for hearing before the learned Chief
Justice of the High Court, he doubted the correctness of the decision
in Kewal Ram's case and directed the  petition to be placed for
hearing before a Division Bench.  By order dated 22.8.1996, the
Division Bench has overruled the Single Bench decision in Kewal
Ram's case and held that the relations, rights and obligations of the
parties were governed by Section 13 of the Act and the sub-tenant
(appellant herein) inducted by the tenant (respondent herein) could not
directly attorn in favour of the Trust by excluding the principal tenant,
and therefore, was bound to comply with the order of the trial court
under Section 13(3) of the Act. The appellant sought for a review of
the order of the Division Bench which has been rejected by order
dated 23.3.1998.  These appeals have been filed impugning the orders
dated 22.8.1996 and 23.3.1998 passed by Division Bench of the High
Court.

The issue arising for decision is :  whether a sub-tenant
inducted by a tenant in the premises governed by the provisions of
rent control law can, during the continuance of sub-tenancy and
without vacating the premises, attorn in favour of the owner of the
premises and thereby refuse to discharge his obligations towards the
tenant who admittedly inducted him in the premises? Strong reliance
has been placed on behalf of the appellant on a decision of this Court
in D. Satyanarayana v. P. Jagdish, AIR 1987 SC 2192 to which we
will advert a little later.

Reference to a few relevant provisions of Rajasthan Premises
(Control of Rent and Eviction) Act, 1950,  would be appropriate.
'Landlord' is defined by clause (iii) of Section 3 to mean 'any person
who for the time being is receiving or is entitled to receive the rent of
any premises as an agent, trustee, guardian or receiver for any other
person or who would so receive or be entitled to receive the rent, if
the premises were let to a tenant.  The definition specifically provides
that 'Landlord' includes a tenant in relation to a sub-tenant. Clause
(iv) defines 'lease' as including a sub-lease. 'Tenant', according to
clause (vii), means inter alia the person by whom or on whose account
or behalf rent is, or, but for a contract express or implied would be,
payable for any premises to his landlord including the person who is
continuing in possession of the premises after the termination of his
tenancy otherwise than by a decree for eviction passed under the
provisions of this Act. Section 13 which opens with a non-obstante
clause, giving it an overriding effect over any other law or contract,
enjoins a court not to pass any decree or make any order in favour of
the landlord evicting the tenant unless a case for eviction was made
out within the four corners of Section 13.  The effect of a combined
reading of these several provisions is to spell out two very relevant
and significant implications.  Firstly, a tenant in relation to a sub-
tenant is a landlord and the sub-tenant is a tenant in relation to the
tenant who has inducted him on the premises.  Secondly, inspite of the
tenancy having come to an end  under the provisions of the Transfer
of Property Act, or by the terms of contract, the tenant does not cease
to be a tenant and continues to hold that status unless and until a
decree for eviction under the provisions of this Act has been passed
against him.  Where the tenancy premises are governed by rent control
law, merely on termination of  tenancy the tenant  cannot be evicted;
the tenant is entitled to continue in possession enjoying status almost
on par with a person whose contractual tenancy still subsists. He
cannot be evicted unless a ground for eviction under the relevant
provision of rent control law is made out.  He is not a tenant holding
over because his tenancy is not continuing by volition or by act of the
parties.  Such continuance is attributable to the protection conferred
by statute and therefore, he is called a statutory tenant and his tenancy
a statutory tenancy (See Smt.Gian Devi Anand v. Jeevan Kumar &
Ors.: AIR 1985 SC 796 and Damadilal & Ors. v. Parashram & Ors.:
AIR 1976 SC 2229).  The tenancy would determine only on a decree
for eviction being passed against him. In Smt. Chander Kali Bai &
Ors. v. Jagdish Singh Thakur and another : AIR 1977 SC 2262, this
Court has held that a person continuing in possession of the
accommodation after the termination of his contractual tenancy is yet
a tenant within the meaning of the relevant rent control legislation and
on such termination, his possession does not become wrongful until
and unless a decree for eviction is made against him.  If he continues
to be in possession after the passing of the decree then he is in
wrongful occupation of the premises.  In spite of the termination of
tenancy by contract or under the general law (other than rent control
law), the tenant continues to be a tenant liable to pay rent and is not
liable to pay any damages as his occupation is not unauthorized or
wrongful until the passing of decree for eviction.

In the case at hand it is not disputed that the Rajasthan Premises
Act applies to the suit premises.  It follows that while working out
relations of the parties inter se the provisions of the Rajasthan
Premises Act shall have to be kept in view.  The respondent-tenant
holding the premises from the Trust would remain a tenant until the
passing of a decree for eviction on one of the grounds contemplated
by Section 13 of the Act in a suit filed by the Trust - the owner of the
property, against the tenant-respondent.  In spite of a threat for
eviction by the Trust against the respondent, the respondent is neither
liable to be evicted nor his status as tenant liable to suffer adversely
except by a judicial pronouncement and that too on having achieved a
finality. In short, so far as the appellant sub-tenant is concerned the
title of the respondent tenant would not come to an end till the passing
of such decree for eviction against him.  Even if the Trust has
instituted a suit for eviction the respondent-tenant has a right to
contest.  The suit may or may not be decreed.  If the suit is dismissed
how can it be said that the 'threat of eviction' by the Trust had
resulted in respondent's eviction by title paramount?
We now proceed to examine whether the appellant could have
directly  attorned to the owner-Trust by-passing the respondent-tenant
on 1.4.1983, relying on the event of institution of  suit for eviction by
the owner Trust against the tenant-respondent on 30.3.1983 and
whether the said event enables successfully raising of the plea of
tenant-respondent's eviction by paramount title, bringing the
obligation of the appellant sub-tenant to deliver possession over the
tenancy premises to the respondent and to pay rent to him till that
date?  Under Section 108 clause (q) of the Transfer of Property Act, in
the absence of contract or local usage to the contrary, it is an
obligation of the tenant to put his lessor into possession of the
property on the termination of the lease.  Section 116 of the Evidence
Act, which codifies the common law rule of estoppel between
landlord and tenant, provides that no tenant of immovable property or
person claiming through such tenant, shall, during the continuance of
the tenancy, be permitted to deny that the landlord of such tenant had
at the beginning of the tenancy, a title to such immovable property.
The rule of estoppel so enacted has three main features : (i) the tenant
is estopped from disputing the title of his landlord over the tenancy
premises at the beginning of the tenancy; (ii) such estoppel continues
to operate so long as the tenancy continues and unless the tenant has
surrendered possession to the landlord; (iii) Section 116 of Evidence
Act is not the whole law of estoppel between landlord and tenant.  The
principles emerging from Section 116 can be extended in their
application and also suitably adapted to suit the requirement of an
individual case.  Rule of estoppel which governs an owner of an
immovable property and his tenant would also mutatis mutandis
govern a tenant and his sub-tenant in their relationship inter se.  As
held by the Privy Council in Currimbhoy & Co.Ltd. v. L.A.Creet &
Ors.: AIR 1933 PC 29 and Mt. Bilas Kunwar v. Desraj Ranjit Singh
and Ors. : AIR 1915 PC 96, the estoppel continues to operate so long
as the tenant has not openly restored possession by surrender to his
landlord.  It follows that the rule of estoppel ceases to have
applicability once the tenant has been evicted. His obligation to
restore possession to his landlord is fulfilled either by actually
fulfilling the obligation or by proving his landlord's title having been
extinguished by his landlord's eviction by a paramount title holder.
Eviction by paramount title holder is a good defence bringing to an
end the obligation of the tenant to put the lessor in possession of the
property under Section 108 (q) of the Transfer of Property Act. The
burden of proving eviction by title paramount lies on the party who
sets up such defence.

What is eviction by title paramount?  In Krishna Prasad Singh
v. Adyanath Ghatak : ILR 1943 Patna 513, Meredith, J. speaking for
the Division Bench and on a review of judicial opinion stated the law
in the following terms:

"To constitute eviction by title paramount no
physical dispossession is necessary.  If the true
owner is armed with a legal process for eviction,
which cannot be lawfully resisted, even though the
tenant is not put out of possession the threat to put
him out of possession  amounts in law to eviction.
If in such circumstances the tenant openly and to
the knowledge of his landlord attorns to the true
owner the estoppel is gone.

The attornment, however, must be under
compulsion.  The party evicting must have a good
and present title, and the tenant must have quitted
against his will."


