By this order, the State Commission set aside the order dated 14.12.2005 of the District Consumer Disputes Redressal Forum II, New Delhi (in short, ‘the District Forum’) in complaint case no. 1590 of 2003 filed by the respondent in this revision petition and directed the petitioner/Delhi Development Authority – DDA to pay to the respondent interest @ 9% per annum on the amount of Rs.3,96,863/- deposited by the latter for the period 30.03.202 to 04.09.2002.-the acts of the respondent/complainant since the Delhi High Court’s order dated 07.10.2002 are nothing but deliberate and calculated abuse of the beneficial provisions of the Consumer Protection Act, 1986 (in short, ‘the Act’). It is unfortunate that the State Commission failed to discern the glaring facts and committed the serious error of allowing the appeal, perhaps in a bout of misplaced enthusiasm to do well by any and all “consumer”. Such practices need to be curbed with a heavy hand.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

REVISION PETITION NO. 3776 OF 2008

(From the order dated 18.01.2008 of the Delhi State Consumer Disputes Redressal Commission, Delhi in Appeal No. A-169 of 2006)

Delhi Development Authority

Vikas Sadan, INA                                                                      Petitioner

New Delhi

Versus

Mr. Rajendra Singh

Son of Late Balbir Singh

Resident of A – 58, Amrit Nagar                                                          Respondent

New Delhi

BEFORE:

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

HON’BLE MR. ANUPAM DASGUPTA                                                 MEMBER

For the Petitioner                      Ms. Girija Wadhwa, Advocate

For the Respondent                  Ms. Rekha Aggarwal, Advocate

Pronounced on   20^th July, 2012

ORDER

ANUPAM DASGUPTA

                This revision petition challenges the order dated 18.01.2008 of the Delhi State Consumer Disputes Redressal Commission, Delhi (in short, ‘the State Commission’) in First Appeal no. 169 of 2006. By this order, the State Commission set aside the order dated 14.12.2005 of the District Consumer Disputes Redressal Forum II, New Delhi (in short, ‘the District Forum’) in complaint case no. 1590 of 2003 filed by the respondent in this revision petition and directed the petitioner/Delhi Development Authority – DDA to pay to the respondent interest @ 9% per annum on the amount of Rs.3,96,863/- deposited by the latter for the period 30.03.202 to 04.09.2002.

2        This case has had a chequered history.

(i)      The respondent/complainant registered himself for allotment of a middle income group (MIG) flat under a scheme called New Pattern Registration Scheme - NPRS 1979 floated by the DDA. Flat no. 153, Ground Floor, Mayur Vihar was allotted to the respondent on out-of-turn basis on 05.03.1993 and the demand-cum-allotment letter was sent by the DDA on 31.05.1993. The said letter required the respondent to pay Rs.4,33,915/- within 30 days failing which the allotment was liable to be cancelled automatically. Instead of paying the amount, the respondent filed a complaint before the District Forum challenging the pricing of the flat. The complaint was dismissed by the Forum by its order dated 18.02.1999. Thereafter, the respondent filed an application before the Monopolies and Restrictive Trade Practices (MRTP) Commission praying for directions to the DDA not to charge interest. By its order dated 17.06.1998, the MRTP Commission held that the application was not maintainable in view of the order dated 03.02.1995 of a Full Bench of the Delhi High Court in a batch of writ petition (Sheelawanti and Others. v DDA and Another) concerning pricing/costing of flats, including escalation in the cost, constructed by the DDA. The MRTP Commission also noted that the appeal filed against the aforesaid order of the Delhi High Court by way of special leave petition was dismissed by the Supreme Court.

(ii)     Thereafter, the respondent filed a review application before the MRTP Commission which was dismissed by that Commission by its order dated 18.02.1999. This was followed by a modification application by the respondent before the MRTP Commission which too was dismissed by that Commission under its order dated 27.08.1998  with, however, liberty to the respondent to approach the DDA for relief as was permitted by the Delhi High Court in its order dated 03.02.1995.

(iii)    The respondent wrote to the DDA by his letter dated 10.09.1999 for similar relief and issuance of a fresh demand letter. By its letter dated 07.01.2000, the DDA replied to the respondent that the allotment in favour of his flat had been restored subject to payment of interest and usual charges. The respondent wrote back to the DDA, protesting against the DDA’s claim and stating that the allotment had never been cancelled and also requesting that he be allowed to deposit the amount according to the demand letter dated 31.05.1993. By its letter dated 09.02.2000, the DDA rejected the respondent’s request and directed him to deposit the amount mentioned in the DDA’s demand letter dated 31.05.1993 along with interest and restoration charges within 15 days. Thereupon, the respondent deposited Rs.4,33,916/- on 30.03.2000, which was the amount that the DDA had demanded in its allotment-cum-demand letter dated 31.05.1993. In other words, the respondent did not pay either interest or restoration charges as demanded by the DDA in its letter dated 09.02.2000 and paid even the bare principal amount after a delay of over a month.

(iv)    The respondent then approached the Lok Adalat against the DDA on 07.01.2002 for waiver of the restoration charges. By its order dated 11.06.2002, the Lok Adalat waived Rs.5,000/- towards restoration charges. Consequently, by its letter dated 04.09.2002, the DDA revised its demand to Rs.3,96,863/- (i.e., only interest) and directed the respondent to deposit that amount within 30 days.

(v)     Against this demand, the respondent filed a Civil Writ Petition before the Delhi High Court on 30.09.2002. In its order dated 07.10.2002 the High Court observed as under:

“There can be no doubt that in view of the petitioner having exhausted his remedies before different forums, the present petition under Article 226 of the Constitution of India challenging the impugned letter cannot be entertained. Learned senior counsel does not seriously dispute this position but claims that the petitioner is a handicapped person and in view of the peculiar facts and circumstances of this case some discretion should be shown for the benefit of the petitioner. Learned counsel confines his relief to grant of some time to make the payment in pursuance to the impugned order in view of the fact that the petitioner was bona fide prosecuting his remedies in different forums.

Taking into consideration the peculiar facts and circumstances of the case I am inclined to accept the aforesaid plea of the learned senior counsel for the petitioner. In view thereof it is directed that in case the petitioner deposits the amount as demanded in terms of the letter dated 04.09.2002 within three months, the petitioner will be handed over the possession of the flat in question subject to the petitioner complying with other formalities. However, in case the petitioner still fails to deposit the amount it will be open to the respondents to take action in accordance with terms and conditions of the allotment as stated in the letter dated 04.09.2002.

          Writ petition stands disposed of.

          Dasti.”

          [Emphasis supplied]

(vi)    Still, after a delay of over eight months since the time allowed by the High Court, the respondent deposited with DDA a sum of Rs. 1,50,000/- on 22.09.203 and the balance Rs.2,46,863/- on 07.10.2003. Thus, though the respondent failed to comply with the directions of the High Court to make payment within three months from the date of the High Court’s order, the DDA issued to him possession letter on 13.01.2004.

