P14P1001.CHP_Corel VENTURA

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 51letter dated 1.9.2008, Annexure P.4, the petitioner was called for interview on16.9.2008 alongwith all the relevant documents. The petitioner through its authorisedrepresentative appeared before the Scrutiny Committee/Allotment committee on the saiddate. The Scrutiny committee instead issued letter of intent dated 23.10.2009 for allot-ment of religious site in favour of respondent No.4. According to the petitioner, the ap-plication of respondent No.4 was incomplete since no bank statement as required wasattached with it. Moreover, as per decision taken in the meeting dated 17.8.2009 underthe Chairmanship of Chief Administrator, preference was to be given to the local insti-tute and the petitioner being a local institute should have been given preferential right.Aggrieved by the action of the official respondents in allotting the site in favour of re-spondent No.4, the petitioner has approached this Court through the present petition. 3. Written statement has been filed on behalf of respondents No.2 and 3 by Ms.Manisha Trighatia, Additional Chief Administrator, GMADA, wherein it has been, in-ter-alia, stated that respondent No.4-Chief Khalsa Dewan was set up in the year 1902with annual budget of Rs.22 crores. It has over 600 members/affiliated units all overthe country and is financially very sound. At the time of interview, complete set ofdocuments alongwith details about their institutions including the income tax exemptionetc. were submitted by respondent No.4 which were duly considered by the Scrutinycommittee. It was also stated that petitioner society did not have affiliation with anyState level religious body. Respondent No.4 being considered better, letter of intent wasissued in its favour. On these premises, prayer for dismissal of the petition has beenmade. 4. Separate written statement has been filed on behalf of respondent No.4 statingtherein that the application was filed complete in all respects and bank statement andother documents were attached with it. 5. Learned counsel for the petitioner submitted that in the annexure appended by re-spondent No.4 at Page 90 of the paper book, it was specifically stated that respondentNo.4 was \"the caste based society\". Learned counsel referred to eligibility condition inthe brochure which reads as under:- \"Eligibility A Society registered under the Societies Registration Act, 1860 or a Trust registered under the Trusts Act, 1882 or an institution constituted or established under any law for the time being in force are eligible to apply. The allotment of land shall not be made to castes and baradari based organizations.\" According to the learned counsel, a perusal of the above condition shows that allot-ment of land was not to be made to castes and baradari based organisations. It was con-tended that the allotment made in favour of respondent No.4 being in violation of theaforesaid condition was bad. 6. Learned counsel further submitted that Condition No.3 in the advertisement is-sued for inviting applications from societies and trusts for religious sites for setting upof temple, Gurdwara, Masjid and Church etc. on lease hold basis was to the followingeffect:- \"3. Allotment of land to religious bodies will be made only if there is a demand by local residents and there is no religious place of the concerned religion in the area.\" It was urged that the allotment of land to religious bodies was to be made if therewas a demand by local residents and the petitioner being a society which was set up inSector 48 itself was fully complying with the aforesaid condition. Reference was alsomade to the condition prescribed in the brochure relating to \"how to apply\", whichreads as under:- \"HOW TO APPLY

52 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1) Interested bodies mentioned above, may apply on the application form attached with this brochure (alongwith requisite documents listed at page iii of the application form) to the chief Administrator, GMADA, PUDA Bhawan, Sector 62, SAS Nagar in person or by registered Post on or before the closing date. The application should be accompanied by application money of Rs.50,000/- in the shape of bank draft in favour of chief Administrator, GMADA payable at SAS Nagar. Conditional, incomplete, unsigned or defective applications are liable to be rejected. One application will be valid for one site only. In case an applicant is interested in more than one site, he will have to make separate application, each accompanied by a separate application fee of Rs.50,000/-.\" 7. It was argued that respondent No.4 did not attach the bank balance statementwith the application form as required. The list of documents to be attached with the ap-plication form was as under:- \"1. Account payee Bank draft amounting to Rs.50,000/-. 2. Audited Balance Sheet and Income Expenditure Statement of all Accounts for the last three years (or since the inception of the institution, if the institution has been in existence for less than three years). 3. Project report of the scheme. 4. Layout plan indicating land requirement for the various components duly signed by Registered Architect. 5. Proposed plan of construction showing the justification of land utilization duly signed by Regd. Architect. 6. Rough cost Estimate. 7. Financial Position Statement of Accounts in any Scheduled Bank. 8. Certificate of registration of Society/Trust alongwith memorandum of Society/ Trust. 9. Constitution of the Society/Trust and list of executive members. 10.Income tax clearance certificate, income tax exemption proof, if any. 11.Documentary proof of experience.\" The application was liable to be rejected in case it was conditional, incomplete, unsigned or defective in any manner. The application of respondent No.4 was thus liable to be rejected in view of not fulfilling the conditions as prescribed in the brochure. 8. On the other hand, learned counsel for the official respondents besides supportingthe allotment made in favour of respondent No.4, submitted that respondent No.4 is aState level religious body and was considered better than the petitioner by the respon-dent authorities. It was also submitted that all the documents were submitted at the timeof interview before the Scrutiny committee and after examining the matter, the allot-ment was made in favour of respondent No.4. 9. After hearing learned counsel for the parties and perusing the record, we findforce in the submissions made by learned counsel for the petitioner. 10. Respondent No.4 who was found to be suitable for allotment was not eligible asits application form itself was not complete. Respondent No.4 had not appended thebank balance statement with the application form. The application form being incom-plete was liable to be rejected. The production of bank balance statement at the time ofinterview would not make respondent No.4 eligible. According to the criteria laid downin the brochure, the application form was to be seen on the date of its submission. Fur-ther, respondent No.4 as per the documents filed at Page 90 of the Paper Book, hadstated that it was caste based society whereas in the eligibility conditions, it was speci-fied that the allotment of the land shall not be made to castes and baradari based organ-