It was further held in Krishna Prasad Singh's  case (supra) that
there is all the difference between mere voluntary attornment and
attornment under compulsion; a mere voluntary attornment would not
enable the tenant pleading eviction by title paramount nor will the
mere institution of a suit against the landlord by the true owner be
enough. An unexecuted decree for possession obtained by a third
party does not per se operate as an eviction of the tenant by title
paramount, liberating him from the estoppel against pleading jus
tertia. This decision was followed by Bose, J. in Pusaram Maniklal
Izardar v. Deorao Gopalrao Mali (minor) by guardian mother
Parwati W/o Gopalrao : AIR 1947 Nagpur 188. Vide para 20,  Bose,
J. summed up the facts in the following words:

"If A lets land to B and B enters into possession
under the lease, B is bound to return possession to
A on the expiry of the lease and he will not be
allowed to set up the right or title of a third party
C.  If A directs B to surrender possession to C that
might be a different matter.  But here there was no
direct communication between A and B.  What
happened was that A told C that C could enter into
possession when the lease expired but before that
happened A changed his mind and demanded
possession from his lessee."


In these facts it was held that once A demanded possession
from B, then B cannot be heard to say in answer to that demand that C
has right against A.  A was held entitled to the decree for possession
against B.

A decision by Madhya Pradesh High Court in Radheylal v.
Ratansingh : 1977 MPLJ 335 bears a close resemblance with the facts
of the case at hand.  The suit premises were owned by the
municipality and on 21.11.1960 taken on rent by the plaintiff. They
were let out by the plaintiff to the defendant .  On 30.1.1963 plaintiff
determined the tenancy of the defendant and demanded arrears of rent
as also the possession. On defendant's failure, the plaintiff filed a
suit.  The defendant, while admitting that the suit premises were
initially let out to him by the plaintiff, inter alia contended that the
rules of the municipality prohibited sub-letting of the premises and as
dispute was going on between the plaintiff and the municipality, the
defendant had applied to the municipality for grant of lease to him of
the suit premises which was agreed to, and since the year 1962 the
defendant had become tenant of the municipality.  Referring to
Section 108 (q) of the Transfer of Property Act, the Madhya Pradesh
High Court held that the obligation of the tenant to hand over
possession to the landlord on determination of tenancy cannot be
escaped by the tenant contending that he has entered into a contract of
tenancy with a person who has paramount title over his landlord and
by voluntarily entering into contract with a person from whom his
lessor was holding the lease.  The landlord's tenancy had not come to
an end by operation of law, and therefore, in the opinion of the
Madhya Pradesh High Court, the sub-tenant's voluntarily becoming
the tenant of the municipality and that too without the consent of the
plaintiff (that is, his own landlord) could not be set up as a defence for
discharging his obligation under section 108 (q) of the Transfer of
Property Act.  Yet another reason on account of which the defendant
was held not entitled to save his possession on the basis of his having
allegedly become the tenant of the municipality was that such
transaction had taken place during the pendency of the suit between
his landlord and himself and therefore, it was hit by the provisions of
Section 52 of the Transfer of Property Act.  The defendant being in
actual physical possession of the premises was held bound to deliver
possession to the plaintiff.

In Gajadhar Lodha v. Khas Mahatadih Colliery Co.& Ors. :
AIR 1959 Patna 562 the following statement of law from Foa's
General Law of Landlord and Tenant (Eighth Ed. p.194), has been
quoted with approval by the Division Bench  "Eviction by title
paramount means an eviction due to the fact that the lessor had no title
to grant the term, and the paramount title is the title paramount to the
lessor which destroys the effect of the grant and with it the
corresponding liability for payment of rent, so that mere eviction
from, or a deprivation of the use and enjoyment of the demised
premises, or part of them, whether such eviction be lawful or
unlawful, is insufficient, where the lessor's title is not affected or
called in question."  To constitute a good defence of eviction by title
paramount, three conditions must be fulfilled: (1) The eviction must
have been from something actually forming part of the premises
demised; (2) the party evicting must have a good title superior to that
of the lessor and that of the lessee, and (3) the tenant must have
quitted against his will.    In Sain Dar v. Sant Ram : AIR 1959 Punj
564 it has been held that even if not actually evicted, if a judgment of
eviction has been passed against the tenant, he can repudiate the title
of his immediate landlord.  But the mere fact of an apprehension that a
suit for eviction might be brought by the paramount landlord does not
justify denial of title of landlord and attornment to paramount
landlord.  We find ourselves in agreement with the above said judicial
opinion and sum up the law as follows:

To constitute eviction by title paramount so as to discharge the
obligation of the tenant to put his lessor into possession of the leased
premises three conditions must be satisfied: (i) the party evicting must
have a good and present title to the property;, (ii) the tenant must have
quitted or directly attorned to the paramount title holder  against his
will: (iii) either the landlord must be willing or be a consenting party
to such direct attornment by his tenant to the paramount title holder or
there must be an event, such as a change in law or passing of decree
by a competent court, which would dispense with the need of consent
or willingness on the part of the landlord and so bind him as would
enable the tenant handing over possession or attorning in favour of the
paramount title holder directly; or, in other words, the paramount title
holder must be armed with such legal process for eviction as cannot
be lawfully resisted. The burden of raising such a plea and
substantiating the same, so as to  make out a clear case of eviction by
paramount title holder, lies on the party relying on such defence.

The appellant has on 25.12.1975, obtained the premises on rent
from the respondent and was inducted into possession by the
respondent. The title of the respondent to lease out the suit premises
and to induct the appellant cannot be denied or disputed by the
appellant so long as his sub-tenancy continues and he is in possession
thereunder.  On 30.3.1983, the Trust instituted a suit for eviction
against the respondent and soon on 1.4.1983 the appellant voluntarily
attorned in favour of the Trust without the consent of the respondent
and without any compulsion.

We have already stated that the respondent's tenancy in the suit
premises will not come to an end unless and until a decree for eviction
on one of the grounds available under the Rajasthan Act has been
passed against him and termination of his tenancy upheld by a judicial
verdict. Till then he would remain a tenant of the Trust.  Mere
institution of a suit for eviction by the Trust, the owner of the
property, against the respondent does not bring the tenancy of the
respondent to an end.  The respondent cannot be said to have been
evicted by title paramount.  It cannot be said that the respondent-
tenant does not have any defence nor can he lawfully resist the suit
filed by the owner Trust.  The plain and simple legal position which
flows is that the appellant must discharge his statutory obligation to
put his landlord, that is, the respondent in possession of the premises
in view of the latter's entitlement to hold the tenancy premises until
his own right comes to an end and the respondent must discharge his
statutory obligation to put his own landlord, that is, the Trust, in
possession of the tenancy premises on his entitlement to hold the
tenancy premises coming to an end.

We may now deal with D. Satyanarayana's case (supra) relied
on by the learned counsel for the appellant.  A suit for eviction from
the demised premises was decreed under Section 10(2) (vi) of the
Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act,
1960 which provides for eviction of a tenant if the tenant has denied
the title of the landlord or claimed a right of permanent tenancy and
such denial or claim was not bona fide. The limited question arising
for decision before this Court was whether the appellant was estopped
from denying the title of the lessor under Section 116 of the Evidence
Act, 1872 despite the fact that there was threat of eviction by the
owner of the demised premises by a person having title paramount so
as to examine whether such denial could be said to be bona fide or
not.  There was no dispute on facts.  The statement of facts as set out
in the judgment of this Court shows that the appellant was
'constrained to attorn in favour of the original lessor'.  The High
Court had upheld the decree of eviction passed by the Trial Court
resting its judgment on the rule of estoppel.  This Court stated the rule
of estoppel and set out the well-settled exceptions to which the
general rule of estoppel between landlord and tenant is subject :
firstly, a tenant is not precluded from denying the derivative title of
the persons claiming through the landlord; secondly, the estoppel is
restricted to the denial of the title at the commencement of the
tenancy, that is, it is open to the tenant even without surrendering
possession to show that since the date of the tenancy, the title of the
landlord came to an end or that he was evicted by a paramount title
holder or that even though there was no actual eviction or
dispossession from the property, under a threat of eviction he had
attorned to the paramount title holder. That there was threat of
eviction and as a result of such threat the tenant attorned to the real
owner was opined to be sufficient to constitute eviction by title
paramount, however, this Court has  emphatically  stated that if the
tenant gives up possession voluntarily to the title holder, he cannot
claim the benefit of this rule. The judgment of this Court in D.
Satyanarayana's case has to be read as laying down that in the facts
of that case the plea of the tenant that his landlord's title had come to
an end did not amount to a denial or claim which was not bona fide so
as to attract applicability of clause (vi) of sub-section (2) of Section 10
of the A.P. Buildings Control Act.   The common law rule of estoppel,
as codified in Section 116 of Evidence Act and its exceptions have
been dealt with for determining the core issue whether the tenant
denying title of landlord could be said to have done so bona fide or
not.  In D. Satyanarayana's case nowhere this Court has examined
whether the relationship between the alleged paramount title holder
and the landlord was governed by rent control law or not, nor the
question of obligation of tenant to hand over possession to his
landlord under Section 108 (q) of Transfer of Property Act came up
for consideration.  These are the features which distinguish  D.
Satyanarayana's case from the case before us.  In the case before us
the plea of eviction by paramount title is not available to the appellant
for three reasons : firstly, it cannot be said that the Trust is armed with
a legal process for eviction which cannot be lawfully resisted by the
tenant-respondent or to which he has no defence; secondly, the
attornment by the appellant in favour of the Trust is voluntary and not
under any compulsion; and thirdly, it cannot be said that the Trust has
such good and present title against the tenant-respondent so as to hold
the appellant liable to be  evicted against his will.  As already stated,
and even at the risk of repetition, it has to be emphasised that, in view
of the tenant-respndent's relationship with the Trust being one
governed by the provisions of the rent control law, his title as tenant
(and hence as landlord as against the sub-tenant appellant) will not
come to an end unless and until the suit for eviction filed by the Trust
against the respondent is decreed and the decree has achieved finality.
For the foregoing reasons, the appeals are dismissed with costs.


