Dsj Communication Ltd. vs Uoi & Ors
2014 Latest Caselaw 6081 Del

$~19
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+       LPA No.757/2014 & CMs No.19262/2014 (for stay), 19261/2014 (for
        condonation of 102 days delay in filing the appeal) & 19351/2014 (for
        condonation of 11 days delay in re-filing the appeal)

        DSJ COMMUNICATION LTD.                         ..... Appellant
                     Through: Mr. Rajshekhar Rao & Mr. Vikas
                              Pathak, Advs.
                     versus
        UOI & ORS                                ..... Respondents
                     Through: Mr. Arun Bhardwaj, Adv. for R-1 to
                              R-4.
                              Mr. Arun, Adv. for R-5.
        CORAM:
        HON'BLE THE CHIEF JUSTICE
        HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

                           ORDER

% 24.11.2014 CM No.19263/2014 (for exemption)

1. Allowed, subject to just exceptions.

2. The application is disposed of.

LPA No.757/2014

3. This intra-court appeal impugns the judgment dated 30th July, 2014 of

the learned Single Judge of dismissal of W.P.(C) No.934/2010 preferred by

the appellant. Though the appeal is accompanied with applications for

condonation of 102 days delay in filing and 11 days delay in re-filing thereof

and though we do not find any sufficient cause for condonation of delay to

have been disclosed but the counsel for the respondents no.1 to 4 and the

counsel for the respondent no.5 having appeared on advance notice, we have

without regard to the said fact also heard the appeal on merits, to consider

the admissibility thereof.

4. The writ petition from which this appeal arises was filed impugning

the order dated 21st January, 2010 of the Directorate General of Foreign

Trade (DGFT) rejecting the request of the appellant for extension of period

for fulfilling its export obligation and for inclusion of an alternate export

product for the purpose.

5. The appellant was issued an Export Promotion Capital Goods Licence

dated 25th January, 1995 with a condition to export „Video Software‟ within

a period of five years. The appellant did not fulfil the said export obligation

and was proceeded against therefor and fiscal penalty of Rs.66,93,238/- in

addition to payment of customs duty along with interest was imposed by the

Adjudicating Authority on the appellant. However, the Appellate Authority

(Additional DGFT), vide order dated 8th June, 2006 allowed the appeal

preferred by the appellant and remanded the matter for de novo

consideration. The Additional DGFT vide the same order also granted

extension in export obligation period for 18 months from the date of

endorsement of the Licensing Authority, without composition fee and also

permitted the appellant to fulfil the said export obligation by exporting

goods other than „Video Software‟. In accordance with the said order, an

endorsement dated 13th September, 2007 was made to the licence, extending

the period for fulfilling the export obligation for 18 months therefrom.

6. The appellant still did not fulfil the export obligation and applied for

further extension and which was rejected and challenging which rejection,

the writ petition from which this appeal arises was filed.

7. The learned Single Judge, vide a detailed, well reasoned judgment has

dismissed the writ petition inter alia observing that a period of fourteen and

half years had elapsed since the appellant imported the capital goods and the

appellant having failed to fulfil its export obligation subject to which it was

permitted to import goods without payment of the requisite duty, there was

no error in the rejection by the DGFT of the application of the appellant

seeking further extension.

8. The counsel for the appellant, before us, has raised only two

arguments. Firstly, it is contended that though the order dated 8 th June, 2006

(supra) permitted the appellant to fulfil the export obligation by exporting

alternate product manufactured by the appellant or its group companies in

terms of the provisions contained in para 5.4(i) of the Foreign Trade Policy

but while making endorsement on the licence in terms of the said order,

endorsement to the said effect was not made and which resulted in the

appellant being not able to fulfil the export obligation by exporting alternate

product.

9. The said argument is clearly misconceived. A bare perusal of the

amendment endorsement dated 13th September, 2007 shows an endorsement

to the following effect having been made:

"THE EXPORT OBLIGATION OF THIS LICENCE IS EXTENDED FOR 18 MONTHS FROM THE DATE OF ENDORSEMENT I.E. 13.09.2007 AS PER ORDER GIVEN IN "ORDER-IN-APPEAL" BY DGFT, NEW DELHI".

It is thus clear that the extension was as per the order dated 8 th June, 2006

and thus the order dated 8th June, 2006 is to be read in the said endorsement.

