HOW TO PROVE PARTITION = An individual can certainly acquire title to an item of property, if it has fallen to his share in a partition. If the partition is through a decree of a Court or a written document, filing of the decree or the document, as the case may be, would go a very long way in establishing the title. If on the other hand, the partition is oral, the evidence to prove it, can be adduced. Such evidence may comprise of the depositions of the persons, who were allotted shares, or those acquainted with the partition or the revenue records, that reflect the partition. 14. In the instant case, except stating that the property has fallen to his share, the appellant did not elaborate the manner in which the partition has taken place. The basic aspects that are required to be stated and proved in relation to partition are, the composition of the joint family or coparcenery i.e., the members comprising of it, the existence of the properties that are held by it, the shares that are allotted to various coparceners and in particular, the person pleading the partition. The plaint is blissfully silent in all these aspects. 15. Sometimes, the necessity to prove the facts that are pleaded in a suit may not arise in case the defendants do not dispute it. If there is not only a specific denial, but also a fresh case presented by the defendant, the plaintiff would be under obligation to file a rejoinder apart from proving the facts pleaded by him in the plaint. The plea raised by the defendant that the appellant is a stranger to the Maturi family, his father came to the house of Subbarangaiah as a farm servant and that no partition has taken place during the life time of Subbarangaiah, were not at all contradicted by filing any rejoinder. Added to that, the appellant did not prove the factum of partition much less the details thereof. Hence, there was a clear failure on the part of the appellant to prove the case pleaded by him.

THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY        

SECOND APPEAL No.1383 of 2004    

05-01-2012.

Maturi Rangaiah

Mutyala Venkata Lakshamma (died) and others  

Counsel for the Appellant:Mr. M.V.S. Suresh Kumar

Counsel for the Respondents:    Mr. A. Giridhar Rao Mr. P. Venkat Rao

ORDER:
       
         The unsuccessful plaintiff in O.S.No.84 of 1989 on the file of the
Subordinate Judge, Markapur, is the appellant.  He filed the suit for
declaration of title and perpetual injunction in respect of the suit schedule
properties comprising of Item No.1: a House at Nekhunambad Village and Item
No.2: Acs.3-74 cents of land at Salakalaveedu village of Prakasam District.  He
pleaded that item No.2 and the eastern portion of the item No.1 fell to his
share in a partition that took place in the year 1966 and that thereafter, he
purchased the western portion of item No.1 from one Mr. Maturi Subbarangaiah and
ever since then he is in exclusive possession and enjoyment of the suit schedule
properties.  According to him, the
1st respondent was the kept mistress and respondent Nos.2 and 3 (defendant Nos.2
and 3) are the daughters, of late Maturi Subbarangaiah.  Respondent Nos.4 to 7
are the legal representatives of the 1st respondent.

2.  The appellant pleaded that the entries in the revenue records and the
proceedings that ensued before the Land Reforms Tribunal confirm his ownership
and possession over the property.  His grievance was that one week prior to the
filing of the suit, the respondents and their followers, who were shown as
defendant Nos.6 to 10 in the suit, threatened to dispossess him from the
property.

        3.  2nd defendant filed a written statement i.e. the
2nd respondent herein, and the same was adopted by the other contesting
defendants.  According to them, the schedule properties are the self-
acquisitions of Maturi Subbarangaiah and that the appellant is the stranger to
the Maturi family much less related to Subbarangaiah.  According to them, the
surname of the appellant is Darimadugu and not Maturi, and that he is a native
of Racherla village.  They further pleaded that the father of the appellant came
to the house of Subbarangaiah as a farm servant.  It was alleged that Maturi
Rangasayamma wife of Subbaraigaiah filed O.S.No.60 of 1971 in the court of
District Munsif, Giddalur for maintenance for herself and her daughter, 3rd
respondent herein, and that the appellant managed to get certain documents filed
by Subbarangaiah making him to believe that unless partition is pleaded, charge
may be created against all his properties.  It was also pleaded that
Subbarangiaah executed a Will on 09-01-1984 in favour of the 1st respondent
bequeathing the suit schedule properties.  They pleaded that the appellant was
never in the possession and enjoyment of the schedule properties and that he has
no concern whatever.

4.  The trial court dismissed the suit through judgment, dated 17-04-1996.  The
appellant filed A.S.No.138 of 1996 in the Court of IV Additional District Judge,
(Fast Track Court), Ongole.  The appeal was dismissed on 30-06-2004.  Hence,
this Second Appeal.

5.  M.V.S.Suresh Kumar, learned counsel for the appellant submits that his
client filed various documents such as, the orders of the Land Reforms Tribunal
(Ex.A-1), sale deed executed by Subba Rangaiah in favour of the appellant (Ex.A-
2), certified copy of deposition in O.S. No.60 of 1971 (Ex.A5) and other
documents; and still the relief was not granted.  He contends that excessive
importance was given to certain proceedings initiated before the revenue
authorities that the approach adopted by the trial Court and the lower appellate
court cannot be countenanced in law.

