Ashok Sharma vs The Lt. Governor Of Delhi & Ors.
2010 Latest Caselaw 1881 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               LPA 430/2009

%                        Date of Decision: 12.04.2010

Ashok Sharma                                                .... Petitioner
                      Through Mr. Shiv Charan Garg and Mr. Imran
                              Khan, Advocates for the Petitioner.

                                  Versus

The Lt. Governor of Delhi & Ors.                         .... Respondent
                   Through Mr. S.Q. Kazim, Mr. Ali Mirza, Advocates
                             for the respondent Nos. 1, 3 to 12
                             Ms. Pragya Verma, standing counsel for
                             respondent No. 2/UOI
                             Mr. Sanjeev Bhandari, Advocate for
                             respondent Nos. 4 to 6

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.    Whether reporters of Local papers may be               YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?                 NO
3.    Whether the judgment should be reported                NO
      in the Digest?




ANIL KUMAR, J.

*

The appellant has impugned the order of the single Judge

passed in the writ petition filed by the appellant holding that the relief

sought by the appellant cannot be granted in his writ petition as the

writ petition involves disputed questions of facts and otherwise also it is

not a fit case in which discretionary writ jurisdiction should be invoked

and thus dismissed the writ petition by order dated 2nd July, 2009.

The appellant had filed a writ petition contending, inter-alia,

that his wife was living separately with her parents from 19th

September, 2006 whereas he was residing at Trinagar, Delhi. According

to the appellant on 29th October, 2006, his wife came at about 9:00 pm

with her mother, her brother and two cousins and told the appellant

that she wants to take away all her goods and articles. The appellant

did not allow her to take away the goods and locked the room as

according to him it was illegal. Consequent whereof appellant's wife

and the persons who had accompanied her broke open the lock and

took away all the goods and articles.

The appellant complained to the Police and a PCR van reached

at the spot, however, according to the appellant, his wife and other

persons who had accompanied her had run away from the spot. Since

after the wife and the persons who had accompanied her had ran away

and there was no chance to fight at the spot, the matter was referred to

the local police and respondent No. 9 took the appellant to the police

station, Shanti Nagar, where the mother-in-law of the petitioner and

other persons on behalf of the wife also came and the appellant was

beaten up by respondent No. 9. The complaint of the appellant was not

registered and after beating him he was taken to Babu Jagjivan Ram

Hospital in the three wheeler and even his purse was snatched which

contained Rs. 190/- and documents, out of which respondent No. 9

took Rs. 100/- and paid to three wheeler driver.

The appellant also alleged that a false DD entry was made on

29th October, 2006 to cover up his beating by respondent No. 9 and the

appellant was kept in a lockup and was produced before the concerned

Magistrate on 1st November, 2006. The parents of the appellant were

not informed about his arrest nor he was allowed to call his parents and

other relatives and the signatures of the appellant were taken forcefully

on the blank papers and in these circumstances, respondent No. 9

violated the directions of the Supreme Court laid down in D.K. Basu's

case. The appellant also contended that on 31st October, 2006, his bail

bond was not accepted and the respondent No. 10, Assistant

Commissioner of Police sent him to Tihar Jail in judicial custody though

the case was registered against him under 107/151 Cr.P.C. was

bailable offence and therefore, respondent No. 10 also misused his

power and prepared false, bogus and fabricated report against him.

The appellant also made various allegations against respondent No. 9

and that the complaint against respondent No. 9 dated 2nd January,

2008 was sent to respondent Nos. 1 to 5, however no action was taken

by respondent Nos. 1 to 5. Similarly, it was contended that even

respondent No. 7 suppressed the matter and made false and bogus

report in order to provide protection to respondent No. 9 and in the

circumstances, even respondent Nos. 1 to 5 and respondent No. 7 were

involved.

With these allegations, the appellant demanded the damages of

Rs. 50,000/- from respondent Nos. 1 to 7 and other respondents and

since, respondent No. 8 was in-charge of the police station, Shanti

Nagar, hence, damages were also claimed from him.

The appellant contended that he had sent a legal notice dated

14th March, 2008, however, no reply was received. In the

circumstances, relying on Salem Advocate Bar Association Vs. UOI &

Ors., AIR 2005 SC 3353, it was contended that case of the petitioner is

of custodial violence and mental and physical torture/injuries which is

apparent from the MLC of the appellant and thus claimed the damages.

The appellant thereafter filed a writ petition being 7313/2008,

titled as Ashok Sharma Vs. Lt. Governor of Delhi & Ors, which was

disposed of with a direction to the respondents to reply to the legal

notice of the appellant dated 14th March, 2008.

Pursuant to the directions by the Court, respondent No. 11 is

alleged to have sent a reply dated 3rd December, 2008 to the legal

notice, however, the reply was very cryptic and did not deal with the

allegation made by the appellant. The appellant therefore, made a

complaint dated 7th January, 2009 to the Commissioner of Police and

thereafter moved an application under Right to Information Act. The

appellant also filed an application for setting aside the order passed in

the earlier writ petition No. 7313/2008 which was however dismissed.

However, the appellant was given liberty to file afresh a Civil Writ

Petition, which was filed by the petitioner, however, the same was also

dismissed by the single Judge by the order dated 2nd July, 2009 holding

that the writ petition involved disputed questions of fact and the writ

petition of the appellant was not fit for exercise writ jurisdiction.

