Whether the petition and the affidavit signed by the Advocate and not by the party is valid ?

Whether the petition and the affidavit signed by the Advocate and not by the party is valid ?

A.P. CIVIL RULES OF PRACTICE

CHAPTER-IV Affidavits

  1. (New) Interpretation of words:- The word ‘affidavit’ in this chapter shall include any document required to be sworn and the words ‘swear’ and sworn’; shall include ‘affirm’ and affirmed’
  2. (37) Form:- Every affidavit shall be drawn up in the first person and divided into paragraphs numbered consecutively and each paragraph as nearly as may b e, shall be confined to a district portion of the subject. Every affidavit shall be written or typed or printed and stitched book wise. The deponent shall sign at the foot of each page of the affidavit. Note:- For forms of Oath and affirmation refer the Scheduled to the Indian Oaths Act 1969.
  3. (38) Description of deponent:- Every affidavit shall be affidavit shall subscribe his full name, the name of his father age, place of residence and his trade or occupation.
  4. (New) Title of affidavits:- Every person making an affidavit shall subscribe his full name, the name of his father, his age, place of residence and his trade or occupation.
  5. (34) Before whom may be shorn:- Affidavits intended for use in Judicial proceedings may be sworn before any court or Magistrate or a “ Member of Nyaya Panchayat constituted under the A.P. Gram Panchayats Act, 1964, or a Sub-registrar, Nazir, or Deputy Nazir or a member of the State Legislature or a *Member of Parliament, or a Municipal Councilor or a Member of Zilla Parishad or any Gazetted officer in the service of the State Government or the Union Government or a Notary as defined in the Notaries Act, 1952, or a retired Gazetted Officer receiving pension from Government or a commissioned Military officer or a Advocate other than the Advocate who has been engaged in such proceeding or any Superintendent in the Office of the Commissioner for the Andhra Pradesh Hindu Religious institutions and charitable Endowments.
  6. (40) Statement of Officer before whom affidavit is sworn:- The officer before whom an affidavit is sworn or affirmed shall state the date on which, and the place where, the same is sworn or a affirmed and sign his name and description at the end as in Form No. 14 ; otherwise the same shall not be filed or read in any matter without the leave of the court.
  7. (39) Interlineations, alteration, etc:- No affidavit having in the Jurat or body there of any interlineations, alteration or erasure shall, without the leave of the court, be read or filed or made use, of unless the interlineations or alteration (other than by erasure) is authenticated by the initials of the officer taking the affidavit, nor in the case of an erasure unless the words or figures, appearing at the time of taking the affidavit to be written on the erasure, are rewritten and initialed in the margin of the affidavit by the officer taking it.
  8. Newly inserted An officer may refuse to take an affidavit where, in his opinion, the interlineations or alterations, or erasures are so numerous as to render in necessary that the affidavit should be rewritten.
  9. (New) Deponent to be identified:- Every person making an affidavit for use in the court shall if not personally known to the person before whom the affidavit is made, be identified by some one known to him, and the person before whom the affidavit is made shall state at the foot of the affidavits, the name, address, and description of the person by whom the identification was made
  10. (New) Identification of a Purdanashin woman deponent:- Where the deponent is purdanashin woman and has not appeared unveiled before whom the affidavit is made, she shall be identified by a person known to him and 9 such person shall the foot of the affidavit certify that the deponent was identified by him and shall sign his name giving his name and address.
  11. (41) Blind or illiterate deponent:- When an affidavit is sworn or a affirmed by any persons who appears to the officer taking the affidavit to be illiterate, blind, or unacquainted with the language in which the affidavit is written the officer shall certify that the affidavit was read, translated or explained in his presence to the deponent, and that the deponent seemed to understand it and made his signature or mark in the presence of the officer, as in Form No. 15 otherwise the affidavit shall not be used in evidence: Provided that where the deponent, due to physical deformity or any other cause, is unable to sign or affix his mark on the affidavit, such affidavit may be received in evidence, if the officer before whom the affidavit is subscribed certifies, that the contents of the affidavit were read over and explained to the deponent and admitted by him to be correct.
  12. (35) Filing:- Before any affidavit is used it shall be filed in court but the Judge may, with the consent of both parties, or in case of urgency, allow any affidavit to be presented to the court and read on the hearing of an application.
  13. (36) Notice of filing:- The Party filing an affidavit intended to be read in support of an application shall give not less than two days notice thereof to the other parties, who shall be entitled to inspect and obtain copies of the same, and to file counter-affidavits and shall give notice thereof to the applicant, who may inspect and obtain copies of the same; and file affidavits in reply but except with the leave of the court no further affidavit shall be filed or read. If any party fails to give notice of filing an affidavit the court may grant an adjournment of the hearing and order the party in default to pay the costs thereof.
  14. (42) Affidavits not to be filed without proper endorsement:- No affidavit shall be filed in the court unless properly endorse with the number and title of the suit or matter, the name of the deponent, the date on which it is sworn and by whom and on whose behalf it is filed.
  15. (New) Description of the person or place:- When in an affidavit any person is referred to, the correct name and address of such person and further description as may be sufficient for the purpose of the identification of such person, shall be given in the affidavit. When any place is referred to in an affidavit, it shall be correctly described.
  16. (44) Affidavit on information and belief:- Every affidavit containing statements made on the information or belief of the deponent shall state the source or ground of the information or belief.
  17. (43) Affidavit stating matter of opinion:- Every Affidavit stating any matter of opinion shall show the qualification of the deponent to express such opinion, by reference to the length of experience, acquaintance with the person or matter as to which the opinion is expressed, or other means of knowledge of the deponent.
  18. (New) Striking out scandalous matter:- The Court may suo motu, or on application order to be struck out from any affidavit any matter with which is scandalous and may order payment of costs of the application, if any filed for that purpose.
  19. (45) Documents referred to in affidavit:- Document referred to by affidavit shall be referred to as exhibits and shall be marked in the same manner as exhibits admitted by the court and shall bear the certificate in Form No. 16 which shall be signed by the officer before whom the affidavit is taken.
  20. (46) Cross examination on affidavit:- The Court may at any time direct that any person shall attend to the cross-examined on his affidavit.

10

CHAPTER V A-Interlocutory Proceedings;

B-Original Petitions; C-Transfer of Cases A-INTERLOCUTORY PROCEEDINGS

  1. (29) Form of Interlocutory Application:- Interlocutory applications shall be headed with the cause title of the plaint, original petition, or appeal, as in Form No. 13.
  2. (30) Contents of :- Except where otherwise provided by these rules or by any law for the time being in force, an Interlocutory Application shall state the provision of law under which it is made and the order prayed for or relief sought in clear and precise terms. The application shall be signed by the applicant or his Advocate, who shall enter the date on which such signature is made every application in contravention of this rule, shall be returned for amendment or rejected.
  3. (30) Contents of :- There shall be separate application in respect of each distinct relief prayed for. When several relief’s are combined in one application, the court may direct the applicant to confine the application only to one of such relief’s unless the relief’s are consequential and to file a separate application in respect of each of the others.
  4. (31) May rejected if substantive order is not asked for:- Every application which does not pray for a substantive order but prays merely, that any other application may be dismissed, and every application which prays for an order which ought to be applied for on the day fixed for the hearing of any suit, appeal or matter, may be rejected with costs.
  5. (New) Out of order petition:- Whenever it is intended to move the application as an urgent (out) of order) application, the copy of the application served on the Advocate or the party appearing ion person shall contain an urgent application on the day specified in the endorsement.
  6. (32) Service of Notice:-
  7. Unless the court otherwise orders, notice of an interlocutory application shall be given to the other parties to the suit or matter or their Advocate not less than three days before the day appointed for the hearing of the application.
  8. Such notice shall be served on the Advocate whenever the party appears by such Advocate.
  9. Notice of the application may be served on a party not appearing by Advocate by registered post “ACKNOWLEDGEMENT DUE, OR BY SPEED POST OR BY AN APPROVED COURIER SERVICE OR BY FAX MASSAGE OR BY ELECTRONIC MALE SERVICE OR BY SUCH MEANS” to the address given in the pleading acknowledgement per-paid and in the event of its non- service on the party by means of summons to be delivered to the party or in the event of the party being absent or refusing to receive the same, affixture at his address.
  10. Unless the court, otherwise orders, notice of Interlocutory application need not be given to a party, who having been served with the notice in the main suit, appeal or other proceedings, has not entered appearance or to a party to whom notice in the appeal has been dispensed with under the provisions of Rule 14 of Order XLI of the Code
  11. 59. (New) Copies to opposite party:- Every interlocutory application shall be supported by an affidavitand true copies of the application, affidavit and the documents, if any which the applicant intends to use or on which he intends to rely, shall be furnished to the opposite party or his advocate, unless otherwise ordered, not less than three clear days before the hearing date.
  12. (33) Proof of facts by affidavit:-Any fact required to be proved upon an interlocutory proceeding shallunless otherwise provided by these, rules, or ordered by the court, be provided by affidavit but the Judge may, in any case, direct evidence to be given orally, and thereupon the

11

evidence shall be recorded, and exhibits marked, in the same manner as in a suit and lists of the witnesses and exhibits shall be prepared and annexed to the judgment.

