1. Assistant Provident Fund
Commissioner & Ors. v. Shri Krishna Polyurethane Industries Pvt. Ltd. [W.P.
(C) 9123 of 2015 decided on 03.02.2020]
The present petition was preferred by
the Assistant Provident Fund Commissioner against the order of the Employees
Provident Fund Appellate Tribunal setting aside the assessment order under
Section 7A of the Employees Provident Funds and Miscellaneous Provisions Act,
1952 (“EPF Act”) passed by the
Assistant Provident Fund Commissioner. The relevant facts of the present case
were that the Assistant Provident Fund Commissioner clubbed Respondent and one
M/s. Legend Interiors for assessment on the basis that during inspection 21
employees were found in the premises which was being commonly used by the said
two entities. The question before the Hon’ble Delhi High Court was whether in
the facts of the present case the order of the Assistant Provident Fund
Commissioner vide which two entities
were clubbed together for assessment under Section 7A read with Section 2A of
the EPF Act was justified or not. The Hon’ble Delhi High Court upheld the
appellate tribunal’s order inter alia on
the following grounds:
a) Relevant
test of ‘functional integrality’ must be considered and applied before treating
two entities as one under Section 2A of the EPF Act. For the purpose of
functional integrality what is required to be seen is whether one unit can
survive in the absence of other or it would be able to continue the business
when the other unit is closed. In the facts of the present case the Assistant
Provident Fund Commissioner failed to examine and consider the test of
functional integrality. Moreover, on merits of the case it was observed that
there existed no inter dependency between the two entities as they were
carrying out separate business with separate income tax numbers, excise and
sales tax numbers etc. Reliance was placed on the judgment of Hon’ble Supreme
Court in Management of Pratap Press, New
Delhi v. Secretary, Delhi [AIR 1960 SC 1213], the judgment of Hon’ble
Bombay High Court in M/s. Ebrahim Currim
& Sons v. RPFC [1994 I LLJ 369];
b) The
EPF Act being a social legislation cannot be implemented for unknown persons
and therefore the list of employees prepared by the inspector must contain all
relevant information i.e. their names, father’s name, address, the period of
their engagement, type of job done by them etc. along with their signatures. In
absence of the same the report of the Assistant Provident Fund Commissioner was
itself incomplete and erroneous. Reliance was placed on the judgment of Hon’ble
Karnataka High Court in ESIC v. Karnataka
[1991 LLR 75].
2. Jasmin Arora v. Harmeet Singh Sood
& Ors. [FAO (OS) 1557 of 2018 decided on 04.02.2020]
The appeal arose out of an order of the
Hon’ble Single Bench of Delhi High Court inter
alia allowing the impleadment application under Order 1 Rule 10 of the CPC
preferred by third party purchasers in the suit preferred by the plaintiff /
appellant for specific performance of an agreement to sell with respect to an
immovable property.
In the facts of the case, the plaintiff filed
a suit for specific performance of an agreement to sell with respect to an
immovable property. It was the case of the third party purchasers that the
certain portion of the said property has been purchased by them vide two separate sale deeds and that
they are in possession of the same. The third party purchasers entered into the
transaction before the filing of the suit and thus, it was observed that the
same has not been done in a clandestine manner. The plaintiff contended that
the as per Section 19(b) of the Specific Relief Act, 1963 there was no occasion
and requirement for impleadment of the third party purchasers in as much as the
suit is dominus litis and also that a
decree of specific performance is enforceable against the subsequent purchasers
also.
While upholding the impleadment of the third party
purchasers the Court relied on the judgments of Hon’ble Supreme Court in Thompson Press (India) limited v. Nanak
Builders and Investors Pvt. Ltd. [(2013) 5 SCC 397] and Vidhur Impex and Traders Pvt. Ltd. v. Tosh
Apartments Pvt. Ltd. [(2012) 8 SCC 384] to observe that in the suit for
specific performance the Court can implead a purchaser who has not purchased
the property in a clandestine manner (and without knowledge of the pending
litigation) and has approached the court without any undue delay. Moreover, it
was also observed that the Court under Order 1 Rule 10 of the CPC has a wider
discretion to implead either necessary or proper party. Further it was also
observed that in a suit for specific performance the plaintiff cannot be forced
to add parties against whom he does not wish to contest unless it is a
compulsion of the rule of law. Reliance was placed on the judgment of
Hon’ble Supreme Court in Kasturi v.