The argument that the endorsement was not for export of alternate product is

clearly contrary to record and has been rightly rejected by the learned Single

Judge also. It is also not as if the appellant attempted to export any alternate

product and could not do so owing to any defect in the said endorsement.

10. The only other argument urged by the counsel for the appellant is that

though as per the order dated 8th June, 2006 the case was remanded to the

Adjudicating Authority "for de novo consideration" but the Adjudicating

Authority did not give a fresh notice to the appellant and treated the

proceedings as remanded proceedings.

11. Though the aforesaid question strictly speaking does not fall for

consideration, the challenge in the writ petition from which this appeal

arises being to the refusal of extension but even otherwise is fallacious. In

fact, we have enquired from the counsel for the appellant that even if that be

so, what prejudice thereby has been caused to the appellant; what else could

the appellant have said even if had been served with a fresh notice.

12. We have further enquired whether the appellant had made any

attempts to export an alternate product and had been refused permission

therefor.

13. The counsel for the appellant has fairly agreed that neither any

prejudice has been caused to the appellant nor did the appellant make any

attempt to export any alternate product.

14. In the circumstances, the said second contention also is to be rejected.

15. No other argument has been raised.

16. There is no merit in the appeal. Dismissed.

We refrain from imposing any costs.

CHIEF JUSTICE

RAJIV SAHAI ENDLAW, J NOVEMBER 24, 2014 „gsr‟..

 $~
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+       LPA No.748/2014 & CM No.18802/2014 (for condonation of 12 days
        delay in re-filing the appeal)
        SMT. GURDIAL KAUR BHATIA & ORS                ..... Appellants
                             Through: Mr. Samrat Nigam & Mr. Amit Punj,
                                       Advs.

                                    Versus

        GOVT. OF NCT OF DELHI & ORS                ..... Respondents
                      Through: Mr. Sanjeev Sabharwal, Adv. for
                                 GNCTD.
                                 Mr. R.V. Sinha, Adv. for R-2.
                                 Ms. Saroj Bidawat, Adv. for R-2&4.
        CORAM:
        HON'BLE THE CHIEF JUSTICE
        HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                      ORDER
        %             24.11.2014

CM No.18801/2014 (for exemption)
1.      Allowed, subject to just exceptions.

2.      The application is disposed of.

LPA No.748/2014

3. This intra-court appeal impugns the order dated 5th September, 2014

of the learned Single Judge of dismissal of Review Petition No.583/2013

filed by the appellants seeking review of the order dated 7 th December, 2010

of dismissal of W.P.(C) No.4054/1997 filed by the appellants. The appeal

also impugns the order dated 7th December, 2010. The appeal is

accompanied with CM No18802/2014 for condonation of 12 days delay in

re-filing the appeal.

4. No appeal lies against an order of dismissal of a review petition

(Order XLVII Rule 7 of CPC). The counsel for the appellants upon faced

therewith states that the appeal also impugns the order dated 7 th December,

2010 of dismissal of the writ petition. However the appeal filed in

September-October, 2014 against the order dated 7th December, 2010 is

palpably barred by time and no application for condonation of long delay of

nearly four years in filing the appeal has been filed. Of course, the

appellants had earlier filed LPA No.237/2011 impugning the order dated 7th

December, 2010 and the said LPA was disposed of vide order dated 23 rd

September, 2013 giving liberty to the appellant to seek review of the order

dated 7th December, 2010 and after which review was sought. However,

neither has the copy of the order dated 23rd December, 2013 of this Court

been filed nor is the copy thereof available with the counsel for the

appellants. Even otherwise, merely because the review was filed with liberty

granted in the earlier appeal, is by itself not a ground enough to entertain a

time barred appeal without even any application for condonation of delay.

The appeal is thus liable to be dismissed on this ground alone.

5. We have however still considered the appeal on merits as well.

6. The learned Single Judge vide order dated 7th December, 2010

dismissed the writ petition on two grounds; firstly, of the same being barred

by laches, acquiescence and waiver inasmuch as the challenge in the writ

petition filed in the year 1997 was to the order dated 11th June, 1971 of the

Land and Development Office (L&DO); and, secondly, on the ground of the

General Power of Attorney on the basis of which the writ petition was filed

having several blanks therein and being incomplete and incapable of being

acted upon.

