Medical Seats - Defects are rectified pending only for inspection and verification and certification - time is going to be lapsed by 30-9-2014 - Apex court granted interim orders and held that Notwithstanding any direction given in the case of Priya Gupta (supra), if undertakings as stated hereinabove are filed by the institutions managing medical colleges for the academic year 2014-15, admissions shall be given to the students from the merit list prepared by the States and they shall be charged fees prescribed by the Government Medical Colleges of their respective States. It is also clarified that there would be no further counselling in respect of the students who are to be given admission, even if it might result into some heart burning among other students, but in the peculiar facts of the case, we give this direction. In no case, the admission shall be given after 30th September, 2014. This order shall also apply to all the institutions which had filed their petitions earlier for renewal of their recognition for the academic year 2014-15, but their petitions were rejected or withdrawn for whatever reason, provided undertakings as stated hereinabove are filed by President/Chairman and the Secretary of those institutions. when several seats for medical admission are likely to remain vacant for the academic year 2014-15, we are of the view that these matters require urgent consideration and we are giving these interim directions under the provisions of Article 142 of the Constitution of India.All those petitions shall be deemed to have been revived and this order shall be deemed to have been passed in those cases also. This order shall only be in respect of renewal of recognition and not for creation of additional seats or for new colleges. We also record that the Union of India has supported the petitioners in the interest of students. We also direct the Union of India to give wide publicity to this order in print as well as electronic media in the interest of the concerned students. It is directed that the list of students getting admission in pursuance of this order shall be placed on record of this Court by 1st October, 2014 by the concerned institutions and a copy thereof shall also be sent to the MCI. These matters shall be treated as part-heard and shall be notified for further hearing in the month of December, 2014.=WRIT PETITION (CIVIL) NO. 469 OF 2014 HIND CHARITABLE TRUST SHEKHAR HOSPITAL PVT. LTD. PETITIONER(s) VERSUS UNION OF INDIA & ORS. RESPONDENT(s) = 2014- Sept.Month - http://judis.nic.in/supremecourt/filename=41936

  Medical Seats - Defects are rectified pending only for inspection and verification and certification - time is going to be lapsed by 30-9-2014 - Apex court granted interim orders  and held that Notwithstanding any direction given in the case of Priya Gupta  (supra),  if undertakings as stated hereinabove are filed by  the  institutions  managing medical colleges for the academic year 2014-15, admissions  shall  be  given to the students from the merit list prepared by the States  and  they  shall be charged fees prescribed by  the  Government  Medical  Colleges  of  their respective States. It is also clarified that there would be no further counselling  in  respect of the students who are to be given admission, even if it might result  into some heart burning among other students, but in the peculiar  facts  of  the case, we give this direction. In no case, the admission shall be given after 30th  September,  2014.  This order shall also apply  to  all  the  institutions  which  had  filed  their petitions earlier for renewal of their recognition  for  the  academic  year 2014-15, but  their  petitions  were  rejected  or  withdrawn  for  whatever reason,  provided  undertakings  as  stated   hereinabove   are   filed   by President/Chairman and  the  Secretary  of  those  institutions.  when several seats for medical admission are  likely  to  remain vacant for the academic year 2014-15, we are of the view that these  matters require urgent consideration and we  are  giving  these  interim  directions under the provisions of Article 142 of the Constitution of India.All  those petitions shall be deemed to have been  revived  and  this  order  shall  be deemed to have been passed in those cases also.  This order  shall  only  be in respect of renewal of recognition and  not  for  creation  of  additional seats or for new colleges. We also record that the Union of India has supported the petitioners in  the interest of students.  We also direct  the  Union  of  India  to  give  wide publicity to this order  in  print  as  well  as  electronic  media  in  the
interest of the concerned students. It is directed that the list of students getting admission in  pursuance  of this order shall be placed on record of this Court by 1st October,  2014  by the concerned institutions and a copy thereof shall  also  be  sent  to  the MCI.   These matters shall  be  treated  as  part-heard  and  shall  be notified for further hearing in the month of December, 2014.=

There is one more reason for passing this interim order.  We  are  conscious
of the fact that number of physicians in our country is much less than  what
is required and because of non-renewal of  recognition  of  several  medical
colleges, our citizens would be deprived of a good number of physicians  and
therefore, we are constrained to pass this order,  whereby  at  least  there
would be some increase in the number of physicians  after  five  years.   
We
are running against time because the last  date  for  giving  admissions  to
MBBS Course for the academic year 2014-15 is 30th September, 2014.
We also desire to reconsider the directions  given  by  this  Court  in  the
judgment of Priya Gupta v. State of Chhattisgarh [(2012) 7 SCC 433], but  at
this juncture, as we do  not  have  sufficient  time  to  decide  all  these
petitions finally, we are passing this interim order  and  the  matter  with
regard to reconsideration of the aforestated judgment  would  be  considered
while finally disposing of this group of petitions. =

Notwithstanding any direction given in the case of Priya Gupta  (supra),  if
undertakings as stated hereinabove are filed by  the  institutions  managing
medical colleges for the academic year 2014-15, admissions  shall  be  given
to the students from the merit list prepared by the States  and  they  shall
be charged fees prescribed by  the  Government  Medical  Colleges  of  their
respective States.
The State Authorities, i.e., the Directorate  of  Medical
Education & Research, of the  respective  States  shall  send  students,  in
order of their merit, to the medical colleges run by the petitioners,  which
are situated within their States, within one week from the date  of  receipt
of a copy of this order and the said students shall be admitted to the  MBBS
Course in accordance with the rules and regulations  of  the  MCI  and  also
regulations dated  16.04.2010  framed  by  the  Medical  Council  of  India,
provided undertakings  as  mentioned  above  are  filed  on  behalf  of  the
concerned institutions.
It is also clarified that there would be no further counselling  in  respect
of the students who are to be given admission, even if it might result  into
some heart burning among other students, but in the peculiar  facts  of  the
case, we give this direction.
In no case, the admission shall be given after 30th  September,  2014.  
This
order shall also apply  to  all  the  institutions  which  had  filed  their
petitions earlier for renewal of their recognition  for  the  academic  year
2014-15, but  their  petitions  were  rejected  or  withdrawn  for  whatever
reason,  provided  undertakings  as  stated   hereinabove   are   filed   by
President/Chairman and  the  Secretary  of  those  institutions.
All  those
petitions shall be deemed to have been  revived  and  this  order  shall  be
deemed to have been passed in those cases also.  This order  shall  only  be
in respect of renewal of recognition and  not  for  creation  of  additional
seats or for new colleges.
We also record that the Union of India has supported the petitioners in  the
interest of students.  We also direct  the  Union  of  India  to  give  wide
publicity to this order  in  print  as  well  as  electronic  media  in  the
interest of the concerned students.
It is directed that the list of students getting admission in  pursuance  of
this order shall be placed on record of this Court by 1st October,  2014  by
the concerned institutions and a copy thereof shall  also  be  sent  to  the
MCI.
            These matters shall  be  treated  as  part-heard  and  shall  be
notified for further hearing in the month of December, 2014.