6.  Sri A. Giridhar Rao & P. Venkat Rao, learned counsels for the respondents,
on the other hand, submit that the suit was filed as a speculative measure and
that the falsity of the claim in the plaint is evident from the fact that though
the appellant was neither coparcener nor co-owner of late Subbaranaigah,
partition was pleaded between them. They further submit that the trial Court and
the lower appellate Court found that item No.1 of the schedule property on the
one hand and the one said to have been purchased under Ex.A-2 are different from
each other and that the appellant never acquired any title over item No.2 of the
schedule property.  It is also urged that the appellant made an effort to knock
away the property of Subbarangiah by taking advantage of his acquaintance with
him, as well as the differences between Subbarangaiah and his wife.

7.  The suit was filed for the reliefs of declaration of title and injunction in
respect of the schedule properties.  While the appellant pleaded that the
properties have fallen to his share in a family partition that took place in the
year 1966, the respondents flatly denied his entitlement to the suit properties.
A detailed written statement was filed narrating the manner in which the
appellant got acquaintance with the family of Subbarangaiah and the attempt said
to have been made by him, to knock away the properties.

8.  The trial court framed the following issues for consideration:
1. Whether the plaintiff is entitled for the declaration of his title over the
plaint schedule property as prayed for?

2. Whether the plaintiff is entitled for permanent injunction restraining the
defendants from entering upon plaint schedule properties and dispossession the
plaintiff therefrom or from interfering with the possession and enjoyment of the
same?

3. Whether the will dated 09-01-1994 alleged to have been executed by late
Subbarangaih is true, valid and binding on plaintiff?

4. Whether the alleged admissions made by late Maturi Subbarangaiah are true,
valid and binding on defendant Nos.1 to 3 and if so, what are their effect?

5. Whether the sale deed, dated 22-06-1989, executed by defendant No.1 in favour
of defendant Nos.2 and 3 is true, valid and binding on the plaintiff?

6. Whether the cause of action set up in the plaint is true?

7. Whether the defendant Nos.1 and 4 to 10 are necessary parties to the suit?


9.  On behalf of the appellant, PWs.1 to 3 were examined and Exs.A-1 to A-7 were
filed.  On behalf of the respondents, DWs.1 to 8 were examined and Exs.B-1 to B-
8 were filed.

10.  The trial Court appointed a Commissioner.  The report and the plan
submitted by the Commissioner, were taken on record as Exs.C-1 and C-2.  Ex.X-1
is the entry in the Admission Register.

11.  Upon dismissal of the suit, the appellant herein filed A.S.No.138 of 1996.
The lower appellate court framed the following points for its consideration:-
1. Whether the suit is barred under Section 58 of the Limitation Act?

2. Whether the plaintiff can question the genuineness of Ex.B1 will dated 09-01-
1984?

3. Whether Ex.B1 Will, dated 09-01-1984 is true, valid and binding on the
plaintiff?

4. Whether the partition pleaded by the plaintiff is true, valid and binding on
the defendants?

5. Whether the plaintiff was in possession of suit property as on the date of
suit or earlier?

The appeal was dismissed.

12.  The basic premise on which the appellant claimed the relief of declaration
of title was that half of the item No.1 and the entire item No.2 of the schedule
property have fallen to his share in a family partition that is said to have
taken place in the year 1966.  Remaining half of the item No.1 was said to have
been purchased by him through Ex.A-2.

13.  An individual can certainly acquire title to an item of property, if it has
fallen to his share in a partition.  If the partition is through a decree of a
Court or a written document, filing of the decree or the document, as the case
may be, would go a very long way in establishing the title.  If on the other
hand, the partition is oral, the evidence to prove it, can be adduced.  Such
evidence may comprise of the depositions of the persons, who were allotted
shares, or those acquainted with the partition or the revenue records, that
reflect the partition.

14.  In the instant case, except stating that the property has fallen to his
share, the appellant did not elaborate the manner in which the partition has
taken place.  The basic aspects that are required to be stated and proved in
relation to partition are, the composition of the joint family or coparcenery
i.e., the members comprising of it, the existence of the properties that are
held by it, the shares that are allotted to various coparceners and in
particular, the person pleading the partition.  The plaint is blissfully silent
in all these aspects.

15.  Sometimes, the necessity to prove the facts that are pleaded in a suit may
not arise in case the defendants do not dispute it.  If there is not only a
specific denial, but also a fresh case presented by the defendant, the plaintiff
would be under obligation to file a rejoinder apart from proving the facts
pleaded by him in the plaint.  The plea raised by the defendant that the
appellant is a stranger to the Maturi family, his father came to the house of
Subbarangaiah as a farm servant and that no partition has taken place during the
life time of Subbarangaiah, were not at all contradicted by filing any
rejoinder.  Added to that, the appellant did not prove the factum of partition
much less the details thereof.  Hence, there was a clear failure on the part of
the appellant to prove the case pleaded by him.

16.  Much reliance was placed by the appellant upon orders passed by the Land
Reforms Tribunal, filed as Ex.A-1, and deposition of Subbarangaiah in O.S.No.60
of 1971, filed as Ex.A-5.  An observation by the Tribunal does not confer title.
So far as Ex.A-5 is concerned, the appellant is not a party to O.S.No.60 of 1971
nor that was a suit for declaration of any rights.  It was suit filed by the
wife of Subbarangiah for maintenance and that ended in compromise.  No rights
can be said to have accrued to the appellant from the decree passed in that
suit.

