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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) No.3265 of 2012
Chairman, Rajasthan State Road Transport …Petitioners
Corporation & Ors.
Versus
Smt. Santosh & Ors. …Respondents
O R D E R
1. Originally this petition had been filed challenging the judgment
and order of the Rajasthan High Court dated 21.9.2011 passed in S.B.
Civil Misc. Appeal No. 480 of 2001,
wherein the complete liability of
providing compensation in a vehicular accident had been fixed upon
the appellant-Rajasthan State Road Transport Corporation (hereinafter
referred to as the ‘RSRTC’), while unfastening the liability of the
driver and the owner of the vehicle, known as ‘Jugaad’, under the
provisions of the Motor Vehicles Act, 1988 (hereinafter referred to as
the ‘Act’). Page 2
2. At the time of hearing the petition, this court vide order dated
6.2.2012 did not consider it proper to examine the issue in respect of
compensation. However, the question was raised by Shri Imtiaz
Ahmed, learned counsel appearing for the RSRTC that this court must
examine whether ‘Jugaad’ is a vehicle under the Act, and in case, it is
a motor vehicle under Section 2(28) of the Act, whether such ‘Jugaad’
is required to be insured and registered before it is permitted to ply on
the road and whether the driver of ‘Jugaad’ must compulsorily have a
driving licence. As such important issues have been raised by Shri
Imtiaz Ahmed, we had requested Shri H.P. Raval, learned ASG to
assist the court, after taking instructions from the Road Transport
Ministry of the Central Government about the status of ‘Jugaad’ under
the Act. Shri Raval responded to the aforesaid queries on 13.4.2012
and submitted that it is a motor vehicle as defined under Section 2(28)
of the Act, and the Ministry of Shipping, Road Transport and
Highways had issued a circular dated 26.7.2007 issuing instructions to
all State transport authorities clarifying that ‘Jugaad’ is a vehicle
under Section 2(28) of the Act and all the States are under a legal
obligation to enforce the same. Therefore, no person should be
permitted to ply a ‘Jugaad’ as it violates all the provisions of the Act.
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It must have a registration and insurance and the driver must have a
valid driving license and in case of an accident etc, the liability under
the provisions of the Act, may be properly determined. However, Shri
Raval has raised a grievance that in spite of issuance of such a
circular, most of the States have not enforced the terms of the said
circular issued by the Central Government.
3. Considering the aforesaid grievance raised by Shri Raval, this
court impleaded the Transport Secretary/Commissioner of all the
States as party respondents and asked them to submit their response.
While some of the States have submitted that it is not a vehicle within
the meaning of the provisions of Section 2(28) of the Act. The State of
Karnataka has submitted the vehicle like ‘Jugaad’ was not in existence
in the State.
4. It has further been pointed out by learned counsel for the parties
that enforcement of the provisions of the Act and the rules framed
under it, come within the jurisdiction of the State Governments.
Therefore, they must be directed to ensure strict compliance of the
said provisions of the Act. It has also been pointed out by Shri
Siddharth Luthra, learned ASG that a letter dated 19.7.2012 was sent
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by the Director (RT) of the Ministry of Road Transport & Highways,
Government of India, to all the State Authorities to ensure compliance
of the statutory provisions of the Act and the rules.
5. Shri Manish Singhvi, learned senior counsel appearing for the
State of Rajasthan has submitted that the government of Rajasthan has
examined the matter and decided to prohibit the plying of “Jugaad” on
the roads completely. Such a vehicle cannot be used for any
commercial purpose, without being registered and duly insured and in
compliance with the other statutory requirements. However, the State
Government carved out an exception that farmers/poor villagers may
be permitted to use the same for their agricultural purposes as an
interim measure till the rules are framed in this regard. It has further
been submitted that in case ‘Jugaads’ are found plying on the roads,
they shall be impounded and will be dealt with strictly in accordance
with law. A similar stand has been taken by the majority of the States.