(vii)   However, even before that, i.e., on 20.12.2003 (within approximately 10 weeks of making the second instalment of payment to the DDA), the respondent filed the complaint in question before the District Forum seeking payment of interest @ 24% per annum on the amount of Rs.4,33,916/- from 30.03.2000 to 04.09.2002.

(viii)   The District Forum dismissed this complaint, by its order dated 14.12.2005, whereupon the respondent/complainant filed appeal before the State Commission. This appeal was allowed by the State Commission by its order dated 18.01.2008 which is impugned in this petition.

(ix)    On 12.08.2008, the respondent filed an execution application before the District Forum for recovery of Rs.95,684.37 that he claimed as interest, as per the State Commission’s impugned order. On 01.01.2008, the District Forum issued recovery certificate in favour of the respondent and on 25.09.2008, the DDA filed this revision petition which is now before us.

3.       We have heard Ms. Girija Wadhwa, learned counsel for the petitioner/DDA and Ms. Rekha Aggarwal, learned counsel for the respondent/complainant as well as the respondent/complainant in person and gone through the records carefully.

4.       The revision petition has been filed with a delay of 132 days. An application for condonation of this delay has also been filed to which the respondent has raised objections. However, for the reasons recorded in this application, the delay is condoned, subject to the petitioner/DDA depositing a sum of Rs.10,000/- with the Consumer Legal Aid Account of this Commission.

5.       During the hearing before us, learned counsel for the respondent was given opportunity to file a copy of his letter dated 10.09.1999 on which much reliance was attempted to be placed by the learned counsel in support of the respondent’s contentions. However, till the date of final hearing, a copy of this letter was not produced.

6.       In dismissing the complaint, the District Forum had passed a well reasoned order, by observing as under:

“Vide the allotment-cum-demand letter dated 31.05.1993 the complainant was asked by the OP to pay Rs.4,33,915.50 within 60 days.There was automatic cancellation after 90 days. However, instead of making the payments the complainant challenged the pricing of the flat before the Hon’ble MRTP Commission and made this payment only on 30.03.2000 when the Hon’ble Commission did not grant any relief to the complainant vide order dated 17.06.1998. This payment was without interest and ultimately the complainant had to pay the interest for the late payment of the cost of the flat and that too after the Hon’ble High Court refused to grant any relief on account of interest. The complainant himself became instrumental to the delay in delivery of possession and the OP was not obliged to deliver the possession of the flat to the complainant on 07.01.2000 or 30.03.2000 when he completed the payment of the original cost of the flat because the complainant was also liable to pay interest on the delayed payment which was to be paid within 60 days of 31.05.1993 when the letter of allotment was issued. In the facts and circumstances of the case we do not find any deficiency of service on the part of the OP. Hence, the complainant is liable to be dismissed and the same is hereby dismissed. No orders as to cost”.

7.       As against that order, the aforesaid detailed narration of facts would suffice in demonstrating the complete lack of application and proper appreciation of facts and circumstances by the State Commission in passing the impugned order. 

8.       As the facts clearly show, it was, in fact, an act of special consideration on the part of the petitioner/DDA to have issued possession letter to the respondent on 31.01.2004 and executed the conveyance deed on 05.04.2004, though the respondent had failed to comply with the directions of the Delhi High Court to deposit the entire amount demanded by the DDA under its letter dated 04.09.2002 within three months of the date of the High Court’s order dated 07.10.2002. The DDA could have, because of this delay in payment by the respondent, cancelled the allotment, as explicitly stated in the letter of 04.09.2002 and permitted by the High Court. Even the dispensation granted by the Delhi High Court in its aforesaid order was by way of special consideration, based on specific prayer by the Counsel for the respondent before the High Court, as is clearly noted in the High Court’s order excerpted above.

9.       In view of the above discussion, we have no hesitation in allowing the revision petition and setting aside the impugned order of the State Commission. We order accordingly.

10.     We may also notice that the acts of the respondent/complainant since the Delhi High Court’s order dated 07.10.2002 are nothing but deliberate and calculated abuse of the beneficial provisions of the Consumer Protection Act, 1986 (in short, ‘the Act’). It is unfortunate that the State Commission failed to discern the glaring facts and committed the serious error of allowing the appeal, perhaps in a bout of misplaced enthusiasm to do well by any and all “consumer”. Such practices need to be curbed with a heavy hand. Accordingly (and by virtue of the provisions of section 26 of the Act), we direct the respondent/complainant to deposit cost of Rs.10,000/- with the Consumer Legal Aid Account of this Commission within four weeks from the date of this order.

Sd/-

..………………………………

[V. B. Gupta, J]

Sd/-

………………………………..

[Anupam Dasgupta]

satish

insurance company has not committed any deficiency in service by rejecting the claim of the complainant - It had obtained Miscellaneous Accident Insurance Policy also described as ‘Cash in Transit / Cash in Safe Policy” having a coverage of maximum of Rs.50 crore, i.e. in transit coverage upto Rs.1.5crore covering foreign currency / Indian currency / TC cheques etc. by any authorised employee of the Company from Anywhere in India to anywhere in India from the above referred regional office and vice versa including the risk of riot and strike / FG and terrorism. For cash in safe upto to Rs.5.00 crore and at counter upto Rs.30 lakh. The policy was valid from 29.11.99 to 28.11.2000.= repudiated the claim on the ground that the cash in transit policy issued covered only the cash at the counter office of the regional branch of the complainant at M-56 Connaught Circus, New Delhi and since the loss was occasioned at a different place i.e. at a counter at SantRuhani Kirpal Ashram, the said destination / place was not covered.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

REVISION  PETITION  NO. 4052  OF  2007

(Against the order dated 19.07.2007 in Appeal No.A-194/03 of the State Commission, Delhi)

The New India Assurance Co. Ltd.                                   Petitioner

Divisional Office

Bombay Life Building

N-34, Connaught Circus, New Delhi -110001

          Through

The Regional Manager

The New India Assurance Co. Ltd.

Regional Office, 5^th Floor, II Block,

Jeevan Bharti Building, Connaught Place

New Delhi

          Vs

M/s L.K.P.Merchant Financing Ltd.                                  Respondent

Registered Office at 203-A, Embassy Centre

Nariman Point, Mumbai-400021

Regional Office at

M-138, Connaught Circus, New Delhi-110001

BEFORE:

       HON'BLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER

       HON’BLE MR.S.K.NAIK, MEMBER

For the Petitioner             :         Mr.S.M.Tripathi, Advocate

For the Respondent         :         Mr.Jos Chiramel, Advocate

Date :  26^th July, 2012     

ORDER

PER JUSTICE R.C.JAIN, PRESIDING MEMBER

          Aggrieved by the order dated 19.07.2007 passed by the Delhi State  Consumer Disputes Redressal Commission (in short, ‘the State Commission’) in Appeal No.A-194/03, New India Assurance Company Limited ( opposite party in the complaint) has filed the present petition purportedly under section 21(b) of the CP Act, 1986 ( in short, ‘the Act’).  The appeal before the State Commission was filed by the unsuccessful complainant L.K.P.Merchant Finance Limited against the order dated 01.11.2002 passed by the District Consumer DisputesRedressal Forum, New Delhi, in complaint no.OC/302/2001 by which order the District Forum had dismissed the complaint without any order as to costs.