Or.19 – Affidavits

Power to order any point to be proved by affidavit

Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable :

Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit.

  1. Power to order attendance of deponent for cross-examination

(1) Upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent.

(2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court or the Court otherwise directs.

  1. Matters to which affidavits shall be confined

(1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted : Provided that the grounds thereof are stated.

(2) The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter, or copies of or extracts from documents, shall (unless the Court otherwise directs) be paid by the party filing the same.

List Judgments citing this section  Download as PDF

 AIR 1985 Ori 108

  1. ii) Whether the petition under Order 9, Rule 9 of the Code was presented according to law, and
  2. The second point is technical in nature.The petition under Order 9, Rule 9 of the Code was not signed bv the petitioner, but by her son Debi Prasad, who appended a verification thereto stating that he was looking after the suit on behalf of his mother.
  3. The petition under Order 9, Rule 9 was signed by the petitioner’s Advocate Mr. B. Das. Mr. L. Rath, learned counsel appearing for the petitioner, contended that in the facts and circumstances of the case the petition signed by the petitioner’s Advocate Mr. B. Das was presented in Court according to law. There being no technical defect as pointed out by the Courts below, the petition for restoration could not be thrown out on the ground of mere technicality. If there be any defect in presentation of the petition, it was a mere irregularity, but not totally illegal.

According to Order 4, Rule 1, a suit is instituted by presenting a plaint to the Court. Every plaint shall comply with the rules contained in Orders 6 and 7. According to Order 6, Rule 14, a plaint is required to be signed by the party and his pleader. There is no such equivalent provision in Order 9, Rule 9. In other words, a petition for restoration under Order 9, Rule 9 is not required to be signed by the petitioner. It is also not required to be verified by the party as a plaint is required to be verified under Order 6, Rule 15.

According to Order 3, Rule 4 of the Code, no pleader shall act for any person in any Court unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorised by or under a power-of-attorney to make such appointment. In this case as already referred to above the petitioner appointed Mr. B. Das, Advocate of Aska to act on her behalf in the suit and proceedings arising therefrom within the meaning of Order 3. Rule 4. In accordance with such authority, Mr. B. Das acted in the proceeding by signing and presenting the petition for restoration. He did so for the benefit of and in order to protect the interest of the petitioner. No objection could be taken to such a petition for presentation of which the petitioner had implied consent. The aforesaid view is supported by authorities. In a Full Bench decision reported in AIR 1968 Ker 213, Chengan Souri Nayakam v. A. N. Menon, it was held that an Advocate in India has inherent authority to enter into a compromise on behalf of his client and the compromise so entered into would be binding on him. The implied authority is an actual authority and not an appendage to his office or dignity added by the Court to the status of the Advocate. Therefore, even though the vakalatnama did not expressly authorise a counsel to compromise the suit or confess judgment, if the Court was satisfied that there was no express prohibition in doing so, it had to assume that counsel had implied authority to compromise an action or confess judgment. This was the view taken in an extreme case. An identical view appears to have been taken is two decisions of the Supreme Court reported in AIR 1975 SC 1632, Employers in relation to Monoharbahal Colliery Calcutta v. K. N. Mishra and AIR 1975 SC 2202, Smt. Jamilabai Abdul Kadar v. Shankarlal Gulabchand. If by virtue of a vakalatnama without having any special authority an Advocate could compromise a cause and admit the same in Court on behalf of the party he represents, I see no reason why an Advocate in whose favour a vakalatnama has been duly executed in accordance with rules prescribed by the High Court cannot act and present a petition under Order 9, Rule 9 of the Code duly signed by him on behalf of the party he represents.

  1. In view of the above and in disagreement with the Courts below, I hold that Mr. B. Das. Advocate for the petitioner was authorised to act on her behalf in the suit and the proceedings arising therefrom. Therefore, the petition under Order 9, Rule 9 signed and presented by him cannot be said as being not in accordance with law.
Posted in Uncategorized

“mental cruelty”= as admittedly both lived together till 2006 and the appellant gave birth to their second daughter in 2006. Third, most of the incidents of alleged cruelty pertained to the period prior to 2006 and some were alleged to have occurred after 2006. Those pertained to period after 2006 were founded on general allegations with no details pleaded such as when such incident occurred (year, month, date etc.), what was its background, who witnessed, what the appellant actually said etc.- In our view, the incidents which occurred prior to 2006 could not be relied on to prove the instances of cruelty because they were deemed to have been condoned by the acts of the parties. So far as the instances alleged after 2006 were concerned, they being isolated instances, did not constitute an act of cruelty. A petition seeking divorce on some isolated incidents alleged to have occurred 8-10 years prior to filing of the date of petition cannot furnish a subsisting cause of action to seek divorce after 10 years or so of occurrence of such incidents. The incidents alleged should be of recurring nature or continuing one and they should be in near proximity with the filing of the petition. Few isolated incidents of long past and that too found to have been condoned due to compromising behavior of the parties cannot constitute an act of cruelty within the meaning of Section 13 (1)(ia)of the Act.

REPORTABLE
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos.7114-7115 OF 2014

 

Suman Singh ….Appellant(s)

VERSUS

Sanjay Singh …Respondent(s)

 

J U D G M E N T
Abhay Manohar Sapre, J.
1) These appeals are filed by the appellant (wife) against the final
judgment and order dated 23.05.2013 passed by the High Court of Delhi at
New Delhi in F.A.O. No.108 of 2013 and F.A.O. No.109 of 2013 by which the
High Court dismissed the appeals filed by the appellant and confirmed the
judgment dated 14.12.2010 of the Principal Judge, Family Courts, Rohini
which had granted decree for dissolution of marriage in favour of the
respondent (husband) and, in consequence, also affirmed the order
dismissing the petition filed by the appellant (wife) for restitution of
conjugal rights.
2) Facts, in brief, to appreciate the controversy involved in the
appeals need mention infra.
3) The marriage between the appellant and the respondent was solemnized
on 26.02.1999 at Delhi as per the Hindu rites. The respondent-husband is
working as “Caretaker” in the Government of NCT of Delhi whereas the
appellant is a housewife. Out of this wedlock, one daughter was born on
15.06.2002 and the second daughter was born on 10.02.2006. Both daughters
are living with the appellant.
4) On 11.07.2010, the respondent (husband) filed a petition for
dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955
(hereinafter referred to as “The Act”) in the Family Courts, Rohini, Delhi
against the appellant (wife). The respondent sought decree for dissolution
of marriage essentially on the ground of “cruelty”.
5) In substance, the respondent, in his petition, pleaded 9 instances
which, according to him, constituted “cruelty” within the meaning of
Section 13(1)(i-a) of the Act entitling him to claim dissolution of
marriage against the appellant.
6) The first ground of cruelty was related to wife’s behavior on the
next day of marriage, i.e., 27.02.1999. It was alleged that the appellant
came out of the bedroom in night dress and that too late when the close
relatives of the respondent were sitting in the house. It was alleged that
she did not pay respect and wishes to the elders. (Para 9 of the plaint)
7) The second ground of cruelty was again about the appellant’s behavior
with the respondent on the eve of New Year. However, the year was not
mentioned. According to the respondent, he agreed to celebrate the new
year with the appellant on her parental house as the parents of the
appellant gave repeated calls. After reaching her parental house, most of
the time the appellant was busy with her family members and left him alone
in the drawing room. Even at the time of dinner, the family members of the
appellant did not behave properly. (Para 10).
8) The third ground of cruelty was that the appellant did not show any
inclination or enthusiasm to attend any important family function or
festivals at the respondent’s house whenever held. However, no details were
given about the date and the function held. The allegations are general in
nature (Para 11).
9) The fourth ground of cruelty was again about the indecent behavior of
the appellant towards the respondent’s family members. However, no details
were pleaded except making general averments (Para 12).
10) The fifth ground of cruelty was in relation to an incident which,
according to the respondent, occurred in July 1999. It was alleged that the
appellant, on that day, insisted that the couple should live separately
from the respondent’s parents (Para 13).
11) The sixth ground of cruelty was again general with no details. It was
alleged that the appellant was not interested in doing any household work
nor was interested in preparing meals and used to insist the respondent to
have his lunch from outside. (Para 14).
12) The seventh ground of cruelty was in relation to one incident which,
according to the respondent, occurred on Diwali day in the year 2000. It
was again about the behavior of the appellant with the family members of
the respondent which, according to the respondent, was rude (Para 16).
13) The eighth ground of cruelty was in relation to one isolated incident
which, according to the respondent, occurred on 15.04.2001. It was again
about the behavior of the appellant with the friends of the respondent who
had come to the respondent’s house. According to the respondent, the family
members did not like it (Para 17).
14) The ninth ground of cruelty was that one day in year 2010, the
appellant visited the respondent’s office and misbehaved with the
respondent in the presence of other officials (Para 27).
15) The respondent also alleged some instances in the petition. They,
however, again essentially relate to the appellant’s behaviour with the
respondent and his family members.
16) The appellant filed her written statement and denied these
allegations. The appellant also applied for restitution of conjugal rights
against the respondent in the same proceedings by filing petition under
Section 9 of the Act and inter alia alleged in her petition that it was the
respondent who has withdrawn from her company without there being a
reasonable cause. She also while denying the case set up by the respondent
justified her case for restitution of conjugal rights.
17) The Trial Court framed the following issues on the basis of pleadings
in the case:
Whether after solemnization of marriage, the Respondent has
treated the Petitioner with cruelty? OPP
Whether the Petitioner is entitled to the decree of
divorce as prayed? OPP
3. Relief