2014- Sept.Month - http://judis.nic.in/supremecourt/filename=41936

                                                                REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                    CIVIL ORIGINAL/APPELLATE JURISDICTION

                   WRIT PETITION (CIVIL)  NO.  469 OF 2014

      HIND CHARITABLE TRUST SHEKHAR HOSPITAL
      PVT. LTD.                                         PETITIONER(s)

                                VERSUS

UNION OF INDIA & ORS.                       RESPONDENT(s)
                                    WITH
      W.P.(C) No. 700/2014
W.P.(C) No. 705/2014
W.P.(C) No. 706/2014
W.P.(C) No. 707/2014
SLP(C)  No. 21765/2014
SLP(C)  No. 22755/2014
SLP(C)  No. 22756/2014
SLP(C)  No. 22757/2014
SLP(C)  No. 22758-22759/2014
SLP(C)  No. 22974/2014
W.P.(C) No. 784/2014
SLP(C)  No. 23512/2014
SLP(C)  No. 23777/2014
W.P.(C) No. 757/2014
W.P.(C) No. 799/2014
SLP(C)  No. 22785/2014
SLP(C)  No. 23476/2014
SLP(C)  No. 23547/2014
SLP(C)  No. 24150-24151/2014
SLP(C)  No. 24154/2014
T.P.(C) No. 1217/2014
SLP(C)  No. 24665/2014
SLP(C)  No. 24913/2014
W.P.(C) No. 819/2014
SLP(C)  No. 24686/2014
SLP(C)  No. 25763/2014
                                  O R D E R

      Heard the learned senior counsel appearing for both the sides.
Looking  at  the  peculiar  facts  and  circumstances  of  the   case   and,
especially, when several seats for medical admission are  likely  to  remain
vacant for the academic year 2014-15, we are of the view that these  matters
require urgent consideration and we  are  giving  these  interim  directions
under the provisions of Article 142 of the Constitution of India.
There is one more reason for passing this interim order.  We  are  conscious
of the fact that number of physicians in our country is much less than  what
is required and because of non-renewal of  recognition  of  several  medical
colleges, our citizens would be deprived of a good number of physicians  and
therefore, we are constrained to pass this order,  whereby  at  least  there
would be some increase in the number of physicians  after  five  years.   We
are running against time because the last  date  for  giving  admissions  to
MBBS Course for the academic year 2014-15 is 30th September, 2014.
We also desire to reconsider the directions  given  by  this  Court  in  the
judgment of Priya Gupta v. State of Chhattisgarh [(2012) 7 SCC 433], but  at
this juncture, as we do  not  have  sufficient  time  to  decide  all  these
petitions finally, we are passing this interim order  and  the  matter  with
regard to reconsideration of the aforestated judgment  would  be  considered
while finally disposing of this group of petitions.
It has been submitted on behalf of the learned senior counsel appearing  for
all the petitioners/ respondents, who are managing  medical  colleges,  that
the defects which had been recorded at the time of the  last  inspection  by
the  representatives  of  the  Medical  Council  of  India  have  been  duly
rectified and at present, the defects pointed out  in  the  reports  do  not
exist.  The said fact can be ascertained only by having a  fresh  Compliance
Verification/Inspection.   However,  the  stand   taken   by   the   Central
Government and the Medical Council of India is to the effect  that  no  such
inspection can be undertaken in the  present  academic  session  because  of
paucity of time and it would violate the time schedule  laid  down  by  this
Court in the case of Priya Gupta (supra).
The learned senior counsel appearing for the Medical Council  of  India  has
also submitted that the petitioners do not have any legal right for  getting
renewal of the  recognition,  especially  in  view  of  the  fact  that  the
Verification/Inspection  Reports  are  not  available  for  the  period   in
question.  The learned senior counsel has relied upon some of the  Judgments
to substantiate his case and according to him, it  would  not  be  just  and
proper to permit the said medical colleges to take fresh batch of students.
Looking at the peculiar facts of  the  case  and  the  circumstances  stated
hereinabove,  we  direct   the   petitioners   to   file   undertakings   by
President/Chairman and Secretary of the  petitioners'  institutions  running
medical colleges within 10 days from today, to the effect that there  is  no
defect in the medical colleges run by them and they would  also  state  that
their deposit with the MCI, which is around Rs.10 crores,  be  forfeited  by
way of penalty if the statement made in  the  undertaking  is  found  to  be
incorrect at the time of the next inspection. A draft undertaking  has  been
given to this Court.  A copy of the undertaking, which  might  be  filed  by
the institutions, shall be served upon the office of the Medical Council  of
India as well as to the Ministry of Health  and  Family  Welfare,  Govt.  of
India, New Delhi.

We also record the fact that in the recent  past,  the  Medical  Council  of
India has renewed recognition of Government Medical Colleges  on  the  basis
of undertakings and therefore, we see no reason not to  permit  the  private
colleges to admit students on the  basis  of  undertakings  given  by  their
office bearer as a special case.

Notwithstanding any direction given in the case of Priya Gupta  (supra),  if
undertakings as stated hereinabove are filed by  the  institutions  managing
medical colleges for the academic year 2014-15, admissions  shall  be  given
to the students from the merit list prepared by the States  and  they  shall
be charged fees prescribed by  the  Government  Medical  Colleges  of  their
respective States. The State Authorities, i.e., the Directorate  of  Medical
Education & Research, of the  respective  States  shall  send  students,  in
order of their merit, to the medical colleges run by the petitioners,  which
are situated within their States, within one week from the date  of  receipt
of a copy of this order and the said students shall be admitted to the  MBBS
Course in accordance with the rules and regulations  of  the  MCI  and  also
regulations dated  16.04.2010  framed  by  the  Medical  Council  of  India,
provided undertakings  as  mentioned  above  are  filed  on  behalf  of  the
concerned institutions.
It is also clarified that there would be no further counselling  in  respect
of the students who are to be given admission, even if it might result  into
some heart burning among other students, but in the peculiar  facts  of  the
case, we give this direction.
In no case, the admission shall be given after 30th  September,  2014.  This
order shall also apply  to  all  the  institutions  which  had  filed  their
petitions earlier for renewal of their recognition  for  the  academic  year
2014-15, but  their  petitions  were  rejected  or  withdrawn  for  whatever
reason,  provided  undertakings  as  stated   hereinabove   are   filed   by
President/Chairman and  the  Secretary  of  those  institutions.  All  those
petitions shall be deemed to have been  revived  and  this  order  shall  be
deemed to have been passed in those cases also.  This order  shall  only  be
in respect of renewal of recognition and  not  for  creation  of  additional
seats or for new colleges.
We also record that the Union of India has supported the petitioners in  the
interest of students.  We also direct  the  Union  of  India  to  give  wide
publicity to this order  in  print  as  well  as  electronic  media  in  the
interest of the concerned students.
It is directed that the list of students getting admission in  pursuance  of
this order shall be placed on record of this Court by 1st October,  2014  by
the concerned institutions and a copy thereof shall  also  be  sent  to  the
MCI.
            These matters shall  be  treated  as  part-heard  and  shall  be
notified for further hearing in the month of December, 2014.
                                                   .......................J.
                                                             [ANIL R. DAVE ]


                                                   .......................J.
                                                            [VIKRAMAJIT SEN]


                                                   .......................J.
                                                          [UDAY UMESH LALIT]

      New Delhi;
      September 18, 2014.

Appointment of dealers for superior kerosene oil and light diesel oil (SKO-LDO) - whether, on the cancellation of the allotment of a dealership or distributorship for petroleum products in favour of the first ranked or first empanelled candidate, there is an automatic allotment in favour of the second ranked or second empanelled candidate, subject to fulfillment of the conditions of allotment. Apex court held that In our opinion, in view of the decisions of this Court, if the allotment is tainted due to political connections or patronage or other extraneous considerations, the entire selection process is vitiated and, therefore the second ranked or second empanelled candidate is not entitled to an automatic allotment of a dealership or distributorship in his or her favour.= CIVIL APPEAL NO. 8980 OF 2014 (Arising out of S.L.P. (Civil) No. 313 of 2012) Chairman cum Managing Director Indian Oil Corporation Ltd. and Ors. ….Appellants Vs. Sunita Kumari & Anr. ….Respondents =2014- sept, month- http://judis.nic.in/supremecourt/imgst.aspx?filename=41934

Appointment of dealers for superior kerosene oil and light diesel  oil  (SKO-LDO) - whether,  on  the  cancellation  of  the allotment of a dealership  or  distributorship  for  petroleum  products  in favour of the first ranked  or  first  empanelled  candidate,  there  is  an
automatic allotment in favour of the  second  ranked  or  second  empanelled candidate, subject to fulfillment of the conditions  of  allotment. Apex court held that In  our opinion, in view of the  decisions  of  this  Court,  if  the  allotment  is tainted due to  political  connections  or  patronage  or  other  extraneous considerations, the entire selection process is vitiated and, therefore  the second  ranked  or  second  empanelled  candidate  is  not  entitled  to  an automatic allotment of  a  dealership  or  distributorship  in  his  or  her favour.=

