Justices Bar Mandatory Life Terms for Juveniles

WASHINGTON — Some 2,000 juvenile offenders serving life sentences without parole were given hope of eventual release by the Supreme Court on Monday. The court ruled that laws requiring youths convicted of murder to be sentenced to die in prison violate the Eighth Amendment’s ban on cruel and unusual punishment.

The 5-to-4 decision divided the court along ideological lines, with Justice Anthony M. Kennedy joining the four members of the liberal wing. Justice Kennedy also provided the decisive vote in two other decisions issued Monday — on Arizona’s immigration law and on a sequel to the court’s decision in the Citizens United campaign finance case.

Writing for the majority in the decision concerning juvenile offenders, Justice Elena Kagan said the Constitution forbids “requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes.”

In barring the punishment for killings committed before age 18, Justice Kagan drew on two lines of precedent, both rooted in the court’s death penalty jurisprudence.

The first concerned harsh penalties imposed on juvenile offenders. In 2005, in Roper v. Simmons, the court eliminated the juvenile death penalty. In 2010, in Graham v. Florida, the court ruled that sentencing juvenile offenders to life without the possibility of parole was also unconstitutional, but only for crimes that did not involve killings. That decision affected about 130 prisoners convicted of committing, before they turned 18, crimes like rape, armed robbery and kidnapping.

The new decision did not draw a categorical line. Instead, the majority looked to a second line of cases, these barring mandatory death sentences and insisting instead that judges and juries, in Justice Kagan’s words, “consider the characteristics of a defendant and the details of his offense before sentencing.”

The cases before the court concerned two men who were involved in killings when they were 14.

One of them, Kuntrell Jackson, was with two older youths when the three tried to rob an Arkansas video store in 1999. One of the older youths shot and killed a store clerk.

The other, Evan Miller, and an older youth beat a 52-year-old neighbor in Alabama in 2003 after the three had spent the evening smoking marijuana and playing drinking games. The youths then set fire to his home, and the neighbor died of smoke inhalation.

The problem with mandatory sentences, Justice Kagan wrote, is that “every juvenile will receive the same sentence as every other — the 17-year-old and the 14-year-old, the shooter and the accomplice, the child from a stable household and the child from a chaotic and abusive one.”

“Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences,” Justice Kagan added. “It prevents taking into account the family and home environment that surrounds him — and from which he cannot usually extricate himself — no matter how brutal or dysfunctional.”

Bryan Stevenson, executive director of the Equal Justice Initiative, a nonprofit law firm in Alabama that represented the defendants in the ruling, called it “an important win for children.”

“Today’s decision requires the lower courts to conduct new sentencing hearings where judges will have to consider children’s individual character and life circumstances, including age, as well as the circumstances of the crime,” he said. But he added that the resentencing must be initiated by the inmates, that many lacked the resources to pay for a lawyer, and that the Supreme Court had said prisoners seeking new hearings have no constitutional right to counsel.

According to the National Conference of State Legislatures, about 2,500 inmates are serving life sentences for crimes committed when they were juveniles, including more than 2,000 — 80 percent — through the kind of mandatory sentencing systems barred on Monday by the court.

The United States is one of the few countries that have not signed the United Nations’Convention on the Rights of the Child, which bans life sentences without parole and execution for those under age 18, said Connie de la Vega, a law professor at the University of San Francisco School of Law. She also said that while many countries executed more criminals than the United States did, very few had laws imprisoning adults — let alone juveniles — for life without the possibility of parole.

Justices Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor joined Justice Kagan’s opinion in the two consolidated cases, Jackson v. Hobbs, No. 10-9647, and Miller v. Alabama, No. 10-9646.

In a concurrence, Justice Breyer, joined by Justice Sotomayor, said the Eighth Amendment should also bar sentences of life without parole for juvenile offenders who participated in crimes that led to killings but who did not intend to kill.

Chief Justice John G. Roberts Jr., in a dissent joined by Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr., said the court was confusing decency with leniency. He added that longer and mandatory sentences had developed only since the 1980s, making it hard to argue that abolishing them was part of the country’s evolving standards of decency.

“It is a great tragedy when a juvenile commits murder — most of all for the innocent victims,” Chief Justice Roberts wrote. “But also for the murderer, whose life has gone so wrong so early. And for society as well, which has lost one or more of its members to deliberate violence, and must harshly punish another.”

In a separate dissent read from the bench, an unusual move indicating deep disagreement with the majority opinion, Justice Alito made a similar case in stronger language.

“Even a 17 ½-year-old who sets off a bomb in a crowded mall or guns down a dozen students and teachers is a ‘child’ and must be given a chance to persuade a judge to permit his release into society,” he wrote of the consequences of the majority ruling. “Nothing in the Constitution supports this arrogation of legislative authority.”

- NYTimes

Four DU colleges to be exempted from OBC quota

The Delhi High Court on Monday exempted four Delhi University colleges from reserving OBC seats for admission in academic year 2012-2013 on ground of being minority educational institutions.

A bench of justices V K Jain and Pratibha Rani gave the exemptions to SGTB Khalsa College, Guru Nanak Dev Khalsa college, Mata Sundri College and Guru Gobind Singh College of Commerce, accepting their pleas that they have been declared minority educational institutions by the National Commission for Minority Educational Institutions (NCMEI).

“We are of the view that the practice which these institutions (four colleges) have been following till 2011-12 in the matter of reservation shall not be changed particularly when these institutions have already been declared as minority education institutions by the NCMEI,” the bench said.

The court also modified the May 29 order of its single judge bench which had directed these four colleges to abide by the University’s directions, which had asked them to implement the 27 percent reservation policy by admitting students belonging to SC, ST and OBC categories.

These colleges had moved the division bench challenging the University’s May 29 order and seeking exemption from the stipulated 27 percent reservation for OBCs in the institutions of higher learning.

“We, therefore, modify the order (of single bench) dated May 29, 2012 that the appellant (these colleges) shall give reservation in admission for 2012-13 to SC/ST categories, as per the norms of the DU but they will not be obliged to give reservation to the OBC,” the bench said.

Consumer court:HP to pay Rs 1.17 lakh for defective laptop

A Delhi consumer court fined HP for selling defective laptop and not repairing it to its cutomers.

The North District Consumer Disputes Redressal Forum ordered HP to pay Rs 1.12 lakh to city resident Dev Raj Chaudhary as reimbursement of the laptop’s cost and Rs 5,000 as compensation for all the troubles he was put to by the defective machine.

The HP laptop, bought by Chaudhary in September 2007 for his daughter, a teacher in the USA, had defective speakers and he took it for repairs to Hewlett-Packard India Sales Pvt Ltd in February 2008.

The forum observed that the laptop was not even once presented in working condition before it and held that not only was the machine defective but there was deficiency in service provided to the customer.

“On the face of evidence on record, it is clear that the laptop in question was defective and the same was not put in order by OP2 (HP India Sales Pvt Ltd). Therefore, first of all the goods sold to the complainant was defective and secondly OP2 did not render services which amounts to deficiency of service.

