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The non-filing of an application before the AFT, could best be a procedural irregularity. The High Court bench consisting of J. Prathiba M Singh and  J. Subramonium Prasad decided upon the matter of CDR Ravindra Pal Singh & Ors v. Union of India & Ors. [W.P. (C) 11230/2020], dismissed three writ petitions seeking grant of Permanent Commission, stating that the same was not an entitlement.

The Petitioner had filed before the AFT an application seeking direction against non-consideration for  grant of Permanent Commission to which the AFT had granted interim relief to the petitioners. The petitioner filed the present petition challenging the impugned order passed by the learned Armed Forces Tribunal (AFT) previously. As per the respondents, the petitioners were shortlisted and the Selection Board was constituted for consideration of grant and later decided that the petitioners were not entitled to any relief.

The counsel for petitioner submitted that the petitioners were protected by the interim order passed by the AFT and the discharge order would in effect be violative of the said interim order. The counsel for the respondents submitted that the directions of the Supreme Court  had been carried out in letter  and in spirit. In any event, the non-filing of an application before the AFT could best be a procedural irregularity on part of the respondents.  

The court held that the ideal course of action for the Respondents, during the operation of an interim order, was to move before the AFT. However, since the court in the present petition was only concerned as to whether the respondents had implemented the directions given by the SC. The court found that the grant of Permanent Commission was duly considered. Further the court stated “Under these circumstances, no interference is called in the present petitions, under Article 227 of the Constitution. The question as to whether the policy applied and whether the rejection of Permanent Commission to the Petitioners is valid or not, would have to be decided on merits by the Tribunal, either in the pending petitions or in any fresh challenge which may be mounted by the Petitioners”. The petitions were dismissed, however, the court, considering,  that the petitioners had served for several years in the Navy and that they would be required to look for fresh accommodation, as also on humanitarian grounds during the global pandemic, they were permitted 3 months to vacate their official accommodations.

Further the court added that “Usually Short Service Commission officers are given eight to ten months release time in order to enable them to seek alternate employment. If that is the usual practice, the Petitioners are permitted to make a representation to that effect to the Respondent authority, which shall be considered in a compassionate manner considering the prevalent situation of a pandemic. The Petitioners are permitted to approach the Ld. AFT for any further directions in this regard. Needless to add that the observations made in the present petitions would not affect the final determination by the AFT”.

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Benefit of RBI circulars and policy guidelines are to be given to genuine borrowers and not those who have been defaulting since before the pandemic. The High Court Bench consisting of J. Prathiba M Singh, decided upon the matter of Amit Khaneja & Ors. v. IL & FS Financial Services Ltd. [W.P. (C) 3580/2020], and explained upon who could avail benefits during the pandemic under the RBI policy and rules.

The Petitioners had availed various credit facilities from IL&FS between 2006 and 2018 after which, owing to defaults from their end, their account was classified as a Non-Performing Asset and out of the two properties mortgaged by the petitioners, one was taken over and an application under Section 14 of the SARFAESI Act was moved to take over the other property. The petitioners approached the DRT seeking for quashing of these proceedings which failed and thereafter the a writ petition was filed according to which the petitioners were to deposit a total of Rs. 10 crores within 2 weeks and the rest of the dues were to be cleared within 12 months. These directions were not complied to and the petitioners filed an application for modification of the deposit amount to Rs. 5 crores which was rejected. The two properties were taken over after which various One Time Settlement proposals were given by the petitioners which did not fructify. Hence, the IL&FS revoked the proposals through a letter which was challenged in the present writ petition.

The counsel for the petitioner argued that based on the RBI circulars on ‘COVID-19 Regulatory Package’ as well as the RBI Policy Guidelines titled “Statement on Developmental and Regulatory Policies”, breathing time is to be given to borrowers and the revocation of the OTS proposals run contrary to the same.