17.  The appellant has also relied upon the deposition of Subbarangaiah in
O.S.No.60 of 1971 (Ex.A-5).  Assuming that there was any admission, it does not
enure to the benefit of the appellant, particularly, when the scope of the suit
itself was very limited.  At any rate, the deposition of a witness in a suit
looses its significance, if the suit was either dismissed for default or was
decreed on the basis of compromise.

18.  It may be true that the entries in the revenue records for a particular
period were in favour of the appellant vis-a-vis the suit schedule properties.
However, at the instance of the respondents, the entries are said to have been
altered in favour of the respondents and Ex.B-8 is filed in that behalf.  Though
Ex.B-1 was not proved, it does not make much difference, as long as the
appellant herein failed to prove facts pleaded by him.  This Court does not find
any basis to interfere with the judgments passed by the trial Court and the
lower appellate Court.

19.  The second appeal is dismissed.  There shall be no order as to costs.
____________________  
L. NARASIMHA REDDY, J    
January 05, 2012.

AN INSOLVENCY PETITION, CAN NOT INFLUENCE THE SECURED CREDITOR LIKE MORTGAGOR FROM PROCEEDING WITH HIS CASE FOR RECOVERY OF HIS DEBT UNDER SEC.28 OF THE PROVINCIAL INSOLVENCY ACTIn the instant case, it is not in dispute that the petitioner is a secured creditor being a mortgagee. A perusal of decree, dated 16-03-2007, shows that the same is in the nature of a mortgage decree. Therefore, the petitioner falls within the exception carved out to Section 28 of the Act. This Court, in the judgments referred to above, has held in no uncertain terms that a secured creditor is entitled to recover the money payable under a decree notwithstanding pendency of insolvency petition under the Act. The Court below has, therefore, committed serious jurisdictional error in raising the attachment and closing the EP.

The Hon'ble Sri Justice C.V.Nagarjuna Reddy

Civil Revision Petition No.430 of  2008

19-01-2012

 K.Vijaya Bhaskar Reddy

The Official Receiver of Entire Kadapa District,
District Court Compound, Kadapa and another

^Counsel for the petitioner:    Mr.V.V.Subrahmanyam for Sri S.V.Bhatt

!Counsel for the respondent:    -----

? Cases referred:
1. 1998 (1) ALT 740
2. 1999 (2) ALT 305
3. 1999 (2) ALT 305

Order:
Feeling aggrieved by Order, dated 20-12-2007, in E.P.No.14 of 2007 in OP.No.7 of
2005, on the file of the learned II Additional District Judge, Kadapa at
Proddatur, the present Civil Revision Petition is filed by the petitioner.
The petitioner, who is a mortgagee, secured a decree for recovery of certain
amounts from respondent No.2 in OS.No.7 of 2005.  In order to execute the said
decree, the petitioner filed EP.No.14 of 2007.  While the said EP was pending,
respondent No.2 instituted insolvency proceedings, under the provisions of the
Provincial Insolvency Act, 1920 (for short 'the Act') in the Court of the
learned Senior Civil Judge, Rayachoty, which was registered as IP.No.5 of 2002.
The Court below, by its Order, which is assailed in this Civil Revision
Petition, closed the EP on the ground that the Insolvency Petition filed by
respondent No.2 is pending and that the petitioner shall appear before the
Court, in which the Insolvency Petition is pending, and make his claim before
the Official Receiver.  While so holding, the lower Court has raised the
attachment.
At the hearing, Mr.V.V.Subrahmanyam, learned Counsel, representing Sri
S.V.Bhatt, learned Counsel for the petitioner, submitted that the lower Court
has committed a serious error of jurisdiction in raising the attachment and
closing the EP.  He placed reliance on the provisions of Section 28 (6) of the
Act to bring home his submission that, being secured creditor, the petitioner is
entitled to execute the decree obtained by him without reference to the
insolvency proceedings.  In support of his submission, the learned Counsel
placed reliance on the judgments of this Court in Kadimsetti Somaraju vs.
Chekker Lakshmi Satyanarayana1, Vasavi and Company vs.  Nampally Padma2  and    
Kolla Subbaiah vs.  Nerella Chandrasekhara Rao3.
At the hearing, there is no representation for respondent No.2-judgment debtor.
Section 28 of the Act deals with the effect of an order of adjudication.  This
provision adumbrates that, on the making of an order of adjudication, the whole
of the property of the insolvent shall vest in the Court or in a Receiver, and
shall become divisible among the creditors, and thereafter, except as provided
by the Act, no creditor to whom the insolvent is indebted in respect of any debt
provable   under this Act shall during the pendency of the insolvency
proceedings shall have any remedy against the property of the insolvent in
respect of the debt or commence any suit or other legal proceedings, except with
the leave of the Court and on such terms as the Court may impose.
Sub-Section 6 of Section 28, however, carved out an exception in respect to the
right of the secured creditor to realize or otherwise deal with security in the
same manner as he would have been entitled to realize or deal with it if Section
28 has not been enacted.
In the instant case, it is not in dispute that the petitioner is a secured
creditor being a mortgagee.  A perusal of decree, dated
16-03-2007, shows that the same is in the nature of a mortgage decree.
Therefore, the petitioner falls within the exception carved out to Section 28 of
the Act.  This Court, in the judgments referred to above, has held in no
uncertain terms that a secured creditor is entitled to recover the money payable
under a decree notwithstanding pendency of insolvency petition under the Act.
The Court below has, therefore, committed serious jurisdictional error in
raising the attachment and closing the EP.
In the premises as above, Order, dated 20-12-2007, in E.P.No.14 of 2007 in
OP.No.7 of 2005, on the file of the Court of the learned II Additional District
Judge, Kadapa at Proddutur, is set aside.  Consequently, E.P.No.14 of 2007
stands restored to file.  The lower Court is directed to proceed with the EP
regardless of the pendency or outcome of the Insolvency Petition filed by
respondent No.2.
Accordingly, the Civil Revision Petition is allowed.
As a sequel, CMP.No.564 of 2008 is disposed of as infructuous.
______________________  
(C.V.Nagarjuna Reddy, J)
19th January, 2012