6. An application has been filed by Rashtriya Kisan Morcha, for
impleadment/intervention which is allowed. The Morcha raised a
grievance that in case plying of the ‘Jugaad’ is prohibited completely,
it will create a serious problem for the farmers, as seizure/impounding
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of “Jugaad” would have penal consequences. The ‘Jugaad’ is nothing,
but an improved version of a bullock cart which has been used for
centuries in the villages. The farmer communities should not be
restrained from using the improved carts/jugaad in the villages to and
from houses to the farms and for bringing the agricultural produces
from their agricultural lands.
7. Some of the lawyers have raised the issue that issuing any kind
of direction by this Court in these regards would amount to legislation
which is not permissible in law. Thus, they have suggested that
instead of issuing the directions, the Central Government and the State
authorities be directed to frame a policy, amend the rules specifically
and enforce the same. However, other lawyers have opposed this view
and submitted that the issue involved herein is restricted only with
enforcement of law and not with legislation. As the “Jugaad” is a
vehicle within the meaning of Section 2(28) of the Act.
8. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
So far as the legislation by the court is concerned, as a corollary
to the doctrine of separation of powers, a judge merely applies the law
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that it gets from the legislature. Consequently, the Anglo-Saxon legal
tradition has insisted that the judge only reflects the law regardless of
the anticipated consequences, considerations of fairness or public
policy. He is simply not authorised to legislate.
9. In kindred spirit, in M. Nagaraj & Ors. v. Union of India &
Ors., AIR 2007 SC 71, Justice Kapadia, writing for the Constitutional
Bench, observed:
“The Constitution is not an ephemeral legal document
embodying a set of legal rules for the passing hour. It
sets out principles for an expanding future and is
intended to endure for ages to come and consequently to
be adopted to the various crisis of human affairs. . . . A
constitutional provision must be construed not in a
narrow and constricted sense but in a wide and liberal
manner so as to anticipate and take account of changing
conditions and purposes so that a constitutional
provision does not get fossilized but remains flexible
enough to meet the newly emerging problems and
challenges.”
10. Accordingly, in State of U.P. & Ors. v. Jeet S. Bisht & Anr.,
(2007) 6 SCC 586, even though the matter was referred to another
Bench, owing to a split decision—Justice S.B. Sinha aptly described
the modern understanding of the separation of powers thus:
“Separation of power in one sense is a limit on active
jurisdiction of each organ. But it has another deeper and
more relevant purpose: to act as check and balance over
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the activities of other organs. Thereby the active
jurisdiction of the organ is not challenged; nevertheless
there are methods of prodding to communicate the
institution of its excesses and shortfall in duty. . .
.Separation of power doctrine has been reinvented in
modern times. . . . The modern view, which is today
gathering momentum in Constitutional Courts world
over, is not only to demarcate the realm of functioning in
a negative sense, but also to define the minimum content
of the demarcated realm of functioning.”
11. In Dayaram v. Sudhir Batham & Ors., (2012) 1 SCC 333,
this Court doubted the competence of this Court to issue such
directions, which were allegedly to be legislative in nature. Therefore,
the matter was referred to a larger bench, and such larger bench held,
that in exercise of the powers conferred upon it by Article 32 r/w
Article 142 of the Constitution, the directions issued by this Court
were valid and laudable, as the same had been made to fill the vacuum
that existed in the absence of any legislation, to ensure that only
genuine SC/ST and OBC candidates would be able to secure the
benefits of certificates issued, and that bogus candidates would be
kept out. Simply filling up an existing vacuum till the legislature
chooses to make appropriate laws, does not amount to taking over the
functions of the legislature.
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12. In its activist streak, this Court has also imparted new vigour to
the process of constitutional interpretation. For instance, this Court
has insightfully identified Article 32 as the constitutional provision
that provides for the enforcement of fundamental rights in areas of
legislative vacuum. Not only has it held that fundamental rights are
limitations upon the State power, but the right to constitutional
remedies is itself a fundamental right enshrined in Article 32 of the
Constitution, and in the case of an infringement of a fundamental right
by the State, an aggrieved party can approach this Court for a remedy.