“In these circumstances, we direct OP1 (Millenium PC Solution) and OP2 to jointly and severally refund the amount of Rs 1,12,000 to the complainant and to pay a sum of Rs 5,000 towards cost,” the bench presided by Babu Lal said.

The forum’s order came on Chaudhary’s plea, which alleged that the HP Laptop he had purchased from Millenium PC Solution turned out to be defective and was not repaired.

HP India Sales in its defence had contended that the laptop was repaired in May 2008 and it had written to Chaudhary in February 2009 to collect it, but he had not done so.

The forum, however, rejected the HP India’s contention, saying that the letter was sent by it “as a subterfuge”.

Police forced to destroy all mugshots of innocents

UK's most senior judges rule it 'unlawful' for police to hold onto the data of innocent citizens

Police will have to destroy photographs of suspects later cleared of wrongdoing

Civil rights campaigners trumpet judgement a major victory against creation of Big Brother society

Judges reject Met Police's argument keeping images was vital in fight against crime

Police had previously been told by court keeping DNA and fingerprints was unlawful

Police will have to destroy mugshots of innocent people following a landmark case brought by a 15-year-old.The boy went to court after being told his image would be held until he reached 100 – even though no charges were laid against him.The High Court ruled yesterday that retaining photographs of suspects who have never been charged was a breach of their human rights.

Police forces will now have to trawl through their records deleting images, including those of people cleared at trial.

The teenager from Peckham, South London, was arrested on suspicion of rape in April 2009 but no charges were brought when a witness failed to confirm an offence took place.When he asked to have his details removed he was told the mugshot could be retained until he reached the age of 100. He was 12 at the time.

HOW CIVIL LIBERTY GROUPS FEAR POLICE ARE ATTACKING HUMAN RIGHTS 

Police have faced a series of allegations, over recent years, of creating a Big Brother society after obtaining and keeping innocent citizen's private information.

The Met Police were accused of a ‘back-door surveillance scheme’ after it emerged there were harvesting millions of pieces of mobile phone data from people who have never been convicted of any crime.

Officers could also access and copy website histories and email content from smart phones, including records of activity on Facebook and other social networking sites.

The data, will be stored indefinitely, even if the suspect is either released without charge or, when prosecuted, cleared by the courts, police said.

Under the £50,000 scheme, some 16 terminals designed to harvest the mobile phone data, have been placed in police stations across London and 300 officers trained to use them.

In 2008, the European Court order police to delete the DNA and fingerprints held on a national database from suspects later cleared of wrongdoing.

The damning verdict, the 17-strong panel said keeping the records 'could not be regarded as necessary in a democracy'.

Before 2001, the police had to destroy DNA samples of individuals acquitted or not charged. 

But a rule change has allowed them to keep profiles of everyone arrested for a recordable offence in England, Wales and Northern Ireland.

The details of about 4.5million people are held on the database yet one in five - including 40,000 children - had never been charged with an offence.

At the time the Home Office said the register has proved a key intelligence tool in solving 3,500 cases - including high-profile rapes and murders.

Insurer ordered to pay Rs 52 lakh for rejecting medi-claim

The  Maharashtra Consumer Redressal Commission has directed New India Assurance Company to pay Rs 52.07 lakh to a city resident for repudiating her foreign medical claim and deficiency in service.

Presiding member P N Kashalkar ordered the insurance company to pay this amount along with interest at the rate of 7 per cent per annum from the date of rejection of the claim, October 20, 2010, till actual realisation, besides Rs 20,000 as costs incurred by complainant Nina Sudhir Thackersey.

The complainant had taken an Overseas Mediclaim Policy from New India Assurance Company for USD 1,00,000 towards illness and treatment for accident for the period April 26, 2010 to April 25, 2011.

While on her trip to Zurich in Switzerland on May 9, 2010 she complained of constant chest pain and upper abdominal pain, following which she was admitted at Klinik Hirslanden in Zurich.At the clinic, Nina was examined by Dr Med. A Muller, Dr Henry Perschak and Dr Stefano Tresch and was subsequently admitted in the intensive care unit where she was administered dialysis. Nina was indoor patient at the clinic for 19 days, and was discharged on May 28, 2010.

Nina was asked to stay back for four days and called for re-consultation on June 4, 2010. On June 1, she was examined again by Dr Tresch who advised her by issuing a certificate that she should go back to India accompanied by a doctor. She returned to India on June 2, along with her husband and an Indian doctor.

Doctor’s certificate not enough to determine emergency

 The CAT has held that a patient condition as an emergency case cannot be decided on the basis of the doctor’s certificate always. 

“Whether the case is of emergency nature or not is not always decided on the basis of the certificate of a doctor who treats the patient and performs the surgery,” the principal bench of the Central Administrative Tribunal (CAT) said

Delhi High Court: Maintenance laws misused by greedy

The maintenance laws are “designed to help the needy and not the greedy“, the Delhi High Court has said while expressing displeasure at the misuse of the benevolent provisions to settle personal  scores.

The court’s remark, in a recent order, came on a plea filed by an elderly woman seeking enhancement of the maintenance amount from her retired husband and two working sons, based in Australia and Mumbai

NARENDER KUMAR v. STATE(N.C.T.OF DELHI) [2012] EssenSC 326 (25 May 2012)

Judgement REPORTABLE 

IN THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOs.2066-67 OF 2009 

Narender Kumar ......Appellant 

Versus 

State (NCT of Delhi) ....Respondent

 

Dr. B.S. CHAUHAN, J.

1. These appeals have been preferred against the impugned judgment and order dated 25.3.2009 passed by the High Court of Delhi at New Delhi in Criminal Appeal No.53 of 2000, by which it has affirmed the judgment and order of the trial Court dated 7.12.1999 passed in Sessions Case No. 77/99, convicting the appellant under Section 376 of Indian Penal Code, 1860 (hereinafter called ‘IPC’) and awarded the punishment of rigorous imprisonment for a period of 7 years vide order dated 8.12.1999 and imposed a fine of Rs.2000/- .

2. Facts and circumstances giving rise to this case are that:

A. Smt. Indira PW.1 (prosecutrix) filed an FIR No.886/98 dated 16.9.1998 to the effect that when she was going from village Khirki to Chirag Delhi on that day at about 8 p.m., the appellant met her near Ganda Nala, he caught hold of her hand and dragged her towards the bushes on the edge of the road and committed rape on her. She could not raise the noise due to fear. After commission of the offence, the appellant left her there and ran away. The prosecutrix went to her husband at his working place and from there went to the police station alongwith her husband to lodge the FIR.

B. The prosecutrix was medically examined. Appellant was arrested on 1.11.1998. Statement of the prosecutrix was recorded under Section 164 of Code of Criminal Procedure, 1973 (hereinafter called ‘Cr.P.C.’) on 20.11.1998 before the Metropolitan Magistrate, New Delhi. After completion of investigation, charge sheet was filed against the appellant under Section 376 IPC on 21.4.1999. Prosecution examined 11 witnesses in support of its case. The appellant, in addition to his own statement under Section 313 Cr.P.C., also examined 2 witnesses in defence.