2.       In nutshell, the case of the complainant is that it is a licensed foreign exchange dealer having its registered office at Nariman Point, Mumbai and regional office at M-56, Connaught Circus, New Delhi.  It had obtained Miscellaneous Accident Insurance Policy also described as ‘Cash in Transit  / Cash in Safe Policy” having a coverage of maximum of Rs.50 crore, i.e. in transit coverage upto Rs.1.5crore covering foreign currency / Indian currency / TC cheques etc. by any authorised employee of the Company from Anywhere in India to anywhere in India from the above referred regional office and vice versa including the risk of riot and strike / FG and terrorism.  For cash in safe upto to Rs.5.00 crore and at counter upto Rs.30 lakh.  The policy was valid from 29.11.99 to 28.11.2000.  On 23.12.99, the employees of the complainant, namely, K.Sanjeev, Rajiv Parmar and Arin Chadha carried a sum of Rs.3,16,468.80 in a suitcase in a maruti car for transacting business at Oberoi Hotel Maidens, Sant Ruhani Kirpal Ashram and at other places. After dropping Rajiv Parmar and ArinChadha at Sant Ruhani Kirpal Ashram with the said amount of Rs.3,16,468.80 for transacting business, the car proceeded to other destination (s).  The above named two persons thereafter started transacting the business at the counter provided by the management ofSant Ruhani Kirpal Ashram.  It is alleged that between 11.30 A.M. to 12.15 P.M., some miscreants attacked Arin Chadha and took away a sum of Rs.3,12,268.80 and one US 100 dollar note about which an FIR was lodged at PS Model Town, Delhi and the insurance company was also informed about the accident and the loss of the said amount. Insurance Company appointed M/s Alka Gupta and Associates as the Surveyor and the complainant furnished necessary documents and extended cooperation but ultimately the insurance company repudiated the claim on the ground that the cash in transit policy issued covered only the cash at the counter office of the regional branch of the complainant at M-56 Connaught Circus, New Delhi and since the loss was occasioned at a different place i.e. at a counter at SantRuhani Kirpal Ashram,  the said destination / place was not covered.  The complaint was resisted by the insurance company on the same ground.  District Forum on a consideration of the matter and more particularly going by the recitations in the policy document came to the conclusion that insurance company has not committed any deficiency in service by rejecting the claim of the complainant and accordingly dismissed the complainant by observing as under:

“There is no denial of the fact that there occurred a loss of Rs.3,16,468.80 on 23.12.99 at the cash counter opened in the premises of Sant Ruhani Kirpal Ashram.  While, the complainant’s plea is that this loss is covered under the policy obtained by him for cash in transit, the stand of the OP is that this is not covered under the provisions of the policy as this loss did not take place while in transit.  Therefore, the short issue to be decided by us is whether the said loss can be said to be covered under the terms of the policy or not.  The surveyor’s report has mentioned that the complainant’s view point that since the cover was from “ANYWHERE in India to ANYWHERE in India” (from above branch), hence it is covered under “Cash in transit Policy”, while the other view point that considering the dictionary meaning of transit “It is the passage through or across” and the cash in transit means the process of cash being transported from one place to other hold equal weightage. Therefore, be left it to the O.P. to exercise their discretion while settling the claim. During the course of detailed arguments before us the view point of the complainant was that business of the insured is to buy foreign currencies from the hotels, tourist and other places and they move around throughout the day to buy and sell the currency and in the evening deposited in their cash office.  It further added that they were not having a regular cash counter at the premises of the Ashram but they used to go there every day to do the business and come back and, therefore, the loss should be said to have been occurred as loss of cash in transit.  As it is clear from the facts of the case the complainant had obtained a temporary money change’s license from the Reserve Bank of India valid from 15.12.99 to 2.1.2000 for the 19^th International Human Unity Conference at Sant Ruhani Kirpal Ashram and they were supposed to submit a separate report in the form of FLM statement to the Reserve Bank for the said period.  This clearly shows that since a separate license was obtained, it shall be deemed to be a temporary cash counter for doing the business.  During transit no business is done and secondly during transit no special permission is obtained from the Reserve Bank which was obtained from the premises of Ashram. Therefore, even though the occurrence of the incident is unfortunate the loss of the amount cannot be said to be covered under the provisions of the policy of cash in transit and in any case it is also not covered under the policy cash in safe because the said premises were not insured under the terms of the policy.  Therefore, there is no deficiency in service on the part of the OP in rejecting the claim of the complainant.  The case is accordingly dismissed with no order as to costs.

3.       Aggrieved by the said order, the complainant filed appeal before the State Commission and the State Commission allowed the appeal and directed the insurance company to pay an amount of Rs.3,16,468.80, the loss in dispute and Rs.10,000/- as cost of litigation. The above order of the State Commission was based on the following observations / findings:

“Now the question arises whether cash taken by the employee of aforesaid company from the premises of the office of the appellant to the counter opened temporarily at the premises of Sant Ruhani Kripal Ashram falls within the ‘cash in transit’ or not.  Let us assume that counter was temporarily opened and was not mentioned in the insurance policy but the circumstance of the cash having been collected by the employee of the appellant form the insured premises for being deposited in the bank itself shows that the cash was in transit even if the employee had short stay on the way at SantRuhani Kripal Ashram for five or ten minutes.  It was not the case that cash amount was kept unattended nor was there allegation of negligence, connivance of the employee of appellant – company.  The employee was attacked and injured and money was robbed.

        Loss is loss, may be by any means.  In the context of the insurance policy, loss of cash in transit through person or employee who is carrying the cash for depositing in the bank is loss of ‘cash in transit’.

        Even if we assume that the cash counter at Sant Ruhani Kripal Ashram was opened without the permission of RBI, but the fact remains that the cash was going to be deposited in the bank on the day.  In whatsoever way we may examine the matter the claim can be repudiated by the respondent only when there has been a break of a day or so in the transit.  It was a case of direct transit from the counter or from the premises to the bank.  Even if cash is collected by the employee and taken to his house for a while to be deposited with bank, still it amounts cash in transit”.

4.       We have heard Mr.S.M.Tripathi, Advocate, learned counsel for the petitioner- insurance company and Mr.Jos Chiramel, Advocate, learned counsel for the respondent-complainant and have given our thoughtful consideration to their respective submissions.  Before we advert to the ground of challenge on which the insurance company seeks to assail the impugned order, it is necessary to extract the recitations appearing in Miscellaneous Accident Insurance Policy which are to the following effect:

Miscellaneous Accident Insurance Policy

INSURED    :         M/s LKT Merchant           Policy No.48/6976

                             Financing Ltd.