.J.
( R.C. Lahoti )



.J.
( Brijesh Kumar)
January 11, 2002

The initiation of eviction proceedings against the defendant-tenant under the Public Premises(Eviction of Unauthorised Occupants) Act in the year 2007 cannot come to its rescue since it is the eviction of the plaintiff–lessee by the title paramount i.e. Delhi Development Authority which would have made the difference as far as the plaintiff’s right to claim possession from the defendant is concerned. In this regard a useful reference can be made to a judgment of the Supreme Court in “Vashu Deo vs. Balkishan” reported as (2002) 2 Supreme Court Cases 50 in which the facts were that the tenant of the disputed shop had sublet the same and because of that subletting the landlord, which was a Trust, had initiated eviction proceedings against the tenant. The tenant had also initiated separate proceedings against his sub-tenant for eviction on account of non-payment of rent for some period. The sub-tenant had attorned directly in favour of the owner-Trust and a direct tenancy agreement had also been executed between them. The sub-tenant had resisted the eviction petition filed against him by his landlord on the ground of his having attorned directly in favour of the superior lessor i.e. the owner Trust. Accepting that plea, the trial Court dismissed the eviction petition. However, the High Court held that the sub-tenant could not have directly attorned in favour of the Trust and eviction of the tenant was ordered. The sub-tenant then approached the Supreme Court but his appeal was dismissed and it was observed that mere institution of a suit for eviction by the Trust against its tenant will not REVIEW APPLICATION NO. 409/2011 IN RFA NO. 490/2007 Page 11 of 12 amount to eviction of the tenant by title paramount and that the relationship between the Trust and its tenant would not come to an end unless and until the eviction case filed by the Trust was decreed and that decree had attained finality. In the present case, as noticed already, there is nothing on record to show that DDA had initiated any proceedings for eviction of the plaintiff under the provisions of the Public Premises(Eviction of Unauthorised Occupants) Act and so there is no question of eviction of the plaintiff by title paramount. Consequently, the defendant was estopped from contending that after creation of the tenancy with the plaintiff its title to the premises in dispute had extinguished because of its eviction by title paramount………....................................... I am, therefore, of the view that the learned trial Court had rightly rejected the plea of the defendant that the suit for possession was not maintainable because of the cancellation of the lease in respect of the land underneath the premises in dispute in favour of the plaintiff by DDA.”

REVIEW APPLICATION NO. 409/2011 IN
RFA NO. 490/2007           Page 1 of 12
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
% REVIEW APPLICATION NO. 409/2011
                                              IN
RFA NO. 490/2007
+                                            Date of Decision: 16
th
April, 2012
HOLIDAY HOME        .....Appellant/Review Petitioner
!                              Through:  Mr.G.L.Rawal, Sr. Adv. with
        Mr. Rajesh Rawal, Adv.
     
Versus
$ R.P. KAPUR  HUF    .….Respondent
                                                        Through:Mr.K.R.Chawla, Advocate
       