13. In Vishaka & Ors. v. State of Rajasthan & Ors., AIR 1997
SC 3011, this Court held:
“In view of the above, and the absence of enacted law to
provide for the effective enforcement of the basic human
right of gender equality and guarantee against sexual
harassment and abuse, more particularly against sexual
harassment at work places, we lay down the guidelines
and norms specified hereinafter for due observance at all
workplaces or other institutions, until a legislation is
enacted for the purpose. This is done in exercise of the
power available under Article 32 of the Constitution for
enforcement of the fundamental rights and it is further
emphasised that this would be treated as the law
declared by this Court under Article 141 of the
Constitution.”
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14. Providing further reinforcement to the Article 32 jurisprudence,
in Vineet Narain v. Union of India, AIR 1998 SC 889, this Court
noted that the issuance of guidelines and directions, in the exercise of
the powers under Articles 32 and 142, has become an integral part of
our constitutional jurisprudence. It also pointed out that such an
exercise of powers was absolutely necessary to fill the void in areas
with legislative vacuum. In addition, the Court noted:
“As pointed out in Vishaka (supra), it is the duty of the
executive to fill the vacuum by executive orders because
its field is co-terminus with that the legislature, and
where there is inaction even by the executive for
whatever reason, the judiciary must step in, in exercise
of its constitutional obligations under the aforesaid
provisions to provide absolution till such time as the
legislature acts to perform its role by enacting proper
legislation to cover the field.
On this basis, we now proceed to give the directions
enumerated hereafter for rigid compliance till such time
as the legislature steps in to substitute them by proper
legislation. These directions made under Article 32 read
with Article 142 to implement the rule of law wherein the
concept of equality enshrined in Article 14 is embedded,
have the force of law under Article 141 and by virtue of
Article 144 it is the duty of all authorities, civil and
judicial, in the territory of India to act in aid of this
Court.”
(See also: L.K. Pandey v. Union of India & Anr., AIR 1986 SC 272;
D.K. Basu v. State of West Bengal, AIR 1997 SC 610;
Ramamurthy v. State of Karnataka, AIR 1997 SC 1739; Supreme
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Court Bar Association v. Union of India, AIR 1998 SC 1895; and
Kalyan Chandra Sarkar v. Rajesh Ranjan, AIR 2005 SC 972).
15. Thus, the aforesaid cases clearly reveal that the courts in India
have not violated the mandatory constitutional requirement, rather
they have only issued certain directions to meet the exigencies. Some
of them are admittedly legislative in nature, but the same have been
issued only to fill up the existing vacuum, till the legislature enacts a
particular law to deal with the situation. In view of the same, it is
permissible to issue directions if the law does not provide a solution of
a problem, as an interim measure, till the proper law is enacted by the
legislature.
We may also issue necessary directions as an interim measure,
if the need so arisen.
16. The Act replaced the Motor Vehicles Act, 1939, in view of the
changes in transport technology, pattern of passenger and freight
movements, taking into consideration the road safety standards,
pollution control measures, standards in transportation of hazardous
and explosive materials.
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17. In M.K. Kunhimohammed v. P.A. Ahmedkutty & Ors., AIR
1987 SC 2158, this Court has made certain suggestions to raise the
limit of compensation payable as a result of vehicular accidents in
respect of death and permanent disablement in the event of their being
no proof of fault on the part of the person involved in the accident and
also in hit and run motor accidents. In this case, the court also
suggested the removal of certain disparities in the liability of the
insurer to pay compensation. The said recommendations/suggestions
were also taken into consideration and incorporated in the Act.
18. The object of bringing and repealing the Act 1939 had been to
rationalise certain definitions with additions of certain new definitions
of new types of vehicles, strict procedures relating to grant of driving
licenses and period of validity thereof; standards of anti-pollution
control devices; provisions for issuance of fitness certificates of
vehicles and provision for enhancing compensation in case of no fault
liability and in hit and run vehicular accidents and also maintenance
of State register for driving licenses and vehicles registration.