ADDRESS   :         M-56, Connaught Place   Issued at : New Delhi

                             New Delhi – 110001

BUSINESS  ADDRESS   : M-56, Connaught Place           Date : 29.11.99

                                        New Delhi-110001

PERIOD OF INSURANCE

                   FROM:        29.11.99 TO 28.11.2000

CASH IN TRANSIT / CASH IN SAFE

          Cash in Transit      :         S.I. Rs.50.00 crores maximum and in transit Rs.1.50 crores covering foreign currency / Indian currency / TC cheques in locked suit case / Bags/brief case by car /tax/air/train by authorised employees of the Co. – Anywhere in India to anywhere in India from above branch & vice versa including the risk of riot and strike / FG & terrorism.

Cash in Safe :        S.I. = Rs.5.00 crores  - in ( at counter =

                             Rs. 30.00 lakhs)

Make : Godrej Defender 61”                          Including the risk of hold up and

          Fixed to Floor                                     robbery & theft. Risk 10% of SI of

          Weight = 1385 kg.                              Rs.5.00 crores i.e.50 lakhs)

          Subject to Condition : CT & Cash in safe conditions.

5.       Mr.Tripathi referring to the above recitations strongly contended that the circumstances in which the loss has been allegedly occasioned to the complainant is not covered under the insurance policy. The basis of his submission is that the loss of the currency to the above extent has neither taken place during transit under the first heading ‘cash in transit’ or from the counter of the regional Branch Office of the complainant at M-56, Connaught Circus i.e. under the second clause and had taken place at a different place i.e. counter which according to the complainant was specially opened by it at Sant Ruhani Kirpal Ashram.  On the other hand Mr.Jos Chiramel, Advocate, learned counsel for the respondent-complainant vehemently argued that the loss occasioned to the complainant in the above circumstances is fully covered under the insurance policy in question and the insurance company must indemnify the complainant for the loss occasioned to it.

6.       The facts and circumstances in which the loss of currency was caused to the complainant have already been noted. There is no serious dispute about the same.  Therefore, our consideration is limited as to whether on the face of the recitations appearing in the policy document, the insurance company was justified in repudiating the claim on the ground that loss occasioned to the complainant in the above noted circumstances is not covered under the policy.  A bare reading of the recitals of the policy (supra) should not leave any doubt that the policy intended to cover loss arising in three different situations: i.e. firstly; the loss which was occasioned to the complainant during the course of transit through the territory of India and traveller cheques upto the value of Rs.1.5 crore kept in locked suit case/bags/brief case by car/taxi/air/train by authorised employees of the company from the regional branch office of the complainant AtM-56, Connaught Place, New Delhi to anywhere within the territory of India or vice versa including the loss occasioned due to the riot, strike, FG and terrorism. The second coverage was in respect of the cash not exceeding Rs.5.00 crore stored in a steel safe of Godrej make with a defender of 61” and third coverage was for currency upto Rs.30 lakh at the counter.  Admittedly, the currency amounting to Rs.3,16,468.80 was not lost at the counter of the complainant’s branch office at M-56 Connaught Circus but was lost at the special counter opened at Sant Ruhani KripalAshram, Delhi.  According to Mr.Tripathi loss occasioned at the counter of the branch office alone was covered and loss occasioned to the complainant on account of the theft / robbery at Sant Ruhani Kripal Ashram or at any other counter / place of business was not covered, going by the strict interpretation of the above recitals of the policy. Per contra Mr.Jos Chiramel strongly contended that going by the nature of the business of the complainant  i.e. the business of foreign exchange under the license granted by the RBI, not only the loss occasioned to the complainant at its business counter at M-56 Connaught Circus was covered but any loss occasioned at any other counter including the counter at Sant Ruhani Kripal Ashram will be deemed to have also been covered.  In this regard, he seeks support from certain observations made by the Surveyor Alka Gupta in its report as also on the doctrine of contra proferentem rule.  In the report, above named surveyor had observed as under:

“It is apparent from the facts that they were carrying their computer, had their own lock and key to secure their business place.  RBI does not issue licence for any other place like hotel or bank, where the currency dealing takes place – it issued it only for the business premises.  The RBI has to be informed about its closure also which is not the case with other hotels, banks or tourist spots.  At this business address, cash in safe was not kept – but at the same time it cannot be termed as ‘Cash in Counter’ – because this address has not been notified anywhere in the proposal form.  Although both the points of view hold equal weightage.  We leave it for the underwriters to exercise their discretion while settling claim”. 

7.       Mr.Chiramel then invited our attention to the letter of repudiation dated 02.11.2000 wherein the insurance company had repudiated the claim by citing the following reasons:

“The cash in Transit Policy issued to you covers cash counter of Office situated at M-56, Connaught Circus, New Delhi.  In view of the above our Surveyor Loss Assessor M/s Alka Gupta & Associates had opined that the loss of cash at this specifically opened counter does not fall within the purview of the policy. The file was put up to the Competent Authority whohave concurred with the opinion of the surveyor loss assessor. 

        In view of the above we express our inability to entertain the above claim”.

8.       It is contended that above grounds set out by the insurance company is not correctly reflected in this letter and rather it was contrary to the opinion of the surveyor.  Even if it is assumed to be so, complainant cannot derive any benefit out of this because any observation made and / or recommendations made and findings given by the surveyor are recommendatory in nature and not binding on the insurance company and insurer is free to take a view in the matter going by the said report and overall appreciation of the entire facts and circumstances and other material as also the interpretation of the terms and conditions of the policy and the legal position settled by a catena of decisions.    According to Mr. Tripathi in the recitation of the policy, the business address of the complainant is clearly mentioned as M-56, Connaught Circus and, therefore, the counter referred to in the second clause will necessarily mean a counter at the aforesaid premises only and not the counter at any other premises.

9.       Mr.Jos Chiramel, counsel for the respondent – complainant strongly urged that this is a fit case where the rule of contra proferentemshould be applied and in case of any ambiguity or doubt in the meaning of words mentioned in the policy, the same ought to be interpreted against the insurance company rather than in its favour.  In this regard he seeks support from the following decisions:

1.       United India Insurance Company Ltd.  Vs. Great Eastern Shipping Company Limited (2007) 7 SCC 101;

2.       Satyanarayan Jivanram Vs. National Insurance Company Ltd. II (2006) CPJ 58 (NC);

3.       National Insurance Company Limited Vs.  National Cooperative Consumer Federation of India Ltd. MANU/DE/0572/2009.

          In the first case, the Supreme Court has considered the question as to the extension of the coverage in insurance policy as also the principle of rule of contra proferentem by referring to a number of Indian and English decisions. The Apex Court referred to its earlier decision in the case of Life Insurance Corporation of India  Vs. Raj Kumar Rajgarhia and Anr. AIR 1999 SC 2346, wherein the following rule of law was laid down:

“It is not always possible to be guided by the meaning of the words as found in the dictionary while resorting to interpret the actual meaning of a word found in an agreement between the parties.  While construing the meaning of a particular word found in an agreement between the parties the intention of the parties to the document in question will have to be given necessary weightage and it is not possible to give a wider and liberal meaning merely because of the parties to the said agreement is a public authority.  While interpreting the terms of the insurance policies if two views are possible,  courts will accept the one which favours the police holders”.