The following issues were framed based on the pleadings in the petition
under Section 9 of the Act:

Whether the Petitioner is entitled to the restitution of conjugal rights as
prayed? OPP
Relief

18) Parties adduced the evidence. By order dated 14.12.2012, the Family
Court allowed the petition filed by the respondent. It was held that the
grounds alleged by the respondent amounted to mental cruelty within the
meaning of Section 13(1)(ia) of the Act and the same having been proved by
the respondent, he was entitled to claim a decree for dissolution of
marriage against the appellant. Accordingly, the Trial Court granted decree
for dissolution of marriage in favour of the respondent and dissolved the
marriage. Since the decree for dissolution of marriage was passed against
the appellant, the petition filed by the appellant against the respondent
seeking restitution of conjugal rights was dismissed.
19) The appellant, felt aggrieved by the aforesaid order, filed first
appeals before the High Court. In appeals, the question was whether the
Trial Court was justified in granting decree for dissolution of marriage to
the respondent (husband) and, in consequence, was justified in dismissing
the petition for restitution of conjugal rights filed by the appellant
(wife).
20) By impugned judgment, the High Court dismissed the appeals and
affirmed the judgment/decree of the Trial Court. The appellant (wife), felt
aggrieved, has filed these appeals by special leave against the judgment of
the High Court.
21) Heard Mr. D.N. Goburdhan, learned counsel for the appellant and Mr.
Gaurav Goel, learned counsel for the respondent.
22) Having heard the learned counsel for the parties and on perusal of
the record of the case, we are inclined to allow the appeals and while
setting aside the impugned order, dismiss the divorce petition filed by the
respondent(husband) against the appellant and, in consequence, allow the
petition filed by the appellant(wife) for restitution of conjugal rights
against the respondent (husband).
23) The word “cruelty” used in Section 13(1)(ia) of the Act is not
defined under the Act. However, this expression was the subject matter of
interpretation in several cases of this Court. What amounts to “mental
cruelty” was succinctly explained by this Court (three Judge Bench) in
Samar Ghosh vs. Jaya Ghosh [(2007) 4 SCC 511]. Their Lordships speaking
through Justice Dalveer Bhandari observed that no uniform standard can ever
be laid down for guidance, yet it is appropriate to enumerate some
instances of human behavior which may be considered relevant in dealing
with the cases of “mental cruelty”.
24) Their Lordships then broadly enumerated 16 category of cases which
are considered relevant while examining the question as to whether the
facts alleged and proved constitute “mental cruelty” so as to attract the
provisions of Section 13 (1) (ia) of the Act for granting decree of
divorce.
25) Keeping in view the law laid down in Samar Ghosh’s case (supra), when
we examine the grounds taken by the respondent in his petition for proving
the mental cruelty for grant of divorce against the appellant, we find that
none of the grounds satisfies either individually or collectively the test
laid down in Samar Ghosh’s case (supra) so as to entitle the respondent to
claim a decree of divorce.
26) This we hold for more than one reason. First, almost all the grounds
taken by the respondent in his petition were stale or/and isolated and did
not subsist to enable the respondent to seek a decree for dissolution of
marriage. In other words, the incidents of cruelty alleged had taken place
even, according to the respondent, immediately after marriage. They were
solitary incidents relating to the behavior of the appellant. Second,
assuming that one or more grounds constituted an act of cruelty, yet we
find that the acts complained of were condoned by the parties due to their
subsequent conduct inasmuch as admittedly both lived together till 2006 and
the appellant gave birth to their second daughter in 2006. Third, most of
the incidents of alleged cruelty pertained to the period prior to 2006 and
some were alleged to have occurred after 2006. Those pertained to period
after 2006 were founded on general allegations with no details pleaded such
as when such incident occurred (year, month, date etc.), what was its
background, who witnessed, what the appellant actually said etc.
27) In our view, the incidents which occurred prior to 2006 could not be
relied on to prove the instances of cruelty because they were deemed to
have been condoned by the acts of the parties. So far as the instances
alleged after 2006 were concerned, they being isolated instances, did not
constitute an act of cruelty.
28) A petition seeking divorce on some isolated incidents alleged to have
occurred 8-10 years prior to filing of the date of petition cannot furnish
a subsisting cause of action to seek divorce after 10 years or so of
occurrence of such incidents. The incidents alleged should be of recurring
nature or continuing one and they should be in near proximity with the
filing of the petition.
29) Few isolated incidents of long past and that too found to have been
condoned due to compromising behavior of the parties cannot constitute an
act of cruelty within the meaning of Section 13 (1)(ia)of the Act.
30) In our considered opinion, both the Courts below failed to take note
of this material aspect of the case and thus committed jurisdictional error
in passing a decree for dissolution of marriage.
31) We cannot, therefore, countenance the approach of the High Court
because it did not, in the first instance, examine the grounds taken in the
petition to find out as to whether such grounds constitute mental cruelty
or not? The finding, therefore, though concurrent does not bind this
Court.
32) We are not impressed by the submission of the learned counsel for the
respondent that an incident which occurred somewhere in 2010 when the
appellant visited the office of the respondent and alleged to have
misbehaved with the respondent in front of other officers would constitute
an act of cruelty on the part of the appellant so as to enable the
respondent to claim divorce. In the first place, no decree for divorce on
one isolated incident can be passed. Secondly, there could be myriad
reasons for causing such isolated incident. Merely because both exchanged
some verbal conversation in presence of others would not be enough to
constitute an act of cruelty unless it is further supported by some
incidents of alike nature. It was not so.
33) We are also not impressed by the submission of the learned counsel
for the respondent that since the appellant had made allegation against the
respondent of his having extra-marital relation and hence such allegation
would also constitute an act of cruelty on the part of the appellant
entitling the respondent to claim decree for dissolution of marriage.
34) Similarly, we are also not impressed by the submission of learned
counsel for the respondent that since both have been living separately for
quite some time and hence this may be considered a good ground to give
divorce.
35) In the first place, the respondent did not seek a decree of
dissolution of marriage on these grounds. Second, the grounds of cruelty
taken by the respondent in his petition does not include these grounds.
Third, even if some stray allegations were made by the wife in her
pleading/evidence as were relied upon by the learned counsel are of no
relevance because, as mentioned above, these ground were not pleaded in the
petition by the respondent for seeking a decree of divorce and nor were put
in issue; and lastly, the burden being on the respondent, the same could be
discharged by the respondent by pleading and then proving. It was not so
done. It is for these reasons, we cannot accept the aforementioned two
submissions for affirming the decree of divorce.
36) This takes us to the next question as to whether the appellant was
able to make out any case for restitution of conjugal rights against the
respondent.
37) Having perused her petition and evidence, we are of the view that the
appellant is entitled for a decree for restitution of conjugal rights
against the respondent.
38) In our considered view, as it appears to us from perusal of the
evidence that it is the respondent who withdrew from the appellant’s
company without there being any reasonable cause to do so. Now that we have
held on facts that the respondent failed to make out any case of cruelty
against the appellant, it is clear to us that it was the respondent who
withdrew from the company of the appellant without reasonable cause and not
the vice versa.
39) In view of foregoing discussion, the appeals succeed and are allowed.
The impugned judgment is set aside. As a result, the petition filed by the
respondent (husband) under Section 13(1) of the Act seeking dissolution of
marriage is dismissed. As a consequence thereof, the marriage between the
parties is held to subsist whereas the petition filed by the appellant
against the respondent under Section 9 of the Act seeking restitution of
conjugal right is allowed. A decree for restitution of conjugal right is,
accordingly, passed against the respondent.
40) We hope and trust that the parties would now realize their duties and
obligations against each other as also would realize their joint
obligations as mother and father towards their grown up daughters. Both
should, therefore, give quite burial to their past deeds/acts and bitter
experiences and start living together and see that their daughters are well
settled in their respective lives. Such reunion, we feel, would be in the
interest of all family members in the long run and will bring peace,
harmony and happiness. We find that the respondent is working as a
“Caretaker” in the Government Department (see Para 4 of his petition). He
must, therefore, be the “Caretaker” of his own family that being his first
obligation and at the same time attend to his Government duties to maintain
his family.

 

……………………………………..J.
[R.K. AGRAWAL]

 

….………………………………….J.
[ABHAY MANOHAR SAPRE]
New Delhi;
March 08, 2017
———————–
18

 

 

Posted in Uncategorized

declare the action of the respondents, in compelling Cable T.V. subscribers to purchase set top boxes (STB for short) and in threatening cable operators not to carry on the existing analog form of transmission with effect from the dates mentioned in the notification, as unlawful and in violation of Articles 14, 19 and 21 of the Constitution of India; and to consequently direct the respondents not to stop transmission of T.V. channel signals in analog form, and to implement the digital addressable system transmission along with analog form.= Viewed from any angle, the impugned notice issued by the Government of India dated 22.12.2016, prohibiting transmission of signals in an analog form in phase III areas beyond the sunset date of 31.01.2017, does not fall foul of Section 4-A(1) of the 1995 Act as amended by Act 21 of 2011.