The learned counsel for the appellant has relied on (2004) 3

SCC 553, ABL International Ltd. and Anr. Vs. Export Credit Guarantee

Corporation of India Ltd. and Ors. and WP(C ) No. 11983/06 titled as

Sri Chand Vs. State & Ors. decided on 18th April, 2009 to contend that

even in disputed questions of fact which require oral evidence, the same

can be recorded and the Court can award damages in favour of the

petitioner and against the respondents.

This court has heard learned counsel for the parties in detail.

The Single Judge has held that since the writ petition involves disputed

questions of fact, which could be decided by detailed evidence only and

therefore, had declined to exercise discretionary writ jurisdiction in

favour of the petitioner.

The reliance by the petitioner on the decision of ABL

International Limited and Anr. (supra) is also of no help because in that

case, the only fact which was disputed was the obligation of the first

respondent in that case to cover the risk of non-payment of

consideration by cash in US currency on the ground that the risk

covered by the first respondent was a risk arising out of not supplying

of goods by the barter method only. The Apex Court had held that

limited area of dispute could be settled by looking into terms of contract

of insurance as well as the export contract, and adjudication of that

dispute did not require consideration of any oral evidence or any other

documentary evidence other than what is already on record and as no

external aids were required, the Supreme Court had interfered in the

facts and circumstances of that case in contradistinction to the case of

the appellant which involves various disputed questions of fact, which

cannot be determined without detailed oral evidence and the

documentary evidence.

The learned counsel for the petitioner has also relied on the

vigilance report. Merely on the basis of the report, the liability of the

respondents cannot be fixed without giving them opportunity in the

present facts and circumstances. In the circumstances, on the basis of

the ratio of ABL International Limited and Anr. (Supra), it will not be

appropriate to burden the respondent with damages and costs.

In Srichand (supra), relied on by the appellant, the Single

Judge has held in the peculiar circumstances of that case where

instead of recording an FIR against the alleged offenders, the

complainant was detained in the police station and was harassed and

tortured. In Srichand (Supra) there was no response to the notice filed

by the petitioner in that case in contradistinction to the case of the

appellant who had filed a writ petition and pursuant to which direction

was given to the respondent to reply to the notice and a reply was sent

by respondent No. 11. The appellant contends that the reply was

cryptic and not sufficient. Whether the reply was cryptic or not, cannot

be equated with no reply given by the police official as was held in the

case of Srichand. In Srichand's case, the Court still did not go into the

merits of the case, because the records of the police and the vigilance

inquiry report had not been placed, however, a cost quantified at Rs.

50,000/- was awarded to the petitioner in that case. However, in the

present facts and circumstances, since the Single Judge has also held

that the question raised in the writ petition involved disputed questions

of fact which required detailed evidence and it is not a fit case for

exercising discretionary writ jurisdiction, therefore, in the entirety of

facts and circumstances, this Court is also of the view that the disputed

question of facts should not be adjudicated by recording detailed

evidence in the writ petition in the present facts and circumstances.

This cannot be disputed that for issuing a writ for any other

purpose under article 226 of the Constitution of India, it has always

been in the discretion of the High Court to interfere or not, depending

upon the facts and circumstances of each case. It is not necessary for

the High Court in exercise of its writ jurisdiction to interfere in every

case where there is violation of fundamental statutory rights. Reference

in this connection may be made to the decisions of the Supreme Court

in Durga Pershad Vs The Chief Controller of Imports and Exports, AIR

1970 SC 769, holding that even where there is an allegation of breach of

fundamental right, the grant of relief is discretionary and such

discretion has to be exercised judiciary reasonably. Constitution Bench

of the Supreme Court in The Moon Mills Ltd. vs M.R.Meher, AIR 1967

SC 1450 had held that writ is legally a matter of sound discretion and

would not be issued if there be such negligence or omission on the part

of the applicant to assert his right as taken on conjunction with the

lapse of time and other circumstances, which may cause prejudice to

the adverse party. Writs so for as they are concerned with the

enforcement of the other rights are not issued as a " matter of course."

In Shangrila Food Products Ltd. Vs Life Insurance Corporation of India

(1996) 5 SCC 54, the Supreme Court had held that " the High Court in

exercise of its jurisdiction under Article 226 of the Constitution of India

can take cognizance of the entire facts and circumstances of the case

and pass appropriate orders to give the parties complete and

substantial justice. The jurisdiction of the High Court, being extra

ordinary, is normally exercisable keeping in mind the principle of

equity. One of the ends of the equity is to promote honesty and fair

play. If there be any unfair advantage gained by a party, before invoking

the jurisdiction of the High Court, the court can take into account the

unfair advantage gained and can require the party to shed the unfair

game before granting relief. The disputes in the present writ petition

was between estranged husband and wife and the police personnel to

whom the complaints were made. The appellant has not disputed that

the wife came to her matrimonial home to take away her goods which

was denied to her by the husband. The pleas and contentions raised are

disputed and not admitted and cannot be adjudicated without detailed

evidence on the disputed facts.

In the circumstances, there is no ground to interfere with the

order of the Single Judge and the LPA is therefore dismissed. However,

it will be open to the appellant to invoke any such civil or criminal

remedies as are available to him against the alleged acts of the

respondents in the facts and circumstances. Considering the facts and

circumstances, the parties are also left to bear their own costs.

ANIL KUMAR, J.

APRIL 12, 2010                                  MOOL CHAND GARG, J.
'rs'