She filed an application under Section 12 of the Act. The learned Magistrate returned the same with an endorsement "Complaint is to be filed before the Project Officer". Challenging the same, this petition has been filed. Section 12 of the Act is as follows. 12. Application to Magistrate:- (1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act: Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider. (2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent: Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off. (3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto. (4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court. (5) The Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing." Answer Magistrate is wrong

THE HON'BLE SRI JUSTICE B.CHANDRA KUMAR        

Criminal Petition No. 3873 of 2009

05.01.2012

M. Jayamma  

The State of AP, rep. by its Public Prosecutor, High Court of AP., Hyderabad
and another

Counsel for the Petitioner: Sri K. Maheswar Rao

Counsel for Respondent No.1: Public Prosecutor
Counsel for Respondent No.2: Sri I. Venkata Prasad

Order:

        This Criminal Petition, under Section 482 Cr.P.C., is filed by the
petitioner to quash the docket order dated 12.05.2009 made in C.F. No.1408 of
2009 in C.C. No.Nil of 2009 on the file of Judicial Magistrate of First Class,
Dharmavaram, Anantapur district, and consequently direct the Magistrate to
register the complaint and try the case as per the provisions of the Protection
of Women from Domestic Violence Act, 2005 (for short 'the Act').
        The petitioner herein is the complainant before the lower Court.  She
filed an application under Section 12 of the Act.  The learned Magistrate
returned the same with an endorsement "Complaint is to be filed before the
Project Officer".  Challenging the same, this petition has been filed.
        Section 12 of the Act is as follows.
        12. Application to Magistrate:- (1) An aggrieved person or a Protection
Officer or any other person on behalf of the aggrieved person may present an
application to the Magistrate seeking one or more reliefs under this Act:
        Provided that before passing any order on such application, the Magistrate
shall take into consideration any domestic incident report received by him from
the Protection Officer or the service provider.
        (2) The relief sought for under sub-section (1) may include a relief for
issuance of an order for payment of compensation or damages without prejudice to
the right of such person to institute a suit for compensation or damages for the
injuries caused by the acts of domestic violence committed by the respondent:
        Provided that where a decree for any amount as compensation or damages has
been passed by any court in favour of the aggrieved person, the amount, if any,
paid or payable in pursuance of the order made by the Magistrate under this Act
shall be set off against the amount payable  under such decree and the decree
shall, notwithstanding anything contained in the Code of Civil Procedure, 1908
(5 of 1908), or any other law for the time being in force, be executable for the
balance amount, if any, left after such set off.
        (3) Every application under sub-section (1) shall be in such form and
contain such particulars as may be prescribed or as nearly as possible thereto.
        (4) The Magistrate shall fix the first date of hearing, which shall not
ordinarily be beyond three days from the date of receipt of the application by
the court.
        (5) The Magistrate shall endeavour to dispose of every application made
under sub-section (1) within a period of sixty days from the date of its first
hearing."

        The above provision is very clear that an aggrieved person or a Protection
Officer or any other person on behalf of the aggrieved person may present an
application to the Magistrate.  The said provision does not say that unless an
aggrieved person approaches the Protection Officer, she cannot file an
application under Section 12 of the Act.  Even Form-II shows that an application
may be filed either by an aggrieved person or a Protection Officer or any other
person on behalf of the aggrieved person.  The proviso only says that before
passing any order on such application, the Magistrate shall take into
consideration any domestic incident report received by him from the Protection
Officer or the service provider.  It has to be seen that under sub-section (5)
of Section 12 the Magistrate shall endeavour to dispose of every application
made under sub-section (1) within a period of sixty days from the date of its
first hearing.  Under sub-section (4) of Section 12 the Magistrate shall fix the
first date of hearing, which shall not ordinarily be beyond three days from the
date of receipt of the application by the Court.
        The above provisions make it clear the need to dispose of the matters
urgently.  The duties of the police officers and service providers are envisaged
under Section 5 of the Act and under Section 9 of the Act the Protection
Officers have to assist the Magistrate in discharge of his functions under the
provisions of the Act.  The Magistrate may utilize the services of the
Protection Officer and call for a report under the provisions of the Act.  In
view of the clear provisions of the Act, the impugned order appears to be
without jurisdiction and the same is liable to be set aside.
        Accordingly, the Criminal Petition is allowed and the impugned order is
set aside.  The learned Magistrate is directed to entertain the application
filed by the petitioner and proceed in accordance with law.