2017 AP HIGH COURT – http://judis.nic.in/Judis_Andhra/list_new2.asp?FileName=14107

HONBLE THE ACTING CHIEF JUSTICE RAMESH RANGANATHAN AND HONBLEDr. JUSTICE SHAMEEM AKTHER

WP.PIL 6 OF 2017

01-06-2017

Citizens Welfare Society.Petitioner

Union of India, rep., by its Secretary, Ministry of Information and Broadcasting, Shastry Bhavan, New Delhi and two others

Counsel for the petitioner:Sri C. Ramachandra Raju

Counsel for respondents: Sri B. Narayana Reddy, learned Assistant Solicitor General, Sri S. Niranjan Reddy, learned Senior C

<GIST:

> HEAD NOTE:

? Citations:

1) (2012) 3 SCC 1
2) (Order in Writ Petition Civil No.170 of 2013 dated 12.04.2013)
3) (Judgment in PIL Nos.140 of 2013 and batch dated 02.08.2013)
4) (1987) 3 SCC 279
5) (2009) 8 SCC 431 : (2009) 2 SCC (L&S) 441
6) (1981) 4 SCC 173
7) (1988) 1 SCC 507
8) (1988) 2 SCC 299
9) (2001) 4 SCC 534
10) (1997) 8 SCC 522
11) (1985) 1 SCC 1
12) (2003) 1 SCC 692
13) AIR 1952 SC 369
14) (1964) 1 SCR 371 : AIR 1963 SC 1241
15) (1954) SCR 587
16) (1955) 2 SCR 374
17) (1955) 2 SCR 1196
18) AIR 1957 SC 832
19) AIR 1962 SC 1781 : (1963) 1 Cri LJ 1
20) AIR 1960 SC 12
21) (1826) 162 ER 456
22) JT 2001 (1) SC 536
23) (1569) 1 Plowd 353
24) (1957) 1 All ER 49
25) (2008) 4 SCC 300
26) (2001) 3 SCC 537
27) (1996) 1 SCC 642
28) (2008) 3 SCC 279
29) (2008) 5 SCC 257
30) (2008) 7 SCC 502
31) (2008) 8 SCC 505
32) (2009) 16 SCC 569
33) AIR 1991 SC855
34) (1985) 2 All.ER 355
35) (1998) 3 SCC 309
36) (2002) 6 SCC 269
37) 2004 (7) SCALE 158
38) (2005) 2 SCC 271
39) (1985) 1 SCC 591
40) (1973) 1 SCC 216
41) (2007) EWHC 3134 (Ch)
42) (1973) AC 854
43) (2004) 1 SCC 702
44) (2001) 7 SCC 358
45) (2007) 6 SCC 81
46) (1955) 2 SCR 603
47) (1996) 4 SCC 76
48) AIR 2001 SC 2603
49) (1898) AC 571, 576(HL)
50) (1898) 2 Ch. 28 (CA)
51) (1989) 1 SCC 760
52) AIR 2004 SC 1426 = (2004) 1 SCC 755
53) (2003) 4 SCC 305
54) (1999) 9 SCC 700 = AIR 1999 SC 1867
55) AIR 1956 SC 35 = (1955) 2 SCR 842
56) (2001) 5 SCC 175 = AIR 2001 SC 1832
57) AIR 1981 SC 711
58) (1988) 2 SCC 351
59) (Order in W.P NOs.31138 AND 31974 OF 2012, dated 31-12-2014)
60) (1961) 2 SCR 679 at page 702: (AIR 1961 SC 751

 