          The other decision considered by the Supreme Court was the case Polymat India (P) Ltd. And Anr. Vs. National Insurance Co Ltd. & Ors. AIR 2005 SC 286  wherein it was held that:

The expression "Factory-cum-Godown" occurring in the policy has to be read in the present context with the other conditions which appear in the Policy document. In fact the Clause 8 of the policies concerned specifically made a query as to whether the goods were stored in open or there was a kuccha shed or timber built or thatched roof building within 15M (50ft.) of the property asking for details in this regard.  But no details were given and the query in clause 8 was answered in the negative. Therefore, what was sought to be insured was the plant and machinery.  It is admitted that there was no godown.  Therefore, it is clear that the goods lying outside the plant were not insured.  Had the intention of the parties been otherwise, then they would have answered the query in Claus 8 in positive terms, which details.  But it was answered in the negative.  Therefore, the documents have to be construed in the manner they are presented and a different interpretation cannot be given goods the context.

In the celebrated decision of Supreme Court i.e. General Assurance Society Ltd.  Vs Chandumull Jain & Anr. (1966) 3 SCR 500, the Hon’ble Apex Court held as under:

“In other respects there is no difference between a contract of insurance and any other contract except that in a contract of insurance there is a requirement of uberrima fides i.e., good faith on the part of the assured and the contract is likely to be construed contra proferentem that is against the company in case of ambiguity or doubt.  A contract is formed when there is an unqualified acceptance of the proposal.  Acceptance may be expressed in writing or it may even be implied if the insurer accepts the premium and retains it.  In the case of the assured, a positive act on his part by which he recognizes or seeks to enforce the policy amounts to an affirmation of it.  This position was clearly recognized by the assured himself, because he wrote, close upon the expiry of the time of the cover notes, that either a policy should be issued to him before that period had expired or the cover note extended in time.  In interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves. Looking at the proposal, the letter of acceptance and the cover notes, it is clear that a contract of insurance under the standard policy for fire and extended to cover floor, cyclone etc. had come into being”.

10.     There cannot be any quarrel with the above proposition of law but the crucial question is as to whether the terms of the insurance policy in the case in hand are ambiguous in any way or capable of more than one interpretations i.e. one favouring the insurer and the other to insured.  Mr. Chiramel contended that phrase ‘at the counter’ is not suffixed with the words “at M-56, Connaught Circus, New Delhi” and therefore, the counter referred to in the policy will mean any counter at any other premises also.  The words used in the policy are to be construed in the plain, ordinary and popular meaning and no attempt should be made to give any extended meaning to the plain words. Phrase “at the counter” being very specific and following the term ‘Safe” would necessarily mean a reference to the counter at the address of the respondent i.e. M-56, Connaught Circus, New Delhi, and no other counter. Had it been otherwise then either the location of the said counter would have been specified or made clear by using the word counter in plurality i.e. counter (s).  At the time of issuing the policy in question, the insurer was not informed that the complainant was carrying business transactions at other places / counters other than M-56 Connaught Circus, New Delhi.

11.     We may also like to observe that the finding of the State Commission holding that the loss was occasioned to the complainant during transit based on certain reasoning is not acceptable to this Commission.  In the case in hand, as per the complainant’s own showing, the loss having been occasioned  to the complainant at the counter of Sant Ruhani Kripal Ashram where it used to transact the business through its employees, the complainant cannot be allowed to take a somersault to assert that the loss of the currency was occasioned during transit. We do not know from where the State Commission has inferred that the cash was being taken for deposit in the bank and stop over at Sant Ruhani Kripal Ashram was only temporary and can be considered as part of the transit. In our view as soon as RajivParmar and Arin Chadha left the maruti car and entered the counter of Sant Ruhani Kripal Ashram, the transit will be deemed to have come to an end.  So far as inward journey was concerned, the complainant was not expected to conduct the business of foreign exchange during transit. That would be an additional risk / hazard which insurer cannot be said to have intended to cover.

12.     Thus having considered the matter from various angles, we are of the clear view that State Commission has committed grave error of facts as well as in law by upsetting the well reasoned order of the District Forum and allowing the appeal.  The impugned order is legally unsustainable and is liable to be set aside.

13.     In the result, revision petition succeeds and is hereby allowed and the impugned order is set aside and consequently complaint is dismissed, leaving the parties to bear their own costs. 

                                                       ……………………….J

     (R.C. JAIN)

      ( PRESIDING MEMBER)

                                                                   …………………………

                                                        (S.K.NAIK)

                                                                            MEMBER

whereby the Division Bench of that Court quashed the licence issued to them by respondent no. 2 – Zila Panchayat, Muzaffarnagar – for holding private cattle market in Village Gujjarpur Taparana at Khasra No. 2478 on Tuesdays for the period October 23, 2007 till March 31, 2008 and any subsequent order for the above purpose and directed the Zila Panchayat, Muzaffarnagar to hear the present respondent nos. 3 and 4 and the present appellants and decide the matter afresh.