19. Section 2(2) of the Act defines articulated vehicle which means
a motor vehicle to which a semi-trailer is attached; Section 2(34)
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defines public place; Section 2(44) defines `tractor’ as a motor vehicle
which is not itself constructed to carry any load; Section 2(46) defines
`trailer’ which means any vehicle, other than a semi-trailer and a sidecar, drawn or intended to be drawn by a motor vehicle.
Section 3 of the Act provides for necessity for driving license;
Section 5 provides for responsibility of owners of the vehicle for
contravention of Sections 3 and 4; Section 6 provides for restrictions
on the holding of driving license; Section 56 provides for compulsion
for having certificate of fitness for transport vehicles; Section 59
empowers the State to fix the age limit of the vehicles; Section 66
provides for necessity for permits to ply any vehicle for any
commercial purpose; Section 67 empowers the State to control road
transport; Section 112 provides for limits of speed; Sections 133 and
134 imposes a duty on the owners and the drivers of the vehicles in
case of accident and injury to a person; Section 146 provides that no
person shall use any vehicle at a public place unless the vehicle is
insured. In addition thereto, the Motor Vehicle Taxation Act provides
for imposition of passenger tax and road tax etc.
20. Section 2(28) of the Act defines “Motor Vehicle” as under:
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“Motor Vehicle” or “vehicle” means any mechanically
propelled vehicle adapted for use upon roads whether
the power of propulsion is transmitted thereto from an
external or internal source and includes a chassis to
which a body has not been attached and a trailer; but
does not include a vehicle running upon fixed rails or a
vehicle of a special type adapted for use only in a
factory or in any other enclosed premises or a vehicle
having less than four wheels fitted with engine capacity
of not exceeding twenty five cubic centimeters.”
(Emphasis added)
Thus, any vehicle which is mechanically propelled and adapted
for use upon roads and does not fall within the exceptions provided
therein, is a Motor Vehicle within the meaning of Section 2(28) of the
Act.
21. In Natwar Parikh & Co. Ltd. v. State of Karnataka & Ors.,
AIR 2005 SC 3428, this Court dealt with the issue while dealing with
“Tractor” and held as under:
“Under Section 61 of the 1988 Act, which comes within
Chapter IV dealing with registration of motor vehicles,
registration of trailers is made compulsory. Under
Section 61(2), the registration mark assigned to a trailer
is required to be displaced on the side of the drawing
vehicle. In the present case, we are not concerned with
tractors in the conventional sense. Even the legislature
has used the word "drawing vehicle" in place of tractors.
Under Section 61(3), it is provided that no person shall
drive a motor vehicle to which a trailer is attached
unless the registration mark of the motor vehicle is
displayed on the trailer. Similarly, under Section 66 in
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Chapter V which refers to control of transport vehicles,
no owner of a motor vehicle can use the vehicle as a
transport vehicle carrying passengers or goods without a
permit. Under Section 66(2), the holder of a goods
carriage permit may use the vehicle for drawing any
trailer. Therefore, under the M.V. Act, 1988, the
Parliament has kept in mind the existence of a vehicle
classifiable as "tractor-trailer"…
Section 2(28) is a comprehensive definition of the
words "motor vehicle". Although, a "trailer" is
separately defined under Section 2(46) to mean any
vehicle drawn or intended to be drawn by motor vehicle,
it is still included into the definition of the words "motor
vehicle" under Section 2(28). Similarly, the word
"tractor" is defined in Section 2(44) to mean a motor
vehicle which is not itself constructed to carry any load.