THE HONBLE THE ACTING CHIEF JUSTICE RAMESH RANGANATHAN
AND
THE HONBLE DR JUSTICE SHAMEEM AKTHER

WRIT PETITION (PIL) NO.6 OF 2017

ORDER: {Per the Honble the Acting Chief Justice Ramesh Ranganathan}
This Writ Petition is filed in public interest by the Citizens
Welfare Society, Durgabai Deshmukh Colony, Bagh Amberpet,
Hyderabad, represented by its General Secretary, to declare the
action of the respondents, in compelling Cable T.V. subscribers to
purchase set top boxes (STB for short) and in threatening cable
operators not to carry on the existing analog form of transmission
with effect from the dates mentioned in the notification, as
unlawful and in violation of Articles 14, 19 and 21 of the
Constitution of India; and to consequently direct the respondents
not to stop transmission of T.V. channel signals in analog form,
and to implement the digital addressable system transmission
along with analog form.
Facts, to the extent necessary, are that hitherto broadcasters
of TV channels were transmitting their programmes in analog form
i.e. a natural form of signals; subsequently, an artificial mode of
transmission of TV signals called the digital addressable system
(DAS for short) was introduced; under the DAS method, signals
of T.V. channels are transmitted in an encrypted form (defaced
form) which is then decrypted by the STB attached to the T.V. sets
at the subscribers residence since the signals, transmitted through
DAS, cannot be received directly by the Television sets. While
transmission of signals in an analog form does not require an STB,
signals transmitted through DAS require an STB for the signals to
reach the T.V. sets. STB is required only by those subscribers
with cable connections who seek to view a larger number of
channels under DAS. A set top box is not required for cable
subscribers who are satisfied with the limited number of T.V.
channels made available to them by local cable T.V. operators
through the analog form of signals. The object of DAS is to
facilitate transmission of a larger number of channels, within a
lesser band width, to overcome the shortcomings in the analog
form of signals. Parliament introduced DAS which enables
subscribers to receive hundreds of T.V. channels unlike in the
analog form. The Cable Television Networks (Regulation) Act, 1995
(the 1995 Act for short), was amended by Act 21 of 2011 with
effect from 25.10.2011. The Central Government issued notification
dated 11.11.2011 directing all cable operators to introduce DAS
within a specified time frame, which period was extended from time
to time. Under Phase-III, the time limit was extended upto
31.01.2017 and, under Phase-IV upto 31.03.2017.
It is the case of the petitioner that, consequent on
amendment of Section 4A of the 1995 Act, every cable operator is
obligated to adopt the DAS method along with the existing
transmission system in an analog form; while maintaining
transmission through DAS is obligatory, Section 4-A of the 1995
Act does not disable Cable T.V. Operators from transmitting signals
in an analog form, in addition to transmission of signals through
DAS; this amendment of Section 4-A is intended to facilitate both
analog and DAS subscribers; while the areas, within the limits of
the Hyderabad Municipal Corporation, fall under Phase-II, the
areas located beyond the erstwhile Hyderabad Municipal
Corporation limits, but which are now brought within the limits of
the Greater Hyderabad Municipal Corporation, fall under Phase-III;
while matters stood thus, a notice was issued by the first
respondent on 22.12.2016 informing all Chief Secretaries that, on
account of the on going Court proceedings, it was decided that
broadcasters, Multi-System Operators (MSOs for short), Local
Cable Operators (LSOs for short) would be allowed further time
upto 31.01.2017, after which no analog signal shall be carried in
Phase-III areas, and no further extension shall be given. It is this
notice dated 22.12.2016 which is subjected to challenge in this
Writ Petition.
When the matter came up before us on 24.01.2017, Sri B.
Narayana Reddy, Learned Assistant Solicitor General, sought time
to obtain instructions. When the matter was listed thereafter on
31.01.2017, a counter-affidavit was filed by the Under Secretary,
Ministry of Information & Broadcasting, Government of India, New
Delhi, on behalf of the first respondent. In the said counter
affidavit, it is stated that, in the exercise of the powers conferred
under Section 4-A of the 1995 Act as amended by the 2011 Act, the
Central Government issued gazette notification dated 11.11.2011
notifying that it is obligatory for every cable operator to transmit or
re-transmit programmes of any channel in an encrypted form
through DAS in such city, town or area as specified in the said
notification with effect from the dates mentioned in the
notification; the time schedule, to implement DAS across the
country in a phased manner, was modified from time to time in
public interest; due to Court cases, the time period to switch over
to DAS in Phase-III areas was extended till 31.01.2017, and the cut
off date for Phase IV was extended till 31.03.2017; the validity of
the notification dated 11.09.2014, whereby the cut-off date for
Phase-III of Cable TV digitalisation was fixed as 31.12.2015 and
that of Phase-IV was fixed as 31.12.2016, was challenged before
different High Courts by some associations of MSOs, Associations
of Cable Operators, companies and individuals engaged in the
business of providing Cable TV network; the relief sought for was
to declare the notification dated 11.09.2014 as unenforceable and
prejudicial to pubic interest, to direct the Union of India to
maintain status quo regarding switch over from the existing analog
system of Cable TV Transmission to DAS until full implementation
of DAS which was subject to availability of STBs for all existing
consumers of Cable TV services, extension of the cut off date
stipulated in the notification dated 11.09.2014 for implementation
of DAS in Phase-III areas till sufficient STBs were made available in
the local market, not to take any coercive measures against the
petitioners for non-compliance of the notification dated
11.09.2014, and to declare that the respondents are bound to
ensure availability of STBs in the local market before enforcing
DAS. It is further stated that, in view of multiple Writ Petitions
being filed before various High Courts involving similar legal
questions, and as different orders were being passed by various
Courts staying the sunset date of implementation of Phase-III of
DAS, a Transfer Petition was filed before the Supreme Court by the
Union of India seeking transfer, of all the Writ Petitions pending
before different High Courts, either to the Supreme Court or to the
Delhi High Court; the said Transfer Petition was allowed by the
Supreme Court by its order dated 01.04.2016 withdrawing all
cases pending before different High Courts, and transferring them
to the Delhi High Court; the Supreme Court further observed that,
in future, if any case on the same legal question was filed before
the High Courts, such cases should also be transferred to the Delhi
High Court; accordingly, all the Writ Petitions were transferred to
the Delhi High Court for further hearing; all these cases, except
three, have been subsequently disposed of by the Delhi High Court;
and even in the pending cases, no interim orders are subsisting,
and the cases are listed for hearing.
On the merits of the petitioners claim, it is stated in the
counter-affidavit that the decision to implement the new telecast
system i.e. DAS is a policy decision taken by the Government of
India on the basis of the recommendations of the Telecom
Regulatory Authority of India (TRAI for short), which is an expert
body; all the stakeholders are duly consulted by TRAI; policy
decisions are the outcome of deliberations of technical experts in
the field; Courts are not well-equipped in these areas, and would
leave such matters to the discretion of the executive; and it is only
if the policy decision is contrary to any statutory provision or is
discriminatory/arbitrary or is based on irrelevant considerations
would interference be justified. Reliance is placed on Centre for
Public Interest Litigation v. Union of India in this regard.
The counter affidavit then proceeds to highlight the
drawbacks in the existing regime of analog cable television. It is the
case of the Union of India that analog cable television was afflicted
with inherent drawbacks; as against the existing 800 permitted
satellite TV channels, the analog system is able to carry only 70 to
80 channels; this severely restricts the subscribers choice, and
denies them a large canvas of channels available in the
broadcasting universe; the limited carrying capacity of the analog
system brings about a distortion in the business of television
distribution, as the broadcaster is forced to incentivise cable
operators to carry their channels by paying a huge amount of
carriage fee or placement fee etc; analog cable does not have the
technological features of facilitating a-la-carte (individual) selection
of channels; this compels the customer to go in for the bouquet of
channels devised by the cable operator on his own accord,
restricting the say of customers in the selection of channels; the
analog regime is not customer friendly; the analog services lack
transparency as subscribers base is not accurately maintained and
reported; this has led to under reporting of subscription revenue,
and the consequent concealment of tax revenues; a limited carrying
capacities and lack of transparency distorts the business model for
the broadcasters; increases their dependence on advertisement
revenues, and restricts the scope for subscription revenues (65:35);
for higher TRP ratings, the channels often sensationalize content
on television; the quality of picture on analog cable depends on
whether a channel is carried in the Prime Band or in the non-
Prime Band; Prime Band can only accommodate a few channels;
cable operators are facing severe competition from Direct to Home
(DTH) and Internet Protocol Television (IPTV) services which are in
a position to provide high quality content and value added services;
unless the cable service providers upgrade their services, they will
lose their business to new platforms; and an effective Consumer
Grievance Redressal Mechanism does not exist.
On the need for reform, the counter affidavit states that the
drawbacks in the existing analog regime necessitated a transparent
system being ushered in to cater to the interests of the consumers;
this reform is what DAS aims at; addressability means that the
signals of cable operators will be encrypted and can only be
received through an STB after due authorization from the service
provider; this would enable identification and maintenance of a
data base for each subscriber; and this would also bring in
transparency and prevent piracy while also enabling better revenue
realisation.
The counter affidavit details the key advantages of DAS to
various stakeholders. The consumers would be empowered to
exercise a-la-carte selection to allow individual channel selection; it
would make available improved quality of content, and access to
various value added and interactive services like Electronic
Programme Guide, Movie-on-Demand, Video-on-Demand, Personal
Video recorders enabling recording and viewing at convenience,
Gaming and enhanced viewing experience; this would enable cable
operators to compete effectively with DTH services; transparency in
subscriber base would result in realistic generation of subscription
revenue, and address the issues of tax evasion; in the digitalisation
of Cable TV, it is mandatory for every MSO and his cable operator
to have a grievance redressal mechanism wherein a toll free
number, web based system for logging and tracking the status of
complaints, and notification of nodal officers are mandated; no
such system existed in the analog regime; complaints can thus be
addressed effectively in the digital system; a time line for redressal
of grievances of consumers in a time-bound fashion has been
specified by TRAI; and Broadband penetration in India will also
increase through digitalisation of cable TV services, as Broadband
can also be provided to consumers by MSOs/LCOs, on the
digitalisation of the digital Cable Network, after obtaining the
requisite license from the concerned authorities. Reliance is placed
on the judgment of the Supreme Court in Lalit Kumar v. Union of
India to contend that the decision to implement DAS, and phasing
out the traditional analog regime, are policy decisions taken by the
Central Government after consulting all stakeholders and by
following due process.
Reference is thereafter made, in the counter-affidavit, to
several cases filed challenging Phase-II of cable TV digitalisation,
and it is stated that Phase-I of digitalisation was completed by
31.10.2012 and, out of the four metro cities planned to be
digitalised, digitalisation has been completed in Delhi, Mumbai
and Kolkata; it could not be completed in Chennai because of a few
pending Court cases; Phase-II was concluded by 31.03.2013 in 38
cities spanning across 14 States and one Union Territory; and, out
of the 38 cities, the switch over is complete in all cities except in
Coimbatore because of pending Court cases.
The counter affidavit then details the initiatives taken by the
Ministry for implementation of Phase-III and Phase-IV of Cable TV
digitalisation, and refers to a Task Force having been constituted
comprising representatives from various stakeholders including
TRAI, Broadcasters, MSOs, LCOs, Nodal Officers from the States,
consumer organizations, STBs manufacturers and DTH Operators
etc., to oversee and monitor the digitalisation process in Phase-III.
Reference is also made to the publicity campaign initiated in
electronic, print and social media, and by SMS, to apprise
consumers of the benefits of digitalisation, and about the cut-off
date; all the State/UT Governments were requested to nominate
State Level and District Level Nodal Officers; and four workshops of
State Level Nodal Officers were held in different cities.
The counter affidavit, thereafter, states that sufficient time
was allowed for digitalisation of Phase-III; the estimated
requirement for Phase-III areas, as per the seeding date provided by
the registered MSOs, DTH and HITS Operators, have been fully
met; the revenues of the State Governments has increased; cable
TV digitalisation has brought in greater transparency;
entertainment tax collection from eleven states indicate that ET
collection increased from Rs.184 crores in 2012-13 to Rs.448
crores in 2015-16; there are reports of security threats due to TV
contents which can incite communal and terrorist violence; this is
because of carriage of unapproved Satellite Channels by MSOs and
LCOs; in the digital system all channels are encrypted before
transmission on to the cable network; the encryption is carried out
by MSOs, and the LCOs cannot insert any channel; it is practically
impossible to transmit unapproved channels on the cable network
in the digital system; the inter-connect agreements have been
finalised by giving sufficient time to all stakeholders to be prepared
for digitalisation, and any postponement at this juncture or
allowing the petitioner to continue transmitting analog signals
would derail the whole exercise, and defeat the very purpose of
Mission Digitalisation; the cut-off date of digitalisation cannot be
deferred as it may dampen the momentum built so far; this would
also severely affect the overall growth of the sector, and would be
against the public interest at large; it would also dis-incentivise the
stakeholders who have invested a huge sum of capital for diligently
implementing the digitisation programme of the Government; and
it is for this reason that the Delhi High Court had dismissed all the
Writ Petitions.
The counter affidavit further states that, in view of the
recommendations of TRAI, the Union Cabinet, in its meeting held
on 13.10.2010, approved the Ministrys proposal for mandatory
introduction of DAS in the cable TV services which, inter alia,
covers a time-frame and a road map for implementation of
digitalisation with addressability on a pan India basis in cable TV
services leading to a complete switch off of analog TV services by
31.12.2014; the Cabinet also approved certain amendments to the
1995 Act by the 2011 Amendment Act; the encrypted signal can
only be received through a Set Top Box (STB) after due
authorization from the service provider; this would enable
identification and maintenance of a data base for each subscriber,
bring in transparency, and prevent piracy, while enabling better
revenue realisation; therefore, the set top boxes are essential for
digitisation of Cable TV services; DAS is being implemented as per
the amended provisions of the 1995 Act; the decision to implement
DAS is a policy decision taken by the Government of India on the
recommendations of TRAI which is an expert body; all the
stakeholders have been duly consulted by TRAI before making
recommendations; the matter has also been examined by various
High Courts and the Supreme Court, and no lacuna has been
found in the notified policy to digitise Cable TV networks; and the
decision, on implementation of DAS in cable services, has been
taken in larger public interest.
The counter affidavit thereafter lists in detail the problems
and difficulties which analog form of transmission suffers from
which includes limited number of channels being made available,
and restraint on choice of the subscriber denying him a large
canvas of channels available in the broadcasting universe; the
limited carrying capacity of the analog system brings about a
distortion in the business of television distribution, as the
broadcaster is forced to incentivise cable operators for carrying
their channels by paying carriage fees or placement fee etc; analog
cables do not have the technological features of facilitating a-la-
carte (individual) selection of channels compelling the customers to
go by the bouquet of channels made available by the cable operator
on his own accord, restricting the say of customer in selection of
channels; lack of transparency as the subscriber base is not
accurately maintained and reported, which leads to under
reporting of subscription revenue, and consequent concealment of
tax revenues; limited carrying capacity of the analog system, and
lack of transparency distorts the business model for the
broadcasters; it increases their dependence on advertisement
revenues, and restricts the scope for increased generation of
subscription revenues (65:35); channels often sensationalize the
content on television for higher TRP ratings; lack of an effective
Consumer Grievance Redressal Mechanism; and inability to
provide high quality content, value added services and internet
connection service.
After narrating the difficulties in the analog system, it is
stated in the counter-affidavit that the first respondent introduced
DAS in cable TV services in 2007 which was implemented in a
phased manner; Phases I to III have already been completed;
instructions have been issued by the Ministry to all the
stakeholders i.e., Broadcasters, MSOs and LCOs, and consumers
have been given sufficient time in this regard; as per the amended
Rule 13(2) of the Cable Television Network Rules, 1994 (the Rules
for short), STBs are to be procured, supplied and installed by
MSOs; TRAI has mandated that every MSO/LCO has to offer the
scheme of outright purchase, rental or instalment basis for
providing STBs; it is mandatory for all operators to stop
transmission of analog signals after the cut-off date, failing which
the authorized officer would seize the equipment in terms of
Section 11 of the 1995 Act; TRAI had issued regulations to enable
subscribers to subscribe only to those channel which he or she
wants to see; and the object of DAS is only to facilitate
transmission of more number of channels, within a lesser band
width, to overcome shortcomings in the analog form of signals,
including bringing transparency which is missing in the analog
system.
The counter affidavit concludes with a prayer that the Writ
Petition be transferred to the Delhi High Court as per the order of
the Supreme Court in Transfer Petition No.430-444/2016 dated
01.04.2016, or that it be heard along with the three pending Writ
Petitions wherein the validity of Section 4-A of the 1995 Act are
under challenge, or to dismiss the Writ Petition.
While several applications have been filed, on behalf of the
Broadcasters by Star India Private Limited, the Association of
Indian Broadcasting Foundation and Association of Broadcasting,
the All India Digital Federation (an Association of Multi-system
Operators) and a local cable operator, to implead them as
respondents in the Writ Petition, Sri C. Ramachandra Raju,
learned counsel for the petitioner, has objected to these implead
applications being ordered, contending that the proposed
respondents are merely meddlesome interlopers, and should not
therefore be heard. He also sought time to file a counter affidavit in
all these implead applications.
While we have not ordered the implead applications as Sri C.
Ramachandra Raju, learned counsel for the petitioner, sought time
to file counter affidavits thereto, we heard Sri B. Narayana Reddy,
learned Assistant Solicitor General, Sri S. Niranjan Reddy, learned
Senior Counsel appearing on behalf of Star India Private Ltd, Sri
Abhishek Malhotra, Sri Rijul Taneja and Sri S. Rahul for the
Association of Broadcasters, Sri A. Tulsiraj Gokul, learned counsel
appearing on behalf of the MSOs and Sri M. Govind Reddy, learned
counsel appearing on behalf of the LCOs, as the issues raised in
this Writ Petition are of considerable public importance. The
elaborate submissions put forth by Learned Senior counsel and
Learned Counsel on either side shall, for convenience sake, be
examined under different heads.