  On 10th July 2000, an advertisement  was  issued  by  the  appellants,
that is, Indian Oil Corporation Ltd. (for short ‘IOC’) for  the  appointment
of dealers for superior kerosene oil and light diesel  oil  (SKO-LDO).   The
appointment was reserved for women belonging to  Scheduled  Castes  and  was
for Warisnagar, District Samastipur (Bihar).
4.    Several applications appear to have been received in response  to  the
advertisement and on 24th July, 2001, a panel  of  selected  candidates  was
prepared by the IOC in order of merit.  The panel was as follows:-
Smt. Neelam Kumari
Smt. Sunita Kumari (respondent no.1 herein)
Kumari Anju Chaudhary

5.    Sometime in the beginning of August, 2002 a news item appeared on  the
front page of the Indian Express to the effect that all over the country,  a
large number of dealerships or distributorships were allotted in respect  of
several petroleum products  to persons  close  to  political  functionaries.
The news item implied that the allotments were not on merits but on  account
of political considerations to favour the allottees.
6.    The news item resulted in a public outcry and on 5/9 August, 2002  the
Government  of  India  passed  an  order  cancelling  all   allotments   for
dealerships in  petroleum  products  with  effect  from  1st  January,  2000
including of SKO-LDO dealerships.=
 The allotment of dealerships in respect of  the  State  of  Bihar  was
considered by this Court Mukund Swarup Mishra v. Union of  India[3]  in  the
light of the Report given by the Committee. It was  held  therein  that  the
allotment made to Neelam  Kumari  was  not  on  merits  but  for  extraneous
considerations.  As  a  result  the  allotment  made  in  her  favour  stood
cancelled.
11.   Following the cancellation  of  the  allotment  in  favour  of  Neelam
Kumari, a writ petition was filed by Sunita Kumari in the Patna  High  Court
being CWJC No. 7186 of 2008 next in the list of selected candidates for  the
SKO-LDO dealership in Warisnagar.   In  her  writ  petition,  Sunita  Kumari
claimed that since she was the second ranked selected  candidate,  the  SKO-
LDO dealership should be awarded to her after  the  cancellation  of  Neelam
Kumari’s dealership.=

Decision of the High Court


12.   The writ petition filed by Sunita Kumari  was  allowed  by  a  learned
Single Judge of the Patna High Court by his judgment and  order  dated  15th
April, 2009.  While allowing the writ  petition  the  learned  Single  Judge
held that Sunita Kumari was entitled to be treated as the  first  empanelled
candidate upon the cancellation  of  the  dealership  in  favour  of  Neelam
Kumari.
13.   Feeling aggrieved by the  decision  rendered  by  the  learned  Single
Judge, a Letters Patent Appeal being LPA No. 307 of 2010  was  preferred  by
the IOC before the Division Bench of the Patna High Court. By  the  impugned
judgment and order dated 10th February, 2011 the  Division  Bench  dismissed
the appeal of IOC and upheld the decision of the learned Single Judge.
14.   It is under these circumstances, that the present appeal has  come  up
before us.

=

The controversy has now been set at  rest  in  Awadesh  Mani  Tripathi
where a three-judge Bench has taken the view that if the  selection  process
is  vitiated  due  to  political  considerations  or  patronage   or   other
extraneous considerations, there is no automatic allotment in favour of  the
second empanelled candidate when  the  selection  of  the  first  empanelled
candidate is cancelled. This is because the entire  selection  process  gets
vitiated and not just one selection or allotment. If the  selection  process
is itself vitiated,  there  is  no  question  of  going  down  the  list  of
empanelled candidates. We respectfully accept and follow this view. We  make
it clear that if an individual selection is cancelled  on  merits,  such  as
lack of eligibility or erroneous calculation of marks that  is  cancellation
for reasons other  than  political  considerations  or  patronage  or  other
extraneous considerations, then the entire selection process  would  not  be
vitiated and the law laid down in Raj Bala would be applicable.
27.   Under these circumstances, in our opinion, the decisions  rendered  in
Raj Bala and Anil Kumar Singh  fall  in  one  category  since  they  do  not
concern themselves with mass cancellations or  have  any  reference  to  the
Committee as in the present case  and  also  because  the  entire  selection
process was not vitiated by political considerations or patronage  or  other
extraneous considerations. These cases dealt with one-off cancellations.  On
the other hand, Ramesh Chand Trivedi and Awadesh Mani  Tripathi  fall  in  a
different category altogether. The decision in Ritu Mahajan is  contrary  to
Awadesh Mani Tripathi and so we must hold that it  does  not  lay  down  the
correct  law  with  regard  to  the  allotment  of   a   dealership   or   a
distributorship in favour  of  the  second  empanelled  candidate  in  cases
concerning blanket cancellations or in cases when the  allotment  in  favour
of the first empanelled candidate is cancelled, the  allotment  having  been
made  for  political  considerations  or  patronage  or   other   extraneous
considerations.

  Since the present case concerns itself  with  the  mass  cancellations
and the Report of the Committee, we are bound by the decision taken  by  the
three-Judge Bench in Awadesh Mani Tripathi.  Accordingly we hold,  following
that decision that when the allotment of the dealership  or  distributorship
in favour of the first empanelled candidate is cancelled as a result of  the
Report of the Committee appointed in Onkar Lal Bajaj, which Report has  been
accepted by this Court, the selection process itself is  vitiated.  In  such
an event, there is no question of  the  second  empanelled  candidate  being
automatically granted the dealership or  distributorship  in  place  of  the
first empanelled candidate.  The entire panel of  selected  candidates  must
stand cancelled and a fresh selection process must be initiated.
29.   In view of our conclusion,  the  impugned  order  of  the  High  Court
directing allotment of the dealership in SKO-LDO in favour of Sunita  Kumari
is quashed. The appeal is allowed. No costs.

2014- sept, month- http://judis.nic.in/supremecourt/imgst.aspx?filename=41934


                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO.  8980  OF 2014
               (Arising out of S.L.P. (Civil) No. 313 of 2012)


Chairman cum Managing Director
Indian Oil Corporation Ltd. and Ors.                       ….Appellants

                                     Vs.
Sunita Kumari & Anr.                                         ….Respondents


                                    WITH


                      S.L.P. (Civil) No. 31006 of 2012

Rajesh Kumar Tiwary                                      …Petitioner

                                     Vs.
The Union of India & Ors.
….Respondents


                               J U D G M E N T

Madan B. Lokur, J.


Leave granted in S.L.P. (Civil) No. 313 of 2012.
The question for consideration  is  whether,  on  the  cancellation  of  the
allotment of a dealership  or  distributorship  for  petroleum  products  in
favour of the first ranked  or  first  empanelled  candidate,  there  is  an
automatic allotment in favour of the  second  ranked  or  second  empanelled
candidate, subject to fulfillment of the conditions  of  allotment.  In  our
opinion, in view of the  decisions  of  this  Court,  if  the  allotment  is
tainted due to  political  connections  or  patronage  or  other  extraneous
considerations, the entire selection process is vitiated and, therefore  the
second  ranked  or  second  empanelled  candidate  is  not  entitled  to  an
automatic allotment of  a  dealership  or  distributorship  in  his  or  her
favour.
The facts
3.    On 10th July 2000, an advertisement  was  issued  by  the  appellants,
that is, Indian Oil Corporation Ltd. (for short ‘IOC’) for  the  appointment
of dealers for superior kerosene oil and light diesel  oil  (SKO-LDO).   The
appointment was reserved for women belonging to  Scheduled  Castes  and  was
for Warisnagar, District Samastipur (Bihar).
4.    Several applications appear to have been received in response  to  the
advertisement and on 24th July, 2001, a panel  of  selected  candidates  was
prepared by the IOC in order of merit.  The panel was as follows:-
Smt. Neelam Kumari
Smt. Sunita Kumari (respondent no.1 herein)
Kumari Anju Chaudhary