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 53isations. In such an eventuality, learned counsel for the official respondents was unableto justify allotment of land made to respondent No.4 in violation of the eligibility con-ditions.11. In view of the above, the allotment made in favour of respondent No.4 isquashed. It shall, however, be open for respondent Nos.2 and 3 to invite fresh applica-tions for making the allotment in accordance with law. The writ petition stands al-lowed.R.M.S. - Petition allowed. SUPREME COURT OF INDIAPresent: Mr. Chief Justice of India, Altamas Kabir, Mr. Justice Anil R. Dave and Mr. Justice Vikramajit Sen. VIDYA DHAR and other - Petitioners, Versus MULTI SCREEN MEDIA PVT. LTD. - Respondent. Special Leave Petition (Civil) No.9967 of 2013.Telecast - Of the Episode of \"CRIME PATROL DASTAK\" - That the pic-turisation of the said Episode was meant to project the Petitioners in a nega-tive light on the basis of allegations made against them by the CBI - Trial hasbeen completed and the Petitioners have been convicted and, thereafter, ar-rested, there is no further possibility of any bias against them at the time ofhearing of the appeal - The contents of the trial and the ultimate judgment ofconviction and sentence is now in the public domain and is available for any-one to see - However certain restrictions can be imposed at the time of thescreening of the said Episodes - Indian Penal Code, 1860 (XLV of 1860) Sec-tion 120-B read with Section 420, 467, 468, 471 - Prevention of CorruptionAct, 1988 (49 of 1988) Section 13(2), 13(1)(d). [Para 6] JUDGMENT The Judgment of the Court delivered by:-Altamas Kabir, C.J.I. - (3rd May, 2013) - 1. The three petitioners before us are now detained in judicial custody in the TiharJail on being convicted under Section 120B of Indian Penal Code read with Section13(2) of the Prevention of Corruption Act, 1988.2. The petitioner No.3 was the Chief Minister of the State of Haryana from 1999 to2005 and during his tenure 3206 Junior Basic Trained Teachers were recruited in theyear 2000. During that time, one Shri Sanjiv Kumar, IAS, was the Director, PrimaryEducation, Government of Haryana.3. From 2000 onwards, upon certain facts being brought to the knowledge of theGovernment of Haryana, several disciplinary and vigilance inquiries were initiatedagainst the said Shri Sanjiv Kumar. An FIR was registered against him under Section13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.4. While the said inquiries were pending, Shri Sanjiv Kumar filed Writ Petition(Criminal) No.93/2003 before this Court, holding himself out to be a whistle blowerand claiming that while he was functioning as Director, Primary Education, Haryana,he was pressurized into altering the lists for appointment of Junior Basic TrainedTeachers. Since, he had resisted and did not succumb to such pressure, he was beingunfairly targetted by the administration.5. On the basis of the said Writ Petition, this Court on 25.11.2003, directed theCentral Bureau of Investigation, hereinafter referred to as \"CBI\", to inquire into the al-legations made therein. Pursuant to such direction, the CBI registered a Preliminary En-

54 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1)quiry bearing No.PE-1(A)/2003/ACU-IX dated 12.12.2003. Subsequently, the said Pre-liminary Enquiry was converted into RC 3(A)/2004/ACU-IX on 24.5.2004, under Sec-tion 120B read with Section 420/467/468/471 of the Indian Penal Code and Section13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. 6. On completion of investigation, the CBI filed a charge-sheet on 16.1.2013,against various persons including Shri Sanjiv Kumar, IAS. The CBI also named the Pe-titioners herein as accused in the said case. The trial of the case was conducted by thelearned Special Judge, Rohini, Delhi, who by his judgment and order dated 16.1.2013,convicted the Petitioners and the said Shri Sanjiv Kumar, IAS, amongst others and on22.1.2013, sentenced the Petitioners to 10 years of rigorous imprisonment in respect ofconviction under Section 120B of Indian Penal Code and for the period of 7 years ofrigorous imprisonment in respect of Section 13(2) of Prevention of Corruption Act,1988. 7. Aggrieved by the said judgment and order of sentence dated 16.1.2013 and22.1.2013 respectively, the Petitioners preferred an appeal before the Delhi High Courton 15.2.2013. Along with the appeal, the Petitioners had also filed applications underSection 389 of the Code of Criminal Procedure, 1973, hereinafter referred to as\"Cr.P.C.\", seeking suspension of conviction, sentence as well as for grant of interimbail. The matter appears to be pending before the learned Single Judge of the DelhiHigh Court which issued notice to the CBI on the appeal and the matter has beenposted for further hearing. 8. During the pendency of the appeal before the Delhi High Court, the Petitionersand their family members came to learn that the Respondent was proposing to broad-cast Episode Nos.214-215 of \"CRIME PATROL DASTAK\" on 23-24.2.2013, in whicha dramatized version of \"JBT Teachers Scam\" was to be presented. The Petitionersthereupon filed CS(OS) No.335/2013 before the Delhi High Court on 20.2.2013 forpermanent injunction to restrain the Respondent from broadcasting/telecasting the abovementioned television program on any media channel, including the Internet. The learnedSingle Judge issued notice on the matter on 21.2.2013. On 22.2.2013, the Respondentpublished an advertisement in the Times of India regarding broadcasting of the showwherein a summary of the episodes to be shown, was published. According to the Peti-tioners, the said summary is a clear misrepresentation of the facts. The learned SingleJudge vide order dated 22.2.2013, restrained the Respondent from broadcasting/telecast-ing the said program till the application for suspension of sentence under Section 389of Cr.P.C. was decided. 