The HC held that “The circulars of the RBI and the guidelines thereunder relate to reliefs to be granted for payments of interest and declaration of accounts as NPAs etc., during the COVID-19 pandemic. These circulars and policy guidelines cannot lend any support to the Petitioners’ case where the defaults are prior to the outbreak of the pandemic itself. The legality of the revocation of the OTS in May, 2020 cannot be tested on the benchmark of the recent RBI circulars and the policy guidelines inasmuch as these settlements are independent of the said circulars and guidelines. Moreover, the RBI circular itself make it clear that the same is for “continuity of viable businesses” and not for accounts which are already declared as NPA, as is in the present case”. Hence, the petition was dismissed and the court held that no further relief could be granted to the petitioners.

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Right to withdraw a request is not absolute or unconditional. The Delhi High Court Bench consisting of J. Rajiv Sahai Endlaw and J. Asha Menon, decided upon the matter of Mandeep Singh v. Union of India [W.P. (C) 8937/2020], wherein an ex service prayed to be allowed back into the service after voluntary retirement.

The Petitioner joined the Border Security Force (BSF) as an Assistant Commandant in 2010 and was promoted to the post of Deputy Commandant after completing the National Security Guard Commando Course in 2014. Later while the petitioner was posted in Delhi in 2017, he tendered his application for resignation addressed to the President of India in the best interest of his parents and family. The petitioner’s mother had been suffering from Parkinson’s since 2008, wife was posted in Amritsar as Judicial Magistrate and stayed along with her 2 year old child and hence, decided to resign requesting the BSF to accept the same on compassionate ground and asked to be relieved from service as soon as possible. The resignation was accepted and the petitioner relinquished the charge of Deputy Commandant on 30^th April, 2018. On 23^rd July 2018, the petitioner requested the respondents that he shall be allowed to rejoin service after voluntary retirement as all his domestic problems had be resolved. This request was rejected to which the present petition was filed.

As per Rule 26(4)(iii) of the CCS (Pension) Rules, a person is allowed to resume duty as a result of permission to withdraw the resignation if the period of absence from the duty between the date on which the resignation became effective and the date on which the person is allowed to resume duty, is not more than 90 days. The petitioner did send his application within 90 days and argued before the court that hence, he should be allowed to resume service. Th respondents argued that the counsel for the petitioner is misconstruing Rule 26(4)(iii) of the CCS (Pension) Rules as it permits the withdrawal of resignation provided, the period between the date of absenting on the acceptance of resignation and the date of joining on acceptance of the withdrawal of resignation is not more than 90 days; whereas the petitioner was wrongly construing the period of 90 days as the period within which an application for withdrawal of resignation is to be filed. Further that the rule conferred no right and discretion to allow the petitioner to rejoin the service vested with the government.  

The HC relied on Union of India v. Subrata Das [MANU/SC/0109/2019], where the court, in matters concerning requests for withdrawal of earlier requests held that “(i) entry into and departure from the service of Air Force is in terms of the Air Force Act, 1950 and Rules framed thereunder and is not a matter which lies at the sweet will of the member of the Air Force; (ii) the organizational efficiency of the armed forces of the Union is of paramount importance; (iii) in interpreting the provisions of the Policy including the withdrawal of a request for premature separation, it is necessary to emphasize that an officer who is granted premature separation takes away an existing vacancy which could have been provided to another officer of the Air Force; (iv) permitting an absolute right to withdraw from the approved premature separation may, it is apprehended, lead to the use of premature separation from service as a tool to escape transfers to sensitive appointments; (v) the right to withdraw a request for premature separation from an armed force is not absolute or unconditional and is not a matter of right; a withdrawal can be permitted only by way of exception and on extreme compassionate grounds; and, (vi) administrative judgment of the authorities of the Air Force is not to be lightly interfered with”, and hence, decided that the petition held no merit.

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A woman can file an FIR against a man under 498-A RPC for offences committed even if she is not a legally recognized wife. This was decided by the High court Of Jammu and Kashmir by Hon’ble Justice Sanjay Dhar in the case of Karnail Chand and others vs. State of Jammu and Kashmir [Criminal Miscellaneous Petition 560 of 2018].