         CORAM:
*       HON'BLE MR. JUSTICE P.K.BHASIN
                                                   ORDER
P.K.BHASIN, J:
This  review application has been filed by the unsuccessful
appellant-defendant for  reviewing the judgment dated 20
th
December,
2010 whereby the appeal filed by it against the judgment and decree
passed by the trial Court in a suit for possession and mesne profits etc. REVIEW APPLICATION NO. 409/2011 IN
RFA NO. 490/2007           Page 2 of 12
filed against it by the respondent-plaintiff directing its eviction from the
suit property, was dismissed by this Court.
2. The facts which only are relevant for the disposal of this review
application may be noticed first. The respondent-plaintiff (hereinafter to
be referred as ‘the plaintiff’) had filed a suit for recovery of possession,
mesne profits etc. against the  review  petitioner/appellant/defendant
(‘hereinafter to be referred as ‘the defendant’) inter-alia, in respect of the
suit property on the ground that after the termination of its tenancy it had
no right to remain in possession of the suit property which was let out to
it by the plaintiff in the year 1980. The defendant had contested the suit,
inter-alia, on the grounds that the plaintiff had no locus standi to file the
suit as it was not the owner of the suit property.
3. During the trial, the defendant had examined one official from the
Delhi Development Authority as one of its witnesses and he had deposed
that the lease of the land on which the suit property was built had been
cancelled in the year 1972 and its formal(symbolic) possession was taken
over in the year 1984(as noticed already the suit property was let out to
the defendant by the plaintiff in the year 1980).  Relying upon that
statement of its defence witness the defendant had urged before the trial
Court that with the cancellation of the lease of the land by DDA the
plaintiff could not maintain the suit for possession etc. The learned trial
Court dealt with this submission in its judgment in the following
manner:-REVIEW APPLICATION NO. 409/2011 IN
RFA NO. 490/2007           Page 3 of 12
“8.2.……… According to the statement of DW-9 Shri Satya Pal Singh,
LDC, Land & Building (R),Vikas Sadan, Delhi, the lease was
terminated during 1972 followed by appeals or representations in
different forums. Fourthly, the Delhi Development Authority has
cancelled the Lease Deed of the property and there is a re-entry, as
narrated by witness DW-9, therefore, the Delhi Development
Authority being a paramount lessor is owner of the property. Since,
the Delhi Development Authority has cancelled the lease………… the
plaintiff had no authority either to file the present suit or to issue the
alleged notice in the year 1995, as the plaintiff has no locus standi.
………………………
8.4(ii)  Since, the defendant has been brought in the premises as
tenant and the defendant was also paying agreed rent to the plaintiff,
therefore, by virtue of cancellation  of Lease Deed would not
tantamount to be negating the status of the plaintiff as
landlord………………………………………………………...
…………. The witness DW-9 also narrates that an appeal is also
pending before the Lt. Governor of Delhi in respect of cancellation of
Lease Deed, therefore, the circumstances suggest that Delhi
Development Authority has not possessed the premises physically. The
literal meaning of re-entry, being relied by the defendant is of no
avail…………………….
8(v) In view of my analytical discussion on the point 8.4(i) to (iv),
above, it is vividly clear that the plaintiff has locus standi to file the
present suit……………………….”
4. Finally, the suit came to be decreed in favour of the plaintiff and
the defendant was directed to vacate the suit property. Feeling aggrieved
by the decision of the trial Court, the defendant had filed an appeal before
this Court. During the pendency of the appeal the defendant had filed an
application under Order XLI Rule 27 CPC(being C.M.No. 9422/09)
seeking permission to place on record certain documents which showed
that the Estate Officer had already initiated proceedings under the PublicREVIEW APPLICATION NO. 409/2011 IN
RFA NO. 490/2007           Page 4 of 12
Premises(Eviction of Unauthorized Occupants) Act for the eviction of the
defendant from the suit property as a result of  the  cancellation of the
lease of the land under the suit property  by the Delhi Development
Authority, the paramount lessor. In respect of that application this Court
had recorded the consent of the counsel for the plaintiff on 21.07. 2009
that those documents could be taken into consideration by this Court
while deciding the appeal but without prejudice to its stand  that the ongoing proceedings before the Estate Officer had no effect on the
plaintiff’s right to get back  the possession of the suit property from the
defendant .
5. Before this Court also Shri G.L.Rawal, the learned senior counsel
for the defendant had mainly pressed into service the point that as a result
of the cancellation of the lease of the land underneath the suit property
the plaintiff was left with no right to seek possession from the defendant.
That plea was, however, rejected by this Court and the appeal was
dismissed vide judgment dated 20
th
December, 2010.
6. Aggrieved by the judgment of dismissal  of its appeal, the  review
petitioner/appellant filed a Special Leave Petition before the Supreme
Court which was disposed of  vide order dated  25
th
April, 2011 which is
re-produced below:-
“This Court has heard the learned counsel for the parties. The
learned counsel for the petitioner seeks permissions to withdraw the
Petition with a view to filing review application before the High
Court. Permission, to withdraw the Petition, as prayed for, is granted.
The Special Leave Petition stands disposed of as withdrawn.”REVIEW APPLICATION NO. 409/2011 IN
RFA NO. 490/2007           Page 5 of 12
7. Thereafter, the present review application was filed by the
defendant wherein it had prayed for the review of the judgment dated 20
th
December, 2010 passed by this Court dismissing its appeal. It was filed
primarily on the ground that even though certain documents  were placed
on record by the defendant along with an application under Order XLI
Rule 27 CPC, referred to already, and those documents showed  that the
DDA had not only re-entered the suit property but eviction proceedings
against the defendant-appellant had also been initiated by the Estate
Officer under the Public Premises(Eviction of Unauthorized Occupants)
Act, 1971 but still this Court had while dismissing the defendant’s appeal
observed in its judgment that the there was nothing on record to show
that eviction proceedings had been initiated against the plaintiff by the
Estate Officer. Relevant averments in the review  application are  reproduced below:-
“2 Meanwhile the Estate Officer of Delhi Development Authority
started eviction proceedings against both the parties on the premises
that since lease hold rights of the Respondent has been
cancelled/withdrawn and having lost title as such is not entitled to
hold possession constructively and physically and eviction order is
sought to be passed. Similarly plea was taken against Petitioner/
review Petitioner that they are liable to be dispossessed as,
Respondent has lost lease hold rights from Permanent Lease Holder,
i.e. President of India acting through Delhi Development Authority.
3. Show Cause Notice was issued to both the parties from the office
of Estate Officer of Delhi Development Authority of the said property
in dispute and in response to Show Cause Notice both the parties filed
their respective replies. The review Petitioner took a plea before the
Ld. Estate Officer that they are ready and willing to pay rent to Delhi
Development Authority attorney to the Delhi Development Authority REVIEW APPLICATION NO. 409/2011 IN
RFA NO. 490/2007           Page 6 of 12
as its lessor/landlord and that possession of review Petitioner cannot
be disturbed on this ground also.
4        This Ld. Court was pleased to hear the arguments on various
dates and was concluded on 21
st
July 2009 and by means of Judgment
of 20
th
December 2010 the appeal was dismissed.  It is relevant to
mention that during the course of hearing of the said appeal before
this Ld. Court, Respondent also argued to the pendency of the matter
before Estate Officer and the respective replies having filed and even
certain documents were placed on record of this Ld. Court.
5. During the course of hearing the review petitioner through their
counsel also addressed this Ld. Court on this aspect while submitting
therein that eviction proceedings are pending before Estate Officer
and said defence have been taken by Appellant/ review Petitioner and
if that matter had been considered possibly that fate of the appeal
would not have been as held by this Ld. Court.
9.       Despite of the aforesaid submissions and even certain
documents were placed on record which still form the part of the
record of the proceedings of eviction before Estate Officer and was
also not disputed during the course of hearing. Whereas this Ld.
Court with utmost respect wrongly may be as per oversight on
account of lapse of  time observed in para 14 of the Judgment that
there is nothing on record to show that any eviction proceedings have
been initiated against Plaintiff by Delhi Development Authority or
that any eviction order has been passed against it by the Estate
Officer. Further, it is observed that initiation of eviction proceedings
against defendant/ tenant under PP Act cannot come to the rescue
since it is a eviction of Plaintiff lease by the title.  Paramount. With
regard it is submitted that the observation made that  no eviction
proceedings have been lodged against Plaintiff against record are or
there is nothing on record to show accordingly are not
correct…………………………………………………….What is the effect
of lodging eviction proceedings against Plaintiff  and holding that
there  is nothing on record that eviction proceedings are pending
against Plaintiff is error apparent to the face of record and the
findings are contrary not only to the correct position but
material/evidence are available on record whereas the Ld. Court, with
utmost respect, has wrongly observed that there is nothing on record
or true that Delhi Development Authority has initiated proceedings
against Plaintiff. If these facts have correctly been looked into, the REVIEW APPLICATION NO. 409/2011 IN
RFA NO. 490/2007           Page 7 of 12
fate of the appeal would be otherwise. From the submissions as above
said serious error is apparent on the face of the record.”  
8. In this regard the learned senior counsel Mr.G.L.Rawal drew my
special attention to the  following observations made by me in para no.14
of the judgment:-
“14…………………there is nothing on record to show that actually
any eviction proceedings had been initiated against the plaintiff by
DDA or that any eviction order had been passed against it by the
Estate Officer…………….”
9. Referring to these lines in para 14 of the judgment Mr. Rawal had
vehemently argued that if this Court had taken note of the fact that the