9. On 23.2.2013, the Respondent filed FAO(OS) No. 119/2013 before the DivisionBench of the Delhi High Court and after hearing the parties, the Division Bench by itsjudgment and order dated 28.2.2013, allowed the first appeal and set aside the order ofinjunction passed by the learned Single Judge. 10. Thus, against the said judgment and order of the Division Bench of the DelhiHigh Court, the present Special Leave Petition has been filed. 11. The main ground of challenge to the impugned order passed by the DivisionBench of the Delhi High Court on 28.2.2013, is that the proposed telecast of the Epi-sode Nos.214-215 of \"CRIME PATROL DASTAK\", in which the dramatised version of\"JBT TEACHERS RECRUITMENT SCAM\" is to be broadcast, will have a prejudicialimpact on the rights of the Petitioners who were entitled to a fair trial. It was submittedby Mr. Mukul Rohatgi, learned Senior Advocate, appearing for the Petitioners, that thepicturisation of the said Episode was meant to project the Petitioners in a negative lighton the basis of allegations made against them by the CBI. Mr. Rohatgi submitted thatthe entire projection, which apparently was intended to be a picturisation of the events

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 55which led to the conviction of the Petitioners, creates a detailed similarity between theactors and the situation in which they performed, with the actual events, which had thepotential of destroying the Petitioners' political career. 12. Mr. Rohatgi submitted that, though the Petitioners may stand convicted in re-spect of the charges framed against them, an appeal from the judgment of conviction isa continuation of the trial and even at the appellate stage, there is every possibility ofbias against the Petitioners, which would be against the concept of a free and fair trial. 13. Learned counsel submitted that the Division Bench failed to weigh the prejudicethat would be caused to the Petitioners against the broadcast of the aforesaid Episodefor commercial gain. Mr. Rohatgi also urged that the object of the television program isto create a prejudiced public environment against the Petitioners and thereby obstruct-ing the administration of justice in a free and fair manner. Mr. Rohatgi urged that theright to freedom of speech did not include within its scope, the right to create a hostileenvironment when the Petitioners' pending appeal comes up for final hearing. Mr. Ro-hatgi also urged that since the Petitioners' application under Section 389 Cr.P.C. waspending hearing, the outcome thereof would be highly prejudiced if the Serial in ques-tion is allowed to be broadcast prior to the disposal thereof. 14. Mr. K.V. Vishwanathan, learned Senior Advocate, who appeared for some ofthe other Petitioners, reiterated the submissions made by Mr. Rohatgi on behalf of thePetitioner No.3 and urged that it would be unfair to the Petitioner if the Episode inquestion was allowed to be screened before the Petitioners' Application under Section389 Cr.P.C. was disposed of. 15. On the other hand, appearing for the Respondent, Mr. Harish N.Salve, learnedSenior Advocate, contended that the trial of the Petitioners stood concluded on theirconviction and sentence under the relevant provisions of the Indian Penal Code and theprovisions of the Prevention of Corruption Act, 1988. Mr. Salve urged that the entirematter regarding the JBT Teachers Recruitment was in the public domain and the judg-ment of conviction continues to be operative unless set aside by the Supreme Court. Itwas urged that in the circumstances, the Division Bench of the Delhi High Court, didnot commit any error in rejecting the Petitioners' prayer for withholding the screeningof the Serial in question pending disposal of the Petitioners' prayer for stay of convic-tion and appeal. It was urged that there was no further possibility of the Petitioners be-ing biased or prejudiced or even discredited, once the judgment had been delivered inthe trial. Mr. Salve urged that no cause had been made out for stay of operation of theorder of the Division Bench of the High Court, as impugned in the Special Leave Peti-tion. 16. Having considered the submissions made on behalf of the respective parties, weare inclined to agree with Mr. Salve that once the trial has been completed and the Pe-titioners have been convicted and, thereafter, arrested, there is no further possibility ofany bias against them at the time of hearing of the appeal. The contents of the trial andthe ultimate judgment of conviction and sentence is now in the public domain and isavailable for anyone to see. 17. Without going into the question of the right of freedom of speech of the makerof the Television Episodes, we are convinced that no interference is called for with theorder of the Division Bench of the High Court, setting aside the order of the learnedSingle Judge. However, in order to safeguard the interests of the Petitioners, we arealso of the view that certain restrictions can be imposed at the time of the screening ofthe said Episodes. Accordingly, the Producers, Directors and Distributors and all thoseconnected with the screening of the aforesaid Episodes on television, shall ensure thatthere is no direct similarity of the characters in the Serial with the Petitioners, who