 

The facts of the case are that the complainant who is the respondent here had filed an FIR against a man named Kuldeep Kumar. She alleged that she married him two years back and since then has been subjected to cruelty by his relatives. Further, she asserted that she wasn’t paid maintenance for that duration of time. In response to this, a petition was filed by the relatives of the man to quash the FIR stating that there existed no legal relationship of marriage between the two as the man was already married. 

 

The court observed that during the investigation it was ascertained that the woman was indeed tortured and was thrown out of the house. However, it also took into consideration the evidence presented by the petitioners validating his marriage with another woman before he entered into a wedlock with the complainant. Thereby the second marriage was held void ab initio as it violated the conditions for a valid marriage under the Hindu Marriage Act,1955.

 

However, concerning the applicability of Section 498A to the case at hand, the court referred to the reasoning provided by the Supreme Court in the case Reema Aggarwal vs Anumpam and Others, (2004) 3 SCC 199, wherein it was observed that “…the purpose for which Sections 498A and 304B-IPC and Section 113B of the Indian Evidence Act, 1872 were introduced cannot be lost sight of. Legislations enacted with some policy to curb and alleviate evil rampant in society require to be interpreted with a certain element of realism and not hyper technically.”

 

After referring to the emphasis laid down on the objective behind the legislation, the matter was decided in favor of the complainant. The court stated that there even when the complainant does not strictly fall within the meaning of wife Section 498A of Ranbir Penal Code, it must be noted that the person had entered into a marital arrangement with the complainant. This is sufficient to cover him under the definition of ‘husband’ as contained in Section 498-A RPC. The FIR and the grounds of conviction were thus considered to be legitimate.

 

The court dismissed the application to quash the FIR and found it incorrect to interfere with the investigations. 

 

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A suit for eviction cannot be sustained merely because the damage was caused to the building without showing that the value of the building has been reduced. This was decided by the Hon’ble Justice Bibek Chaudhuri of Calcutta High Court while exercising appellate jurisdiction in the case ofSmt. Sarbati Debi & Ors. vs. Pratima Sharma & Ors. [Second Appeal No. 46 of 2011].

In this case, the plaintiff who is the owner of the aforementioned suit premises had rented it to the respondent to run a shoe shop. The plaintiff filed a suit on grounds of default payment, causing substantial damage to the suit premises and subletting. They pleaded that the damage caused by the respondent was done by fixing an iron safe on the main wall cutting the beam of the shop owned by the respondent. It was also argued that a false roof under the ceiling of the tenanted premises was erected without the permission of the plaintiff. After the decision was made in favor of the plaintiffs, the respondents appealed on the substantial questions of damage and subletting. 

The main issue considered by the Judge in the said case dealt with the correctness of judgement given by lower courts in decreeing the suit for eviction. It was concerned with the applicability of Clauses (o) and (m) of Section 108 of the Transfer of Property Act, 1882 which states that reasonable care must be taken by the tenant and non-compliance to this could lead to ejectment.

The court referred to the Supreme Court judgement in Rafat Ali vs. Sugni Bai [1999 1 SCC 133] where it was held “that all acts of damage do not amount to a ground for eviction and it is only those acts of waste which would very probably impair the building or its utility. The value of the building or the utility thereof should have decreased in a reasonable substantial degree and then only can it be said that the acts of waste and damage are likely to impair the value of the building”. 

The court observed that in the instant case there was no iota of evidence to prove that the construction of wooden roof or fixation of iron safe diminished the value of the suit shop. It further stated that in absence of such evidence it could not agree to the decision made by the lower court and the Act does not come into the picture. Keeping the above points in mind, the court decided in favor of the appellant concerning the first issue raised in the case.

The other major issue dealt was concerned with subletting the premises to another individual and the court proceeded to decide in favor of the plaintiff here. Ultimately the court directed the appellants to vacate the premises not on the ground of damage but on the ground of subletting.

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