I. SHOULD THIS WRIT PETITION BE TRANSFERRED TO THE
DELHI HIGH COURT

Sri B. Narayana Reddy, Learned Assistant Solicitor General
appearing on behalf of the first respondent, would submit that the
petitioner has, in effect, challenged the notifications issued by the
Government of India; while the prayer may have been couched in a
slightly different form, it is in effect not to implement the
notifications; the relief sought for in the Writ Petition squarely falls
within the order of the Supreme Court; and this Writ Petition
should also be transferred to the Delhi High Court.
Sri C. Ramachandra Raju, Learned Counsel for the
petitioner, would submit that the petitioner has not questioned
either the validity of the amended Section 4-A of the 1995 Act or
the notifications issued by the Government of India dated
11.11.2011, 11.09.2014 etc directing Broadcasters, MSOs and
LCOs to carry encrypted signals in Phase-III areas; neither Section
4-A(1) of the 1995 Act, nor the notifications issued by the
Government of India thereunder, prohibit transmission of signals
in the analog mode; the notice dated 22.12.2016, which prohibits
such transmission, is contrary both to Section 4-A(1) of the 1995
Act, and to the notifications issued by the Government of India in
this regard; the grievance of the petitioner is only that both the
Union and the State executive are doing something impermissible
under the law; they are seeking to prohibit something, which has
not been prohibited by Parliament, as Section 4-A only obligates all
cable operators to introduce DAS, and does not prohibit
transmission of analog signals along with DAS; the present Writ
Petition was instituted more than a couple of years after the order
of the Supreme Court; the question raised in the present Writ
Petition was not raised in any of the earlier Writ Petitions, which
were transferred to the Delhi High Court by the Supreme Court;
while directing that, even future cases should be transferred to the
Delhi High Court, the Supreme Court made it clear that it is only
cases in which similar legal issues arise for consideration which
should be transferred; the Supreme Court subsequently clarified
on 24.10.2016 that its order for transfer of cases to the Delhi High
Court pertained only to the notifications dated 11.11.2011 and
11.09.2014 under the 1995 Act as amended by the 2011 Act; what
is under challenge in this Writ Petition is the notice issued by the
Government of India on 22.12.2016; it is not as if every case filed
anywhere in India was transferred to the Delhi High Court; the
counter-affidavit, filed by the first respondent, itself discloses that
certain cases, pending in the Madras High Court, have not been
transferred to the Delhi High Court; the Writ Petitions before the
Delhi High Court were dismissed mainly on the ground that these
were all matters of policy; in a few cases, time was granted in view
of non-availability of set top boxes; and the question whether
Section 4-A(1) prohibited analog transmission, in addition to
transmission through the digital addressable system, was not in
issue before the Delhi High Court. He would refer to the letter of
the Ministry of Information and Broad casting dated 01.02.2007,
which refers to the cases pending before the Madras High Court in
this regard.
The object of introduction of DAS, and the obligation of a
subscriber to have a set top box to view channels transmitted in an
encrypted form, fell for consideration in Chalasani Narendra
Varaprasad v. Union of India ), and a Division bench of this Court
held:-
The High Court of Bombay while considering WP.No.2610 of 2012,
by the judgment of the Division Bench dated 31.10.2012, rejected the challenge
to the notification dated 21.06.2012 made at the instance of the MSO. It was held
that the Union Government has provided sufficient time for compliance to ensure
that no hardship is caused to any consumer as sufficient quantity of STBs were
made available. It was also observed that A certain degree of inconvenience is
inevitable in the enforcement of any deadline. The new regime, which has been
put into place by the Union Government is with a view to provide quality service
to consumers. The individual business hardship that is faced by a business
operator must necessarily give way to public interest Similarly, the Karnataka
High Court while disposing of WP.Nos.14946 14954/2013 and batch dated
16.04.2013 held at para 38 as under: 38. It is also clear from the materials on
record that respondent Nos.1 to 3 have periodically issued several directions,
guidelines and frameworks to effectively implement digitalization. Respondent
Nos.1 to 3 have framed Regulations to govern the tariff regime by specifically
stating the price and the formula for sharing the same between the MSO and
LCO. The broad terms of the interconnect link agreements have also been
specified and the MSO and the LCOI are mandated to abide by it. It is to be
noticed here that these writ petitions are not filed by the viewing public. In so far
as STBs are concerned, it has to vary in accordance with the quality, features
and the make. The MSOs do not have any control over the prices and the same
is determined by the market forces. The respondents have placed materials
before the Court to show that adequate number of STBs are available with
the MSOs. As held by the Bombay High court in the decision referred to
above, a certain degree of inconvenience is inevitable in the enforcement of
any deadline. The new regime, which has been put into place by the Union
Government is with a view to provide quality service to consumers. The
individual business hardship that is faced by a business operator must
necessarily give way to public interest in ensuring that services of a
stipulated quality are available to the members of the viewing
public.. (emphasis supplied).