defendant had placed on record all the documents alongwith its
application under Order XLI Rule 27 CPC showing that already eviction
proceedings had been initiated by the Estate Officer and if those
documents had been noticed the fate of the appeal might have been
different.
10. A reply was  filed by the counsel for the plaintiff to this review
application wherein it was pleaded that:-
“2) With regard to para  2 of the application it is admitted to the
extent that the Estate Officer of Delhi Development Authority(DDA)
has started eviction proceedings against Shri R.P. Kapur. It is denied
that the leasehold right of the respondent has been withdrawn and
having lost the title as alleged. It is also denied that the respondent is
not entitled to hold possession as alleged. It is denied for want of
knowledge that any Notice has been issued to the Appellant. In the
Notice issued by DDA to the Respondent there is no mention of the
name of the Appellant nor has anybody appeared before the Estate
Officer in the presence of the representatives of the Respondent. It is
submitted that the Appellant if appeared before the Estate Officer is at REVIEW APPLICATION NO. 409/2011 IN
RFA NO. 490/2007           Page 8 of 12
the back of the Respondent or in the absence of the Respondent. The
Appellant has not been given a copy of the alleged reply having being
filed before the Estate Officer by the appellant.
4)      With regard to para 4 of the reply so far as it is a matter of
record and needs no reply and the rest of the para is wrong and the
same is denied. This Hon’ble Court has already dealt in detail in the
judgment that even if eviction proceedings are initiated under the
Public Premises (Eviction of Unauthorized Occupants) Act 1971
would not entitle the tenant to resist the Plaintiff/Landlord prayer for
decree of possession after termination of tenancy.
9)       With regard to para 9 of the reply it is a matter or record and
needs no reply and the rest of the para is wrong and the same is
denied.  However, this Hon’ble Court has rightly observed in the
judgment dated 20
th
December, 2010 that initiation of eviction
proceedings against the Defendant/tenant under Public Premises Act
cannot come to the rescue of the Appellant/Tenant and rest of the para
is absolutely wrong and hence vehemently denied.”
11. In order to find out whether this Court  actually committed  any
factual error which is apparent on the face of the record, as is the
grievance of the review-petitioner, it would be appropriate to go to those
paras of the judgment  sought to be reviewed  where the submissions
advanced from both the sides on this aspect of the matter were dealt with.
Those paras are re-produced below:-
“9………………………….The first ground of challenge put in the
forefront by Mr. Rawal, learned senior counsel for the appellant, was
that the perpetual lease in respect of the land underneath the building
which was let out to the defendant having admittedly been cancelled
way back in the year 1972 and the premises re-entered
also(symbolically) in the year 1984, as had been confirmed during
defendant’s evidence by the official from Delhi Development Authority
examined by the defendant as DW-9, the plaintiff could not have been
given a decree of possession in respect of the property which belonged
to the Government. In support of this submission Mr.Rawal drew my
attention to the cross-examination of PW-1 Shri R.P.Kapoor,  who REVIEW APPLICATION NO. 409/2011 IN
RFA NO. 490/2007           Page 9 of 12
was the karta of plaintiff, R.P.Kapoor(HUF), and also the defendant’s
landlord, where he had admitted that the lease of the premises in suit
had been cancelled by the DDA on account of misuse. My attention
was also drawn to the evidence of defence witness DW-9, an official
from DDA, who had deposed that the lease of the premises in question
stood cancelled in the year 1972 but later on the Lt. Governor had
restored the same on certain conditions but since the plaintiff had not
fulfilled those conditions the termination of the lease was maintained
by the Lt. Governor and formal possession was taken over by the
Junior Engineer on 13/07/84 and eviction proceedings were ordered
to be initiated by the Estate Officer under the Public
Premises(Eviction of Unauthorised Occupants) Act,1971. Mr. Rawal
contended that even though physical possession of the premises was
not taken over from the plaintiff but for all practical purposes it stood
taken over from the plaintiff and the defendant’s possession became
the possession under the paramount lessor and so the trial Court’s
view that since physical possession had not been taken over by DDA
the plaintiff could get a decree of possession was not legally correct.
It was also contended that the trial Court had placed reliance on some
judgments on the principle of estoppel embodied in Section 116 of the
Evidence Act where the tenanted premises had not been re-entered by
the paramount lessor, as is the position in the present case, and so
those judgments had no application and had been wrongly relied upon
by the trial Court while coming to the conclusion that the defendant
was estopped from challenging the title of the plaintiff because of it
having admitted that it had been let out the premises in dispute by the
plaintiff.………………………..
10. On the other hand, learned counsel for the plaintiff
…………………………………………………………… contended, since
the physical possession of the premises in dispute had not been taken
over by DDA till date the right of the plaintiff as a landlord to seek
possession of the tenanted premises from the tenant does not get
extinguished………………..……………………… ………………….…....
11………………………………………. Mr. Rawal also argued that now
in the year 2007 the Estate Officer had served a notice upon the
defendant-appellant to show cause as to why it should not be evicted
from the premises in dispute being in unauthorized occupation of the
premises belonging to and under the management of the Government
and its copy had been placed on record alongwith an application REVIEW APPLICATION NO. 409/2011 IN
RFA NO. 490/2007           Page 10 of 12
dated 11th July,2009 under Order 41 Rule 27 CPC and the counsel
for the respondent had on 21st July,2009 consented that that
document could be considered by this Court while deciding this
appeal. So, even this development has to be taken note of by this
Court, contended Mr. Rawal, as a subsequent event taking place
during the pendency of this appeal……………………………………….
  14. In my view, the mere fact that the Delhi Development Authority
had cancelled the lease in respect of the land underneath the premises
in dispute in the year 1972 because of misuser and had also ordered
initiation of eviction proceedings against the plaintiff-landlord under
the Public Premises(Eviction of Unauthorised Occupants) Act, 1971
in the year 1984 that would not entitle the defendant–tenant to resist
the plaintiff–landlord’s prayer for a decree of possession after
termination of its tenancy since there is nothing on record to show
that actually any eviction proceedings had been initiated against the
plaintiff  by DDA or that any eviction order had been passed against it
by the Estate Officer.  The initiation of eviction proceedings against
the defendant-tenant under the Public Premises(Eviction of
Unauthorised Occupants) Act in the year 2007 cannot come to its
rescue since it is the eviction of the plaintiff–lessee by the title
paramount i.e. Delhi Development Authority which would have made
the difference as far as the plaintiff’s right to claim possession from
the defendant is concerned. In this regard a useful reference can be
made to a judgment of the Supreme Court in “Vashu Deo vs.
Balkishan” reported as (2002) 2 Supreme Court Cases 50 in which
the facts were that the tenant of the disputed shop had sublet the same
and because of that subletting the landlord, which was a Trust, had
initiated eviction proceedings against the tenant. The tenant had also
initiated separate proceedings against his sub-tenant for eviction on
account of non-payment of rent for some period. The sub-tenant had
attorned directly in favour of the owner-Trust and a direct tenancy
agreement had also been executed between them. The sub-tenant had
resisted the eviction petition filed against him by his landlord on the
ground of his having attorned directly in favour of the superior lessor
i.e. the owner Trust. Accepting that plea, the trial Court dismissed the
eviction petition. However, the High Court held that the sub-tenant
could not have directly attorned in favour of the Trust and eviction of
the tenant was ordered. The sub-tenant then approached the Supreme
Court but his appeal was dismissed and it was observed that mere
institution of a suit for eviction by the Trust against its tenant will not REVIEW APPLICATION NO. 409/2011 IN
RFA NO. 490/2007           Page 11 of 12
amount to eviction of the tenant by title paramount and that the
relationship between the Trust and its tenant would not come to an
end unless and until the eviction case filed by the Trust was decreed
and that decree had attained finality. In the present case, as noticed
already, there is nothing on record to show that DDA had initiated
any proceedings for eviction of the plaintiff under the provisions of the
Public Premises(Eviction of Unauthorised Occupants) Act and so
there is no question of eviction of the plaintiff by title paramount.
Consequently, the defendant was estopped from contending that after
creation of the tenancy with the plaintiff its title to the premises in
dispute had extinguished because of its eviction by title
paramount………....................................... I am, therefore, of the view
that the learned trial Court had rightly rejected the plea of the
defendant that the suit for possession was not maintainable because of
the cancellation of the lease in respect of the land underneath the
premises in dispute in favour of the plaintiff by DDA.”
12. After giving my thoughtful consideration to rival submissions I
find no merits in this review application as there is no error apparent on
the face of record. The crux of the discussion leading to the dismissal of
the appeal was that  since no eviction order has been passed in the
proceedings initiated by the Estate Officer, much less the same attaining
finality, the plaintiff’s right to claim possession of its property from the
defendant had not extinguished in view of the legal position laid down by
the Hon'ble Supreme Court in Vashu Deo’s case (supra).  Since,
admittedly no eviction order has been passed in respect of the suit
property by the Estate Officer the observation made by me in para 14 of
judgment dated  20
th
December, 2010, which according to the
defendant/review petitioner constitutes an error apparent on the face of
record really does not amount to an error apparent on the face of record
justifying review of the judgment date 20.12. 2010. REVIEW APPLICATION NO. 409/2011 IN
RFA NO. 490/2007           Page 12 of 12
13. I, therefore, dismiss this review petition.
P.K. BHASIN,J
April 16, 2012