56 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1)have been convicted in connection with the JBT Teachers Recruitment and had beensentenced to different periods of custody, and that steps are taken to protect their iden-tity, as far as possible.18. The Special Leave Petition is dismissed with the aforesaid observations.R.M.S. - Petition dismissed. SUPREME COURT OF INDIA Present: Mr. Justice Surinder Singh Nijjer and Mr. Justice M.Y. Eqbal. HARNEK SINGH - Appellant, Versus PRITAM SINGH and others - Respondents.Civil Appeal Nos.3895-3896 of 2013 (Arising out of S.L.P. (C) Nos.33612-33613 of 2009).Adoption - If the adoptive father himself asserted that he never took theappellant in adoption, the court cannot come to the conclusion that appellantwas taken in adoption - During the period when the alleged adoption tookplace, the appellant's natural father was Sarpanch of the village and the reg-ister which was produced in court to show that there was some entry with re-gard to adoption remained with the said Sarpanch - Adoption not proved -Hindu Adoption and Maintenance Act, 1956 (78 of 1956). Cases referred to:- 1. A.I.R. 1938 Lahore 299 (F.B.), Kishan Singh v. Shanti. Appeal against the judgment of Punjab and Haryana High Court being RSA No.122 and 123 of 2008 decided on 11th May, 2009. JUDGMENT The Judgment of the Court delivered by:-M.Y. Eqbal, J. - (17th April, 2013) - Leave granted. 2. The plaintiff-appellant assailed the common judgment and order dated 11.05.2009passed in RSA Nos.122/2008 and 123/2008 whereby the learned Single Judge dis-missed both the appeals and affirmed the order passed by the lower appellate court.3. The facts leading to these appeals may be summarized thus:- 4. The plaintiff (appellant herein) filed a suit being Title Suit No.80/1985 on23.04.1985 for declaration that the gift deed dated 28.02.1985 registered on 22.03.1985alleged to have been executed by defendant No.1 Sarup Singh (since deceased) in fa-vour of defendant Nos. 2 and 3, Pritam Singh and Surjan Singh, in respect of the suitland is illegal, void, ineffective and is to be set aside. A decree for permanent injunc-tion was also sought for restraining defendant No.1 Sarup Singh (now deceased) fromalienating the land fully described in the schedule of the plaint. The plaintiff filed thesaid suit with the averments that he is the adopted son of Sarup Singh alias Sarupa(now deceased) (defendant No.1 in the original suit). The plaintiff's case is that SarupSingh and his wife Prem Kaur (now both deceased) had no child and were issueless.They approached the natural father of the plaintiff Kesar Singh and expressed their de-sire to adopt the plaintiff as their son to which Kesar Singh agreed. Consequently, theplaintiff was adopted as their own son by Sarup Singh and his wife on 16.12.1982 atVillage Khatoli, District Ambala. There was actual giving and taking i.e. the plaintiffwas allegedly put in the lap of Sarup Singh and Prem Kaur by the natural father KesarSingh and declared that from 16.12.1982 the plaintiff became their son. It was allegedthat all necessary ceremonies including religious and customary formalities were ob-served and sweets were distributed and since then the plaintiff became the son of de-ceased defendant No.1 Sarup Singh and his wife. Plaintiff's further case is that since theadoptive father and mother had become old, the plaintiff started managing the entire

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 57property of the family including the land, houses etc., and has been cultivating the suitland. The plaintiff's further case is that for a few days when he went out of the village,defendant Nos.2 and 3 who are very strong headed and clever fellows removed the de-ceased Sarup Singh from his house and by misrepresentation and putting pressure tohim and by giving threat and undue coercion got the alleged gift deed executed in theirfavour taking advantage of the unsound and mental weakness of the deceased SarupSingh. The plaintiff, therefore, filed the suit being No.80/1985 against Sarup Singh (de-fendant No.1) and defendant Nos.2 and 3 challenging the said alleged gift deed. Theplaintiff also alleged that defendant Nos.2 and 3 have obtained a decree against defen-dant No.1 regarding the suit property. Plaintiff's further case is that the plaintiff alongwith defendant No.1 constituted a Joint Hindu family and was having title in the ances-tral property. 5. On being summoned, defendant Nos.2 and 3 filed their joint written statementtaking preliminary objection that the plaintiff is not the adopted son of Sarup Singh asSarup Singh never adopted the plaintiff and, therefore, the plaintiff has no locus standito file the suit. Defendants also denied that the plaintiff is in possession of the disputedland. The entire story of giving and taking and celebration was denied. It was also de-nied that any religious and customary formalities were ever observed in respect of thealleged adoption. Defendants' further case is that defendant No.1 Sarup Singh executeda gift deed in their favour out of love and affection and in view of the services ren-dered by them. It was stated that defendant No.1 was the absolute owner of the suitproperty and was fully competent to alienate the same in favour of defendants. 6. It is pertinent to mention here that earlier defendant Nos.2 and 3 had also filed asuit being Suit No.784 of 1984 titled as Hari Singh v. Sarupa, (defendant No.1) fordeclaration that they are the owners in possession of the suit land on the basis of GiftDeed dated 22.03.1985 which was decreed by the Civil Judge vide his judgment anddecree dated 15.04.1985. The plaintiff who was having no knowledge of the decreedated 15.04.1985 could not challenge the same in his aforementioned Suit No.80 of1985 filed on 23.04.1985 and had to file a second suit being Suit No.46 of 1987 chal-lenging the decree dated 15.04.1985 alleging therein that the decree is a collusive oneand has been obtained by committing fraud upon the Court and thus the same is invalidand ineffective. The pleadings of the parties in Suit No.46 of 1987 are alleged to besimilar to the pleadings in Suit No.80 of 1985. 7. Both the suits were taken up together by the trial court and the following consoli-dated issues were framed:- \"1. Whether the plaintiff is adopted son of Sarup Singh as alleged? OPP 2. Whether the judgment and decree dated 15.4.85 is liable to be set aside as alleged? OPP 3. If issue No.1 is proved, whether the land was ancestral in the hand of Sarupa Singh, if so to what effect? OPP 4. Whether the plaintiff was in possession of the suit land as alleged? OPP 5. Whether the plaintiff is entitled for possession of suit land as alleged? OPP 6. Whether if the adoption deed if any is a result of forgery as alleged? OPD 7. Whether gift deed dated 8.2.1985 is liable to be set aside as alleged? OPP 8. Whether the present suit is not maintainable in the present form? OPD 9. Whether the suit is bad for non joinder of necessary parties? OPD 10. Whether the defendants are entitled for special costs? OPD 11. Whether the plaintiff has no cause of action to file the present suit? OPD\"