_______________________  
B. CHANDRA KUMAR, J.    
Date: 05.01.2012

Petitioner is a licensee operating inter-alia in the State of Assam and North-East service areas. Respondent herein had issued a large number of circulars with regard to the mode and manner in which the Customer Application Forms (CAFs) should be verified and/or re-verified. 3. Cellular Operators Association of India as also Association of Unified Telecom Service Providers of India, the Association of the Cellular Operators along with a few licensees filed a petition before this Tribunal questioning the validity of the circulars issued by the Respondent from time to time. This Tribunal, while upholding the right of the Respondent to issue such circulars, applying the doctrine of proportionality opined that the purport of imposition of penalty on the ‘graded scale’, as directed by the Respondent in its circular of December, 2008 was varied by it in its circular letters dated 03.02.2011 and 07.02.2011. It was directed that the penalties be calculated on the graded scale as applied on a non-telescopic basis like Income Tax. Page 3 of 9 4. In Petition No.252 of 2011, an interim order was passed on or about 03.06.2011 whereby and whereunder inter-alia it was directed :- “(ii) In the event the operators are intimated about the suspicious identity of any of the customers, his connection shall be withdrawn.” 5. While the said petition was pending, the Associations of the Cellular Operators as also some of the operators questioning inter-alia the validity of certain circulars issued by the Respondent in respect of Assam and North-East circles, filed a petition before this Tribunal, which was marked as Petition No.15 of 2012. Timely Disconnection : It is clarified that where CAF is found non-compliant for a working mobile connection, either proper CAF should be produced within 72 hours or else the connection deactivated. In case of failure to take either action, highest penalty of Rs.50,000/- shall be levied on each Page 8 of 9 such connection, in addition to the penalty for non-compliance during subscriber verification.” 12. The short question, which arises for consideration is that keeping in view the fact that verification/re-verification of the CAFs have not been carried out within a period of three days or the connections having not been disconnected, the Respondent is entitled to levy other and further penalties. 13. The other pending matters, in our considered opinion, have a direct bearing on the controversies surrounding the present petition. The order of this Tribunal passed in Petition No. 15 of 2012 is also under consideration. Respondent, as has been done on thelier occasions, in the event it was of the opinion that the Petitioner has not complied with the order of this Tribunal, should have brought the same to its notice. ear It, prima facie, in our opinion, ought not to have levied penalty for the months of March 2011, April 2011 and July 2011 as penalties as regards non re-verification of CAF forms have already been imposed, which is the subject matter of Petition No. 15 of 2012 and thus the questions involved herein are pending consideration before this Tribunal. Page 9 of 9 14. We, therefore, feel that subject to any other or further orders which may be passed upon considering the reply filed by the Respondent, if any, and without prejudice to the rights and contentions of the parties, interest of justice would be sub-served if the Respondents are directed not to take any coercive step to implement the impugned orders. We have passed this order keeping in view the fact that on determination of all the disputes, if it appears to us that the Petitioner is bound to pay the additional amount demanded by it for which a suitable direction can be issued. Equities between the parties can also be adjusted at an appropriate stage. 15. For the reasons stated heretobefore, Respondents are directed not to take any coercive steps for realization of the demanded amount till further orders. ..……….......

Page 1 of 9
TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL
        NEW DELHI
DATED 02ND MAY, 2012
                                           Petition No.248 of 2012
Bharti Airtel Ltd.          … Petitioner
       
                      Vs.
Union of India     …        Respondent
BEFORE:
HON’BLE MR. JUSTICE S.B. SINHA, CHAIRPERSON
HON’BLE MR.P.K. RASTOGI, MEMBER
For Petitioner  : Mr. Maninder Singh, Sr. Advocate
                                                         Mr. Navin Chawla, Advocate
                                                         Ms. Nidhi Parashar, Advocate
For Respondent : Mr. K.P.S. Kohli, Advocate for
                                                        Ms. Maneesha Dhir, Advocate  
                                               