C. On conclusion of the trial, the learned Sessions Court vide judgment and order dated 7/8.12.1999 convicted the appellant for the offences under Section 376 IPC and imposed the sentence as referred to hereinabove.

D. Aggrieved, the appellant preferred Criminal Appeal No.53 of 2000 before the High Court which has been dismissed vide impugned judgment and order dated 25.3.2009.

Hence, these appeals.

3. Shri Yakesh Anand, learned Amicus Curiae, has submitted that Indira, prosecutrix (PW.1) cannot be relied upon because there have been material contradictions in her deposition. She had been confronted on large number of issues/facts with her statement under Section 161 Cr.P.C. Embellishments/improvements had been of such a large magnitude that her statement itself became unreliable. The prosecutrix was an unchaste woman, having illicit relationship with many young persons.

The courts below erred in not appreciating properly the evidence of the defence witnesses examined by the appellant. The medical evidence, in a case like this where the prosecutrix was married and 25 years of age, is inconsequential. Thus, the appeals deserve to be allowed.

4. Per contra, Smt. Rekha Pandey, learned counsel appearing for the respondent-State has opposed the appeal vehemently contending that the appellant has rightly been convicted on the sole testimony of the prosecutrix and both the courts below have appreciated the facts in correct perspective. The findings so recorded by the courts below do not warrant any interference. Thus, the appeals are liable to be dismissed.

5. We have considered the rival submissions made by learned counsel for the parties and perused the record.

6. The Trial Court as well as the High Court recorded conviction of the appellant merely placing a very heavy reliance on the deposition of the prosecutrix and considering the deposition of Dr.

Nisha (PW.9). Admittedly, the defence version taken by the appellant in his statement under Section 313 Cr.P.C. and the deposition of two defence witnesses to the extent that the prosecutrix had developed intimacy with the appellant and some other young persons and Sahib Rao (PW.3) her husband, had raised the grievance in this regard, have not even been referred to by either of the courts below, though the law required the court to appreciate the defence version and decide its veracity in accordance with law.

7. In order to test the veracity of the deposition of Smt. Indira –Prosecutrix (PW.1), it may be relevant to make reference to the same.

In her examination-in-chief she stated as under:

“The accused was not personally known to me prior to the day of incident, except that he had teased me prior to the incident and I lodged the complaint with the parents of the accused and with the police. I have not given any copy of the complaint to the police in this case. It is incorrect to say that the accused had been living in my house about one year prior to the day of the incident.” In cross-examination she could not point out as which part of her Salwar had been torn. Prosecutrix, when in the dock was confronted on various points with her statement under Section 161 Cr.P.C. and the said contradiction read as under:

(i) I had also told the police in my statement that I had raised alarm at the time of rape.

(ii) The accused was not personally known to me prior to the date of the incident except that he had teased me prior to the incident and I lodged the complaint with the parents of the accused and with the police.

So far as the “injury on her person” is concerned, she deposed as under:

“I did not receive any injury except scratches on my throat and I had told the doctor about the incident.”

8. Sahib Rao (PW.3), husband of the prosecutrix in his cross- examination admitted that he knew the appellant very well as both of them had been the residents of the same village. He further admitted that there used to be quarrel between him and his wife. Sahib Rao (PW.3), was also confronted with his statement under Section 161 Cr.P.C. on various narrations.

9. Dr. Nisha (PW.9) deposed as under:

“There were nail marks on her breast and from that I say that she might have been raped. The nail marks which were found on the breast of the victim could have been self-inflicted….On internal examination of the victim, it could not be found that she was raped except seeing her condition that her clothes were torn and there were nail marks on her breast.” (Emphasis added)

10. SI, Lekh Raj (PW.6) who was posted at P.S. Malviya Nagar, New Delhi was examined and he deposed as under:

“On the night intervening 30.10.1998 and 1.11.1998 , complainant Indira came to the P.S. at about 11.45 p.m. She told me that the person who had committed rape on her is sitting on a stop of Khirki. Thereafter, I alongwith complainant and Constable Jagat Singh went there and accused present in court was arrested on the pointing out of Indira by me…..The arrest memo of accused Ex.PW.1/F was also prepared…..

…………No public person from the area was called from where the accused was arrested. I did not prepare the site plan of the place from where the accused was arrested. The prosecutrix Indira had come to me on that night in the police station alone.

The distance between the house of the prosecutrix and police station is 3 Kms.”

11. R.N. Chowdhary (PW.11), Investigating Officer deposed that there was fencing just near the road and there was electricity pole installed at the divider of the road and the electricity was on. The residential houses were at some distance and the road was situated at a distance of about 20 paces from the place of occurrence.

12. The appellant in his statement under Section 313 Cr.P.C. stated as under:

“I was having good relations with family of the prosecutrix and we were staying in the same village. The prosecutrix desired to keep me in her house, to which I refused and for that reason, the false case has been planted on me. I am innocent and I have been falsely implicated in this case by police at the instance of the prosecutrix and her husband as I did not accept the proposal of the prosecutrix to live in her house. Her husband has also given severe beatings to the prosecutrix on that account.” (Emphasis added)

13. Chandan Singh (DW.1) was examined by the appellant in defence who deposed that he knew Indira (Prosecutrix) and her husband being their neighbour. The prosecutrix was having intimacy with the appellant for the last 3 years. His house is at a distance of 40 yards from the house of the prosecutrix. There remained quarrel between prosecutrix and her husband. Her husband Sahib Rao (PW.3) did not like the entry of appellant in his house.

14. Surendra Kumar (DW.2) supported the defence version stating as under:

“I know Sahib Rao and his wife Indira. Sahib Rao had been working in my ration shop for last 7 years. Sahib Rao used to tell me that one boy whose name I do not know used to visit the house of Sahib Rao which was not liked by him and for that reason the husband and wife had been quarreling. The said boy, who is present in the court had come to my shop also alongwith Indra.”

15. If the evidence on record referred to hereinabove is appreciated, the following picture emerges:

(i) Prosecutrix and appellant were known to each other for a long time and there had been some relationship/intimacy between them.

(ii) Sahib Rao (PW.3), husband of the prosecutrix did not like the said relationship.

(iii) There has been some incident two-three days prior to the actual incident on 16.9.1998 as Indira-prosecutrix had lodged some complaint against the appellant in the police as well as with the parents of the appellant.

(iv) The complaint lodged by the prosecutrix two-three days prior to 16.9.1998 with the police had never been placed on record.

(v) The alleged incident dated 16.9.1998 had occurred on the side of the main road which remains busy and had sufficient light and in spite of the fact that the prosecutrix raised hue and cry, nobody came to help her.