Iyyamperumal [(2005) 6 SCC 773]. Finally,
the Court considered it necessary to implead the third party purchasers as
co-defendants. It was also observed by the Court that not impleading them at a
early stage, would inevitably lead to multiplicity in litigation. However, the
Court allowed the plaintiff to appropriately modify its pleadings and prayers
in view such impleadment of the third party purchasers.
3. Arvind Kumar Jain v. Union of India
[ARB. P. 779 of 2019 decided on 04.02.2020]
A petition under Section 11 of the
Arbitration and Conciliation Act, 1996 (“A&C
Act”) was preferred by the petitioner seeking appointment of an Arbitrator
to adjudicate the disputes which had arisen between the parties with respect to
certain works awarded to the Petitioner by the Respondent. The question before
the Court was whether the Respondent could insist for waiver of Section 12 (5)
of the A&C Act from the Petitioner while appointing an Arbitrator since the
Respondent wished to appoint one of its officers as the arbitrator in the
matter.
Reliance was placed on the judgments of
Hon’ble Supreme Court in Perkins Eastman
Architects DPC v. HSCC (India) Ltd. [AIR 2020 SC 59] and TRF Ltd. v. Energo Engineering Projects Ltd.
[(2017) 8 SCC 377] to observe that parties to arbitration cannot
exclusively appoint a sole arbitrator and that the person who is ineligible to
act as an arbitrator is also ineligible to solely appoint an arbitrator.
The court ultimately concluded that the
Respondent could not insist on waiver of Section 12 (5) of the Act in as much
the same contravened the provisions of the law as well as the above cited
judgements.
4. BVSR – KVR v. Rail Vikas Nigam Ltd.
[ARB. P. 370 of 2019 decided on 12.02.2020]
A petition was filed by the petitioner
for appointment of an arbitrator under Section 11 of the A&C Act. The
arbitration clause provided for a 3 member arbitral tribunal and also provided
for appointment of serving as well as retired employees of the Respondent as
arbitrators. Although, in the facts of the case, the petitioner agreed to the
appointment of the arbitrators, it preferred a Section 11 Application before
the High Court when he did not receive an intimation on appointment from the
Respondent.
The Court while allowing the petition of
the petitioner and appointing a sole arbitrator made following observations:
a)
That in the facts of the case,
admittedly the communication for appointment of the arbitrator from the
Respondent was lost in transit and the Respondent did not have any knowledge of
an appointment of arbitration on the date of filing of the Petition. In any
event, the above said communication was beyond the 30 day prescribed period as
envisaged under Section 11 of the Act.
b)
The arbitration clause in the contract
between the parties did not satisfy the concept of neutrality as envisaged in
judgements of Voestalpine Schienen GMBH
v. DMRC [(2017) 4 SCC 665] & SMS
Ltd. v. Rail Vikas Nigam Ltd. [ARB.P. 167 of 2019 decided by Hon’ble Delhi
High Court on 14.01.2020]. The court further relied upon the Supreme Court
judgement in Perkins Eastman that the court can step in to make an
appointment of arbitrator in case there exist justifiable doubts as to the
independence and impartiality of the nominated persons or if there exist any
circumstances warranting appointment of an independent arbitrator dehors
the procedure prescribed in the arbitration clause.
5. Anant Narayan Rai & Ors. v.
Siddharth Rai & Ors. [CS (OS) No. 1737 of 2007 decided on 06.02.2020]
In this case, the Court examined the
consequence of non-joinder of a necessary party to a suit despite granting
opportunity to rectify such defect. In the facts of the case, the plaintiff
filed a suit seeking partition of Joint Family Properties of an Hindu Undivided
Family (“HUF”) after the demise of
the Karta of the said HUF, however, the plaintiff did not implead all the
members of the said HUF and the legal / natural heirs of the deceased Karta. The
said objection was taken by the defendants in their written statement and bare
reading of the plaint and replication of the plaintiffs also depicted the
defect of non-joinder. The Court also framed an issue pertaining to inheritance
of the property by the heirs of the deceased Karta as per the Hindu Succession
Act, 1954. The parties (especially the plaintiff) proceeded with the suit
without considering the defects / objections of non-joinder of the necessary
parties.
The Court while relying on the judgment
of Hon’ble Suprmee Court in Kanakarathanammal
v. V.S. Lognatha Mudliar [AIR 1965 SC 271] held that though as per Order I
Rule 9 of CPC no suit can be defeated for non – joinder of parties but the
proviso thereto clarifies that the said rule does not apply to non-joinder of
necessary parties and in a suit for partition, the persons having right to sell
their share in the suit property are necessary parties. Therefore, it was
concluded that in the facts of the present suit without impleading / hearing
all the members of the HUF and heirs of the deceased Karta, no rights as
claimed by the plaintiffs can be determined.