Page 1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO . 2843 OF 2008
Nafis Ahmad and Anr. …… Appellants
Vs.
State of U.P. & Ors. …… Respondents
JUDGMENT
R.M . LODHA, J .
The appellants are in appeal, by special leave, against the
judgment and order dated December 12, 2007 passed by the Allahabad
High Court whereby the Division Bench of that Court quashed the licence
issued to them by respondent no. 2 – Zila Panchayat, Muzaffarnagar –
for holding private cattle market in Village Gujjarpur Taparana at Khasra
No. 2478 on Tuesdays for the period October 23, 2007 till March 31,
2008 and any subsequent order for the above purpose and directed the
Zila Panchayat, Muzaffarnagar to hear the present respondent nos. 3
and 4 and the present appellants and decide the matter afresh.
1
Page 2
2. The respondent nos. 3 and 4 are the owners of Khasra No. 637
situate in village Kheri Karamu Pargana, Tehsil Shamli, Distt.
Muzaffarnagar. They were granted licence by the Zila Panchayat,
Muzaffarnagar to hold private cattle market at the above place on
Tuesdays on payment of fixed fee. The licence issued to respondent
nos. 3 and 4 has been renewed year after year. For the period 2007-
2008, the licence given to these respondents was renewed from April 1,
2007 to March 31, 2008.
3. The appellants are owners of Khasra No. 2478 situate in
Village Gujjarpur Taparana, Tehsil Shamali, Distt. Muzaffarnagar. On
their application, they were given licence by the Zila Panchayat,
Muzaffarnagar to hold private cattle market in their land on every
Monday. The appellants wanted to hold the private cattle market on
Tuesdays instead of Mondays. As their request was not acceded to,
they filed a writ petition before the Allahabad High Court for a direction to
Zila Panchayat Muzaffarnagar to modify the licence and permit them to
hold the private cattle market on Tuesdays. The High Court vide its
order dated August 18, 2006 directed the appellants to make
representation to the competent authority and the competent authority
was directed to consider such representation in accordance with law.
4. The appellants accordingly made a representation before the
Collector, Muzaffarnagar but the said representation was rejected on
October 11, 2006. The appellants then filed another writ petition before
2
Page 3
the Allahabad High Court aggrieved by the order dated October 11, 2006
passed by the Collector. The High Court disposed of the writ petition on
February 14, 2007 by observing that the appellants may make
representation to Chairman, Zila Panchayat, Muzaffarnagar. The
appellants then made a representation to the Chairman, Zila Panchayat,
Muzaffarnagar. Their representation was allowed by the Chairman, Zila
Panchayat Muzaffarnagar on July 11, 2007 and the licence was issued to
them on October 23, 2007 permitting them to hold cattle market in their
land in Gujjarpur Taparana, Tehsil Shamali, Distt. Muzaffarnagar on
every Tuesday.
5. The respondent nos. 3 and 4 initially filed a suit seeking
permanent injunction against Zila Panchayat, Muzaffarnagar but after
some time filed a writ petition before the Allahabad High Court
challenging the order dated October 23, 2007 whereby Zila Panchayat,
Muzaffarnagar granted licence to the appellants permitting them to hold
private cattle market in their land on Tuesdays and the suit was
withdrawn. The impugned order has been passed in this writ petition.
6. Before the High Court, the question was whether there has
been a valid exercise of power on the part of Zila Panchayat,
Muzaffarnagar in passing order/granting licence dated October 23, 2007
to the appellants permitting them to hold private cattle on Tuesdays.
7. The principal submissions of the writ petitioners (respondents
no. 3 and 4 herein) before the High Court were twofold; one, as per bye-
3
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law 34 notified by Zila Panchayat Muzaffarnagar, called Zila Parishad,
Muzaffarnagar Pashu Pait Bye Laws framed under the provisions of U.P.
Kshetra Samiti and Zila Parishad Adhiniyam, 1961 ( Act No. 33 of 1961),
no cattle fair shall be held within 8 kms. from another cattle market.
According to writ petitioners, the distance between the land where they
have been granted licence to hold private cattle fair and the land of the
appellants where the appellants have been granted licence to hold
private cattle fair is less than 8 kms., precisely 5.043 kms. and,
therefore, the licence granted to the appellants was illegal and two,
Zila Panchayat, Muzaffarnagar before granting licence to the appellants
did not afford any opportunity of hearing to the writ petitioners although
they were vitally concerned in the matter.
8. On the other hand, on behalf of the appellants (respondent nos.
3 and 4 before the High Court), it was submitted that (1) writ petition was
not maintainable; (2) the order dated October 23, 2007 was appealable
under U.P. Kshetra Samiti and Zila Parishad Adhiniyam, 1961 ( Act No.
33 of 1961); and (3) having regard to the scheme of bye-law 34 the
relevant distance between the cattle markets is the distance by way of
road and not the aerial distance and seen thus the distance between
their land where they have been granted licence to hold cattle market fair
and the land of respondents nos. 3 and 4 is 9.25 kms.
9. The High Court overruled the objections raised by the
appellants with regard to the maintainability of writ petition and the
4
Page 5
availability of alternative remedy by way of appeal against the
order/licence dated October 23, 2007 granted to the appellants. The
High Court then proceeded to consider the merit of the matter as follows:
“So far as the merit is concerned, the petitioner’s licence
for cattle market to be held on Tuesday of the week was
granted from 1st April, 2007 which is going to expire on
31st March, 2008. Previously, the cattle market of the
private respondent/s was running in some other day
which was by way of consideration of representation on
30th August, 2007, directed to continue also on Tuesday
and ultimately the license was issued in their favour to
hold cattle market on every Tuesday from 23rd October,
2007. Therefore, during the period of license in favour of
petitioners for the period of the private respondents were
accommodated.
Learned counsel for the petitioners contended
before this Court, that as per the Government Order
there should not be any second cattle market within the
radius of 8 kilometers from the existing market/s. In
support of his case, Mr. Khanna argued before this
Court that as he is already within the area of 5.043
kilometers on the basis of report (Annexure-9 to the writ
petition) being dated 13th September, 2007, however, the
respondents have contradicted this report with a further
report dated 26th September 2007 by saying that aerial
distance might be 5.043 kilometers but not the road
distance. Mr. Krishna Mohan, learned counsel
appearing for respondent no. 2 contended before this
Court that in this context the byelaws will be considered
reasonably. Cattle cannot move on the basis of the
aerial distance but by way of road so the road distance is
to be appropriate to take into consideration as a distance
between the cattle markets. Mr. Khanna stated before
this Court that the dictionary meaning of ‘distance
Webster Dictionary of Law is “the degree or amount of
separation between two points, lines, surface, or objects
in geometrical space measured along the shortest path
joining them”. He also contended that in absence of
meaning of distance, the General Clauses Act, 1897 will
be followed and, therefore, if we go by Section 11 of the
said General Clauses Act, the distance could be aerial
distance between the two markets.
5
Page 6
However, let us consider the submissions of Mr.
Anurag Khanna and Mr. Krishna Mohan as to what was
the cause of granting such license to the private
respondents in spite of existence of the license in favour
of the petitioners. Learned counsel for the respondent
No. 2 submitted that the petitioners are holding their
cattle market in their own land whereas the respondents
were allowed to hold cattle market in the land given by
the Gram Panchayat. He further submitted that if
somebody holds cattle market in his own land, nominal
charge will be obtained by the Panchayat, they will be
able to earn more revenue. Therefore, the respondent
was allowed and granted license for the purpose.
Further, as per several orders of this High Court in the
writ petitions, the respondents’ contention were
considered and the appropriate orders were passed.
On query, we have come to know that the
petitioners were not the parties to any of the writ
petitions in which such orders were passed”.
10. The High Court then held that the interest of the writ
petitioners (respondent nos. 3 and 4 herein) cannot be ignored and
since the order/licence dated October 23, 2007 has been passed
infringing the rights of the writ petitioners, the said order cannot be
sustained. The operative portion of the High Court order reads as
follows:-
“Therefore, their interest cannot be ignored nor equitable
justice say so. Therefore, we are of the view that the order
impugned and any further order in connection thereto
infringing the rights of the petitioners cannot be sustained
without due consideration of the cause by giving
reasonable opportunity of hearing to all the concerned and
come to a decision once more. Therefore, such order is
quashed. Accordingly, the concerned respondent is
directed to consider and decide the matter positively within
one month from the date of communication of the order
after affording fullest opportunity of hearing to all the
concerned parties. For the purpose of effective
adjudication, a copy of the writ petition alongwith its
annexure and the affidavits filed herein along with
6
Page 7
annexure can be treated to be part and parcel of the
consideration. However, passing of this order will not in
any way affect holding market by the petitioners where they
are continuing, as per the license till the last date of
license, i.e. 31st March, 2008 or till the date of
communication of the order to be passed by the authority
whichever is earlier”.
11. This Court on January 25, 2008 issued notice on the special
leave petition and stayed the order of the High Court in the meantime.
Subsequently leave was granted and the interim order has been
continued which continues till date.
12. We have heard Mr. Naushad Ahmad Khan learned counsel for
the appellants, and Mr. Triloki Nath Razdan learned counsel for the
respondent nos. 3 and 4.
13. Learned counsel for the appellants argued, which was also
argued before the High Court, that bye-law 34 of the Bye Laws should
be reasonably construed. Cattle cannot be transported by air; they
move from one place to the other on surface and, therefore, the road
distance is appropriate and bye-law 34 should be construed by holding
that the road distance between two cattle markets must not be less
than 8 kilometers by giving appropriate meaning to the word ‘distance’.
He referred to Section 11 of the General Clauses Act, 1897. Learned
counsel relied upon a decision of the Kerala High Court in Dr. M.
Hassainar Haji v. The Tehsildar, Taliparamba and ors1. and a decision
of Madras High Court in P.G. Murugesan v. The Assistant
1 AIR 1994 Kerala. 139
7
Page 8
Commissioner (Excise) Coimbatore2. He also relied upon the decision of
this Court in Bajaj Hindustan Limited v. Sir Shadi Lal Enterprises Limited
and Anr3. in support of the proposition that policy cannot be changed
by the High Court by interpretation of provisions of law.
14. On the other hand, Mr. Triloki Nath Razdan, learned counsel
for the respondent nos. 3 and 4 stoutly defended the order of the High
Court. He relied upon a decision of the Bombay High Court in St.
Philomena Convent High School, Nashik v. Union of India and Ors.
(Writ Petition No. 4734 of 2004) and a decision of the Andhra Pradesh
High Court in Gorle Ramu V. Commissioner of Prohibition4 to explain
the meaning of word ‘distance’.
15. Bye-law 34 is in Hindi. The respondent No. 2 – Zila Panchayat,
Muzaffarnagar in their counter affidavit before the High Court quoted the
said bye-law which reads as follows:-
“Kisi Pashu Paith Ke esthal Se 8. K.M. Ke Bhitar Koi Annya
Pashu Paith Ayojit Nahi Ki Jai Sakti. Esa Upniyam Ke Lagu
Hone Se Purwa Ayojit Pashu Paitho Par Yah Pratibandh
Lagu Nahi Hoga. Yadi Uska Licence Esa Naye Upniyam
Hone Se 6 Month Purva 34 Ke Gazette Se Prakashan
Prapta Kar Liya Gaya Hai”.
16. The English translation of the bye-law 34 (Annexure P1)
placed by the appellants reads as under:-
“No other cattle fair shall be held within 8 kms from
another cattle market. These bye laws shall not be
applicable to the cattle markets being held when it came in
2 1998 (2) CTC 661
3 (2011) 1 SCC 640
4 2002 (6) ALD 233
8
Page 9
force. Provided that the said license has been notified
within six months prior to the gazette of 34”.
17. The word ‘distance’ does not occur in the English translation
of bye-law 34 placed by the appellants on record. The Hindi version of
bye-law 34 quoted by the respondent No. 2 in their counter affidavit
before the High Court does not have the word ‘दूरी’; it contains the word
‘भीतर’. The authentic version of bye-law 34 of the Bye-Laws has not
been placed before us. In this view of the matter we do not think it is
appropriate for us to place any interpretation on the language of byelaw
34 when the High Court has sent the matter back to Zila
Panchayat, Muzaffarnagar for deciding the matter afresh after giving
reasonable opportunity of hearing to all concerned.
18. We have carefully perused the judgment and order of the
High Court and we find that High Court has not placed any construction
on the language of bye-law 34. The contention of the learned counsel
for the appellants that the High Court has placed an erroneous
interpretation on the language of bye-law 34 is wholly misplaced and
unfounded. The High Court has noted the arguments of the parties but
has not given any interpretation on the language of bye-law 34. The
High Court cannot be said to be in error in adopting the course by
sending the matter back to Zila Panchayat, Muzaffarnagar as impugned
order/licence to the appellants was granted on October 23, 2007
without hearing the respondent nos. 3 and 4.
9
Page 10
19. In view of the above, Civil Appeal has no merit and is
dismissed with no order as to costs. The respondent no. 2 – Zila
Panchayat, Muzaffarnagar shall now act as per the order of the High
Court dated December 12, 2007. Time given by the High Court to
respondent no. 2 for hearing and disposal shall stand extended by
three months from the date of receipt of the copy of this order.
…………………….. J.
(R.M. Lodha)
………………………J.
(Anil R. Dave)
NEW DELHI.
JULY 26, 2012.
10