(vi) There are contradictions on the issue as to whether the prosecutrix went to the working place of her husband and from there she proceeded to police station with him as evidence on record is also to the contrary i.e she straightaway went to the police station and one Constable had gone and called her husband.

vii) Medical evidence does not positively support the case of the prosecution as Dr. Nisha (PW.9) deposed that seeing her condition and torn clothes it could be said that the prosecutrix might had been raped.

viii) Admittedly, there is a most material contradiction in the medical evidence and ocular evidence. Dr. Nisha (PW.9) had categorically recorded in the report and deposed in the court that the prosecutrix was having nail marks on her breast though the case of Indira-prosecutrix had been that she was having nail marks on her throat.

(ix) Deposition of Lekh Raj (PW.6), S.I., about the arrest of the appellant between intervening night of 30.10.1998 and 1.11.1998 at about 11.45 p.m., seems to be improbable. According to him, the prosecutrix walked from her house to the police station at a distance of 3 Kms. at midnight to inform the police that the appellant was sitting on the stop of Khirki, Press Enclave. The witness reached there with prosecutrix and police constables. He found the appellant sitting at the said stop and from there he was arrested. The witness did not prepare the arrest memo with the help of any independent witness. If the appellant was sitting at the bus stop at midnight some other persons could have been also there.

(x) The defence version taken by the appellant and depositions of Chandan Singh (DW.1) and Surendra Kumar (DW.2) in support thereof, have not only been ignored/brushed aside by the courts below rather no reference has been made to the same.

(xi) The contradictions referred to hereinabove and particularly in respect of the nail marks on her body could not be said only to be minor contradictions which did not go to the root of the matter. Some of the contradictions/embellishments/improvements are of greater magnitude and had serious impact on the case.

(xii) The F.S.L. report dated 6.5.1999 reveal that the blood stains/semen on the prosecutrix kurta/ salwar belonged to the AB blood group though the blood group of the appellant is “O”(+) and thus, the FSL report does not support the case of the prosecution.

16. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony. (Vide: Vimal Suresh Kamble v. Chaluverapinake Apal S.P. &

Anr., AIR 2003 SC 818; and Vishnu v. State of Maharashtra, AIR 2006 SC 508).

17. Where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence. (Vide: Suresh N. Bhusare & Ors. v. State of Maharashtra, (1999) 1 SCC 220)

18. In Jai Krishna Mandal & Anr. v. State of Jharkhand, (2010) 14 SCC 534, this Court while dealing with the issue held:

“The only evidence of rape was the statement of the prosecutrix herself and when this evidence was read in its totality, the story projected by the prosecutrix was so improbable that it could not be believed.”

19. In Rajoo & Ors. v. State of Madhya Pradesh, AIR 2009 SC 858, this Court held that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. The court however, further observed:

“…….It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication….. there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.”

20. In Tameezuddin @ Tammu v. State (NCT of Delhi), (2009) 15 SCC 566, this Court held has under:

“It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter.”

21. Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference of the victim being a woman of “easy virtues” or a women of “loose moral character” can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated. (Vide: State of Maharashtra & Anr. v.

Madhukar Narayan Mardikar, AIR 1991 SC 207; State of Punjab v. Gurmit Singh & Ors., [1996] INSC 76; AIR 1996 SC 1393; and State of U.P. v. Pappu @ Yunus &

Anr., AIR 2005 SC 1248).

22. In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration at all.

23. The courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of witnesses which are not of a substantial character.

However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused.

Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. (Vide:

Tukaram & Anr. v. The State of Maharashtra,, [1978] INSC 176; AIR 1979 SC 185; and Uday v. State of Karnataka, AIR 2003 SC 1639).

24. Prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony.

However, in case the court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix case becomes liable to be rejected.

The court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation. Even if the prosecutrix is of easy virtue/unchaste woman that itself cannot be a determinative factor and the court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of.

25. The instant case is required to be decided in the light of the aforesaid settled legal propositions.

We have appreciated the evidence on record and reached the conclusions mentioned hereinabove. Even by any stretch of imagination it cannot be held that the prosecutrix was not knowing the appellant prior to the incident. The given facts and circumstances, make it crystal clear that if the evidence of the prosecutrix is read and considered in totality of the circumstances alongwith the other evidence on record, in which the offence is alleged to have been committed, we are of the view that her deposition does not inspire confidence. The prosecution has not disclosed the true genesis of the crime. In such a fact-situation, the appellant becomes entitled to the benefit of doubt.

In view of above, the appeals succeed and are allowed. The judgment and order dated 25.3.2009 passed by the High Court of Delhi in Criminal Appeal No. 53 of 2000 and that of the trial court dated 7.12.1999 are hereby set aside. The appellant is on bail, his bail bond stands discharged.

Before parting with the case, we would like to record our appreciation to Mr. Yakesh Anand, learned Amicus Curiae for rendering commendable assistance to the court. Mr. Anand shall be entitled to Rs.

7,000/- as his fees payable by the State Government.

..........................................................J.

(Dr. B.S. CHAUHAN) .

..........................................................J.

VIJAY KUMAR KAUL & ORS. v. U.O.I. & ORS. [2012] EssenSC 327 (25 May 2012)

Judgement 

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 4986-4989 OF 2007 

Vijay Kumar Kaul and others .. Appellants 

Versus 

Union of India and others .... Respondents

   

Dipak Misra, J.

The appellants, four in number, participated in a selection process conducted by the Second Field Ordnance Depot (2 FOD) in the year 1984 for the post of Lower Division Clerks (LDCs). Despite their selection for the post in question they were not issued appointment letters on the pretext that there was a ban on appointments. In December 1993, pursuant to the order passed in OA No. 29/jk/92 dated 24.8.1993 by the Chandigarh Bench of the Central Administrative tribunal (for short ‘the Tribunal’), respondent No. 4 was issued an appointment letter. The appellant Nos. 1 to 3 were given appointment in May, 1996 on the basis of the directions issued on 24.7.1995 by the High Court of Jammu and Kashmir in SWP No. 1052 of 1991.

2. It is worth noting that Parveen Singh and others, whose names, had figured in the select list, being aggrieved due to non appointment, had preferred OA No. 539-HP of 1986 before the Chandigarh Bench of the tribunal which allowed the OA vide order dated 25.8.1987 directing the respondent herein to issue appointment letters to them. The respondents instead of appointing the said Parveen Singh and others against the vacancies in 9 FOD, where there were ten vacancies of LDCs, appointed them against the vacancies falling in 2 FOD where there were 27 vacancies for LDCs with effect from 1.1.1990.

3. As set forth, said Parveen Singh and others filed second OA No. 1476- pb-1991 before the Chandigarh Bench of the tribunal with a prayer to issue a direction to the respondents to appoint them as LDCs with effect from 1.5.1985 with all consequential benefits including seniority, pay and allowances, etc. on the foundation that similarly situated persons who were selected along with them had been appointed with effect from 1985. The tribunal allowed the application vide order dated 13.10.2000 directing that their appointment shall be treated with effect from 1.5.1985 and they shall be extended the benefit of fifty per cent of back wages and other consequential reliefs.

4. The aforesaid order was called in question by the respondents before the High Court of Punjab and Haryana in CWP No. 1158 of 2001 and a Division Bench of the High Court, as per order dated 12.7.2001, set aside the order of the tribunal to the extent of grant of back wages but did not interfere with the direction ante-dating their date of appointment and other consequential reliefs granted by the tribunal.