Some leases/ permits less than 5 hectares may require environmental clearancea)In case minerals are available over 5 hectares or more land then the environmental clearance as envisaged under the Notification No. SO 1533(E), dated 14.9.2006 of Ministry of Environment and Forest is necessary before granting lease/ permit irrespective of the fact that lease/ permit is for the area less than 5 hectares; (b)In this case there is nothing to show that: (i)An area equal to or more than 5 hectares was available for grant of permit; (ii)No sand was available over the land lying in between two portions over which permits have been granted. 31. In view of our conclusions, the writ petition is disposed of with the direction that in case an area equal to or more than 5 hectares is available for mining of minerals then the environmental clearance as required under the Notification cannot be avoided merely for the reason that lease/ permit is for an area less than 5 hectares. In order to avoid any confusion, the State or its official should also record a finding to the effect before granting lease or the permit.

HIGH COURT OF JUDICATURE AT ALLAHABAD 

AFR
Court No. - 9

Case :- WRIT - C No. - 29036 of 2011

Petitioner :- Rajesh Kumar Nishad
Respondent :- State Of U.P. And Others
Petitioner Counsel :- Dev Brat Mukherjee
Respondent Counsel :- C.S.C.

Hon'ble Yatindra Singh,J.
Hon'ble B. Amit Sthalekar,J.
1. The main point involved in the writ petition relates to necessity of obtaining environmental clearance for mining activities under notification no. SO 1533 (E) dated 14.9.2006 (the Notification) issued under the Environment (Protection) Act, 1986 (the Act).

THE FACTS
2. The Collector, Allahabad (the Collector) published a notice dated 2.5.2011 under UP Minor Minerals (Concession) Rules, 1963 (the 1963 Rules) for grant of permit for excavation of sand for three months. This notice was in respect of 10 acres of land at 15 different places situate near rivers Yamuna, Ganga, and Tons.

3. The Collector called reports and after considering the applications granted permits for 9 places only. A chart of these permits along with duration is appended as Appendix-1.

POINTS FOR DETERMINATION
4. We have heard Sri Devbrat Mukherjee counsel for the petitioner and Sri Vishnu Pratap standing counsel for the respondent. The writ petition was filed in the individual capacity. Subsequently, it was treated as public interest litigation. The counsel for the petitioner has dropped some of the points raised in the writ petition and now only the following points are to be decided:
(i) What is the meaning of the words '≥ 5 ha. of mining lease area' used in the schedule appended to the Notification;
(ii) Whether in any circumstance environmental clearance is necessary even if they are leases or permits of less than 5 hectare;
(iii) Whether environmental clearance was necessary in the present case.

1st & 2nd POINTS: SOME CASES REQUIRE
ENVIRONMENTAL CLEARANCE
5. Before we consider the first point, it is relevant to understand the provisions under which the Notification was issued and the directions issued in the judgement dated 29.4.2011 in writ petition no. 2416 (MB) of 2010, Mohd Kausar Jah vs. Union of India and others (the Kausar-Jah case) decided by Lucknow bench of our court.

The Notification
6. The Act has been passed for protection and improvement of environment and for connected matters. The government has also framed the Environment (Protection) Rules, 1986 (the 1986 Rules) under the same.

7. Section 3 of the Act is titled 'Power of Central Government to take measures to protect and improve environment'. Under sub-section (1) of this section {section 3(1)}, the central government has been empowered to take such measures as it deems necessary for protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution.