58 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1) 8. The trial court in its judgment dated 31.08.2007 after analyzing the evidence andconsidering the facts of the case recorded its findings and decided Issue Nos.1 and 6 infavour of the plaintiff holding that the plaintiff is the legally adopted son of deceaseddefendant No.1 Sarup Singh. However, the trial court decided Issue Nos.2 and 7 againstthe plaintiff and in favour of defendant respondents. So far Issue No.3 is concerned, thetrial court held that the suit property was not the ancestral property; hence, Sarup Singhwas entitled to alienate the property. Consequently, the suit filed by the plaintiff wasdismissed. 9. Aggrieved by the judgment passed by the trial court, the plaintiff-appellant filedappeals before the District Judge being Civil Appeal Nos. 84 and 85 of 2007. The firstappellate court while narrating the facts in its judgment dated 13.12.2007, first of allnoticed that the suit was filed by the plaintiff during the lifetime of his adoptive fatherSarup Singh making him defendant No.1. The said Sarup Singh contested the suit byfiling written statement denying the averments made in the plaint that he ever adoptedthe plaintiff-appellant as his son. The said Sarup Singh also denied the allegations thatthe gift deed was executed by him in favour of the defendant-respondents under anypressure or coercion. After analysing the pleadings and the evidence, the appellate courtobserved that although the plaintiff came up with a definite plea that he was beingtreated as adopted son of Sarup Singh since 1970 but the alleged actual giving and tak-ing ceremony took place in the year 1982; hence the plaintiff-appellant was not sure asto whether the adoption had taken place in the year 1970 or in the year 1982. Strangelyenough, no date or month has been provided in the pleadings of the year 1970 whenthe alleged adoption might have taken place. Admittedly, when the appellant was takenin adoption, he was about 23 years old in the year 1982 and was a married man havingchildren. The appellate court held that since the appellant was more than 15 years ofage in 1982, it was incumbent upon him to prove that there was valid customs amongstJats under which he could have been given in adoption. The appellate court after notic-ing the fact that custom prevalent amongst the community has not been pleaded orproved, relied upon the decision of Lahore High Court in Kishan Singh and others v.Shanti and others,1 A.I.R. 1938 Lahore 299 (F.B.) for the proposition that if any partywants the Court to rely on a custom, onus is on that party to plead the custom in theprecise terms and lead evidence to establish the said custom. The first appellate courtwhile dismissing the appeals discussed the other decisions on the point of custom andfinally recorded the following findings:- \"I have considered the respectful submissions of the learned counsel for the appellant at length but before the appellant could succeed in his claim it was incumbent upon the appellant to at least plead that his adoption is in consonance with the custom prevalent amongst his community. This fact has no where been pleaded in the plaint. This court is further of the view that it should have been established beyond doubt that there existed such custom in the area of district Ambala that jats can adopt a child who may be more than fifteen years of age and may be married. The cited ruling of Madhya Pradesh High Court and of our own Hon'ble High Court pertains to the area of M.P. and district Rohtak are of no avail to the case of the appellant as custom differs from place to place and from tribe to tribe. It cannot be laid down as a general rule that simply because there was a custom in Rohtak amongst Jat to adopt even a married person, the same will hold good in District Ambala also. There was no dispute about this proposition of law that once a custom is recognized through judicial pronouncements, then it need not be proved in subsequent cases but at the same time this court is constrained to lay down that no judgment has been produced by the learned counsel for the appellant with respect to jats living in the area of District Ambala. The custom amongst jats who are habitants of district Ambala may be different then custom of jats who are residents of district Rohtak. It reminds this court that our own Hon'ble High Court has laid down in one of the decided case Hari Singh v. Bidhi Chand, as reported in 1997 M.L.J. 224 that jats of tehsil Naraingarh district Ambala lack the capacity to adopt. From all this it can be safely inferred that the custom differs from place to place and from

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 59 tribe to tribe and as such evidence should have been led beyond shadow of doubt that there existed custom amongst jats of Ambala under which a married man and man beyond age of 15 years could have been given in adoption. Strangely enough, the custom has not been pleaded in the present case and thus findings cannot be returned on issues No.1 and 6 in favour of the appellant. Not only this, the suit was filed during the life time of Sarup Singh, alleged adopted father of the appellant and in pursuance to the notice given by the court Sarup Singh duly put in appearance before the court and filed a written statement wherein he denied the very factum of adoption. Once the adoptive father himself is alleging that he never took the appellant in adoption, this court cannot substitute its own decision that the appellant was taken in adoption by Sarup Singh. Prima facie the alleged adoption is violative of the provision of section 10 of the Hindu Adoption and Maintenance Act 1956 and accordingly the same cannot be held to be a valid adoption. The findings of the learned trial court on issues no.1 and 6 thus cannot be sustained and are accordingly reversed.\" 10. The plaintiff-appellant assailed the judgment of the first appellate court by filingsecond appeals in the High Court being R.S.A. Nos.122 and 123 of 2008. The HighCourt after discussing the judgments relied upon by the first appellate court and consid-ering the facts and evidence on record came to the conclusion vide judgment dated11.05.2009 that no fault could be found with the findings recorded by the first appellatecourt holding that in absence of pleading and proof of custom, no reliance could beplaced on adoption deed, specially when the stand of the plaintiff-appellant himself inthe suit was that he was governed by personal law, and the plea of custom was in thealternative. The High Court, therefore, affirmed the findings recorded by the first appel-late court and dismissed the appeals. Hence, the plaintiff-appellant has moved thisCourt by filing the instant appeals by special leave. 