5. As has been stated earlier that the appellants had approached the tribunal and were appointed on two different dates sometime in December, 1993 and May, 1996. After the High Court of Punjab and Haryana passed the order, the respondents conferred the benefit on said Parveen Singh and others. Thereafter, the present appellants submitted a series of representations to extend to them the similar benefits on the foundation of parity. The said prayer was negatived by the respondents by order dated 21.7.2004.

6. Being dissatisfied with the said action of the respondents the appellants knocked at the doors of the Principal Bench of the tribunal in OA No. 2082 of 2004. It was contended before the tribunal that grave injustice had been done to them by the respondents inasmuch as they were not given the equal treatment that was given to similarly placed employees;

and that their seniority position and prospects for promotion had been immensely affected. The stance and stand put forth by the appellants was resisted by the respondents contending, inter alia, that as the appellants were not parties to the application before the Chandigarh tribunal and were not covered by the judgment of Punjab and Haryana High Court, they were not extended the benefit; that only those general category candidates who were placed higher in merit list were appointed prior to them excepting one Kalu Ram who belonged to the Scheduled Caste category; that the appellants could not have been appointed as there was a ban and thereafter they were appointed as per the direction of the High Court of Jammu and Kashmir; and that the tribunal in OA No. 29/jk/92 preferred on the question of appointment of the appellant No. 4 had clearly stated that the appointment shall have prospective effect and he would not be entitled to any back wages or seniority and the said order has gone unassailed; and hence, the claim put forth in the petition did not merit consideration.

7. The tribunal adverted to various orders passed by the tribunal at various junctures and the orders passed by the Punjab and Haryana High Court and came to hold that as far as the appellant No. 4 is concerned his case had attained finality; that the decision rendered in the case of Parveen Singh and others could not be treated as judgment in rem but a judgment in personam; and that the appellants had been given appointment as per their placement in the merit list regard being had to availability of vacancies and hence, it could not relate to an earlier date, especially when they failed to show that any person junior to them had been given appointment from a retrospective date or extended benefit. Being of this view the tribunal dismissed the Original Application.

8. Aggrieved by the aforesaid order the appellants invoked the jurisdiction of the High Court of Delhi under Articles 226 and 227 of the Constitution of India seeking a writ of certiorari for quashment of the order dated 10.3.2005 passed by the tribunal and also for quashing of the orders by which their representations had been rejected and further pressed for issue of a writ of mandamus commanding the respondents to extend the similar benefits as had been extended to Parveen Singh and others in view of the judgment rendered by Punjab and Haryana High Court.

9. The High Court, upon perusal of the order passed by the tribunal, the decision rendered by the Punjab and Haryana High Court, and on considering the factum of the delay and laches on the part of the appellants, and that they had not been superseded as the select list was prepared in order of merit, and appreciating the fact that the appointments had been made strictly in accordance with the merit declined to interfere with the order.

10. We have heard Mr. Ashok Bhan, learned senior counsel for the appellants and Mr. R.P. Bhatt, learned senior counsel for the respondents.

11. It is submitted by the learned senior counsel for the appellants that the tribunal as well as the High Court have fallen into serious error by expressing the view that the appointments were based on the merit list and, therefore, there was no supersession of the appellants. It is urged by him that neither the original application nor the writ petition could have been dismissed on the ground of delay and laches, in view of the fact that the appellants immediately approached the tribunal after the High Court rendered its judgment on 12.7.2001. It is his further submission that a serious anomalous situation has cropped up inasmuch as the candidates whose names featured in one select list have been appointed at various times, as a consequence of which their pay-scale, seniority and prospects for promotion, have been put to jeopardy. The last limb of submission of the learned senior counsel for the appellants is that both the forums have failed to appreciate that injustice meted out to the appellants deserved to be remedied applying the doctrine since the doctrine of parity and the orders are vulnerable and deserved to be axed and appropriate direction are to be issued considering similar benefits. The learned senior counsel to bolster his submission has placed reliance on the decisions in K.C. Sharma and others v. Union of India and others[1], Collector of Central Excise, Calcutta v. M/s. Alnoori Tobacco Products and anr.[2], State of Karnataka and others v. C. Lalitha[3] and Maharaj Krishan Bhatt and another v. State of Jammu and Kashmir and others[4].

12. Mr. Bhatt, learned senior counsel for the respondents supported the order passed by the tribunal as well as by the High Court on the ground that the decisions which have been rendered by the tribunal and the High Court are absolutely impregnable since the appellants had never approached the tribunal at the earliest and only put forth their claims after success of Parveen Singh and others. It is propounded by him that the appellants while filing the various original applications seeking appointment had never claimed the relief of appointment with retrospective effect and, in fact, in the case of the appellant No. 4 the tribunal has categorically stated that his appointment could have prospective effect which has gone unassailed and, therefore, relying on the decision of Parveen Singh and others is of no assistance to the appellants.

13. To appreciate the rival submissions raised at the Bar it is appropriate to refer to the various orders passed at various times.

Parveen Singh and others approached the tribunal of Chandigarh at Chandigarh Bench in the year 1986. The tribunal, by order dated 25.8.1987, directed to issue appointment letters to the applicants against the vacancies which had not been filled up, regard being had to the merit position in the examination. Thereafter, the said Parveen Singh and others were intimated vide letter dated 15.1.1991 to report at the office for collection of their appointment letters on character verification and eventually they got appointments. Later on Parveen Singh and others had approached the tribunal to extend the monetary benefits from the date of their appointment. The tribunal had directed to extend 50% of the actual monetary benefits from the date of appointment along with other consequential benefits. The Union of India and its authorities preferred writ petition before the High Court of Punjab and Haryana, which passed the following order: - “For the reasons recorded above, the writ petition is partly allowed and the order of the tribunal is quashed to the extent it grants 50% back wages. However, we do not find any infirmity in keeping intact the other reliefs granted by the tribunal, namely, ante-dating of appointment of respondent Nos. 1 to 7 and fixation of their pay with all consequential benefits of increments etc. with effect from the date, all other candidates placed on the panel of selected candidates were appointed. No order as to costs.”

14. While Parveen Singh and others were proceeding in this manner, appellant No. 4, Ujwal Kachroo, approached the tribunal at Jammu. The tribunal allowed OA and directed to issue appointment letter to the applicant for the post for which he was duly selected in 1984 within a period of six weeks. It proceeded to clarify that the appointment shall have prospective effect and he would not be entitled to any back wages or seniority for the simple reason that it was neither his case nor anything had been brought on record to show that any person junior to him in the panel had already been appointed. At this juncture, three of the appellants approached the High Court of Jammu and Kashmir and the learned single Judge of the High Court of Jammu and Kashmir, by order dated 24.7.1995, had passed the following order: - “I have heard learned counsel for the parties. The respondents have no objection in appointing the petitioners as and when the posts of LDCs become available and also subject to their merit positions in the select list. Since the respondents have not objected in making appointments of the petitioner, I allow this writ petition and direct the respondents that the petitioners shall be appointed as LDCs as and when the posts become available, on their own turn, as per their merit position in the select list.” On the basis of the aforesaid order, the said appellants were given appointment.