8. Sub-section (2) of section 3 {section 3(2)} of the Act specifically mentions some of the measures for which action might be taken by the government. Among others, under section 3(2)(v) of the Act, the measures can be taken to restrict the areas in which certain operations or processes can not be carried out.

9. Rule 5 of the 1986 Rules is titled 'Prohibition and restriction on the location of industries and the carrying on processes and operations in different areas'. It describes factors that may be taken into consideration by the central government while prohibiting or restricting carrying on processes and operations in different areas.

10. Sub-rule 3 of rule 5 { Rule 5(3)} provides the procedure for prohibiting or restricting any activity. It has to publish the prohibition or restriction by way of a draft notification in the official gazette, invite objections, then after considering the objection, impose prohibition or restrictions by publishing the final notification in the official gazette.

11. The government has issued the final notification on 14.9.2006 (the Notification) under section 3(2)(v) of the Act read with rule 5(3) of the 1986 Rules after considering the objections. Under the Notification, prior environmental clearance is necessary for the projects and activities covered by it.

12. The Notification envisages two categories namely, category A and category B:
In order to conduct activities under category A of the Notification, prior environmental clearance is necessary from the Central Government in the Ministry of Environment and Forests;
In the matters falling under category B of the notification, the prior clearance is required from the State Level Environment Impact Assessment Authority (the Authority).

13. The activities, category as well as threshold limit of different activities are mentioned in the schedule attached to the Notification (the Schedule). The activity of mining of minerals is also included in the Schedule and is at serial number 1(a).

14. In respect of mining of minerals, the threshold limit for the two categories is as follows:
In respect of category A: it is equal or more than 50 hectares of mining lease area. However, in case of Asbestos it falls in category A irrespective of the mining area;
In respect of category B: it is for less than 50 hectares but is equal to or more than 5 hectares of mining lease area.

The Kausar-Jah Case
15. It appears that the Notification was not being followed in our State and writ petitions were filed before the Lucknow Bench of the Allahabad High Court. In this respect, two writ petitions, namely, WP No. 9416 (MB) of 2010 Mohd Kausar Jah vs. Union of India and others and WP 10025 (MB) of 2010, Shyam Bahadur Sakhhya vs. Union of India and others were decided by the Lucknow bench on 29.4.2011; the decision is referred to as Kausar-Jah case. (The first one was disposed off and the second one was dismissed by the common judgement.)

16. In the Kausar-Jah case, the court issued certain directions. In substance they are as follows:
The first direction was in respect of mining leases whose period expired after coming into force of the Notification;
The second direction was a mandate to the State Government that no person should be permitted to carry out any mining activity of minor minerals including sand/ silica without the environmental clearance under the Notification;
The third direction was to implement the report of the Committee appointed by the court in its order dated 6.3.2009 in WP 1580 (MB) of 2009, Noor Mohammad vs. State of UP.

Cases--Requiring Prior Approval
17. The standing counsel submits that:
The permits are for the area of 10 acres;
It is less than 5 hectares; and
No environmental clearance was necessary.

The Golden Rule of Interpretation
18. The lower threshold limit of category B for mining of minerals is 'equal to or more than 5 hectares of mining lease area'. What is the meaning of these words? Does it mean the area leased out for mining purposes or does it mean the area available for grant of mining lease.

19. Environmental law is developing but is the most important of all the jurisprudence; the reason is simple: it is because,
''We have not inherited this planet from our parents. But have merely borrowed it from our children'
This is the golden rule for interpreting environment laws; this is the common thread that runs through the fabric of environmental laws; this is the central theme.

20. We must not forget that our children are our most important investments. They are our future. We have to protect their tomorrow. The responsibility lies with us. We have to remember the golden rule and not only have to enact laws but have to interpret them in its light.

21. If we interpret the words '5 hectare of mining lease area' in the light of the golden rule then it can only have one meaning 5 hectare of area available for leasing out for mining and not only the area let out.

22. In case the submission of the standing counsel is accepted then it would be easy to overreach it: the area can very easily be divided into less than five hectares and let out without taking environmental clearance as envisaged by the Notification. It would be doing a thing indirectly that cannot be done directly: a thing impermissible in law (for citations see below).1

23. To illustrate the point: suppose a piece of land of 8 hectares is available for excavation of minor minerals then obtaining prior environmental clearance cannot be avoided by granting two adjoining/ contiguous/ adjacent leases or permits of 4 hectares each or just one lease or permit for 4 hectares. Environment clearance would be mandatory as the area available for mining was more than five hectare.

24. In our opinion, in case minor mineral is available for mining over 5 hectares or more land then it cannot divided it into plots of less than 5 hectare and let out for mining purpose without obtaining environmental clearance as envisaged in the Notification: the clearance is necessary. Let's consider, if this is violated in this case.

3rd POINT: LAND AVAILABLE FOR MINING -
LESS THAN FIVE HECTARES
25. The counsel for the petitioner submits that:
The permits have been granted on three rivers namely, Yamuna, Ganga, and Tons;
The total area over which permits have been granted in each river is more than 5 hectare;
The respondents can not do so without taking environmental clearance.

26. In the notice dated 2.5.2011, fifteen different portions were notified for grant of permit. The permits have not been granted on all but at nine places only. The respondents have filed counter affidavit and supplementary affidavits; and along with them, the maps have been filed marking the portion of land over which permits have been granted. Different reports about availability of sand are also attached.

27. There is no evidence to suggest that the plots advertised or over which permits had been granted are adjacent or contiguous portions of land. On the contrary, the maps show that permits have been granted over portion of land that are neither contiguous nor adjacent; they are at different places: they are different pieces of land and vacant land lies in between.

28.The report shows that sand is not available over the portion of land lying between any two areas over which permits have been granted. There is nothing on the record to show that the portion in between two areas where permits have been granted any sand is available. There is nothing on the record to show that an area of equal to or more than 5 hectares was available for grant of mining permit, yet the permits were granted for only 10 acres of land.

29. In our opinion, there was no violation of the Notification.

CONCLUSIONS
30. Our conclusions are as follows:
(a)In case minerals are available over 5 hectares or more land then the environmental clearance as envisaged under the Notification No. SO 1533(E), dated 14.9.2006 of Ministry of Environment and Forest is necessary before granting lease/ permit irrespective of the fact that lease/ permit is for the area less than 5 hectares;
(b)In this case there is nothing to show that:
(i)An area equal to or more than 5 hectares was available for grant of permit;
(ii)No sand was available over the land lying in between two portions over which permits have been granted.

31. In view of our conclusions, the writ petition is disposed of with the direction that in case an area equal to or more than 5 hectares is available for mining of minerals then the environmental clearance as required under the Notification cannot be avoided merely for the reason that lease/ permit is for an area less than 5 hectares. In order to avoid any confusion, the State or its official should also record a finding to the effect before granting lease or the permit.
Order Date :- 20.3.2012
BBL


Appendix-1
(The list of the permits along with place and duration) 

For sustaining conviction u/s 399, 402 I.P.C. evidence has to be of an unimpeachable character-appeal allowed-conviction set asideTrial Judge himself has noted various inconsistencies and incongruities in the depositions of fact witness and has disbelieved at least two of them. He had relied upon testimonies of P.W.1 and P.W.2 to convict the appellants. Analysing the evidence of P.W.1, it is culled out that he is not a truthful witness. During investigation, he was not interrogated by the police and the I.O., even fabricated his 161 Cr.P.C. statement. No step was taken by this witness against such a fabrication, who entered into the witness box and toed the line of the police. This conduct of P.W.1 goes miles and miles to project hand in gloves of this witness with the police. He has been a police witness in other cases also and therefore, to compel him to reiterate police version during trial was not at all difficult. In such a view, I find that P.W.1 is a picket witness of the police on whom no reliance can be placed. He is an unreliable, tutored and got up witness and his testimony is incredible. Therefore, I discard his testimony outright. In this respect, trial court, although noted these glaring contradictions and inconsistencies, wrongly relied upon his testimony. It is trite law that the prosecution has to establish it's case beyond all shadow of reasonable doubt and, once the trial court was informed of above referred glaring illegalities and inconsistencies, it should have examined cautiously the evidence of P.W.1 rather than accepting it pedantically, ignoring the accused criticism, without any valid reason. Turning towards the evidence of the informant, his evidence also does not inspire any confidence. If police person can cook up a false case, no reliance can be placed on his testimony. During the incident not even a single shot was fired. All the dacoits submitted to the police chase meekly without giving any retaliatory response. This is a very unnatural conduct, which does not appeal to reason at all. From the possession of these dacoits a meager cash amount, virtually negligible, were recovered, which does not indicate at all that they had assembled at the spot with an idea to commit dacoity. In respect of recovery of a factory made gun, the evidence in that respect is also very incredible and does not inspire any confidence. The alleged factory made gun was never got checked or tallied. No number of the factory or it's make was decipherable. From the evidence on record, it is not understandable as to on what basis, the prosecution had come out with a story that the recovery of a factory made gun was made during the incident. In this respect, when testimony of P.W.2 is analysed, he had deposed, at page 9, of the his statements, that he cannot state the number of the said gun because it was scrubbed. He also could not state the factory where it was manufactured. But for the cap there was no other sign on the gun of it being factory made. Informant or the I.O. had not got the said gun examined from an expert. In such a view, the allegations that a factory made gun was recovered from Hari Singh appellant is not proved beyond shadow of all reasonable doubst. On an overall analysis of the entire facts and circumstances of the case, it seems that during election period, these appellants were apprehended by the police for the reasons best known to them and were implicated in the present incident without there being any credible evidence against them. It has already been pointed out above that I.O. was not examined by the prosecution, which is a serious blow to it's case, especially for charges under Sections 399 and 402 IPC. Concluding the discussion, I am of the opinion that the prosecution has failed to establish it's charge beyond all reasonable doubt and the appellants are entitled to be acquitted. Appeal is allowed. Conviction of the appellants Hoti, Hari Singh, Bhupal Singh for offences under Sections 399, 402 IPC are hereby set aside and they are acquitted of those charges. These appellants are on bail, they need not surrender, their bail bonds and surety bonds are hereby discharged. The bonds furnished by Bhupal Singh appellant is also discharged.