5.    Sometime in the beginning of August, 2002 a news item appeared on  the
front page of the Indian Express to the effect that all over the country,  a
large number of dealerships or distributorships were allotted in respect  of
several petroleum products  to persons  close  to  political  functionaries.
The news item implied that the allotments were not on merits but on  account
of political considerations to favour the allottees.
6.    The news item resulted in a public outcry and on 5/9 August, 2002  the
Government  of  India  passed  an  order  cancelling  all   allotments   for
dealerships in  petroleum  products  with  effect  from  1st  January,  2000
including of SKO-LDO dealerships.
7.    The blanket cancellation led to a spate of writ petitions being  filed
all over the country since several thousand allottees  were  affected.  Soon
thereafter, transfer petitions were filed to transfer the cases  pending  in
various High Courts to this Court. These  transfer  petitions  were  allowed
and the writ petitions taken up for consideration.
8.    This Court then heard the allottees  as  well  as  the  Government  of
India and in Onkar Lal Bajaj v. Union of India[1] it was observed  that  the
news item and subsequent news items in the Indian Express  made  a  specific
reference  to  413   allegedly   tainted   dealership   or   distributorship
allotments.   After  considering  all  aspects  of  the  case,  this   Court
appointed a Committee of two retired judges to examine these 413  allotments
and determine, on a preliminary examination of the  facts  and  records,  if
the allotments were made  on  merits  and  not  as  a  result  of  political
connections or patronage or other extraneous considerations.
9.    The Committee examined the records of the  allotments  made  and  also
heard the  aggrieved  parties  and  submitted  its  Report  to  this  Court.
Objections were filed to the Report and they were  considered  and  rejected
in Mukund Swarup Mishra v. Union of India.[2]  This  Court  also  considered
the allotment of dealerships made in  respect  of  some  States  and  passed
appropriate  orders.   The  case  was  then  adjourned  for  taking  up  the
allotments made in other States including the State of Bihar.
10.   The allotment of dealerships in respect of  the  State  of  Bihar  was
considered by this Court Mukund Swarup Mishra v. Union of  India[3]  in  the
light of the Report given by the Committee. It was  held  therein  that  the
allotment made to Neelam  Kumari  was  not  on  merits  but  for  extraneous
considerations.  As  a  result  the  allotment  made  in  her  favour  stood
cancelled.
11.   Following the cancellation  of  the  allotment  in  favour  of  Neelam
Kumari, a writ petition was filed by Sunita Kumari in the Patna  High  Court
being CWJC No. 7186 of 2008 next in the list of selected candidates for  the
SKO-LDO dealership in Warisnagar.   In  her  writ  petition,  Sunita  Kumari
claimed that since she was the second ranked selected  candidate,  the  SKO-
LDO dealership should be awarded to her after  the  cancellation  of  Neelam
Kumari’s dealership.

Decision of the High Court


12.   The writ petition filed by Sunita Kumari  was  allowed  by  a  learned
Single Judge of the Patna High Court by his judgment and  order  dated  15th
April, 2009.  While allowing the writ  petition  the  learned  Single  Judge
held that Sunita Kumari was entitled to be treated as the  first  empanelled
candidate upon the cancellation  of  the  dealership  in  favour  of  Neelam
Kumari.
13.   Feeling aggrieved by the  decision  rendered  by  the  learned  Single
Judge, a Letters Patent Appeal being LPA No. 307 of 2010  was  preferred  by
the IOC before the Division Bench of the Patna High Court. By  the  impugned
judgment and order dated 10th February, 2011 the  Division  Bench  dismissed
the appeal of IOC and upheld the decision of the learned Single Judge.
14.   It is under these circumstances, that the present appeal has  come  up
before us.

Discussion
15.   It was submitted by learned counsel for the IOC that in  view  of  the
decisions of this Court in Awadesh Mani Tripathi v. Union  of  India[4]  and
Bharat Petroleum Corporation  Ltd.  v.  Ramesh  Chand  Trivedi[5]  when  the
allotment of a dealership is cancelled due to  an  illegality  in  selecting
and preparing the panel  of  successful  candidates,  the  entire  selection
process  is  vitiated.  Therefore,  merely  because  the  first   empanelled
candidate is found ineligible or the allotment  in  his  or  her  favour  is
otherwise cancelled, it would not automatically result in the  allotment  of
the dealership in favour of the next empanelled candidate.
16.   Learned counsel for Sunita Kumari on the other  hand  relied  on  Ritu
Mahajan v.  Indian Oil Corporation[6], Raj Bala v.  Union  of  India[7]  and
Anil Kumar Singh  v.  The  Chairman,  Dealers  Selection  Board.[8]  It  was
contended, on the basis of  these  decisions  that  when  the  allotment  in
favour of the first empanelled candidate is cancelled, the  next  empanelled
candidate is entitled to an automatic allotment.
17.   Raj Bala was the first  such  case  in  which  the  second  empanelled
candidate was awarded the dealership on its cancellation in respect  of  the
first empanelled candidate. That case, however, did not  deal  with  blanket
cancellations such as the one we are concerned with.  In  that  sense,  that
case is somewhat dissimilar to the present case. The facts in Raj Bala  were
that the first empanelled candidate was held eligible for an allotment of  a
distributorship of petroleum products by the High  Court  but  this  finding
was set aside in appeal by a three-judge Bench of this Court.  It  was  then
held:
“Having regard to the ineligibility of the 7th respondent,  who  was  placed
first on the merit list, the distributorship ought to have been  awarded  to
the appellant, who was second in the merit list.  Having regard to what  has
transpired, we think it  appropriate  to  direct  that  the  7th  respondent
should cease to act as a dealer for the  2nd  respondent,  pursuant  to  the
award of the dealership to him as aforesaid,  on  and  from  1st  September,
1995 and that on and from that date the  2nd  respondent  should  award  the
dealership to the appellant who would be entitled  to  conduct  business  by
reason thereof from that date.  The appellant shall, of course,  be  obliged
to fulfil all  necessary  conditions  to  the  satisfaction  of  the  second
respondent.”

18.   Anil Kumar Singh also did not pertain to  blanket  cancellations  made
by the Government in 2002 nor did it pertain to the  case  referred  to  the
Committee. However, a Bench of two learned Judges relied upon Raj  Bala  and
held  that  once  a  person  to  whom  the  allotment  is  made  has  become
ineligible, the distributorship must be awarded to the person who is  second
in the merit list.
19.   In Ritu Mahajan a two-Judge  Bench  dealt  with  the  allotment  of  a
retail outlet dealership arising out of an advertisement issued by  the  IOC
on 22nd June, 2000. It had been alleged that the allottee (Rani  Gauba)  was
illegally given the allotment. The allotment was one  of  the  many  in  the
blanket cancellations and was a case referred to the  Committee  set  up  by
this Court in Onkar Lal Bajaj.  The Committee found that  the  allotment  in
favour of Rani Gauba was indeed illegal and that view  was  upheld  by  this
Court.  Ritu Mahajan then claimed a right to the allotment in place of  Rani
Gauba. In the final paragraph of the judgment, her prayer was  accepted  and
it was held as follows:-
“In that view of the matter, the  selection  of  the  fifth  respondent  for
allotment of retail outlet dealership at Dhariwal is set  aside  and  Indian
Oil Corporation  Respondent 1 is hereby directed to make  allotment  of  the
said retail outlet  dealership  at  Dhariwal  in  favour  of  the  appellant
immediately.  The appeal is allowed accordingly.”

20.   It will be seen that this Court proceeded on the basis that there  was
an entitlement for an automatic allotment in favour of  Ritu  Mahajan  after
the retail outlet dealership in favour of Rani Gauba was cancelled.
21.   These three decisions proceed on the basis that when an  allotment  is
cancelled  in  favour  of  the  first  empanelled  candidate,  there  is  an
automatic allotment in favour of the second empanelled candidate. The  first
two decisions did not deal with blanket cancellations while  the  third  one
did.
22.   In Ramesh Chand Trivedi a two-judge Bench dealt with a  case  referred
to the Committee and took the view that when the allotment in favour of  the
first person in the panel is set aside  due  to  some  irregularity  in  the
selection and preparation of the panel, the decision taken to have  a  fresh
selection does not call for interference. This view was taken on  the  basis
that the select panel is itself vitiated.  Therefore,  the  two-judge  Bench
declined to make the allotment of the distributorship to the  next  eligible
applicant as prayed for by Ramesh Chand Trivedi.
23.   Awadesh Mani Tripathi  concerned  itself  with  blanket  cancellations
that were referred to the Committee set up by this Court.  In that  case,  a
three-judge Bench took the view that “when the merit list  prepared  by  the
Selection Board was found to be vitiated due to the influence of  extraneous
considerations, the petitioner who  was  placed  at  no.  2  cannot  seek  a
mandamus for allotment of LPG distributorship. Any  such  direction  by  the
Court would amount to  perpetuation  of  the  illegality  committed  by  the
Selection Board.”
24.   It is clear from a perusal of the decisions mentioned above  that  the
view taken by this Court is that when the selection of the first  empanelled
candidate for  the  allotment  of  a  dealership  or  a  distributorship  is
cancelled, the next empanelled candidate ought  to  be  automatically  given
the allotment subject to the fulfillment of all necessary  conditions.  This
is clear from the decisions rendered by this Court  in  Raj  Bala  in  1995,
Anil Kumar Singh in 2003 and Ritu Mahajan in 2009.