challenging the order of detention dated 20-07-2011 passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (henceforth referred to as 'the Act'), by the 1st respondent. By the said order it was directed that the son of the appellant named Khalil Ahmed Rashid Ahmed Kapadia (hereinafter referred to as 'the detenu') be detained under the provisions of the Act.; the detention is vitiated by the fact that the representation of the petitioner dated 06-08-2011 invoking Article 22(5) of the Constitution of India was rejected only on 07-09-2011 after an inordinate delay of one month.;delay in disposing of the representation made by the appellant,; the Sponsoring Authority responded to the inquiry of the 1st respondent on 26-08-2011 with a delay of fifteen days. The reasons for such delay have not been explained by the Sponsoring Authority, represented by the 3rd respondent herein.; It is well settled that the right of a person, who is preventively detained, to make a representation and have it considered by the Authority concerned as expeditiously as possible, is a Constitutional right under Article 22(5). Any unreasonable and unexplainable delay in considering the representation is held to be fatal to the continued detention of the detenu. The proposition is too well settled in a long line of decisions of this Court.

                                                              Non-Reportable


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL No.1101__ of 2012
                [Arising out of S.L.P.(CRL) NO. 620 OF 2012]


Rashid Kapadia                                        ….Appellant

                                   Versus

Medha Gadgil & Ors                                ….Respondents

                               J U D G M E N T

Chelameswar, J.