15. After the decision of the Punjab and Haryana High Court was delivered the present appellants approached the Principal Bench of the tribunal and the tribunal did not accept the prayer which has been given the stamp of approval by the High Court.

16. In the course of hearing, learned senior counsel for the parties fairly stated that the decision rendered by the High Court of Punjab and Haryana has not been challenged before this Court and, therefore, we refrain from commenting about the legal defensibility of the said decision.

However, it is clear as noon day that the appellants, neither in their initial rounds before the tribunal nor before the High Court, ever claimed any appointment with retrospective effect. In fact, the direction of the in respect of appellant No. 4 in the OA preferred by the appellant No. 4 was absolutely crystal clear that it would be prospective. The said order was accepted by the said appellant. However, as is manifest, after the decision was rendered by the Punjab and Haryana High Court wisdom dawned or at least they perceived so, and approached the Principal Bench for grant of similar reliefs. In the petition before the tribunal, they had stated in their factual portion which are to the following effect: - “(n) That since at the time of filing writ by applicant/petitioner Nos. 1,2 and 3 and an O.A. by applicant/petitioner No. 4, the issue of entitlement to anti- dating appointment and back wages was under adjudication before the Hon’ble High Court of Punjab and Haryana in the case of Parveen Singh & Ors., the applicants/petitioners in the present O.A. did not seek such relief in their respective writ and O.A.

(o) That when the High Court upheld the orders of the tribunal in case of Parveen Singh & Ors., that they are entitled to the benefit of anti-dating appointment and the consequential benefits, the applicants/petitioners made individual representations to the respondents seeking the benefit of High Court’s judgment dated 12.7.2001 delivered in C.W.P. No. 1156 of 2001. A true photocopy of this judgment is already available as Annexure A-5 at page 22-32 of the O.A.”

17. Thus, it is demonstrable that they did not approach the legal forum but awaited for the verdict of the Punjab and Haryana High Court. As far as appellant No. 4 is concerned, we really see no justifiable reason on his part to join the other appellants when he had acceded to the first judgment passed in his favour to a limited extent by the tribunal. This was an ambitious effort but it is to be borne in mind that all ambitions are neither praiseworthy nor have the sanction of law. Be that as it may, they approached the tribunal some time only in 2004. The only justification given for the delay was that they had been making representations and when the said benefit was declined by communication dated 31.7.2004, they moved the tribunal. The learned senior counsel for the appellants fairly stated that as the doctrine of parity gets attracted, they may only be conferred the benefit of seniority so that their promotions are not affected.

18. It is necessary to keep in mind that claim for the seniority is to be put forth within a reasonable period of time. In this context, we may refer to the decision of this Court in P.S. Sadasivaswamy v. State of Tamil Nadu[5], wherein a two-Judge Bench has held thus: - “It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the courts to put forward stale claims and try to unsettle matters.”

19. In Karnataka Power Corporation Ltd. & Anr. v. K. Thangappan & Anr.[6] this Court had held thus that delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prasad v. Chief Controller of Imports and Exports (AIR 1970 SC 769). Of course, the discretion has to be exercised judicially and reasonably.

20. In City Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala & Ors.[7] this Court has opined that one of the grounds for refusing relief is that the person approaching the High Court is guilty of unexplained delay and the laches. Inordinate delay in moving the court for a Writ is an adequate ground for refusing a Writ. The principle is that courts exercising public law jurisdiction do not encourage agitation of stale claims and exhuming matters where the rights of third parties may have accrued in the interregnum.

21. From the aforesaid pronouncement of law, it is manifest that a litigant who invokes the jurisdiction of a court for claiming seniority, it is obligatory on his part to come to the court at the earliest or at least within a reasonable span of time. The belated approach is impermissible as in the meantime interest of third parties gets ripened and further interference after enormous delay is likely to usher in a state of anarchy.

22. The acts done during the interregnum are to be kept in mind and should not be lightly brushed aside. It becomes an obligation to take into consideration the balance of justice or injustice in entertaining the petition or declining it on the ground of delay and laches. It is a matter of great significance that at one point of time equity that existed in favour of one melts into total insignificance and paves the path of extinction with the passage of time.

23. In the case at hand, as the factual matrix reveals, the appellants knew about the approach by Parveen Singh and others before the tribunal and the directions given by the tribunal but they chose to wait and to reap the benefit only after the verdict. This kind of waiting is totally unwarranted.

24. Presently we shall refer to the authorities commended by the learned senior counsel for the appellants. In K.C. Sharma (supra) the factual scenario was absolutely different and thus, distinguishable. In C. Lalitha (supra) it has been held that justice demands that a person should not be allowed to derive any undue advantage over other employees. The concept of justice is that one should get what is due to him or her in law. The concept of justice cannot be stretched so as to cause heart-burning to more meritorious candidates. In our considered opinion, the said decision does not buttress the case of the appellants.

25. In Maharaj Krishan Bhat (supra), the appellants had made a representation on 8.1.1987. A similar representation was sent by one Abdul Rashid on that date to the Hon’ble Chief Minister of State of Jammu and Kashmir with a request to consider the case for appointment to the post of PSI by granting necessary relaxation in rules against 50% direct recruitment quota. The Director General of Police vide his letter dated 23.1.1987 recommended the name of Hamidullah Dar, one of the applicants, for appointment and he was appointed as PSI vide order dated 1.4.1987. The other appellants were not extended the benefit of appointment. Under those circumstances the High Court of Jammu and Kashmir in SWP No. 351 of 1987 directed the Director General of Police to consider the case of the appellants. Thereafter Abdul Rashid filed a similar petition which was admitted. Pursuant to the direction of the High Court the Director General of Police considered the applications of Mohd. Abbas and Mohd. Amim but rejected the prayer on 13.12.1991. When the matter of Abdul Rashid, the appellant, came up the learned single Judge allowed the writ petition relying on the earlier judgment. The Government of Jammu and Kashmir filed Letters Patent Appeal which was dismissed. In the context, this Court opined that the Division Bench should not have refused to follow the judgment by another Division Bench. Attention was raised that initial violation was committed by the State Government and which was violative of Articles of 14 and 16 of the Constitution and the said mistake could not be perpetuated. In that context it was held as follows: - “21. It was no doubt contended by the learned counsel for the respondent State that Article 14 or 16 of the Constitution cannot be invoked and pressed into service to perpetuate illegality. It was submitted that if one illegal action is taken, a person whose case is similar, cannot invoke Article 14 or 16 and demand similar relief illegally or against a statute.” Thereafter the Bench proceeded to state as follows: - “23. In fairness and in view of the fact that the decision in Abdul Rashid Rather had attained finality, the State authorities ought to have gracefully accepted the decision by granting similar benefits to the present writ petitioners. It, however, challenged the order passed by the Single Judge. The Division Bench of the High Court ought to have dismissed the letters patent appeal by affirming the order of the Single Judge. The letters patent appeal, however, was allowed by the Division Bench and the judgment and order of the learned Single Judge was set aside. In our considered view, the order passed by the learned Single Judge was legal, proper and in furtherance of justice, equity and fairness in action. The said order, therefore, deserves to be restored.”