11. Ms. Jyoti Mendiratta, learned counsel appearing for the appellant assailed thejudgment and order passed by the first appellate court and that by the High Court asbeing contrary to law settled by judicial pronouncements that there is a custom preva-lent amongst the Jats in Haryana to adopt even a married person. Learned counsel sub-mitted that in view of the judicial pronouncements both the courts have misdirected it-self by holding that neither the custom has been pleaded nor the same has been proved.Learned counsel submitted that it is well recognized that the Hindu Jats are governedby their customs and, therefore, even in the absence of a pleading, the appellate courtsought to have affirmed the judgment passed by the trial court. Learned counsel drewour attention to various decisions favoured and against on this issue which have beenfully discussed by the courts below. 12. Section 10 of the Hindu Adoption and Maintenance Act, 1956 needs to bequoted herein below:- \"10. Persons who may be adopted.- No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:- (i) he or she is a Hindu; (ii) he or she has not already been adopted; (iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption; (iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.\" 13. Under clause (iv) of Section 10, one of the conditions inter alia is that the per-son who may be adopted has not completed the age of 15 years unless there is a cus-tom and usage applicable to the parties which permit persons who completed the age of15 years being taken in adoption. The other condition for a valid adoption has beenprovided in Section 11 of the Act which reads as under:-

60 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1) \"11. Other conditions for a valid adoption.- In every adoption, the following conditions must be complied with:- (i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son's son or son's son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption; (ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption; (iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted; (iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted; (v) the same child may not be adopted simultaneously by two or more persons; (vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption: Provided that the performance of datta homam shall not be essential to the validity of adoption.\" 14. Clause (vi) of Section 11 specifically provides that the child to be adopted mustbe actually given and taken in adoption by the parents or guardian concerned or undertheir authority with the intent to transfer the child from the family of its birth. A childwho is abandoned or whose parentage is not known may also be taken in adoption pro-vided the given and taken ceremony is done from the place of family where it has beenbrought up to the family of its adoption. 15. Both the first appellate court and the High Court have considered all the deci-sions relied upon by the parties and finally came to the conclusion that neither the cus-tom has been proved nor the factum of adoption has been established by conclusiveevidence. Normally, the concurrent findings recorded by the two courts need not be in-terfered with unless the findings appear to be perverse in law. 16. Without going into the question with regard to the custom prevalent amongstthe Jats to take in adoption a married man having children, the evidence which hasbeen brought on record goes against the plaintiff-appellant on the basis of which it can-not be held that there was a valid adoption. 17. The plaintiff-appellant impleaded his adoptive father Sarup Singh as defendantNo.1 and alleged that he was adopted by defendant No.1. Curiously enough, defendantNo.1, the so called adoptive father, contested the suit by filing written statement mak-ing an averment that he never adopted him as his son. If the adoptive father himself as-serted that he never took the appellant in adoption, the court cannot come to the con-clusion that appellant was taken in adoption by defendant No.1. It is strange enoughthat when during the pendency of the case defendant No.1 adoptive father died theplaintiff-appellant who claims himself to be the adopted son has not even performed thelast ritual and other ceremonies of the deceased. It has also come in evidence that dur-ing the period when the alleged adoption took place, the appellant's natural father wasSarpanch of the village and the register which was produced in court to show that therewas some entry with regard to adoption remained with the said Sarpanch. Apart fromthat, defendant No.1 adoptive father in his detailed written statement has denied eachand every allegation and claimed to be in cultivating possession of the land and further

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 61denied that the appellant ever resided with him in his house or helped him in cultivat-ing the land. The evidence, in our view, goes against the appellant and, therefore, itcannot be held that there is perversity in the judgment passed by the two appellatecourts.18. In the light of the findings recorded by the two appellate courts and the discus-sion made herein before, we do not find any reason to interfere with the judgmentspassed by the first appellate court and the High Court.19. For the reasons aforesaid, we do not find any merit in these appeals which areaccordingly dismissed.R.M.S. - Appeal dismissed. PUNJAB AND HARYANA HIGH COURT Before: Mr. Justice K. Kannan. SEEMA - Appellant, Versus SAT PAL and others - Respondents. First Appeal from Order Nos.1675, 1676 and 1677 of 1995 (O&M).