25.   This Court has, however, taken a different view  particularly  in  the
case of mass cancellations which were dealt with by the Committee set up  by
this Court.  The view taken by a two-judge Bench was that if  the  allotment
of the dealership or distributorship  in  favour  of  the  first  empanelled
candidate  is  cancelled  then  the  second  empanelled  candidate  is   not
automatically entitled to the allotment (Ramesh Chand  Trivedi  contrary  to
Ritu Mahajan).

26.   The controversy has now been set at  rest  in  Awadesh  Mani  Tripathi
where a three-judge Bench has taken the view that if the  selection  process
is  vitiated  due  to  political  considerations  or  patronage   or   other
extraneous considerations, there is no automatic allotment in favour of  the
second empanelled candidate when  the  selection  of  the  first  empanelled
candidate is cancelled. This is because the entire  selection  process  gets
vitiated and not just one selection or allotment. If the  selection  process
is itself vitiated,  there  is  no  question  of  going  down  the  list  of
empanelled candidates. We respectfully accept and follow this view. We  make
it clear that if an individual selection is cancelled  on  merits,  such  as
lack of eligibility or erroneous calculation of marks that  is  cancellation
for reasons other  than  political  considerations  or  patronage  or  other
extraneous considerations, then the entire selection process  would  not  be
vitiated and the law laid down in Raj Bala would be applicable.
27.   Under these circumstances, in our opinion, the decisions  rendered  in
Raj Bala and Anil Kumar Singh  fall  in  one  category  since  they  do  not
concern themselves with mass cancellations or  have  any  reference  to  the
Committee as in the present case  and  also  because  the  entire  selection
process was not vitiated by political considerations or patronage  or  other
extraneous considerations. These cases dealt with one-off cancellations.  On
the other hand, Ramesh Chand Trivedi and Awadesh Mani  Tripathi  fall  in  a
different category altogether. The decision in Ritu Mahajan is  contrary  to
Awadesh Mani Tripathi and so we must hold that it  does  not  lay  down  the
correct  law  with  regard  to  the  allotment  of   a   dealership   or   a
distributorship in favour  of  the  second  empanelled  candidate  in  cases
concerning blanket cancellations or in cases when the  allotment  in  favour
of the first empanelled candidate is cancelled, the  allotment  having  been
made  for  political  considerations  or  patronage  or   other   extraneous
considerations.
28.   Since the present case concerns itself  with  the  mass  cancellations

and the Report of the Committee, we are bound by the decision taken  by  the
three-Judge Bench in Awadesh Mani Tripathi.  Accordingly we hold,  following
that decision that when the allotment of the dealership  or  distributorship
in favour of the first empanelled candidate is cancelled as a result of  the
Report of the Committee appointed in Onkar Lal Bajaj, which Report has  been
accepted by this Court, the selection process itself is  vitiated.  In  such
an event, there is no question of  the  second  empanelled  candidate  being
automatically granted the dealership or  distributorship  in  place  of  the
first empanelled candidate.  The entire panel of  selected  candidates  must
stand cancelled and a fresh selection process must be initiated.
29.   In view of our conclusion,  the  impugned  order  of  the  High  Court
directing allotment of the dealership in SKO-LDO in favour of Sunita  Kumari
is quashed. The appeal is allowed. No costs.

Special Leave Petition (Civil) No. 31006 of 2012

30.   In this case, the  allotment  of  LPG  dealership/distributorship  was
advertised for Bihiya, District Bhojpur (Bihar).
31.   After completing the selection  process,  the  IOC  prepared  a  panel
consisting of the following applicants in order of merit:-
Kameshwar Prasad Singh
Rangi Lal Rai
Rajesh Kumar Tiwary (Petitioner herein)


32.   The allotment of  the  dealership/distributorship  was  in  favour  of
Kameshwar Prasad Singh but it was quashed, pursuant to the decision of  this
Court in Mukund Swarup Mishra.
33.   Rajesh Kumar Tiwary claimed that Rangi Lal Rai was  not  eligible  for
an  allotment  and  therefore  being  the  third  empanelled  candidate  the
allotment should be made in his favour.  On  this  basis  he  filed  a  writ
petition in the Patna High Court being CWJC No. 18809  of  2008.  A  learned
Single Judge  of  the  High  Court  dismissed  Rajesh  Kumar  Tiwary’s  writ
petition by following the decision rendered in another case, that  is,  CWJC
No. 9362 of 2009 and Mukund Swarup Mishra.
34.   In appeal, being LPA No. 1291 of 2012  the  High  Court  followed  the
decision rendered by this Court in Ramesh Chand Trivedi and found  no  merit
in the appeal by the impugned  judgment  and  order  dated  13th  September,
2012.
35.   In view of our discussion in Sunita Kumari (supra) there is  no  merit
in this petition and it is accordingly dismissed.  No costs.



                                                                 .………………………J
                                                      ( Madan B. Lokur )



New Delhi;                                     ……………….……J
September 18, 2014                                ( C. Nagappan )

-----------------------
[1]    (2003) 2 SCC 673
[2]    (2007) 2 SCC 536
[3]    (2008) 15 SCC 243

[4]    (SLP (C) No. 34226/2009 decided on 23rd April, 2013)
[5]    (Civil Appeal No. 8586 of 2010 decided on 4th October, 2010)
[6]    (2009) 3 SCC 506
[7]    (Civil Appeal No.7718 of 1995  decided on 23rd August, 1995)
[8]    (Civil Appeal Nos.2012-2014 of 2003  decided on 3rd March, 2003)

DVC - Magistrate passed Maintenance - appeal filed and stay granted to pay arrears of maintenance - not complied - appeal was dismissed - High court stayed the matter - counsel of wife reported not press her claim - wife personally appeared reported that she never instructed her counsel to do so - High court disbelieved the same - Apex court held that We find it difficult to accept that in a highly contested matter like this the appellant would have instructed her counsel not to press her claim for maintenance. In our view, the High Court ought not to have accepted the statement of the counsel without verification. The impugned order is set aside. We find it difficult to accept that in a highly contested matter like this the appellant would have instructed her counsel not to press her claim for maintenance. In our view, the High Court ought not to have accepted the statement of the counsel without verification. The impugned order is set aside. We are of the opinion that the conduct of the respondent is a gross abuse of the judicial process. We do not see any reason why the respondent’s petition Crl. MC No. 1975 of 2013 should be kept pending. Whatever be the decision of the High Court, one of the parties will (we are sure) approach this Court again thereby delaying the conclusion of the litigation. The interests of justice would be better served if the respondent’s appeal before the Sessions Court is heard and disposed of on merits instead of going into the residuary questions of the authority of the appellate Court to grant interim orders or the legality of the decision of the Sessions Court to dismiss the appeal only on the ground of the non-compliance by the respondent with the conditions of the interim order. The Criminal Appeal No.23/2012 stands restored to the file of the Sessions Court.We also direct that the maintenance order passed by the magistrate be executed forthwith in accordance with law. The executing court should complete the process within 8 weeks and report compliance in the High Court. We make it clear that such hearing by the Sessions Court should only be after the execution of the order of maintenance passed by the Magistrate. In the event of the respondent’s success in the appeal, either in full or part, the Sessions Court can make appropriate orders regarding the payments due to be made by the respondent in the execution proceedings. The appeal is disposed off accordingly.=CRIMINAL APPEAL NO.2070 OF 2014 (Arising out of Special Leave Petition (Crl.) No.6220 OF 2014) Shalu Ojha … Appellant Versus Prashant Ojha …Respondent = 2014- Sept. Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=41932