26. We respectfully concur with the said observations but we cannot be oblivious of the fact that the fact situation in that case was totally different. Hence, the said decision is not applicable to the case at hand.

27. In the case at hand it is evident that the appellants had slept over their rights as they perceived waiting for the judgment of the Punjab and Haryana High Court would arrest time and thereafter further consumed time submitting representations and eventually approached the tribunal after quite a span of time. In the meantime, the beneficiaries of Punjab and Haryana High Court, as we have been apprised, have been promoted to the higher posts. To put the clock back at this stage and disturb the seniority position would be extremely inequitable and hence, the tribunal and the High Court have correctly declined to exercise their jurisdiction.

28. Another aspect needs to be highlighted. Neither before the tribunal nor before the High Court, Parveen Singh and others were arrayed as parties. There is no dispute over the factum that they are senior to the appellants and have been conferred the benefit of promotion to the higher posts. In their absence, if any direction is issued for fixation of seniority, that is likely to jeopardise their interest. When they have not been impleaded as parties such a relief is difficult to grant. In this context we may refer with profit to the decision in Indu Shekhar Singh &

Ors. v. State of U.P. & Ors.[8] wherein it has been held thus: - “There is another aspect of the matter. The appellants herein were not joined as parties in the writ petition filed by the respondents. In their absence, the High Court could not have determined the question of inter se seniority.”

29. In Public Service Commission, Uttaranchal v. Mamta Bisht & Ors.[9] this Court while dealing with the concept of necessary parties and the effect of non-impleadment of such a party in the matter when the selection process is assailed observed thus: - “7. ……. In Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar & Anr., [1962] INSC 290; AIR 1963 SC 786, wherein the Court has explained the distinction between necessary party, proper party and proforma party and further held that if a person who is likely to suffer from the order of the Court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order I, Rule IX of Code of Civil Procedure, 1908 (hereinafter called CPC) provide that non-joinder of necessary party be fatal. Undoubtedly, provisions of CPC are not applicable in writ jurisdiction by virtue of the provision of Section 141, CPC but the principles enshrined therein are applicable. (Vide Gulabchand Chhotalal Parikh v. State of Gujarat; [1964] INSC 292; AIR 1965 SC 1153; Babubhai Muljibhai Patel v. Nandlal, Khodidas Barat & Ors., [1974] INSC 177; AIR 1974 SC 2105; and Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior & Ors. [1986] INSC 233; AIR 1987 SC 88).

8. In Prabodh Verma & Ors. v. State of U.P. & Ors. AIR 1985 SC 167; and Tridip Kumar Dingal & Ors. v. State of West Bengal &

Ors. (2009) 1 SCC 768 : (AIR 2008 SC (Supp) 824), it has been held that if a person challenges the selection process, successful candidates or at least some of them are necessary parties.”

30. From the aforesaid enunciation of law there cannot be any trace of doubt that an affected party has to be impleaded so that the doctrine of audi alteram partem is not put into any hazard.

31. Analysed on the aforesaid premised reasons, we do not see any merit in these appeals and, accordingly, they are dismissed with no order as to costs.

............................................J.

[Dr. B. S.

Chauhan] ............................................J.

[Dipak Misra] New Delhi;

CHAIRMAN & C.E.OFFICER, NOIDA & ANR. v. MANGE RAM SHARMA (D) THR. LRS. & ANR. [2012] EsenSC 279 (4 May 2012)

Judgement NON-REPORTABLE 

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION I.A. No. 4 OF 2012 IN CIVIL APPEAL NO. 10535 OF 2011 

Chairman & Chief Executive Officer, NOIDA & Anr. ....... Appellants 

Versus 

Mange Ram Sharma (D) through LRs. & Anr. .... Respondents 

And Dr. Anupama Bisaria & Ors. … Applicants ALONG WITH

I.A. No. 5 OF 2012 IN CIVIL APPEAL NO.10535 OF 2011 Chairman & Chief Executive Officer, NOIDA & Anr. … Appellants Versus Mange Ram Sharma (D) through LRs. & Anr. … Respondents And Dr. A.C. Bisaria & Ors. … Applicants ALONG WITH

I.A. No.6 OF 2012 IN CIVIL APPEAL NO.10535 OF 2011 Chairman & Chief Executive Officer, NOIDA & Anr. … Appellants Versus Mange Ram Sharma (D) through LRs. & Anr. … Respondents And M/s. Shivalik Medical Centre P. Limited through its Director, Dr. Ravi Mohta. & Ors. … Applicants ALONG WITH

I.A. No. 48 of 2012 IN CIVIL APPEAL NO. 6962 OF 2005 R.K. Mittal & Ors. … Appellants Versus State of U.P. & Ors. … Respondents And Dr. Birendra Kumar Tripathi & Anr. … Applicants ALONG WITH

I.A. No. 50 of 2012 IN CIVIL APPEAL NO. 6962 OF 2005 R.K. Mittal & Ors. … Appellants Versus State of U.P. & Ors. … Respondents And Dr. Rashmi Gupta & Ors. … Applicants ALONG WITH

I.A. No. 53 of 2012 IN CIVIL APPEAL NO. 6962 OF 2005 R.K. Mittal & Ors. … Appellants Versus State of U.P. & Ors. … Respondents And Dr. Atul Kaushik & Anr. … Applicants ORDER

1. By judgment and order dated 5/12/2011, this Court disposed of Civil Appeal No.10535 of 2011 and issued following directions:

“(1) That banking or nursing homes or any other commercial activity is not permitted in Sector 19 and for that matter, in any sector, in the development area earmarked for “residential use”.

(2) That the 21 banks and the nursing homes, which are operating in Sector 19 or any other residential sector, shall close their activity forthwith, stop misuse and put the premises to residential use alone, within two months from the date of pronouncement of this judgment.

(3) That lessees of the plots shall ensure that the occupant banks, nursing homes, companies or persons carrying on any commercial activity in the residential sector should stop such activity and shift the same to the appropriate sectors i.e. commercial, commercial pockets in industrial/institutional area and specified pockets for commercial use within the residential sector, strictly earmarked for that activity in the development plan, the Regulations and provisions of the Act.

[pic] (4) That the Development Authority shall consider the request for allotment of alternative spaces to the banks and the persons carrying on other commercial activities, with priority and expeditiousness.

(5) That the doctors, lawyers and architects can use 30% of the area on the ground floor in their premises in residential sector for running their clinics/offices.

(6) That for such use, the lawyers, architects and doctors shall be liable to pay such charges as may be determined by the Development Authority in accordance with law and after granting an opportunity of being heard. The affected parties would be at liberty to raise objections before the Development Authority that no charges are payable for such users as per the law in force.