The question whether a cable operator could continue to
transmit signals in the analog form, even after Section 4-A(1) of the
1995 Act was substituted by Act 21 of 2011, did not fall for
consideration in the said judgment.
On the question, whether this Writ Petition should be
transferred to the Delhi High Court and whether the petitioners, in
effect, have questioned the notifications issued by the Government
of India which were under challenge in the Writ Petitions hitherto
transferred to the Delhi High Court, it is necessary to refer to the
contents of the Government of India notification dated 11.11.2011.
In the exercise of the powers conferred by Section 4-A(1) of the
1995 Act, as amended by the 2011 Act, the Central Government,
having been satisfied that it is necessary in the public interest so to
do, notified, by notification dated 11.11.2011, that it shall be
obligatory for every cable operator to transmit or retransmit
programmes of any channel in an encrypted form through a digital
addressable system in such city, town or area, as specified in
column 2 of the table in respect of the corresponding State or
Union Territory, as specified in column 3, with effect from such
date, as specified in column 4. Phase II included the cities of
Hyderabad and Visakhapatnam, and the date specified in column 4
was 31.03.2013. Phase III, which included all other urban areas,
was to be completed by 30.09.2014 and Phase IV, for the rest of
India, by 31.12.2014. The time stipulated in the notification was
periodically extended thereafter.
While the notification dated 11.11.2011 obligated every cable
operator to transmit or re-transmit programmes of any channel in
an encrypted form, through a digital addressable system, it does
not explicitly prohibit the cable operator from transmitting signals
in the analog form in addition to transmission of signals in an
encrypted form. It is only in the impugned notice dated
22.12.2016 has the Government of India conveyed its decision that
all broadcasters, MSOs & LOCs would not be allowed, after
31.01.2017, to carry on analog signals in Phase III areas.
In its order, in Transfer Petition (Civil) Nos.430-444 of 2016
dated 11.03.2016, the Supreme Court, while issuing notice
returnable on 01.04.2016, directed that a final decision shall not
be rendered by the High Court, where the Writ Petitions were filed
which were sought to be transferred by this Transfer Petition, until
further orders. Thereafter, by order in Transfer Petition No.430-
437 of 2016 and 439-444 of 2016 dated 01.04.2016, the Supreme
Court directed that having regard to similar legal questions
involved in all the Writ Petitions that were raised before different
High Courts, with a view to avoid conflicting decisions by different
High Courts, and at the request made on behalf of the Union of
India seeking to transfer all the Transfer petitions pending before
the different High Courts, it was just and proper to withdraw all
those cases pending in different High Courts, and the transfer
petitions, to the Delhi High Court. The Supreme Court directed
that, in future, if any case on the same legal question is filed before
the High Court(s), such case(s) shall also be transferred to the
Delhi High Court.
The present Writ Petition filed in the year 2017 is evidently
not among the Writ Petitions which were pending before different
High Courts, for which transfer petitions were filed before the
Supreme Court in the year 2016. The question which necessitates
examination is whether, in terms of the directions of the Supreme
Court, this Writ Petition filed thereafter before this High Court
should also be transferred to the Delhi High Court. The directions
of the Supreme Court in this regard is that, if any case on the same
legal questions is filed before the High Court, such case should also
be transferred to the Delhi High Court.
With a view to ascertain whether the legal questions which
arise for consideration in the present Writ Petition were also in
issue in the Writ Petitions filed before different High Courts which
were the subject matter of Transfer Petition Nos.430-444 of 2016,
we examined a few such cases, and found that the questions raised
herein were not raised before the other High Courts, wherein the
legal questions related mainly to the constitutional validity of the
amended Section 4-A, and the timeline prescribed for
implementation of DAS even though adequate number of set off
boxes were not available in the market. We have been saved the
trouble of examining all the Writ Petitions as Sri S. Niranjan
Reddy, Learned Senior Counsel appearing on behalf of Star India,
fairly stated that the question raised in the present Writ Petition
were not raised in the Writ Petitions filed before different High
Courts which were part of Transfer Petition No.430-444 of 2016.
Even otherwise the Supreme Court has subsequently, in its
order in I.A. No.1-15 of 2016 in Transfer Petition (Civil). No.430-
444 of 2016, clarified that the controversy, which was ordered to be
transferred for hearing to the Delhi High Court, pertained only to
the notification dated 11.11.2011 and 11.09.2014 under the 1995
Act as amended by the 2011 Ordinance. As neither of the
notifications dated 11.11.2011 and 11.09.2014 are under
challenge in the present Writ Petition, the clarificatory order of the
Supreme Court dated 25.10.2016 would not require us to transfer
the present case to the Delhi High Court, but to adjudicate the
same on its merits.
It is also evident from the counter-affidavit filed on behalf of
Government of India that, while Phase I of digitilisation was
completed in Delhi, Mumbai and Kolkata, it could not be
completed in Chennai because of pending Court cases. It is thus
evident that the cases pending in Chennai Courts are being
contested thereat, and have not been transferred to the Delhi High
Court. In view of the clarificatory order of the Supreme Court
dated 25.10.2016, we see no justification in refusing examine the
questions raised in the present Writ Petition on its merits. The
contention, urged on behalf of the respondent in this regard,
necessitates rejection.
II. RECOMMENDATIONS OF TRAI ARE THEY RELEVANT IN
UNDERSTANDING THE SCOPE OF SECTION 4-A(1)