(i) Motor Vehicles Act, 1988 (59 of 1988) Section 149 - Insurance - Liabil-ity of person who claimed to be a driver - Was unable to produce the drivinglicence and he contended that he had lost the same - That he had taken thedriving licence from the DTO, Delhi but he had not even taken a duplicatefor the driving licence - The inability on the part of the person claiming to bea driver in spite of a suggestion by the Insurance Company that he did nothave a driving licence must be taken as discharging the liability of the in-surer - The liability of the Insurance Company shall be only to pay theamount as claimed and recover the same. [Para 5](ii) Motor Vehicles Act, 1988 (59 of 1988) Section 166 - Injured - 24 yearsold girl who had a fracture in the leg - Awarded Rs.5,000/- for medical ex-penses and additional sum of Rs.5000/- for pain and suffering. [Para 6] Mr. Arvind Singh, for the Appellant.Mr. Vinod Gupta, for the Respondent-New India Insurance Company. JUDGMENT (ORAL)K.Kannan, J. - (7th May, 2013) -1. The appeals are against the orders dismissing the claim petitions. Of the threecases, FAO No.1677 of 1995 relates to death of a person, by name Bansi Lal, aged 26years and the claimants were the widow, two minor children and parents. FAONo.1675 of 1995 was a claim for injuries for minor Seema, aged 2 years, who hadfracture in her leg. FAO No.1676 of 1995 was a claim for injuries by a 27 years oldwoman, who had multiple injuries.2. The claimants had a common case that when they were travelling in an auto-rick-shaw (three wheeler), owned by one Rakesh Kumar and driven by a person by namePawan Kumar, who was a hirer of the vehicle, it dashed against a four wheeler comingon the opposite direction that was owned by one Raghbir Singh. The accident was spo-ken to by PW2-Balvinder Kaur, who was said to be travelling along with the daughter-Seema, who was injured and other family members and the accident took place when afour wheeler coming from the opposite side being driven rashly dashed against thethree wheeler that capsized the three wheeler and caused extensive injuries to some andfatal injuries to some. Bansi Lal, who died, was the brother of PW2. PW2 gave evi-dence to the effect that treatment expenses, which, according to her, cost her aboutRs.25,000/- for herself and about Rs.10,000/- to Rs.12,000/- for the treatment of her

62 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1)daughter. The person, who was said to be the driver-Pawan Kumar, was also examinedon the petitioner's side itself, who contended as PW6 that he had taken the vehicle onhire from Rakesh Kumar and at the relevant time when he was driving the threewheeler, the four wheeler coming from the opposite direction, dashed against the threewheeler and that the front type of other vehicle came off and dashed against a tree andremained immobilized at a distance of about 30 yards. The owner of the four wheelerdenied the collision but merely contended that he was trying to avoid hitting a cowwhich was crossing and dashed against a tree and the vehicle stopped. The contention,therefore, was that there had been no collision at all with the four wheeler. 3. The Tribunal found that in a criminal case, the police investigation revealed thatyet another person by name Raghbir Dass was named as the driver of the threewheeler. Evidently, it was a situation where the investigation could not really find whothe driver of the three wheeler was. With an inconsistent evidence about the person,who was driving the three wheeler, the Tribunal held that the accident itself has notproved in the manner alleged and therefore proceeded to dismiss the petitions. 4. The approach of the Tribunal was wholly erroneous. The deceased and the claim-ants were travelling in a three wheeler and was admitted by all persons, who were con-testing the case. The issue was whether there had been a collision with the fourwheeler. The collision was spoken to by PW6-Pawan Kumar, left lingering doubt thatwas still possible, especially when police investigation revealed yet another person tobe driving the three wheeler. The evidence of PW6 was that he dashed against the fourwheeler and it was not believed. Even if the evidence of PW6 did not evoke confi-dence, the involvement of the three wheeler itself could not have been denied. The ve-hicle turned turtle and it had been seriously damaged. PW2-the claimant had given co-gent evidence about the fact that she was travelling in the three wheeler. I have, there-fore, no doubt in my mind that even if the collision with the four wheeler had not beenestablished, the Tribunal ought to have found that whoever was driving the threewheeler was himself responsible and ought to have granted compensation against thedriver/owner of the three wheeler. 5. The issue of fixing liability with the insurer was dependent on whether the driverof the vehicle had a driving licence. Pawan Kumar, who claimed that he was the driver,was unable to produce the driving licence and he contended that he had lost the same.On a suggestion to him that he never had a driving licence, that he merely stated thathe had taken the driving licence from the DTO, Delhi but he had not even taken a du-plicate for the driving licence. The inability on the part of the person claiming to be adriver in spite of a suggestion by the Insurance Company that he did not have a drivinglicence must be taken as discharging the liability of the insurer that the driver did nothave a driving licence and if he had one, he would have produced the same or at leastthe copy of the driving licence and when he was actually facing a claim for damagesfor injuries and death. I will, therefore, hold that Pawan Kumar as person, who was thehirer of the vehicle as he claimed, was responsible for the accident and the New IndiaInsurance Company as the insurer of the vehicle shall be jointly liable to answer theclaim for compensation. However, in view of the fact that the driver of the threewheeler was not shown to have had a driving licence, the liability of the InsuranceCompany shall be only to pay the amount as claimed and recover the same againstPawan Kumar. 6. I, therefore, set aside the finding of the Court below dismissing the proceedingsand hold the above persons as liable for the compensation. 7. In FAO No.1677 of 1995, the death was of a person, aged 26 years. The widowstated that her husband was a Mason, earning about Rs.100/- to Rs.125/- per day. The