(7) In the event the lessee or the occupant fails to stop the offending activity and/or shift to alternate premises within the time granted in this judgment, the Development Authority shall seal the premises and proceed to cancel the lease deed without any further delay, where it has not already cancelled the lease deed.

(8) Wherever the Development Authority has already passed the orders canceling the lease deeds, such orders shall be kept in abeyance for a period of two months from today. In the event the misuse is not stopped within a period of two months in terms of this judgment, then besides sealing of the premises, these orders of cancellation shall stand automatically revived and would come into force without further reference to any court. In the event the misuse is completely stopped in all respects, the orders passed by the authorities shall stand quashed and the property would stand restored to the lessees.

(9) These orders shall apply to all cases, where the order of termination of lease has been passed by the Development Authority irrespective of whether the same has been quashed and/or writs of the lessees dismissed by any court of competent jurisdiction and even if such judgment is in appeal before this Court.

(10) The orders in terms of this judgment shall be passed by an officer not below the rank of Commissioner. This order shall be passed after giving an opportunity to the parties of being heard by such officer. This direction shall relate only to the determination of charges, if any, payable by the lessee or occupant for the period when the commercial activity was being carried on in the premises in question.”

2. On 23/1/2012, it was pointed out to us that 30% of the ground floor area permitted to be used under Direction (5) above is contrary to the bye- laws and master plan of NOIDA. It was urged before us that the expression ‘ground floor’ used in the same clause may be clarified as ‘any floor’ because somebody may be having a two-storeyed house and may himself be living on the first floor only. In the circumstances, we modified Direction (5) quoted above and clarified that 25% of the permissible FAR is allowed to be used for their professional purposes by doctors, lawyers and architects. We also modified paragraphs 54 and 55 of our judgment as follows:

“That the doctors, lawyers and architects can use 25 per cent of the permissible FAR of any floor in their premises in the residential sector but only for running their personal office or personal clinic in its restricted sense as clarified in the judgment.”

3. By the said order dated 23/1/2012, we have issued the following further directions:

“(i) The NOIDA Authorities shall, within one week from today, issue a final notice to all the owners of the residences requiring them to stop use of the premises for banking or any other commercial activity and requiring them to shift from the residential areas.

(ii) The NOIDA Authority shall also issue an advertisement stating therein the premises which can be offered to the banks as per the policy of the NOIDA Authority. This policy shall clearly state the terms and conditions for allotment and the manner in which the allotment of the alternative site/land would be made to the banks and/or other commercial activities in appropriate sectors i.e. commercial, institutional or industrial-commercial.

We make it clear that such policy should be fair and transparent.

(iii) Within one week thereafter the banks and other persons carrying on the commercial activities shall respond to the advertisement given by the NOIDA Authority or the circular issued by them.

Their allotment should be finalized immediately thereafter.

(iv) The entire process should be completed within six weeks from today. After six weeks the NOIDA Authority shall be entitled to cancel the lease deed as well as take other permissible steps in accordance with law to prevent commercial users in the residential sectors. We also make it clear that the NOIDA Authority will be at liberty to consider the request of the nursing homes, clinics or other commercial activities carrying on the residential areas for allotment of an alternative site in accordance with its policy, if any. The NOIDA Authority shall be entitled to fix present day rates or impose such other terms and conditions as is considered appropriate by them. This we leave to the discretion of the authorities concerned.

(v) Any branches that have opened in NOIDA after the pronouncement of the judgment of this Court shall not be entitled to any of the benefits of the judgment and this order.

(vi) We make it clear that the directions contained in this order should be complied with by all concerned and within the time stipulated. In the event of default, this court shall be compelled to take proceedings under the Contempt of Courts Act, 1971 against the erring or defaulting officers/officials.”

4. In the abovementioned applications, some applications have been filed by the doctors, who were running nursing homes in the residential areas with a prayer that they should be provided alternate land/premises by NOIDA, as it has been done in the case of banks as per the judgment of this court. It is averred in these applications that Dr. Rashmi Gupta and others were running nursing homes in the residential areas with differing capacity, which have now been closed. They are prepared to pay the reasonable cost of land/premises which the NOIDA may now allot to them for running their nursing homes. There are other applications also with similar prayers. As we had heard the applicants as intervenors/impleaders, their applications for intervention do not survive for consideration any further.

5. As far as formulation of Scheme by the NOIDA for allotting the land/premises to such applicants is concerned, the stand of the NOIDA is that it had already taken out a Scheme especially for nursing homes.

However, no applicant applied for allotment of such land and thus, the NOIDA had not allotted any plot to the persons running nursing homes in the residential areas.

6. The NOIDA Master Plan, 2031, in Chapter 7, deals with Use Zones and Use Premises Designated. Under Serial No.87 of Chapter 7.30, while referring to Clause 5.22, it has been stated that a premises having medical facilities for indoor and outdoor patients having upto 30 beds is a nursing home and would be managed by a doctor on commercial basis. A clinic is stated to be a premises with facilities for treatment of outdoor patients by a doctor. In case of a polyclinic, it shall be managed by a group of doctors.

7. After hearing learned counsel appearing for different parties, we are of the view that NOIDA can be directed to make a provision under this policy for allotment of land/premises to nursing homes and invite applications for allotment of land for the same. The NOIDA has given precedence, under their previous Schemes for allotment, to such applicants who are running nursing homes of more than 10 beds and less than 30 beds and the same would apply under this direction. They shall be given land/premises at reasonable rates as may be determined by the competent authority in NOIDA. This exercise of inviting applications and allotting such land/premises should be completed within three months from today. The applicants have stated that their nursing homes have already been closed, but we make it absolutely clear that no nursing rome shall run from a residential area henceforth.

8. Coming to the applications made by individual doctors, we direct that individual doctors would not be entitled to any benefit under the Scheme that the NODIA will declare under this order. A clinic simplicitor can be run by a doctor within such area as already specified, of his or her residence. This clinic would mean one as per the bye-laws. To put the matters beyond ambiguity, we clarify that the doctor can have his clinic with a table, a bed to examine the patient and such facilities which may be necessary to provide first aid. A dentist may have a dental chair in his clinic. Under this head, neither a polyclinic nor a nursing home can be run in the residential area.

9. We also direct that no doctor would be permitted to run a polyclinic or a nursing home in the garb of a clinic. Therefore, the question of keeping the patients in the clinic overnight would not arise. The purpose of permitting a clinic is strictly in accordance with the directions of this court as already issued as well as the bye-laws. The doctors will be permitted to run a clinic to provide personal service to the outdoor patients and nothing more. The doctors would be permitted to conduct professional practice, by the resident doctor alone, within the scope of the directions already issued by this court.

10. We have heard the applicants, at length. There is no occasion for this court to review/alter its judgment dated 5/12/2011 and further order dated 23/1/2012. Consequently, the applications for intervention and impleadment do not survive.

.......................................................J.

(SWATANTER KUMAR) 

........................................................J.

(RANJANA PRAKASH DESAI) NEW DELHI, MAY 4, 2012.