Therefore, the words "motor vehicle" have been defined
in the comprehensive sense by the legislature. Therefore,
we have to read the words "motor vehicle" in the
broadest possible sense keeping in mind that the Act has
been enacted in order to keep control over motor
vehicles, transport vehicles etc. A combined reading of
the definitions under Section 2, …….. shows that the
definition of "motor vehicle" includes any mechanically
propelled vehicle apt for use upon roads irrespective of
the source of power and it includes a trailer. Therefore,
even though a trailer is drawn by a motor vehicle, it by
itself being a motor vehicle, the tractor- trailer would
constitute a "goods carriage" under Section 2(14) and
consequently, a "transport vehicle" under Section 2(47).
The test to be applied in such a case is whether the
vehicle is proposed to be used for transporting goods
from one place to another. When a vehicle is so altered
or prepared that it becomes apt for use for transporting
goods, it can be stated that it is adapted for the carriage
of goods. Applying the above test, ……. the tractortrailer …… falls under Section 2(14) as a "goods
carriage" and consequently, it falls under the definition
of "transport vehicle" under Section 2(47) of the M.V.
Act, 1988.”
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22. The Tractor is a machine run by diesel or petrol. It is a selfpropelled vehicle for hauling other vehicles. It is used for different
purposes. It is also used for agricultural purposes, along with other
implements; such as harrows, ploughs, tillers, blade-terracers, seeddrills etc. It is a self-propelled vehicle capable of pulling alone as
defined under the definition of Motor Vehicles. It does not fall within
any of the exclusions as defined under the Act. Thus, it is a Motor
Vehicle in terms of the definition under Section 2(28) of the Act,
which definition has been adopted by the Act. So, even without
referring to the definition of the Tractor, if the definition of the Motor
Vehicle as given under the Act is strictly construed, even then the
Tractor is a Motor Vehicle as defined under the Act. The Tractor is
not only used for agricultural purposes but is also used for other
purposes as stated above. Therefore, it cannot be said that the Tractor
in its popular meaning is only used for agricultural purposes and, thus,
is not a Motor Vehicle as defined under the Act. The Tractor is a
Motor Vehicle is also proved by this definition under Section 2(44) of
the Act. Different types of Motor Vehicles have been defined under
the provisions of the Act, and the Tractor is one of them. Thus,
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considering the question from any angle, the Tractor is a Motor
Vehicle as defined under the Act.
23. Section 3 of the Act casts an obligation on a driver to hold an
effective driving license for the type of vehicle which he intends to
drive. Section 10 of the Act enables the Central Government to
prescribe forms of driving licenses for various categories of vehicles
mentioned in sub-section (2) of the said Section. The definition clause
in Section 2 of the Act defines various categories of vehicles which
are covered in broad types mentioned in sub-section (2) of Section 10.
They are 'goods carriage', 'heavy goods vehicle', 'heavy passenger
motor vehicle', 'invalid carriage', 'light motor vehicle', 'maxi-cab',
'medium goods vehicle', 'medium passenger motor vehicle', 'motorcab', 'motorcycle', 'omnibus', 'private service vehicle', 'semi-trailer',
'tourist vehicle', 'tractor', 'trailer' and 'transport vehicle'.
24. The Allahabad High Court in Writ Tax No. 573 of 2011-
Kishun Ram v. State of U.P. & Ors., held that ‘Jugaad’ was
squarely covered under the definition of motor vehicles as specified
under Section 2(28) of the Act, since it was mechanically propelled
adapted for use on road and hence other relevant provisions of the
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Act/rules were applicable. The Court further directed that as the said
vehicle did not comply with the provisions of the Act/Rules, the
seizure effected by the U.P. authorities could not be interfered with by
the court.
25. Further, in Writ Petition No. 6611(M/B) of 2005 - Avnish
Kumar v. State of U.P. & Ors. decided on 23.2.2011, the Allahabad
High Court has issued directions to the statutory authorities to ensure
compliance of the provisions of the Act and the rules, and to prevent
the illegal plying of such vehicles, the statutory Authorities must take
effective measures in conformity with the statutory rules.