     DVC - Magistrate passed Maintenance - appeal filed and stay granted to pay arrears of maintenance - not complied - appeal was dismissed - High court stayed the matter - counsel of wife reported not press her claim - wife personally appeared reported that she never instructed her counsel to do so - High court disbelieved the same  - Apex court held that We find it difficult to accept that in a highly contested matter  like this the appellant would have instructed her counsel not to press her  claim for maintenance.   In our view, the High Court ought not  to  have  accepted the statement of the counsel without verification.  The  impugned  order  is set aside.
We find it difficult to accept that in a highly contested matter  like this the appellant would have instructed her counsel not to press her  claim for maintenance.   In our view, the High Court ought not  to  have  accepted the statement of the counsel without verification.  The  impugned  order  is
set aside. We are of the opinion that the conduct of the respondent  is  a  gross abuse  of  the  judicial  process.   We  do  not  see  any  reason  why  the respondent’s petition Crl. MC No. 1975  of  2013  should  be  kept  pending. Whatever be the decision of the High Court, one of the parties will (we  are sure) approach this Court again  thereby  delaying  the  conclusion  of  the litigation.  The  interests  of  justice  would  be  better  served  if  the respondent’s appeal before the Sessions Court is heard and  disposed  of  on merits instead of going into the residuary questions  of  the  authority  of the appellate Court to grant interim orders or the legality of the  decision of the Sessions Court to dismiss the appeal only on the ground of  the  non-compliance by the respondent with the conditions of the interim  order.  The Criminal Appeal No.23/2012 stands restored  to  the  file  of  the  Sessions Court.We also direct that the maintenance order passed by the magistrate  be executed forthwith in accordance with  law.    The  executing  court  should complete the process within 8  weeks  and  report  compliance  in  the  High Court. We make it clear that such hearing by the Sessions Court should  only be  after  the  execution  of  the  order  of  maintenance  passed  by   the Magistrate. In the event of the respondent’s success  in  the  appeal,  either  in full or part, the Sessions Court can make appropriate orders  regarding  the payments due to be made by the respondent in the execution proceedings.  The appeal is disposed off accordingly.=

  This is an unfortunate case where the provisions of the Protection  of
Women from Domestic Violence Act, 2005 are rendered simply a pious  hope  of
the Parliament and a teasing illusion for the appellant.
Whether the Sessions Court in exercise of its  jurisdiction  under  Section
29 of the Act has any power to pass interim orders staying the execution  of
the order appealed before it is a matter to be examined  in  an  appropriate
case.   We only note that there is no express grant of  power  conferred  on
the  Sessions  Court  while  such  power  is  expressly  conferred  on   the
Magistrate under Section 23.  Apart from that, the power  to  grant  interim
orders is not always inherent  in  every  Court.   Such  powers  are  either
expressly conferred or implied in  certain  circumstances.
2014- Sept. Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=41932
                                                        NON-REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO.2070  OF 2014
       (Arising out of Special Leave Petition (Crl.) No.6220 OF 2014)


Shalu Ojha                                   … Appellant

            Versus

Prashant Ojha                                      …Respondent






                               J U D G M E N T



Chelameswar, J.

1.    Leave granted.

2.    This is an unfortunate case where the provisions of the Protection  of
Women from Domestic Violence Act, 2005 are rendered simply a pious  hope  of
the Parliament and a teasing illusion for the appellant.

3.    The appellant is a young woman who got married to  the  respondent  on
20.04.2007 in Delhi according  to  Hindu  rites  and  customs,  pursuant  to
certain information placed  by  the  respondent  on  the  website  known  as
“Sycorian Matrimonial Services Ltd.”.

4.    According to the appellant, she was  thrown  out  of  the  matrimonial
home within four months of  the  marriage  on  14.8.2007.   Thereafter,  the
respondent started pressurizing the appellant to agree  for  dissolution  of
marriage by mutual consent.  As the appellant did not agree  for  the  same,
the respondent filed a petition for divorce  being  H.M.A.  No.637  of  2007
under Section 13(1) of the Hindu Marriage Act,  1955  on  17.10.2007  before
the Additional District Judge, Tis Hazari Courts, Delhi.  The said  petition
was dismissed by  an  order  dated  03.10.2008.   Within  four  months,  the
respondent filed another petition on 08.04.2009 once again invoking  Section
13(1) of the Hindu Marriage Act, 1955 before the Additional District  Judge,
Patiala House Courts, Delhi being H.M.A. No.215 of  2009  and  the  same  on
being transferred is pending before the Family Court, Saket  and  renumbered
as H.M.A. No.266 of 2009.

5.    On 04.06.2009, the appellant filed a complaint case No.120/4/09  under
Section 12 of the Protection of  Women  from  Domestic  Violence  Act,  2005
(hereinafter referred to as “the DV Act”).

6.    The said complaint  case  came  to  be  disposed  of  by  the  learned
Metropolitan Magistrate, New Delhi by his order dated  05.07.2012.   By  the
said order, the Magistrate granted an amount of Rs.2.5 lacs towards  monthly
maintenance of the appellant which included rental charges  for  alternative
accommodation.   The  respondent  was  made  liable  to  pay  such   monthly
maintenance from the date of filing of the petition, i.e.  from  04.06.2009.
The monthly  maintenance  was  made  payable  on  or  before  10th  of  each
succeeding month.  The learned Magistrate further directed that the  arrears
of the maintenance be cleared by 05.12.2012.

7.    Aggrieved by the above order, the respondent  carried  the  matter  in
appeal under Section 29 of the DV Act  in  Criminal  Appeal  No.23  of  2012
before the  learned  Additional  Sessions  Judge,  Rohini,  New  Delhi.   On
10.01.2013, the learned Additional Sessions Judge  while  granting  stay  of
the execution of the order  under  appeal  passed  an  order  directing  the
respondent to  pay  the  entire  arrears  of  the  maintenance  due  to  the
appellant till the presentation  of  the  appeal  within  a  period  of  two
months.

8.    Since the respondent did not pay the arrears, the appellant  moved  an
application for execution of the order dated 10.01.2013.

9.    By an order dated 07.05.2013, Criminal Appeal No.23 of 2013  preferred
by the respondent was dismissed by  the  learned  Sessions  Judge  for  non-
compliance of the interim directions dated 10.01.2013.

10.   Aggrieved by the order dated 07.05.2013,  the  respondent  filed  Crl.
Misc. Case No.1975 of 2013 and Crl. Misc. Application No.78-34 of  2013  for
interim directions in the High Court of Delhi on 08.05.2013. The High  Court
initially declined to pass an interim order in the said  appeal.   Aggrieved
by the same the respondent approached this Court in SLP (Crl.)  No.6509-6510
of 2013 which was dismissed in limine on 13.08.2013 with a direction to  the
parties to apply for mediation.

11.   Pursuant to the  said  direction,  the  respondent  filed  Crl.  Misc.
Application No.12547 of  2013  in  Crl.  Misc.  Case  No.1975  of  2013  for
direction to refer  the  matter  to  Mediation.   The  matter  was  referred
accordingly.  Eventually the mediation failed.  On receipt of  such  failure
report, the appeal was again listed before the  High  Court  on  10.09.2013.
The High Court directed the respondent to pay an amount of  Rs.10  lakhs  in
two instalments and that the execution petition filed by the  appellant  for
the recovery of the arrears be kept in abeyance.

12.   Thereafter, an application was filed by the appellant before the  High
Court seeking direction  to  the  respondent  for  the  payment  of  monthly
maintenance (current period) in  terms  of  order  dated  05.7.2012  of  the
learned  Metropolitan  Magistrate  (supra).  It  appears  that  the   matter
underwent number of adjournments but no orders have been passed by the  High
Court.