Further, rejecting the contention of the
plaintiffs that procedural irregularities / defects should not be allowed to
defeat the substantive rights of the plaintiff, the court dismissed the suit.
Reliance was placed by the Court on Uday
Shankar Triyar v. Ram Kalewar Prasad Singh [(2006) 1 SCC 75] and Church of Christ Charitable Trust and
Educational Charitable Society v. Ponniaman Educational Trus [(2012) 8 SCC
706] to observe the well recognized exception to the above principle (as
contended by the plaintiffs) is that where procedural defect is not rectified
even after it is pointed out and due opportunity is given and where the
plaintiff persists in not impleading a necessary party, despite the objection,
the consequence of non-joinder may follow. However, the Court clarified that
the dismissal of the suit shall not bar the plaintiffs to initiate fresh
proceedings on the same cause of action in accordance with law.
6. Praveen Kumar Chaudhary v. Election
Commission of India [W.P. (C) 2336 of 2019 decided on 11.12.2020]
The present Public Interest Litigation
was preferred by the petitioners challenging the constitutional validity of
Section 62(5) of the Representation of People Act, 1951 (“RP Act”). It was the case of the petitioners that the said section
violates Article 14 and basic structure of the Constitution of India in as much
as the said section while imposing restriction on the voting rights of a person
who is imprisoned does not provide for any valid classification between the
persons who are in jail and the persons who are out of jail / on bail. The
Court while placing reliance on the judgment of Hon’ble Supreme Court in Anukul Chandra Pradhan v. Union of India
& Ors. [(1997) 6 SCC 1] held that the right to vote is neither a
fundamental right nor a constitutional right but a statutory right under RP
Act. Therefore, being a statutory right it is exercisable subject to the
limitations imposed by the statute and the statute which confers such right can
also take it away.
Further, upholding the constitutional
validity of Section 62(5) of the RP Act, it was observed by the Court that the
classification of the persons who are in jail and who are out of jail is a
valid classification and it has reasonable nexus with the objects sought to be
achieved i.e. to prevent criminalization of politics and maintain probity in
elections. Reliance was placed by the Court on S. Radhakrishnan v. Union of India & Ors. [W.P. (C) 1028 of
1990 decided by the Supreme Court on 17.08.1999] and Mahendra Kumar Shastri v. Union of India & Anr. [(1984) 2 SCC
442].
7. Indraprasth Gas Ltd. v. Union of
India & Ors. [W.P. (C) 82 of 2015 decided on 12.02.2020]
The petition challenged the Guidelines /
Norms dated 24.07.2013 issued by the respondent no.1 to the extent it
prescribed for a penalty of Rs. 25 Lakhs to be imposed on existing Fuel
Stations along National Highways which have been constructed without prior
approval of the respondent no. 1. The petitioner also challenged the order
dated 11.08.2014 vide which the
penalty of Rs. 25 Lakhs was imposed on the petitioner for unauthorized
occupation of 63.40 sq. mts. of the National Highway.
The Court while interpreting Section 26, 28 and 29
of the control of National Highways (Land and Traffic) Act, 2002 observed that
the said Act empowers the Highway Authority to impose penalty only on such
persons who, in spite of notice to remove ‘unauthorized occupation’ fails to do
so within the time specified under such notice. Whereas, the Act does not
empower the Highway Authority to impose penalty in the cases of unauthorized
access and the only power in such cases is to remove such access with / without
use of necessary force. Further, the Court on conjoint reading of the impugned
Guidelines and order imposing penalty, was inclined to set aside the same by
observing that the amount of Rs. 25 Lakhs is being demanded / levied as penalty
for regularizing the prior default in not obtaining permission for right to
access of the National Highway. The same could have been levied only if power
to levy such penalty has been prescribed in the statute or in a valid
subordinate legislation and not by way of issuance of a Circular / Letter as
sought to be done by the respondent no. 1. Reliance was placed on the judgments
of Hon’ble Supreme Court in State of U.P.
& Ors. v. Saraya Industries Ltd. [(2006) 11 SCC 129] and State of Bihar & Ors. v. Industrial
Corporation Pvt. Ltd. [(2003) 11 SCC 465].