O R D E R
This petition inter-alia raises a question  as regards  interpretation of
various circular letters issued by the Respondent herein so far as the
obligations on the part of the licensee and verification and/or re-verification of Page 2 of 9
the Customer Application Forms (CAFs) and consequent imposition of penalty
is concerned.
2. Petitioner is a licensee operating inter-alia in the  State of  Assam and
North-East service areas. Respondent herein had issued a large number of
circulars with regard to the mode and manner in which the Customer
Application Forms (CAFs) should be verified and/or re-verified.
3. Cellular Operators Association of India as also Association of Unified
Telecom Service Providers of India, the Association of the Cellular Operators
along with a few licensees filed a petition before this Tribunal questioning the
validity of the circulars issued by the Respondent from time to time.
This Tribunal, while upholding the right of the Respondent to issue such
circulars, applying the doctrine of proportionality opined that the  purport of
imposition of penalty on the ‘graded scale’, as directed by the Respondent in its
circular of December, 2008  was  varied by it in  its  circular letters dated
03.02.2011 and 07.02.2011.
It was directed that the penalties be calculated on the graded scale as
applied on a non-telescopic basis like Income Tax. Page 3 of 9
4. In Petition No.252 of 2011, an interim order was passed on or about
03.06.2011 whereby and whereunder inter-alia it was directed :-
“(ii)  In the event the operators are intimated about the suspicious
identity of any of the customers, his connection shall be
withdrawn.”
5. While the said petition was pending, the Associations of  the  Cellular
Operators as also some of the operators questioning inter-alia the validity of
certain circulars issued by the Respondent in respect of Assam and North-East
circles, filed  a  petition before this Tribunal, which was marked as Petition
No.15 of 2012.
While entertaining the said petition, the operators were directed to file
separate petitions circle-wise.
Pursuant thereto or in furtherance thereof, the Petitioner filed a petition
marked as Petition No. 27 of 2012.
The matter relating to the interim prayer made by the Petitioners came
up for consideration before this Tribunal and by an order dated 06.02.2012, it
was directed :-
(sic-consideration)
“19. We are of the view that each petition requires detailed after
filing of reply by the respondent. However, keeping in view the Page 4 of 9
interest of both the parties into consideration, we are of the opinion
that interest of justice will be sub-served if the petitioners are
directed to pay the 25% of the penalty imposed by the respondent
within a period of one week. This order would, however, be subject
to any other or further order which may be passed by the Tribunal.”
6. Petitioners were said to have made payments in terms of the said order
as also the interim order passed in Petition No. 252 of 2011.
Quantum of the amount payable to the Respondent in terms of the said
orders being in controversy, Miscellaneous Applications were filed by the
Petitioners therein. Miscellaneous Application filed by the Petitioner was
marked as M.A. No. 71 of 2012. The said application along with the connected
matters came up for consideration and by an order dated 28.02.2012, it was
directed as under :-
10.  Therefore, we would like to clarify our orders dated 18.5.2011
and 03.6.2011 passed in Petition No. 252 of 2011 will be applicable
to these petitions also as a matter of principle and furthermore, only
25% of the penalty relating to failed CAF forms based on photo
identity issued by Village Panchayat Head and Caste and Domicile
certificate with photo issued by State Government shall be payable
as an interim measure.”Page 5 of 9
7. The parties hereto, however, again raised a controversy as regards the
interpretation of the said orders.
Petitioners, inter-alia, contended that they  were  worse off by filing the
application for clarification; whereas the contention of the Respondent was that
in terms of the said order dated 28.02.2012 only the Certificates issued by the
Gram Panchayat and Caste Certificate were to be excluded from computation of
the amount of penalty. The said matter is pending consideration before this
Tribunal. Respondent, however, raised additional bills imposing penalty for the
months of March, April and July 2011 on or about 03.04.2012.
In one of the  said bills, the Respondent has placed a table which is as
under :-
Month Total No.
of non
compliant
CAFs
No. of non
compliant
CAF’s due to
Gram
Panchayat
and Caste
Certificate
(activated
between
20.07.2010
and
31.03.2011)
No. of non
compliant
CAF’s
suspended
No. of
CAFs on
which
penalty to
be
imposed
due to non
complianc
e of Audit
Report
Rate of
penalty
per CAF
in Rs.
Total penalty
Rs.
a n c d E=cxd
March-
2011
4687 1355 42 3290 50000 16,45,00,000Page 6 of 9
8. The fact that the Petitioner is not in a position to comply with the
requirements of the circular letter with regard to the 42 CAFs is not in dispute.
Whereas according to the Petitioner, not only the CAFs which were to be
verified on the basis of the Gram Panchayat and Caste Certificate is in question
in the Petition No. 15 of 2012 and other connected matters, but also the 3290
CAFs which were outside the purview of the said certificates.
9. The impugned demands have been made on two premises :-
(i) Violation of the circular letters;
(ii) Non-compliance of the orders passed by this Tribunal.
10. It is not in dispute that CAFs have been audited, on the basis whereof a
demand was made on 11.8.2011. The figures of unverified CAFs have also been
stated therein. Similarly, for the month of April 2011 demands were raised on
the basis of the audit report as would appear from perusal of the letter dated
21.12.2011. The impugned bills dated 03.04.2012 have been served on the
Petitioner on the same basis. Page 7 of 9
By reason of the impugned demand dated 16.4.2012, additional penalty
has been levied, the concluding paragraph whereof reads as under :-
“As evident from the above facts, M/s BAL not only violated DoT
instructions but also violated TDSAT orders by not deactivating the
number of non-compliant CAFs. Hence, the demand note issued for
non-compliance of audit report of March 2011 and April 2011 cannot
be kept in abeyance as requested. With regard to CAF audit of July
2011, a final reply to M/s. BAL was given by DDG on 06.02.2012.
In the meantime, M/s BAL approached TDSAT against the audit
report of July 2011. In the interim order Hon’ble TDSAT did not stay
operation of any DoT letter. Hence, in this case also, M/s BAL not
only violated DoT instructions but also violated TDSAT instructions
contained in TDSAT order dated 18.05.2011 in petition no. 252 of
2010. Hence, demand note issued for non-compliance of audit report
of July 2011 also can not be kept in abeyance as requested.”
11. Reliance in support thereof has been placed on paragraph 7 of the
circular letter dated 23.3.2009, which reads as under :-
“7. Timely Disconnection :
It is clarified that where CAF is found non-compliant for a working
mobile connection, either proper CAF should be produced within 72
hours or else the connection deactivated. In case of failure to take
either action, highest penalty of Rs.50,000/- shall be levied on each Page 8 of 9
such connection, in addition to the penalty for non-compliance during
subscriber verification.”
12. The short question, which arises for consideration is that keeping in view
the fact that verification/re-verification of the CAFs have not been carried out
within a period of three days or the connections having not been disconnected,
the Respondent is entitled to levy other and further penalties.
13. The other pending matters, in our considered opinion, have a direct
bearing on the controversies surrounding the present petition.
The order of this Tribunal passed in Petition No. 15 of 2012 is also under
consideration. Respondent, as has been done on thelier occasions, in the
event it was of the opinion that the Petitioner has not complied with the order
of this Tribunal, should have brought the same to its notice. ear
It, prima facie, in our opinion, ought not to have levied penalty for the
months of March 2011, April 2011 and July 2011 as penalties as regards non
re-verification of CAF forms have already been imposed, which is the subject
matter of Petition No. 15 of 2012 and thus the questions involved herein are
pending consideration before this Tribunal. Page 9 of 9
14. We, therefore, feel that subject to any other or further orders which may
be passed upon considering the reply filed by the Respondent, if any, and
without prejudice to the rights and contentions of the parties, interest of justice
would be sub-served if the Respondents are directed not to take any coercive
step to implement the impugned orders.
We have passed this order keeping in view the fact that on determination
of all the disputes, if it appears to us that the Petitioner is bound to pay the
additional amount demanded by it for which a suitable direction can be issued.
Equities between the parties can also be adjusted at an appropriate stage.
15. For the reasons stated heretobefore, Respondents are directed not to take
any coercive steps for realization of the demanded amount till further orders.
..……….......
(S.B. Sinha)
Chairperson
……………….
(P.K. Rastogi)
Member
rkc