13.   In the said background, the appellant  filed  Special  Leave  Petition
(Crl.) No.2210 of 2014  in  this  Court.   The  said  petition  came  to  be
disposed of on 31.03.2014 by setting aside the interim stay granted  by  the
High Court on the execution petition filed by  the  appellant.   This  Court
categorically observed that - it is open to the petitioner  to  execute  the
order of maintenance passed  by  the  learned  Metropolitan  Magistrate  and
requested the High  Court  to  dispose  of  the  appeal  of  the  respondent
expeditiously.

14.   Strangely,  when  the  appellant’s  application  for  the  payment  of
current maintenance in C.M. No.18869 of 2013 was listed on 27.5.2014  before
the High Court along with other connected  matters  in  Appeal  (Crl.  Misc.
Case No.1975 of 2013) preferred by the respondent, the  application  of  the
appellant was dismissed as “not  pressed”  on  representation  made  by  the
counsel appearing for  the  appellant.  The  appellant  appeared  in  person
before us and made a statement that  such  instructions  not  to  press  the
application were never given to the counsel who appeared in the  High  Court
and hence the present appeal.

15.   We have heard the appellant-in-person and  learned  counsel  appearing
on behalf of the respondent.

16.   The learned counsel appearing on  behalf  of  the  respondent  pleaded
inability to make the payment of the arrears  and  the  current  maintenance
due  to  the  appellant  in  terms  of  the  order  passed  by  the  learned
Metropolitan Magistrate on 05.07.2012 on the ground  that  the  respondent’s
annual income as can be seen from his income-tax returns for  the  last  two
years is only around Rs.2.50 lakhs per annum.

17.   The appellant submitted that the income-tax returns of the  respondent
do not reflect the true picture  of  the  income  of  the  respondent.   The
appellant pointed out the profile of the respondent placed  on  the  website
of “Sycorian Matrimonial Services Ltd.” wherein  the  respondent’s  personal
income is shown as Rs.50 lakhs to Rs.1 crore per annum  and  monthly  income
of Rs.5 lakhs. He was shown to be a Managing Director or  Director  of  four
companies, the details of which are as under:
|Sr. No.|Organization                   |Designation                |
|1      |M/s Utkarsh Art Press Pvt. Ltd.|Managing Director/Share    |
|       |                               |Holder                     |
|2      |M/s Empress Infonet Pvt. Ltd.  |Director/Share Holder      |
|3      |Hotel Urban Pind               |Director                   |
|4      |M/s Brahmani Apparel Pvt. Ltd. |Director/Share Holder      |




18.   Apart from that, the appellant  also  placed  reliance  on  a  article
published  in  weekly  magazine  Business  World  (Issue  dated  10.03.2014)
wherein some information regarding a posh restaurant  known  as  Zerruco  by
Zilli at The  Ashok,  New  Delhi  was  published.   The  article  named  the
respondent along with one Kashif Farooq as the restaurateurs.  According  to
the article, the restaurant was set up at astounding  cost  of  Rs.7  crore.
The relevant portion of the article reads as follows:
“If chef Back  has  been  feeding  American  entertainment  industry  stars.
London-based Aldo Zilli  is  well-known  for  his  celeb-patronised  Italian
bites.  He has just made his Asian foray with Zerruco by Zilli, set  in  the
partly al fresco-partly indoors space at The Ashoka New Delhi that  used  to
house Mashrabiya.  The menu is simple, fresh and Med – salads,  grills,  the
occasional show-offy “  gelato  ravioli”  but  this  is  one  of  those  big
“lifestyle restaurants” that we seem to be losing  more  recently  with  the
spurt in made-to-look-like-mom-and-pop places.

Restaurateurs   Kashif   Farooq   and   Prashant   Ojha   known    in    the
clubbing/partying circuits have brought in Zilli as part of their  ambitious
plans to grow and get taken seriously in  the  F&B  realm.   The  restaurant
(that will turn into a lounge/club in the  evenings)  has  been  set  up  at
astounding Rs.7 crore cost.  You can look to this one  as  an  alternate  to
the “upscale, casual”, Olive-like spaces.”


19.   Before we proceed to take any decision  in  the  matter,  we  deem  it
appropriate to make a brief survey of the DV Act insofar as it  is  relevant
for the present purpose.  The preamble of the Act states that  this  is  “an
Act to provide  for  more  effective  protection  of  the  rights  of  women
guaranteed under the Constitution who are victims of violence  of  any  kind
occurring  within  the  family  and  for  matters  connected  or  incidental
thereto.”

20.   “Domestic violence” is defined under Section 3 as  any  act,  omission
or commission or conduct of any adult male who is or has  been  in  domestic
relationship.
“Section 3. Definition of domestic violence.—For the purposes of  this  Act,
any  act,  omission  or  commission  or  conduct  of  the  respondent  shall
constitute domestic violence in case it—

harms or injures or endangers the health, safety, life, limb  or  well-being
whether mental or physical, of the aggrieved person or tends to  do  so  and
includes causing physical abuse, sexual abuse, verbal  and  emotional  abuse
and economic abuse; or

harasses, harms, injures or endangers the aggrieved person with  a  view  to
coerce her or any other person related to her to meet  any  unlawful  demand
for any dowry or other property or valuable security; or

has the effect of threatening the aggrieved person or any person related  to
her by any conduct mentioned in clause (a) or clause (b); or

otherwise injures or  causes  harm,  whether  physical  or  mental,  to  the
aggrieved person.”


21.   The  expression  “domestic  relationship”  is  defined  under  Section
2(f)[1]. The expressions  “physical  abuse”,  “sexual  abuse”,  “verbal  and
emotional abuse” and “economic abuse”  are  explained  in  Explanation-1  to
Section 3.

22.    Section  12  of  the  Act  recognizes  the  right  of  an  “aggrieved
person”[2] (necessarily a woman by definition)  to  present  application  to
the Magistrate seeking one or more  reliefs  under  the  Act.   The  reliefs
provided under the Act are contained in  Sections  17  to  22.   Section  17
creates a right in favour  of  a  woman/aggrieved  person  to  reside  in  a
“shared household” defined under Section 2(s)[3].

23.   Section 18 deals with  various  orders  that  can  be  passed  by  the
Magistrate dealing  with  the  application  of  an  aggrieved  person  under
Section 12.  Section 19 provides  for  various  kinds  of  residence  orders
which a Magistrate dealing with an application under Section 12 can pass  in
favour of a woman.  Section 20 authorizes the  Magistrate  dealing  with  an
application under Section 12  to  direct  the  respondent  to  pay  monetary
relief to the aggrieved person.  Section 20 reads as follows:
“Section 20. Monetary reliefs.—(1) While disposing of an  application  under
sub-section (1) of section 12, the Magistrate may direct the  respondent  to
pay monetary relief to meet the expenses incurred  and  losses  suffered  by
the aggrieved person and any child of the aggrieved person as  a  result  of
the domestic violence and such relief may include, but is not limited to,—

…………………………………
………………………………….
…………………………………..

the maintenance for the aggrieved person as well as her  children,  if  any,
including an order under or in addition to an  order  of  maintenance  under
section 125 of the Code of Criminal Procedure,  1973  (2  of  1974)  or  any
other law for the time being in force.


(2).  The monetary relief granted under  this  section  shall  be  adequate,
fair and reasonable and consistent with the standard of living to which  the
aggrieved person is accustomed.

(3).  The Magistrate shall have the power to order an appropriate  lump  sum
payment or monthly payments of maintenance, as the nature and  circumstances
of the case may require.

(4).  The Magistrate shall send a copy of  the  order  for  monetary  relief
made under sub-section (1) to the parties to the application and to the  in-
charge of the police station within the local limits of  whose  jurisdiction
the respondent resides.

(5).  The respondent shall pay the monetary relief granted to the  aggrieved
person within the period specified in the order under sub-section (1).

(6).  Upon the failure on the part of the  respondent  to  make  payment  in
terms of the order under sub-section (1),  the  Magistrate  may  direct  the
employer or a debtor of the respondent, to directly  pay  to  the  aggrieved
person or to deposit with the court a portion of the wages  or  salaries  or
debt due to or accrued to the credit of the respondent, which amount may  be
adjusted towards the monetary relief payable by the respondent.”