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 63suggestion was that he was merely a labourer and his income was not more thanRs.600/- per month. The learned counsel for the Insurance Company states that the ac-cident had taken place on 06.11.1993 and during the relevant time, the income couldnot have been Rs.3,000/- per month as contended by the learned counsel for the appel-lants. I take the average income per month accepting his status as a Mason to beRs.2,500/-, apply a deduction of 1/4th considering the fact that he had to support afamily of widow, two children and parents, take the multiplier of 18 and find the lossof dependency at Rs.4,05,000/-. I will add Rs.5,000/- as loss of consortium andRs.5,000/- as loss of love and affection for the minor child and also provide for an ad-ditional amount of Rs.5,000/- towards loss to estate and funeral expenses and hold theamount of Rs.4,20,000/- as payable to the claimants. The liability shall be on the NewIndia Insurance Company as the insurer for the three wheeler and it will have a right ofrecovery against Pawan Kumar. The entitlement of the claimants shall be apportionedamongst the widow, child and parents in the ratio of 2:2:1:1. The said amount shallalso attract interest at 7.5% from the date of petition till date of payment.8. As regards the claim for compensation in FAO No.1675 of 1995, the claimantwas a 2 years old girl, who had a fracture in her leg. The mother gave evidence to theeffect that she had spent about Rs.10,000/- to Rs.12,000/-. I take the medical expensesto be Rs.5,000/- and provide for additional amount of Rs.5,000/- for pain and sufferingand hold that the claimant to be entitled to Rs.10,000/-.9. As regards the claim in FAO No.1676 of 1995, it was in relation to multiple in-juries said to have been suffered by PW2 and her contention was that she had spentabout Rs.25,000/-. In the absence of any documentary evidence, I will provide a similarcompensation of Rs.10,000/- for pain and suffering, medical expenses, transportationand for attendant charges. The liability shall be similarly on the New India InsuranceCompany and with the right of recovery from Pawan Kumar after satisfying the claim.10. All the appeals are allowed to the above extent.R.M.S. - Appeal allowed. PUNJAB AND HARYANA HIGH COURT Present: Mr. Justice Vijender Singh Malik.THE NEW INDIA ASSURANCE COMPANY LIMITED AMRITSAR - Appellant, Versus CHAMAN LAL and others - Respondents. First Appeal from Order Nos.4043 & 4131 of 2010 [O&M].(i) Motor Vehicles Act, 1988 (59 of 1988) Section 149 - Application madeby the insurer to the Tribunal for seeking the report of the Licensing Author-ity, Gwalior is not a report of the Licensing Authority - Ex.R2 is a letter writ-ten by Advocate to Insurance Company - This letter cannot be treated as apublic document and cannot be held per se admissible. [Para 8] (ii) Motor Vehicles Act, 1988 (59 of 1988) Section 166 - Deceased self em-ployed - Future prospects taken into consideration.(iii) Motor Vehicles Act, 1988 (59 of 1988) Section 166 - Claimants agedparents - Multiplier should be determined by the age of the deceased or thatof the claimants, whichever is higher. [Para 9]Cases referred to:-1. Civil Revision No.5768 of 2001 decided on 31.1.2002, Jagmohan Singh v. United India Ltd.Insurance Company.2. (2009-3)155 P.L.R. 22 (S.C.), Smt. Sarla Verma v. Delhi Transport Corporation.3. (2012-3)167 PLR 803 (SC),, Santosh Devi v. National Insurance Company Ltd.4. (2011-2)162 PLR 497 (SC), P.S. Somanathan v. District Insurance Officer.

64 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1) 5. Civil Appeal No.3660 of 2006, decided on 9.11.2010, Shakti Devi v. New India Insurance Co. Ltd. Mr. R.K. Bishamboo, for the Appellant in FAO No.4043 of 2010 and for Respondent No.3 inFAO No.4131 of 2010. Mr. Rishav Jain, for Respondent Nos.1 to 2 in FAO No. 4043 of 2010 and for the Appellants inFAO No.4131 of 2010. JUDGMENT Vijender Singh Malik, J. - (16th July, 2013) - The above mentioned two appealsare brought against the common award dated 5.2.2010 passed by the Motor AccidentsClaims Tribunal, Patiala (for short, \"the Tribunal\"). Chaman Lal and Kanta Rani, theparents of deceased Inderjit Kumar alias Shampy brought the claim petition which hasbeen decided by the Tribunal vide award dated 5.2.2010 awarding a sum of Rs.6,53,000/- as compensation in favour of the claimants. 2. New India Assurance Company Limited, who brought FAO No.4043 of 2010challenges the liability of the insurer to pay the compensation on the ground that driv-ing licence of the driver of the offending vehicle was not valid. On the other hand, theappellants in FAO No.4131 of 2010 seek enhancement of compensation assessed andawarded on the death of Inderjit Kumar alias Shampy. 3. Inderjit Kumar alias Shampy is claimed to be aged 28 years at the time of hisdeath. It is claimed that he was employed as Supervisor with Vidya Sagar & Sons,Timber Merchants, Patiala who were paying a sum of Rs.8,000/- to him as salary. Ac-cording to them, besides it, he was also working as a news paper hawker. These factsare denied by the respondents. 4. Learned counsel for the insurer has submitted that the driving licence of RajpalSingh, the driver of the tanker No.PB-10N-9519 is not genuine. According to him,Ex.R3 is the application moved by the insurer to the Tribunal for seeking report regard-ing genuineness of otherwise of the driving licence of Rajpal Singh. According to him,Ex.R2 is the report of the Licensing Authority, Gwalior to the effect that the licence isnot genuine. According to him, when report is sought by the insurance companythrough the Tribunal and the report comes from the Licensing Authority to the Tribu-nal, the said report is admissible in evidence and no further evidence is required toprove it. In this regard, he has placed reliance on a decision of a co-ordinate Bench ofthis court in Jagmohan Singh v. United India Ltd. Insurance Company and others,1Civil Revision No.5768 of 2001 decided on 31.1.2002 where it has been held that thereport becomes admissible. 5. On the other hand, learned counsel for the claimants has submitted that the re-port, Ex. R2 is not admissible in evidence and it does not prove the invalidity of thedriving licence. According to him, the Tribunal has rightly taken the driving licence asgenuine and the award cannot be challenged on this ground. 6. Coming to the appeal brought by the claimants (FAO No.4131 of 2010), learnedcounsel for the claimants has submitted that the deceased was taken by the Tribunal tohave been earning Rs.150/- per day and thus, his monthly income is assessed atRs.4,500/-. He has further submitted that though, Hon'ble Supreme Court of India inSmt. Sarla Verma and others v. Delhi Transport Corporation and another,2 (2009-3)155 P.L.R. 22 (S.C.) as held that no increase in the income of the deceased is to beadmitted in case the deceased was self employed, yet in a subsequent decision, Hon'bleSupreme Court of India has held in Santosh Devi v. National Insurance Company Ltd.and others,3 (2012-3)167 PLR 803 (SC) a person, who is self employed or is engagedon fixed wages, will also get 30 per cent increase in his total income over a period oftime. According to him, the law laid down in Smt. Sarla Verma's case [supra] has beenexplained in this decision. He has further submitted that though, the claimants have