7. The predecessor of the three appellants in or about the year 1968

instituted a suit for specific performance of an Agreement to Sell by the

predecessor of the respondent no.3 herein viz. Sh. Charanjit Singh of half of

property bearing No.C-24, Vijay Nagar, Delhi constructed over leasehold

land. In the said suit, a conditional decree for specific performance was

passed on 1st March, 1971 subject to the L&DO (being the lessee of the land

underneath the property) granting permission for sale of half of the property.

Such permission was applied for and refused as aforesaid on 11th June, 1971.

Though an appeal and a second appeal were filed against the decree but the

same were dismissed and during the pendency of the appeals, there was no

stay. The predecessor of the appellants after the dismissal of the second

appeal, in or about the year 1994 filed another application before the L&DO

for permission for execution of the sale deed in respect of half of the land

underneath the property. The L&DO on 5th May, 1995 reiterated its earlier

order dated 11th June, 1971. It was thereafter that on 5th September, 1997

the writ petition challenging the said order of the L&DO was filed.

8. The learned Single Judge held that the appellants were aware of the

refusal of the L&DO on 11th June, 1971 and even after the same was

reiterated on 5th May, 1995, filed the writ petition challenging the same after

nearly two years and the writ petition thus suffered from laches,

acquiescence and waiver.

9. The only explanation which the counsel for the appellants is able to

offer for the delay from 1971 till 1997 in filing the writ petition is the

pendency of the appeals against the decree for specific performance.

10. We are unable to agree. The pendency of the appeals against the

decree for specific performance was of no avail. Admittedly, there was no

stay of execution of the decree during the pendency of the appeals.

Moreover, the refusal of the L&DO to allow sale of the half of the land

underneath the property was independent of the pendency of the appeals

against the decree. We therefore do not find any error in the reasoning of

the learned Single Judge of the writ petition being barred by laches,

acquiescence and waiver.

11. As far as the other ground given by the learned Single Judge, of the

Power of Attorney on the basis of which the writ petition was filed being

incomplete and ineffective, the contention of the counsel for the appellants

is that the appellants had admittedly during the pendency of the writ petition

filed another Power of Attorney of the year 2005 and the learned Single

Judge has erred in rejecting the said Power of Attorney.

12. We may in this regard notice that the three appellants preferred the

writ petition and have been pursuing the proceedings including this appeal

through one Sh. Jinender Kumar and the said Power of Attorneys are in

favour of Sh. Jinender Kumar. We have enquired from the counsel for the

appellants whether the said Sh. Jinender Kumar is a relative of the

appellants. The answer is in the negative. We have next enquired as to how

the appellants came to entrust the litigation to the said Sh. Jinender Kumar.

No answer is forthcoming. Though the counsel denies our further query viz.

whether the appellants have assigned their rights in favour of Sh. Jinender

Kumar but at the same time is not in a position to categorically make any

statement in this respect; he however agrees that if it is so, that itself would

be a ground for the appellants being not entitled to any relief.

13. Considering the facts in entirety, we are of the view that no ground for

entertaining the appeal is made out.

Dismissed.

CHIEF JUSTICE

RAJIV SAHAI ENDLAW, J NOVEMBER 24, 2014 „gsr‟..

7$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI + LPA 600/2009 UNION OF INDIA ..... Appellant Through: Mr. Sanjay Jain, ASG with Mr. Arun Bhardwaj, CGSC & Ms. Noor Anand, Adv.

Versus UMA JAIN & ANR. ..... Respondents Through: Mr. Ravinder Sethi, Sr. Adv. with Mr. R.K. Mehta, Adv. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW ORDER % 24.11.2014