The matter arises out of theft of a Mahindra Bolero vehicle on 21.3.2009. At the time of the theft the vehicle was insured with the revision petitioner IFFCO TOKIO General Insurance Co. Ltd. The claim under the policy was repudiated by the Insurance Co, on the ground that on the day of the theft the vehicle was not registered with the transport authorities. This amounted to violation of the provisions of the Motor Vehicles Act, 1988, which was considered a violation of the terms of the insurance policy by the Insurance Co. 2. The case of the Complainant before the District Forum was that the Insurance Co. had insured the vehicle for a sum of Rs.5,62,400/-, after charging a premium of Rs.20242.77. The insurance was effective from the date of purchase and was in operation when the vehicle was stolen on 21.3.2009. 9. The above stand in the revision petition, in our view is an unconvincing attempt on the part of the revision petitioner to circumvent a concurrent finding of fact given by both the fora below. We therefore, have no hesitation in rejecting it at threshold itself. We may point out that in HDFC Chubb General Insurance Co. Ltd. Vs. ILA Gupta and ors. 1(2007) CPJ 274 this Commission had held that the Insurance Co. is not entitled to repudiate the claim merely on the ground that the vehicle had not been registered. This view has again been affirmed by this Commission in Oriental Insurance Co. Ltd. Vs. Swami Devi Dayal Hi Tech Education Academy (Revision Petition No.497 of 2012) in the order pronounced on 14.2.2012. 10. In the result, the revision petition fails to bring out any case of jurisdictional error, material irregularity or illegality in the impugned order, which could justify intervention of this Commission under Section 21 (b) of the Consumer Protection Act, 1986. Consequently, the revision petition is dismissed and the order of the Chhattisgarh State Consumer Disputes Redressal Commission in Appeal No.174 of 2011 is confirmed. Cost of Rs.20,000/- ( Rupees Twenty Thousand) is awarded in favour of the respondent/Complainant.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

                                                         

REVISION PETITION NO. 171 OF 2012

(Against the order dated 30.8.2011 in Appeal No.174 of 2011

of the State Commission, Chhattisgarh)

IFFCO TOKIO General Ins. Co. Ltd.

FAI Building,

10, Shaheed Jeet Singh Marg,

Qutub Institutional Area,

New Delhi- 110067

And also at

Lal Ganga Shopping Mall,

G.E. Road, Raipur

Dist. Raipur (C.G.)                                                                                    ……….Petitioner

                                                                            

Versus

Pratima Jha

R/o Thesil Kawardha,

District Kabirdham                                                                                       .........Respondent

BEFORE

HON’BLE MR. JUSTICE V.B. GUPTA,

                              PRESIDING MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER

For the Petitioner         :   Ms. Shantha Devi Raman,  Advocate

PRONOUNCED ON:    27.04.2012   

ORDER

PER MR.VINAY KUMAR, MEMBER

This revision petition has been filed against the concurrent findings of the fora below.  There is a delay of 36 days in filing the revision petition which, considering the explanation of the appellant, was condoned.  The matter was accordingly taken up for consideration on merits.  The matter arises out of theft of a Mahindra Bolero vehicle on 21.3.2009. At the time of the theft the vehicle was insured with the revision petitioner IFFCO TOKIO General Insurance Co. Ltd.  The claim under the policy was repudiated by the Insurance Co, on the ground that on the day of the theft the vehicle was not registered with the transport authorities.  This amounted to violation of the provisions of the Motor Vehicles Act, 1988, which was considered a violation of the terms of the insurance policy by the Insurance Co. 

2.      The case of the Complainant before the District Forum was that the Insurance Co. had insured the vehicle for a sum of Rs.5,62,400/-, after charging a premium of Rs.20242.77.  The insurance was effective from the date of purchase and was in operation when the vehicle was stolen on 21.3.2009. 