                                                         (emphasis supplied)


24.   Section 21 deals with the  jurisdiction  of  the  Magistrate  to  pass
orders relating to custody of children of the aggrieved person.  Section  22
deals with compensation orders which authorizes the Magistrate  to  pass  an
order directing the respondent to  pay  compensation  and  damages  for  the
injuries including mental torture and emotional distress caused by  the  act
of domestic violence committed by the respondent.  The Magistrate  receiving
a complaint under Section 12 is authorized under the Act to pass  anyone  of
the orders under the various provisions discussed above appropriate  to  the
facts of the complaint.

25.   Section 29 provides for an appeal to the Court of Session against  any
order passed by the Magistrate under the Act either at the instance  of  the
aggrieved person or the respondent.

26.   One important factor to be noticed in the context of the present  case
is that while Section 23 expressly confers power on the Magistrate to  grant
interim orders, there is no express provision conferring such power  on  the
Sessions Court in exercise of its appellate jurisdiction.  Section 23  reads
as follows:
“Section 23. Power  to  grant  interim  and  ex  parte  orders.—(1)  In  any
proceeding before him under this Act, the Magistrate may pass  such  interim
order as he deems just and proper.

(2)  If  the  Magistrate  is  satisfied  that  an  application  prima  facie
discloses that the respondent is committing, or  has  committed  an  act  of
domestic violence or that there is a  likelihood  that  the  respondent  may
commit an act of domestic violence, he may grant an ex parte  order  on  the
basis of the affidavit in such form, as may be prescribed, of the  aggrieved
person under section 18, section 19, section 20, section 21 or, as the  case
may be, section 22 against the respondent.”


27.   It can be seen from the DV Act that no further appeal or  revision  is
provided to the High Court or any other  Court  against  the  order  of  the
Sessions Court under Section 29.

28.   It is in the background of the abovementioned Scheme  of  the  DV  Act
this case is required to be considered.   The  appellant  made  a  complaint
under Section 12  of  the  DV  Act.   The  Magistrate  in  exercise  of  his
jurisdiction granted maintenance to the appellant.  The  Magistrate’s  legal
authority to pass such an order is traceable to Section 20(1)(d) of  the  DV
Act.

29.   Questioning the correctness of the Magistrate’s order in granting  the
maintenance of Rs.2.5 lakhs per month the respondent carried the  matter  in
appeal under Section 29 to  the  Sessions  Court  and  sought  stay  of  the
execution of the order of the Magistrate during the pendency of the  appeal.
 Whether the Sessions Court in exercise of its  jurisdiction  under  Section
29 of the Act has any power to pass interim orders staying the execution  of
the order appealed before it is a matter to be examined  in  an  appropriate
case.   We only note that there is no express grant of  power  conferred  on
the  Sessions  Court  while  such  power  is  expressly  conferred  on   the
Magistrate under Section 23.  Apart from that, the power  to  grant  interim
orders is not always inherent  in  every  Court.   Such  powers  are  either
expressly conferred or implied in  certain  circumstances.   This  Court  in
Super Cassettes  Industres  Limited  v.  Music  Broadcast  Private  Limited,
(2012) 5 SCC 488, examined this question in detail.  At any rate, we do  not
propose to decide whether the Sessions Court has the power to grant  interim
order such as the one sought by the respondent herein  during  the  pendency
of his appeal, for that issue has not been argued before us.

30.   We presume (we emphasize that we only presume for the purpose of  this
appeal) that the Sessions Court does have  such  power.   If  such  a  power
exists then it can certainly be exercised by  the  Sessions  Court  on  such
terms and conditions  which  in  the  opinion  of  the  Sessions  Court  are
justified  in  the  facts  and  circumstances  of  a  given  case.   In  the
alternative, if the Sessions Court does not have the power to grant  interim
orders during the pendency of the appeal, the Sessions Court  ought  not  to
have  stayed  the  execution  of  the  maintenance  order  passed   by   the
Magistrate.   Since the respondent did  not  comply  with  such  conditional
order,  the  Sessions  Court  thought  it  fit  to   dismiss   the   appeal.
Challenging the correctness of the said dismissal,  the  respondent  carried
the matter before the High  Court  invoking  Section  482  of  the  Code  of
Criminal Procedure, 1973 and Article 227 of the Constitution.

31.   The issue before the High Court in  Crl.  MC.  No.  1975  of  2013  is
limited  i.e.  whether  the  sessions  court  could   have   dismissed   the
respondent’s appeal only on the ground that  respondent  did  not  discharge
the obligation arising out of the conditional interim order  passed  by  the
sessions court.   Necessarily the High  Court  will  have  to  go  into  the
question whether the sessions court has the power to grant interim  stay  of
the execution of the order under appeal before it.

32.   In a matter arising under  a  legislation  meant  for  protecting  the
rights of the women, the High  Court  should  have  been  slow  in  granting
interim orders, interfering with the orders by which maintenance is  granted
to the appellant.  No doubt, such interim orders are now  vacated.   In  the
process the appellant is still awaiting  the  fruits  of  maintenance  order
even after 2 years of the order.

33.   We find it difficult to accept that in a highly contested matter  like
this the appellant would have instructed her counsel not to press her  claim
for maintenance.   In our view, the High Court ought not  to  have  accepted
the statement of the counsel without verification.  The  impugned  order  is
set aside.

34.   We are of the opinion that the conduct of the respondent  is  a  gross
abuse  of  the  judicial  process.   We  do  not  see  any  reason  why  the
respondent’s petition Crl. MC No. 1975  of  2013  should  be  kept  pending.
Whatever be the decision of the High Court, one of the parties will (we  are
sure) approach this Court again  thereby  delaying  the  conclusion  of  the
litigation.  The  interests  of  justice  would  be  better  served  if  the
respondent’s appeal before the Sessions Court is heard and  disposed  of  on
merits instead of going into the residuary questions  of  the  authority  of
the appellate Court to grant interim orders or the legality of the  decision
of the Sessions Court to dismiss the appeal only on the ground of  the  non-
compliance by the respondent with the conditions of the interim  order.  The
Criminal Appeal No.23/2012 stands restored  to  the  file  of  the  Sessions
Court.

35.   We also direct that the maintenance order passed by the magistrate  be
executed forthwith in accordance with  law.    The  executing  court  should
complete the process within 8  weeks  and  report  compliance  in  the  High
Court. We make it clear that such hearing by the Sessions Court should  only
be  after  the  execution  of  the  order  of  maintenance  passed  by   the
Magistrate.

36.   In the event of the respondent’s success  in  the  appeal,  either  in
full or part, the Sessions Court can make appropriate orders  regarding  the
payments due to be made by the respondent in the execution proceedings.
      The appeal is disposed off accordingly.



                                                               ………………………….J.
                                                          (J. Chelameswar)



                                                              ……………………..….J.
                                                   (A.K. Sikri)

New Delhi;
September 18, 2014



-----------------------
[1]    Section 2. (f) “domestic relationship” means a  relationship  between
two persons who live or have, at any point of  time,  lived  together  in  a
shared household, when they  are  related  by  consanguinity,  marriage,  or
through a relationship in the nature of marriage,  adoption  or  are  family
members living together as a joint family.

[2]   . Section 2.(a) "aggrieved person" means any  woman  who  is,  or  has
been, in a domestic relationship with the  respondent  and  who  alleges  to
have been subjected to any act of  domestic violence by the respondent;

[3]   . Section 2(s).—  "shared  household"  means  a  household  where  the
person  aggrieved  lives  or  at  any   stage  has  lived  in   a   domestic
relationship either singly or along with the respondent and   includes  such
a household whether owned  or  tenanted  either  jointly  by  the  aggrieved
person  and the respondent, or owned  or  tenanted  by  either  of  them  in
respect of which either the  aggrieved person  or  the  respondent  or  both
jointly or singly have any right, title, interest or   equity  and  includes
such a household  which  may  belong  to  the  joint  family  of  which  the
respondent is a member,  irrespective  of  whether  the  respondent  or  the
aggrieved person has  any right, title or interest in the shared  household.


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