1. This intra-court appeal impugns the order dated 9th February, 2009 of

the learned Single Judge of this court allowing W.P.(C) No.15550-51/2004

preferred by the two respondents herein. The said writ petition was filed

challenging the demand dated 10th February, 2004 of the appellant Land &

Development Office (L&DO), Ministry of Urban Development,

Government of India of Rs.53,56,761/- on account of misuse of property of

which the respondents claim to be the owners in G-Block, Connaught

Circus, New Delhi land underneath which was granted by the L&DO on

leasehold basis. The learned Single Judge by the impugned order quashed

the said demand finding that the misuse of the property was by the tenants

inducted into the said property by the predecessor-in-interest of the

respondents on account of which misuse the predecessor-in-interest of the

respondents had initiated proceedings including of eviction against the

tenants misusing the property and in which proceedings the tenants were

finally evicted. The learned Single Judge further found that as per the policy

of the L&DO, only 1% of the misuse charges could be levied when misuse

was by the tenant of the perpetual lessee / owner of the property and when

legal proceedings had been initiated against the said tenant misusing the

property. Accordingly, the demand for Rs.53,56,761/- subsequently during

the pendency of the writ petition enhanced to Rs.65,59,691/- was set aside

and the re-entry of the lease effected by the L&DO on account of such

misuse and the misuse charges having not been paid was also set aside and it

was further held that the respondents shall be entitled to consequential relief

of mutation of the property in their name subject to completion of other

formalities.

2. We have heard the learned ASG appearing for the appellant L&DO

and the senior counsel appearing for the respondents.

3. At the hearing of this appeal on 5th March, 2012, the contention behalf

of the appellant was that this appeal was entitled to be allowed in terms of

the judgment of the Division Bench in LPA No.336/2009 titled Union of

India Vs. Savitri Devi. However the counsel for the respondents

controverted contending that Savitri Devi (supra) was a case of collusion

between the landlord and the tenant misusing the property; on the contrary

in the present case, there was no such collusion and the landlord had taken

all possible action against the tenant for misuse and thus as per the judgment

in Savitri Devi (supra) also penalty could not be more than 1%. Reliance in

this regard was also placed on Clause 7 of the Office Order No.23/76 dated

31st March, 1976. It was also informed that the respondents had also made a

representation in this regard. Accordingly, vide order dated 5th March, 2012

in this appeal, the appellant was directed to take a decision on that

representation within four weeks.

4. The appellant L&DO however vide letter dated 16 th July, 2012

rejected the representation of the respondents.

5. The respondent no.1 has filed an additional affidavit dated 7 th August,

2012 setting out as to how the reasons given for rejection of the

representation are erroneous.

6. We have thus enquired from the learned ASG appearing for the

appellant as to how these reasons can be controverted.

7. We may mention that the Division Bench of this Court in Savitri Devi

(supra) also noticed that Clause 7 of the Office Order No.23/76 dated 31 st

March, 1976 of the appellant L&DO takes care of a situation where a

landlord is put to a disadvantage by the tenant exploiting the premises for

commercial purpose. Inspite of the landlord having bona fide given out the

premises for residential premises only and more so when the landlord has

received a meagre amount of rent which is not commensurate with the

misuse charges; in such cases, the misuse charges instead of 10% can be 1%.

However in Savitri Devi (supra) the Division Bench, as aforesaid, found the

landlord to be in collusion with the tenant misusing the property and thus

held misuse charges to be not liable to be reduced to 1%.

8. The senior counsel for the respondents has also drawn our attention to

paras no.72 to 74 of the subsequent judgment of another Division Bench of

this Court in Union of India Vs. Jor Bagh Association Regd. 188 (2012)

DLT 25 where also the aforesaid principle enunciated in Clause 7 was

approved as well as to the judgment dated 10th July, 2012 of the Full Bench

of this Court in LPA No.1125/2007 titled Union of India Vs. Engineering

and Industrial Corporation Pvt. Ltd. in accordance with the reference made

in Jor Bagh Association Regd. (supra) to show that the said aspect was not

interfered with.

9. We are satisfied that the present is not a case of the respondents or

their predecessor having connived in the misuse of the property on account

of which the demand for misuser charges was levied. Accordingly, in

accordance with Clause 7 of the Office Order No.23/76 dated 31st March,

1976 of the appellant L&DO itself, the appellant L&DO is entitled to charge

misuse charges of not more than 1% and penalty also of 1% and not more.

10. The respondent no.1 present in person states that the respondents shall

within four weeks deposit with the appellant L&DO further amount if any

due towards 1% misuse charges and 1% towards penalty charges in excess

of the accounts already deposited / paid to the appellant L&DO.

11. Subject to the aforesaid, the directions as issued by the learned Single

Judge be complied within further six weeks thereafter.

12. The appeal is disposed of modifying the judgment of the learned

Single Judge in above terms and with no order as to costs.

CHIEF JUSTICE

RAJIV SAHAI ENDLAW, J NOVEMBER 24, 2014 „gsr‟