3.      The OP/ IFFCO TOKIO General Insurance Co. contested the claim.  It was however, admitted that the OP had provided the insurance cover for the vehicle.  But, the Insurance Co., asserted that the repudiation of the claim was as per the conditions of the policy.  The insurance policy operated under the provisions of the Motor Vehicles Act.  According to the OP, the vehicle remained unregistered and the Complainant continued to use it without proper registration. 

4.      The District Forum took into account the fact that the vehicle was covered under a temporary registration from 7.9.2008 to 7.10.2008.  There was no evidence to show whether the vehicle had received permanent registration, after the above period.  The District Forum noted that as per records, the claim was repudiated by the OP on the ground that of non-registration with the RTO, which was a violation of the Motor Vehicles Act. But, it held that there was nothing in insurance policy to discharge the insurer from its liability under the policy on the ground of non-registration. The District Forum, therefore, allowed the claim, directing the OP/revision petitioner to pay the amount of insurance i.e. Rs.562400/- together with compensation of Rs.7,600/-. 

5.      Considering the appeal against the above order, the State Commission noted that complete documents were not filed before the District Forum, by the Insurance Company.  The Insurance Co. could therefore not be permitted to say that some terms of the insurance policy had been violated by the Complainant/insured.  The Commission observed that a perusal of the documents on record showed that there was nothing to support the claim that the Insurance Co. would stand exonerated from its liability, in the event of violation of any provision of law by the insured. The claim of the appellant/Insurance Co. was rejected by the State Commission with the following observations:-

“From the record, it appears that the vehicle was got registered in the Office of the RTO, Raipur, vide document Annexure-A4.  This document shows that under the provisions of Section 25 of Motor Vehicle Act, 1988, the vehicle in question was got registered under a temporary registration and registration NO.C.G.04 5651/TR was allotted to the vehicle.  In the certificate, it has also been mentioned that the certificate would be valid from 08.09.2008 to 17.10.2008 and necessary charges Rs.130/- was paid for the purpose of getting this temporary registration No. on 08.10.2008 and then again on 13.11.2008.  These dates have been mentioned against the word “deposit”. Probably this endorsement shows that some amount was deposited for getting temporary registration continued from 14.10.2008 to 13.11.2008.  Though no specific endorsement was made by the Registering Authority in this regard, but from this entry of deposit, it appears that the concerning RTO, permitted the owner of the vehicle to use the temporary registration for a period beyond the period, which was mentioned earlier. 

Considering these documents, we can safely infer that a particular Registration No. was allotted and registration fees was also deposited from time to time by owner in the Office of Registering Authority.  On 13.10.2008, when Rs.100/- was deposited, then again endorsement was made by the Registering Authority with seal and signature of the Authority concerned.  Against the entry, there is no mention that after this deposit for how long period, the owner of the vehicle was permitted to use the temporary registration no.  It might be even up to date of accident, so on the basis of this particular document, this cannot be said that vehicle was being use without getting the same Registered in the Office of the Registering Authority.  Thus there was no violation of the provisions of the Motor Vehicle Act, 1988 in this regard.”

         

6.      Thus, the District Forum as well as the State Commission have both given a finding that there is nothing in the  insurance policy which could exonerate the Insurance Co. from its liability on the ground of non-registration of the vehicle.

7.      We have perused the records of the case and heard the counsel for the revision petitioner.

8.      In the revision petition, the petitioner has emphatically urged the point of violation of Section 39 of the Motor Vehicles Act, which prohibits use of an unregistered vehicle. It has also referred to the consequences, which can flow under Section 177 from non-registration.  According to the appellant, Section 43 of the Motor Vehicles Act, also lays down that a temporary registration (as in this case) shall be valid only for a period of one month, except under certain circumstances allowed in the provision.  It is contended that if there is violation of law as contained in the above mentioned provisions, the contract or agreement would fail whether there is an express provision to this effect, in the terms and conditions to that effect, or not. 

9.      The above stand in the revision petition, in our view is an unconvincing attempt on the part of the revision petitioner to circumvent a concurrent finding of fact given by both the fora below.  We therefore, have no hesitation in rejecting it at threshold itself.  We may point out that in HDFC Chubb General Insurance Co. Ltd. Vs. ILA Gupta and ors. 1(2007) CPJ 274  this Commission had held that the Insurance Co. is not entitled to repudiate the claim merely on the ground that the vehicle had not been registered.  This view has again been affirmed by this Commission in Oriental Insurance Co. Ltd. Vs. Swami Devi Dayal Hi Tech Education Academy (Revision Petition No.497 of 2012) in the order pronounced on 14.2.2012.

10.    In the result, the revision petition fails to bring out any case of jurisdictional error, material irregularity or illegality in the impugned order, which could justify intervention of this Commission under Section 21 (b) of the Consumer Protection Act, 1986.  Consequently, the revision petition is dismissed and the order of the Chhattisgarh State Consumer Disputes Redressal Commission in Appeal No.174 of 2011 is confirmed.  Cost of Rs.20,000/- ( Rupees Twenty Thousand) is awarded in favour of the respondent/Complainant.

.………………Sd/-…………

(V.B.GUPTA,J.)

PRESIDING MEMBER

………………Sd/-………….

(VINAY KUMAR)

                                                                                            MEMBER

s./-