26. Learned standing counsel appearing for the State of Haryana
has submitted that even the Punjab and Haryana High Court while
delivering the judgment as early as 29.3.1995 had directed the State
authorities to ensure that
no ‘Jugaad’ shall be permitted to ply in the
State of Haryana under any circumstance. The relevant part of the
said judgment reads as under:
“An interim direction is issued that no such Jugars shall
be permitted to ply in the State of Haryana under any
circumstance.
All such Jugars being plied shall be seized
by the concerned law enforcing agencies of the State.
Since the aforesaid vehicles are being plied against the
provisions of law and these vehicles are not recognised
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under the Motor Vehicles Act, the same cannot be
released in favour of a person, who is not even admitted
to be the registered owner of such vehicle. Despite
directions, we have not been intimated as to how such
unauthorised vehicles were ordered to be released and
by whom. Prima facie, it appears to us that the aforesaid
Jugars could not be released either by the law enforcing
agencies or by the Magistrates.”
(Emphasis added)
27. As such ‘Jugaads’ were being plied against the provisions of
the Act and the rules framed under it, and in case any ‘Jugaad’ is
found on the road and is seized by the police authorities, it could not
be released in favour of its owner either by the law enforcing agency
or even by the Magistrate. Plying of such vehicles was in utter
disregard/violation of the provisions of the Act and the rules framed
thereunder.
28. As to
whether a particular vehicle can be defined as motor
vehicle in terms of Section 2(28) of the Act, is to be determined on the
facts of each case taking into consideration the use of the vehicle and
its suitability for being used upon the road.
Once it is found to be
suitable for being used on the road, it is immaterial whether it runs on
the public road or private road, for the reason, that actual user for a
particular purpose, is no criteria to decide the name.
Definition of
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motor vehicle takes within its ambit, a dumper and tractor.
Tractor
which is used basically for agricultural purpose and a dumper is used
in the factory premises, can suitable be adapted for being used on the
road, therefore, they will meet the requirement of definition of motor
vehicle under Section 2(28) of the Act.
The word `only’ used in
Section 2(28) of the Act clearly shows that the exemption is confined only to those kinds of vehicles which are exclusively being used in a factory or in any closed premises. Thus, a vehicle which is not adapted for use upon the road, is only to be excluded.
29. However, Shri S.C. Maheshwari, learned senior counsel
appearing for the applicant could not satisfactorily reply as under what
circumstances,
if the tractor which is exclusively used for agricultural
purpose, does require registration and insurance and driver also
require a driving license,
why the same provisions would not apply in
case of `Jugaad’.
30. ‘Jugaad’ does not require the permit, insurance or a driving
licence for its driver.
There is no specification for its body.
It does not
require fitness certificate.
However, passenger vehicle has a upper
limit of number of passengers it can carry.
The same remains the
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position for the goods vehicle as there is a specification for the
maximum load it can carry.
The ‘Jugaad’ is not liable to pay any
passenger or road tax like other vehicles.
31. In view of the above, as the `Jugaad’ is covered in the definition
of the motor vehicle under Section 2(28) of the Act, the
statutory authorities cannot escape from their duty to enforce
the law and restrain the plying of `Jugaad’.
The statutory authorities must ensure that `Jugaad’ can be plied only after meeting the requirements of the Act.
The same has become a menace to public safety as they are causing a very large number of accidents.
‘Jugaads’ are not insured and the owners of the
`Jugaad’ generally do not have the financial capacity to pay
compensation to persons who suffer disablement and to
dependents of those, who lose life.
Thus, considering the
gravity of the circumstances, the statutory authorities must give
strict adherence to the circular referred to hereinabove by the
Central Government.
32. However, we clarify that it is open to the statutory authorities to
make exemptions by issuing a notification/circular specifically if such
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a vehicle is exclusively used for agricultural purposes but for that
sufficient specifications have to be provided so that it cannot be used
for commercial purposes.
The matter is closed now.
………………………………..................................J.
(Dr. B.S. CHAUHAN)
………………………………...................................J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
NEW DELHI,
May 10, 2013.
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