      Leave granted.
2.    Aggrieved by the Judgment in Criminal Writ Petition  No.3253  of  2011
of the Bombay High Court, the unsuccessful petitioner  therein  carried  the
matter to this Court.
3.    The said writ petition was filed challenging the  order  of  detention
dated 20-07-2011 passed under Section 3(1) of the  Conservation  of  Foreign
Exchange and  Prevention  of  Smuggling  Activities  Act,  1974  (henceforth
referred to as 'the Act'), by the 1st respondent.  By the said order it  was
directed that the son of the  appellant  named  Khalil  Ahmed  Rashid  Ahmed
Kapadia (hereinafter referred to as 'the  detenu')  be  detained  under  the
provisions of the Act.
4.    Aggrieved by the said detention order, the  appellant  herein  made  a
representation to the 1st respondent praying that  the  detention  order  be
revoked, for various reasons mentioned  in  the  representation.   The  said
representation came to be rejected by the 1st respondent by an  order  dated
07-09-2011.  Subsequently,  the  appellant  filed  the  abovementioned  writ
petition on 18-10-2011 challenging the order of detention.  By the  Judgment
under challenge the said writ petition was dismissed.
5.    The facts, which lead to the passing of the detention  order,  are  as
follows:
6.    A consignment of goods covered by eight shipping bills, all dated  26-
10-2010, being exported by a firm called M/s.Noble Impex,  was  detained  by
the  Customs  authorities.   On  examination  of  the  consignment  and  the
relevant documents, the authorities opined that there was a  mis-declaration
with respect to the quality, quantity and valuation of the goods  sought  to
be exported.  It appears that the said goods were  being  exported  under  a
scheme known as “Drawback Scheme”.  According  to  the  Customs  Department,
the goods were over-valued in order to claim the benefit  of  higher  export
“drawback”.  It is  the  case  of  the  Customs  Department  that  one  Syed
Naimuddin is the proprietor of the abovementioned M/s.  Noble  Impex.   Syed
Naimuddin and the detenu are said to be cousins.  It is the further case  of
the Customs Department that the abovementioned cousins,  with  the  aid  and
abetment of one Ashok Dhakane and Bala  Jadhav,  who  are  the  partner  and
employee respectively of M/s. Khakane & Co., a firm carrying on business  as
a clearing  house  agent,  attempted  to  make  the  abovementioned  export.
Therefore,  the  Customs  authorities  moved  the  1st  respondent  for  the
issuance of the detention order against the abovementioned four persons.
7.    The 1st respondent, on a consideration of the material placed   before
her, issued the detention order.
8.    The detention order is challenged on various grounds before  the  High
Court;  principally,  that  all  the  material  relevant  for  enabling  the
Detaining Authority (1st respondent) to record the satisfaction that  it  is
necessary to preventively  detain  the  detenu  is  not  placed  before  the
authority; secondly, that the detaining authority  mechanically  passed  the
order of  detention  without  carefully  scrutinising  the  material  placed
before her; and lastly, the detention is  vitiated  by  the  fact  that  the
representation of the petitioner dated 06-08-2011 invoking Article 22(5)  of
the  Constitution  of  India  was  rejected  only  on  07-09-2011  after  an
inordinate delay of one month.
9.    Elaborate submissions were made before the High  Court  on  the  first
two grounds mentioned above, which  did  not  find  favour   with  the  High
Court.
19.    Coming  to  the  last  ground,  i.e.,  delay  in  disposing  of   the
representation made by the  appellant,  however,  the  High  Court  did  not
examine the same in the right perspective.   The  relevant  portion  of  the
Judgment of the High Court in that regard reads as follows:


         “He further submitted that the representation of  the  detenu  was
         received on 06-08-2011 and the Detaining Authority  considered  the
         representation after  taking  into  account  the  comments  of  the
         Sponsoring Authority and the representation was rejected on
         07-09-2011.”

20.   The learned counsel for the appellant Sri Nikhil Jain once again  made
elaborate submission on all the three grounds mentioned above.  But, we  are
of the opinion that it is enough for us to  consider  the  legality  of  the
delayed disposal of the representation made by the appellant.
21.   The fact that the representation was made on  06-08-2011  and  it  was
disposed of on 07-09-2011 by the 1st respondent is not in dispute.   In  the
counter affidavit filed by the 1st respondent in the  writ  petition  it  is
stated at para 19 as follows:


         “19. With reference to paras 8(DD) of the petition, I say that the
         representation dated 6.8.2011 made by  Shri  Rashid  Kapadia,  was
         received in my office  on  6.8.2011  late  in  the  evening.   The
         parawise comments from the Sponsoring Authority were called for by
         letter dated 09.08.2011.  I say that during this  period  7.8.2011
         was holiday.  The  Sponsoring  Authority  forwarded  the  parawise
         comments on 26.8.2011 which were received  in  the  Department  on
         26.8.2011 late in the evening.  There were holidays on 27.08.2011,
         28.08.2011, 31.08.2011 and 01.09.2011 and  on  29.08.2011  due  to
         heavy rain fall the office work was paralysed.   I  further  state
         that  the  concerned  Assistant  submitted  a  detailed  note  and
         forwarded it to the  Under  Secretary  on  30.8.2011.   The  Under
         Secretary  endorsed  it  on  2.9.2011  and  forwarded  it  to  the
         Dy.Secretary.  The Dy.  Secretary  endorsed  it  on  5.9.2011  and
         forwarded the papers  to  me.   I  say  that  during  this  period
         4.9.2011  was  holiday.   I  had  independently   considered   the
         representation and rejected it on 7.9.2011.  Accordingly rejection
         reply was issued on 7.9.2011 through Speed Post to the applicant.”

22.   It can  be  seen  from  the  above  extracted  portion  that  the  1st
respondent called for the  parawise  remarks  of  the  Sponsoring  Authority
(Customs Department)  on  09-08-2011.   However,  the  Sponsoring  Authority
responded to the inquiry of the 1st respondent on 26-08-2011  with  a  delay
of fifteen days.  The reasons for such delay have not been explained by  the
Sponsoring Authority, represented by the 3rd respondent  herein.   There  is
nothing on  the record placed before us, which explains  the  abovementioned
delay on the part of the 3rd respondent's Department.
23.   It is well settled that the right of a  person,  who  is  preventively
detained, to make a representation and have it considered by  the  Authority
concerned as expeditiously as possible,  is  a  Constitutional  right  under
Article 22(5).  Any unreasonable and unexplainable delay in considering  the
representation is held to  be  fatal  to  the  continued  detention  of  the
detenu.  The proposition is too well settled in a long line of decisions  of
this Court.  We do not think it necessary  to  examine  the  authorities  on
this aspect, except to  take  note  of  a  couple  of  Judgments  where  the
principle is discussed in detail.  They are; Mohinuddin  alias  Moin  Master
v. District Magistrate, Beed and Ors.[1]   and  Harshala  Santosh  Patil  v.
State of Maharashtra[2].
24.   Therefore, we have no option, but to come to the conclusion  that  the
detention order cannot be sustained on the abovementioned ground  alone  and
it is required to be, accordingly, set aside.
25.   In view of such conclusion, we do not think it necessary  to  go  into
other contentions raised  on  behalf  of  the  appellant.   The  Appeal  is,
therefore, allowed.

                                                            ………………………………….J.
                                                           ( ALTAMAS KABIR )



                                                            ………………………………….J.
                                                          ( J. CHELAMESWAR )
New Delhi;
July 25, 2012.

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[1]   (1987) 4 SCC 58
[2]   (2006) 12 SCC 211

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