HIGH COURT OF JUDICATURE AT ALLAHABAD 

Reserved
AFR

CRIMINAL APPEAL NO. 1337 OF 1981

Hoti and others ............. Appellants

Vs.

State of U.P. .................... Opposite Party

Hon'ble Vinod Prasad, J.
Five appellants Hoti, Hari Singh, Ram Bharose @ Bhagwan Singh and Durjan, being aggrieved by their convictions under sections 399/402 I.P.C. and imposed sentence of four years and three years RI respectively therefor, recorded by IIIrd Additional Session's Judge, Mathura in S.T. No. 228 of 1980, State Vs. Hoti and others, have challenged it in the instant appeal. Appellants Hoti, Hari Singh and Ram Bharose @ Bhagwan Singh have further challenged their convicted under section 25 Arm's Act and imposed sentence of one year RI for the said offence. Trial Judge has directed all the sentences of these appellants to run concurrently. Appellant Bhopal Singh has challenged his conviction u/s 399/402 I.P.C. and his release on probation of good conduct for a period of two years on his executing a personal bond of Rs. 2,000/- and one surety in the like amount with further direction that, in the event of breach, he shall appear before the Court for receiving sentence whenever he is called upon for the said purpose.
Prosecution allegations, as was narrated in the arrest and recovery memo, Ext. Ka-1, sketched by S.I. Jai Pal Singh of P.S. Vrindaban, District Mathura, were that the said inspector was on picket duty regarding identification of sensitive polling booths for the ensuing election along with S.I. Jawahar Singh, S.I. Sobran Singh and constables Kamal Singh, Ram Singh and Rajendra Singh on 11.5.80. When the said police party was proceeding towards Chhathikara then, at trisection of Chhathikara and Parkham, an informer informed them that in the pen(tiwaria) of Maghera Pyau situated at Ral Road, some armed dacoits had assembled to loot roadster(Tonga) and other passengers. Receiving such an information, informant Jai Pal Singh (P.W. 2) joined police constables Nem Singh, Suresh Chandra, who were manning the traffic and dispatched them to collect independent witnesses from village Chhathikara. After some time, these constables brought Moti Lal Pradhan, Banke Bihari and Brij Bihari, as independent witnesses, from the said village. Disclosing the reason for their summoning, police party along with those witnesses proceeded towards the incident spot from village Chhahtikara all along railway line and near the line they searched each other to rule out carrying of any illegal weapon etc. except the weapons issued by government weaponry. Thereafter, I.O. divided the police party into three pickets. First party consisted of informant Jai Pal Singh, constable Suresh Chandra and Moti Lal Pradhan. Second party consisted of S.I. Jawahar Singh, constables Nem Singh and Kamal Singh and independent witness Brij Bihari. Third party consisted of S.I. Sobran Singh along with constables Ram Singh, Rajendra Singh and witness Banke Bihari. The police personnel were armed with revolvers and muskets, whereas independent persons were armed with clubs(lathies). All the three parties were instructed that party no.1 shall surround the incident place from north east, party no. 2 shall surrounded it from back of pen and party no. 3 shall approached it from south west corner and they will lay in ambush at 1 P.M. All the parties were further instructed not to open fire unless challenged by the informant. All the three parties concealing them behind the agricultural crop, crossed the railway line and laid in ambush, at 3.30 P.M, at the directed spot and started hearing conversations of the miscreants. One of the miscreants uttered that it was noon time and very few passengers are coming and, therefore, the next female passengers of roadster be looted from whom good bounty can be fetched. Another dacoit expressed apprehension that the road is at quite a distance from where they were planning and by the time they will reach the road, Tonga (roadster) may speed away, and a third dacoit seconded this view and, therefore, all the dacoits got up from the place for the road. Believing the collected conglomeration to be a gang of dacoits, assembled to commit dacoity, that the inspector Jai Pal Singh, challenged the gang to lay down their arms, as they were surrounded by the police and, in the event, they will exchange fire or try to sprint away, they will be annihilated. On such thrown challenge, there was commotion amongst dacoits, who started sprinting away towards the road, but were chased by the police party and four out of them, Hoti, Hari Singh, Ram Bharose @ Bhagwan Singh and Bhopal Singh (all the appellants) were apprehended at quarter to 2 P.M. One of the dacoit Durjan Jatav, who was very well known to the police party, however, made his escape good from the spot and could not be arrested. From the possession of Hoti, a SBBL gun and four KF special cartridges and two LG cartridges with one blank cartridge were recovered. From Hari Singh,a factory made gun and 50 grams gun powder, caps, 16 pellets were recovered. From the possession of Ram Bharose @ Bhagwan Singh, a country made pistol of 12 bore, three cartridges of KF special, one plastic cartridge of LG and missed cap was recovered. From the possession of Bhopal Singh, a country made pistol, five cartridges of KF special, one cartridge cap etc. were recovered. Besides this from appellant Hoti,a watch, from appellant Bhopal Singh, Rs. 8.50 paise cash and from appellant Ram Bharose @ Bhagwan Singh, Rs. 1.50 paise cash were also recovered. All these apprehended accused confirmed the identity of Durjan Jatav as the escaped dacoit. The arrest and recovery memo, Ext. Ka-1, was prepared by the Inspector J.P.Singh, which was counter signed by rest of the police personnel. Apprehended accused were brought to the police station and on the basis of Ext. ka-1, FIR of crime no. 155 to 159, under sections 399/402 I.P.C. and 25 Arm's Act were registered against the accused appellants on 11.5.1980 at 6.15 P.M.
Aforesaid crime was investigated and ultimately S.I. Babu Ram Yadav, just after eight days of the incident, charge sheeted the appellants accused on 15.5.1980. Noted here is the fact that the I.O. was a subordinate officer of the informant Jai Pal Singh, who was the Inspector of Police.
The accused persons were tried by IIIrd Additional Session's Judge, Mathura, in S.T. No. 228 of 1980, State Vs. Hoti and others for charges u/s 399/402 IPC and 25 Arm's Act.
During trial, prosecution relied upon four witnesses, Moti Singh (P.W. 1), informant Jai Pal Singh (P.W. 2), Brij Bihari (P.W. 3) and Banke Bihari (P.W. 4). I.O. SI Babu Ram Yadav was not examined by the prosecution.
In statement u/s 313 Cr.P.C. accused denied prosecution evidences and claimed their false implication as their defence plea.
Learned trial Judge after looking into the prosecution evidences concluded that the charges under sections 399/402 I.P.C. have been established to the hilt and therefore, convicted all the appellants for the said charge. Appellant Durjan Jatav was also convicted u/s 25 Arm's Act. All the appellants were sentenced for those charges, which has already been mentioned in the opening paragraph of this judgment. Hence this appeal challenging both conviction and sentence.
When the appeal was called out for hearing, nobody appeared to argue it and hence Miss Satya Srivastava was appointed as amicus curiae to assist the Court. I have heard Miss Satya Srivastava, learned amicus curiae on behalf of the appellants and Sri Patanjali Mishra, learned AGA in opposition.
Learned amicus curie pointed out at the outset that two of the appellants Ram Bharose @ Bhagwan Singh and Durjan Jatav had died pendente lite their appeals in this Court and hence their appeals were abated on 21.9.2005 and consequently, now the appeals of residue of the appellants Hoti, Hari Singh and Bhopal Singh are to be considered. Out of these appellants, appellant Bhopal Singh has been released on probation of good conduct and was not given any substantive sentence.
Assailing the impugned judgment of conviction, learned amicus curiae argued that the entire prosecution story is a bundle of lies and is not confidence inspiring and, therefore, cannot be lend with any credence. It was contended that a gang of dacoit will never assemble at an open place during day time nor will conspire in such loud voices as to be audible to each and sundry. It was next submitted that the trial Judge himself disbelieved the prosecution witnesses and therefore, from the entire evidences, facts and circumstances of the case it transpires that prosecution had failed to establish it's charge against the appellants and they deserve acquittal. Elaborating the submission, learned amicus curiae relied upon paragraph 11 of the impugned judgment and submitted that in the aforesaid paragraph, trial Judge himself has recorded a finding that "Thus this witness supported the prosecution case in the beginning giving out that parties were set up on the Ral side of the railway line but later on completely put up a 'volte face' and then again supported the prosecution case to some considerable extent when court questions were put to him. So he has taken up inconsistent positions at different stages of his statement and it appears to me that he was won over after his statement was recorded on the first date. In my opinion, his testimony was useless and of no value or help to either side." It was argued that after learned trial Judge had recorded such a finding, there is no reason for it to convict the appellants nor there is any reason for this court to rely upon testimonies of P.W.3, who is a hopeless witness. Next it was submitted that for P.W.1, trial Judge has recorded a finding, vide paragraph 13 of the impugned judgement, that "if he was not interrogated and his statement was recorded under Section 161 Cr.P.C. by the investigating officer on his own, it would not harm his testimony of oath at the trial when no reason or ground is shown why he should depose against the accused on trial." It was contended that since, during investigation, this witness was never interrogated by the I.O. and hence he cannot be relied upon. It was pointed out that the defence plea, right from the very beginning, was that P.W.1 was a picket witness of the police and once the trial court was convenienced that he was not interrogated during investigation and his statement under Section 161 Cr.P.C. was fabricated by the police, there was no occasion for the trial Judge to rely upon his testimony and take a position against the accused. It was therefore submitted that P.W.1 is also a hopeless witness and no reliance can be placed on his testimony as well. He is a picket witness of the police, who had testified because of his such an association and therefore, is an untruthful and unreliable witness.
Further it was contended, for PW 4, that in paragraph 14 of the impugned judgment, learned trial Judge has not relied upon his evidence also because " He also added that he was named as police witness in two other cases. he gave out that he had not seen Ram Bharosey @ Bhagwan Singh or Durjan nor he knew them. He gave out that the police party had come in a Jeep and gone back too in a jeep." It was submitted that after noting such opinions, learned trial Judge himself has concluded " His statement does not inspire confidence so much so as to fix guilt upon any of the accused on trial on the basis thereof, particular because the prosecution case is not at all to the effect that the police party went in a jeep and came back in a jeep and when he has acknowledged that he was a police witness in the two other cases and when he gave some evasive statements too. Under the circumstances I am not inclined to place reliance upon his testimony." Learned amicus curiae harangued with vehemence that on the basis of such evidences, conviction of the appellants would not have been recorded by the trial Judge as the only evidence against the appellants remains to be that of P.W.2.Castigating evidence of P.W.1, learned amicus curiae further submitted that he is a wholly unreliable witness. He had testified during cross-examination that he did not know the accused prior to the incident and he could not tell from which accused what property was recovered and also he had failed to identify them by their names and hence no worth can be attached to his depositions. He had further evidenced that he does not write his name as 'Moti Lal', as he signs as 'Moti Singh', while admitting that on the recovery memo and bundles, the signature is that of Moti Lal. On being further cross-examined he stated that he could not state what attires were worn by the accused, when they were apprehended. On defence suggestion of his being a police pocket witness, he had given an evasive answer that he does not remember as to whether he had been a police witness in earlier trials or not. In an answer to another question he had stated that he cannot divulge the reason as to how he had been made a witness in a case against Holu @ Raghuvir a co-villager. He had further stated that the I.O. had never interrogated him. On such evidences, it was submitted by learned amicus curiae, that it is established on record, at least on preponderance of probability, that P.W.1 was a picket witness of the police and therefore, wholly unreliable. Learned counsel therefore submitted that on the solitary testimony of the informant, conviction of the appellants could not have been recorded. It is further submitted that the I.O. was withheld by the prosecution and was not cross-examined during trial for the reason best known to it and this had caused prejudice to the accused and therefore, also conviction of the appellants cannot be sustained. Concluding the arguments, it was submitted that the appeal of the surviving appellants be allowed and they be acquitted of all the charges leveled against them and be set at liberty.
Learned AGA argued to the contrary and submitted that it was a day light incident in which the appellants were apprehended at the spot by the police party, who had no axe to grind against them and therefore, the conviction is unassailable and has to be affirmed. Learned AGA further submitted that all the accused belonged to a gang of dacoits and they had assembled at the spot with the intention to commit dacoity and it is a case of a preparation to commit road side robbery/dacoity and therefore, no clemency should be shown to the appellants and their conviction and sentence be affirmed.
I have considered the argument raised by both the sides. Perusal and summation of facts with critical appreciation of evidences on record unerringly indicate that the criticism leveled by learned amicus curiae has got much substance. Trial Judge himself has noted various inconsistencies and incongruities in the depositions of fact witness and has disbelieved at least two of them. He had relied upon testimonies of P.W.1 and P.W.2 to convict the appellants. Analysing the evidence of P.W.1, it is culled out that he is not a truthful witness. During investigation, he was not interrogated by the police and the I.O., even fabricated his 161 Cr.P.C. statement. No step was taken by this witness against such a fabrication, who entered into the witness box and toed the line of the police. This conduct of P.W.1 goes miles and miles to project hand in gloves of this witness with the police. He has been a police witness in other cases also and therefore, to compel him to reiterate police version during trial was not at all difficult. In such a view, I find that P.W.1 is a picket witness of the police on whom no reliance can be placed. He is an unreliable, tutored and got up witness and his testimony is incredible. Therefore, I discard his testimony outright. In this respect, trial court, although noted these glaring contradictions and inconsistencies, wrongly relied upon his testimony. It is trite law that the prosecution has to establish it's case beyond all shadow of reasonable doubt and, once the trial court was informed of above referred glaring illegalities and inconsistencies, it should have examined cautiously the evidence of P.W.1 rather than accepting it pedantically, ignoring the accused criticism, without any valid reason. Turning towards the evidence of the informant, his evidence also does not inspire any confidence. If police person can cook up a false case, no reliance can be placed on his testimony. During the incident not even a single shot was fired. All the dacoits submitted to the police chase meekly without giving any retaliatory response. This is a very unnatural conduct, which does not appeal to reason at all. From the possession of these dacoits a meager cash amount, virtually negligible, were recovered, which does not indicate at all that they had assembled at the spot with an idea to commit dacoity. In respect of recovery of a factory made gun, the evidence in that respect is also very incredible and does not inspire any confidence. The alleged factory made gun was never got checked or tallied. No number of the factory or it's make was decipherable. From the evidence on record, it is not understandable as to on what basis, the prosecution had come out with a story that the recovery of a factory made gun was made during the incident. In this respect, when testimony of P.W.2 is analysed, he had deposed, at page 9, of the his statements, that he cannot state the number of the said gun because it was scrubbed. He also could not state the factory where it was manufactured. But for the cap there was no other sign on the gun of it being factory made. Informant or the I.O. had not got the said gun examined from an expert. In such a view, the allegations that a factory made gun was recovered from Hari Singh appellant is not proved beyond shadow of all reasonable doubst. On an overall analysis of the entire facts and circumstances of the case, it seems that during election period, these appellants were apprehended by the police for the reasons best known to them and were implicated in the present incident without there being any credible evidence against them. It has already been pointed out above that I.O. was not examined by the prosecution, which is a serious blow to it's case, especially for charges under Sections 399 and 402 IPC.
Concluding the discussion, I am of the opinion that the prosecution has failed to establish it's charge beyond all reasonable doubt and the appellants are entitled to be acquitted.
Appeal is allowed. Conviction of the appellants Hoti, Hari Singh, Bhupal Singh for offences under Sections 399, 402 IPC are hereby set aside and they are acquitted of those charges. These appellants are on bail, they need not surrender, their bail bonds and surety bonds are hereby discharged. The bonds furnished by Bhupal Singh appellant is also discharged.
Let a copy of the judgment be certified to the trial court for it's intimation.
Dt.21.3.2012
Rk/Arvind/-
Hon'ble Vinod Prasad,J.
Miss Satya Srivastava, learned amicus curiae has rendered valuable assistance in deciding the appeal, which was pending since last three decades and, therefore, she is directed to be paid Rs. 8,000/- as her fees by the office of this Court. 
Dt.21.3.2012
Rk/Arvind/-