Sri C. Ramachandra Raju, Learned Counsel for the
petitioners, would submit that the provisions of the 1995 Act, as
amended by the 2011 Act, cannot be understood in the light of the
recommendations of TRAI; Section 4-A does not suffer from any
ambiguity, and therefore no reliance can be placed on the TRAI
recommendations; it is not obligatory for Parliament to accept the
recommendations of TRAI; it is evident that, by amending Section
4-A, Parliament did not intend to accept TRAI recommendations in
its entirety; the 2005 TRAI report recommends that a change over,
from analog to DAS, should be voluntary, and not compulsory;
public interest would not be defeated if the analog system is
continued; and the analog mode of transmission of signals is not
prohibited either by the pre-amended, or by the amended, Section
4-A.
It is contended, on behalf of the respondents, that the
recommendations in the 2010 TRAI report show that the intention
is to stop analog transmission, and effect transmission only
through the digital addressable system; not only would such
transmission bring about transparency, but it would also ensure
enhanced revenue generation, and effective recovery of taxes; it is
evident from the several recommendations in the 2010 TRAI report
that the 1995 Act was amended in 2011 only to bring an end to
the analog system of transmission, and to provide for transmission
of signals only through the digital addressable system; the TRAI
recommendations, when read in the light of the provisions of the
1995 Act and the Rules, make it clear that both Parliament and the
rule making authority intended that, after the date stipulated in
the notifications, transmission should be effected only in an
encrypted form, and not in an analog form; TRAI regulates both the
service and the service providers; the obligation to transmit signals
in an encrypted form extends to each and every Multi-System
Operator; in terms of the Government of India notification dated
09.01.2004, broad-casting and cable services are telecom services,
and fall under the purview of TRAI; the TRAI regulations are
binding on all these service providers; the TRAI recommendations
are, therefore, of great relevance; and the 2011 Act was introduced
only to comply with the recommendations of the TRAI, to bring the
existing analog system to an end, and to convert transmission only
in an encrypted form, making it compulsory for all subscribers to
have a set top box to receive signals in an encrypted form.
A statute is best understood if we know the reason for it. The
reason for a statute is the safest guide to its interpretation. The
words of a statute take their colour from its reason. There are
external and internal aids. The external aids are the Statement of
Objects and Reasons when the Bill is presented to Parliament, the
reports of committees which preceded the Bill, and the reports of
Parliamentary Committees. Occasional excursions into the debates
of Parliament are permitted. Internal aids are the Preamble, the
scheme and the provisions of the Act. Having discovered the reason
for the statute, the interpreter may proceed ahead. No provision in
the statute and no word of the statute may be construed in
isolation. (Utkal Contractors and Joinery (P) Ltd. v. State of
Orissa ; A. Manjula Bhashini v. A.P. Womens Coop. Finance
Corpn. Ltd., ). Interpretation of a statute being an exercise in the
ascertainment of meaning, everything which is logically relevant
should be admissible. (K.P. Varghese v. ITO ). In interpreting a
statute the court has to ascertain the will and policy of the
legislature as discernible from the object and scheme of the
enactment and the language used therein. (Chern Taong Shang v.
Commander S.D. Baijal ). The fairest and most rational method to
interpret the will of the legislator is by exploring his intention at
the time when the law was made, by signs most natural and
probable. And these signs are the words, the context, the subject
matter, the effect and consequence, or the spirit and reason of the
law. (Blackstone Commentaries on the Laws of England
(Facsimile of 1st edn. 1765, University of Chicago Press 1979
Vol. 1 at 59; Doypack Systems (P) Ltd. v. Union of India ).
The Telecom Regulatory Authority of India is a body
corporate established under Section 3(1) of the Telecom Regulatory
Authority of India Act, 1997 to exercise the powers conferred
under, and discharge the functions prescribed by, the said Act. By
notification in S.O. 44(E) dated 09.01.2004, the Government of
India, in the exercise of the powers conferred by the proviso to
clause (k) of sub-section (1) of Section 2 of the Telecom Regulatory
Authority of India Act, 1997, notified broadcasting services and
cable services to be telecommunication service. By the
notification in S.O.45(E) dated 09.01.2004 and, in the exercise of
the powers conferred by clause (d) of sub-section (1) of Section 11
of the Telecom Regulatory Authority Act, the Central Government
entrusted certain additional functions to the TRAI, established
under sub-section (1) of Section 3 of the Act, in respect of
broadcasting services and cable services. The TRAI was entrusted
with the functioning of making recommendations regarding the
terms and conditions on which the addressable system should be
provided to customers. In terms of the notification dated
09.01.2004, the TRAI has been entrusted with the functions of
making recommendations regarding the terms and conditions on
which the addressable system should be provided to customers. It
is therefore useful to refer to the recommendations of the TRAI in
this regard.
Further, as interpretation of Section 4-A would require us to
ascertain its meaning, and everything which is logically relevant
must be taken into consideration, we are satisfied that the contents
of the TRAI reports should be taken note of. While Sri C.
Ramachandra Raju, Learned Counsel for the petitioners would rely
on certain portions of the TRAI report dated 14.09.2005, the
Learned Counsel for the respondents would rely on certain
portions of the subsequent TRAI report dated 05.08.2010. It is
necessary for us, therefore, to briefly refer to the contents of both
the reports, more so as the Statement of objects and reasons for the
2011 amendment bill, whereby Section 4-A was substituted,
specifically refers to the TRAI report dated 05.08.2010.
The TRAI made certain recommendations on Digitalization of
Cable Television in its report dated 14.09.2005. It is useful to note
the relevant portions of these recommendations. Para. 1.4 thereof
relates to Facilitation of Policy of Digitalisation Objectives of
TRAI and, thereunder, it is stated that in developing the policy to
facilitate digitisation of cable networks the Authority has primarily
been guided by the need to keep the process completely voluntary;
cable operators, MSOs, broadcasters and consumers should adopt
the new technology only when they see the merits of such a shift;
what this means is that analog and digital transmission shall
continue side by side; consumers will only go for the digital
platform once they are convinced that it is advantageous to them;
in case, at a later date, they find that it is better to get out of the
digital service they would be free to do so; apart from this primary
consideration, the authority has been guided by the following
objectives i.e., (i) cable services should benefit from the
technological advances to the fullest possible extent, and enabled
to provide competition to other digital platforms; (ii) there should
be smooth transition from analog to digital transmission
recognising that analog services will continue along with digital
services for several years; (iii) the policy should promote
competition at all levels; (iv) the digitalisation policy should provide
guidelines to broadcasters, MSOs, Cable Operators and consumers
for adoption of new technology.
Para. 2.2 of these recommendations relate to International
experience and, thereunder, after stating that details of
international experience have been provided in the Consultation
Paper, reference is made to the important factors to be borne in
mind from this experience. They are (a) there is a cost attached to
moving to the digital platform; the biggest obstacle has been
consumer premises equipment consumers have not been very
enthusiastic about investing in digital set top boxes or digital
televisions; (b) most countries have provided a launch date as well
as a sunset date; (c) the sunset date fixed earlier in USA had to be
extended because of poor progress, and in other countries also
there is a provision to postpone the sunset date in case of poor
response; and (d) the only city in the world which has switched off
analog transmission is Berlin; and extensive subscriber education
and a subsidy scheme have been held to be crucial to this success.
Para 2.4 details the recommendations of the Authority, and
Para.2.4.1 relates to launch, time frame and plan. While detailing
the rationale for promoting digitalisation, the TRAI observed that
this does involve a cost especially for consumers who will have to
invest in a set top box or decoder to transform the digital signals
into analog and, therefore, the plan would have to be voluntary in
all steps, and would have to provide for simultaneous provision of
analog and digital service.
Chapter 6 of the TRAI report dated 14.09.2005 contains the
summary of recommendations. Para. 6.1.1 stipulates that there
should be a national plan for digitalisation from 1st April, 2006 till
31st March, 2010; and this plan would be indicative and would not
be mandatory in any form. Para 6.1.2 stipulates that the essential
components of this plan would be: (i) Introduction of digital service
in all cities/urban agglomerations with a population of one million
plus by 2010; and in all these cities/urban agglomerations the
existing analog service will continue simultaneously; (ii) licensing
for new entrants and automatic licensing for existing operators; (iii)
rationalisation of import and domestic duties by April 1, 2006; and
(iv) use of Entertainment tax for a consumer education programme
during these four years. (2006-2010). Para 6.3 relates to up-
gradation of network and technical choices and it is stated,
thereunder, that, while digitalisation of cable TV should be
promoted, the choice of analog CAS or Digital CAS should be left to
the Cable operators as per their business plans.
Five years thereafter, the TRAI submitted another report
dated 05.08.2010 which contained its recommendations on the
implementation of Digital Addressable Cable TV Systems in India.
The recommendations of TRAI contained the framework of
implementation of digitisation with addressability in India by
December, 2013, and several measures were suggested such as
fiscal incentives, right of way etc, to enable this process. The TRAI
report dated 05.08.2010 contains four chapters with four
annexures. Chapter-I relates to broadcasting sector nature and
limitations and, thereunder, the evolution of the broadcasting
sector are detailed, and it is noted that in 2009 the revenue size of
the Indian television industry was estimated at Rs.25,700 Crores;
of this Rs.16,900 Crores (66%) was attributed to subscription
revenue generated from consumers, and the balance Rs.8,800
Crores (34%) came from the advertising market; the last five years
had changed the dynamics of the market significantly; and from a
scenario where 100% of the cable and satellite (C&S) population
was dependent on analog cable services, DTH commanded around
20% market share by the end of 2009; uptake of digital services
was increasing and choice was becoming possible at the consumer
end; and the cable services value chain comprised four main
supply side entities i.e., the broadcaster, MSO, LCO and the end
consumer. The role of the broadcaster, MSO and LCO are detailed
in the report.
On the nature and characteristics of the Cable TV market,
the report dated 05.08.2010 states that the cable TV systems can
be analog, hybrid or digital; the stakeholders, in the analog cable
TV system, are the broadcasters, MSOs, LCOs and the consumers;
the broadcaster supplies the content, mostly in the form of
bouquets of channels, to MSOs; the MSO collects the content
(channels) from different broadcasters and, after repackaging, gives
it to the LCO for onward distribution to the consumer; the signal
an LCO gets is a single bouquet of analog channels belonging to
different broadcasters; the composition of the bouquet that reaches
the consumer is determined by the MSO; it reflects the MSOs
perception of what the consumers in the LCOs domain want to
watch; an MSO supplies signals to many LCOs; and though it is
technically possible for an MSO to offer different feeds for different
LCOs, there are practical limitations on the number of such feeds.
Para 1.51 states that, even if a feed is customised for a
particular LCO, the bouquet of channels carried by this LCO
cannot fully match the choice of TV channels of each subscriber; at
best, a typical consumer can expect to watch a choice of channels
broadly corresponding to the socio-cultural background of the LCO
domain in which he is residing; however, he cannot make specific
choices to suit his age, education, profession, language or interests;
in fact, the choice of channels would vary from subscriber to
subscriber; and, as a result, any particular subscriber in the
analog system may be paying for channels that he does not watch,
and may also be denied the viewing of specific channels of his
choice.
In para 1.52 it is stated that the signal compiled by the
MSO/LCO reaches the consumers TV receiver set where different
channels are selected by the tuner of the TV set; the tuner of a TV
set has a limited capacity of channel selection; this ultimately
limits the number of TV channels a viewer can watch through his
TV; and the design of the TV tuner matches the TV standard
adopted by a country. Para 1.53 records that in all 101 channels
can be accommodated; taking into consideration terrestrial FM
Radio and TV transmission as well, theoretically, the analog cable
system can have a capacity of 95-96 channels; however, given the
quality and type of the cables, modulators, RF amplifiers etc
deployed in the network, the channel carrying capacity of the
analog cable system practically gets limited to around 85-90
channels only.
Para 1.54 records that, in many parts of India, a hybrid
model is employed; in this model, some channels are carried in
analog form and the remaining capacity is used to carry digitally
modulated channels; and the combined signal is sent on the same
cable. Para 1.55 states that, in digital TV, compression techniques
are employed for storage and distribution/transmission of content;
these techniques capitalise on the redundancy of information in
intra and inter-picture frames, the movement predictions of picture
elements/objects, and the limitations of the human eye and ear to
compress the channels bandwidth requirement; this achieves the
dual objective of a near-normal viewing experience to the
consumer, and a remarkably reduced bandwidth (spectrum)
requirement; the bandwidth requirement of a digital channel
depends upon the complexity of content of the channel; greater
movement and finer visual details require more bandwidth; and, as
a rough estimate, 4 to 12 digital channels can be accommodated in
the bandwidth of a single analog channel, depending upon the
modulation technique employed and the nature of content.
On the Digital Addressable Cable TV System, the TRAI report
dated 05.08.2010 records, in para: 1.59, that, in this model, all the
channels, whether FTA or Pay, are delivered in the addressable-
digital form only; this is akin to the DTH model; not only is the
content carried in digital form, all content, whether pay or FTA, is
also encrypted; the subscriber necessarily requires a Set Top Box
(STB), duly authorised by the service provider (MSO), to view the
TV channels; and the same STB can also be used for reception of
other value added services and interactive services such as
broadband. Para 1.60 states that this model further enhances the
channel carrying capacity of the system over the hybrid model; in
this model, all FTA channels are also carried in digital format
making room for more channels; and the decoded content from the
STB can be viewed through the Audio/Video port of the TV receiver
set.
Chapter II of the TRAI report dated 05.08.2010 relates to
issues in digitization with addressability. Under this head, the
report examines the need for digitization with addressability,
including the issue whether complete digitization with
addressability (a box in every household) is the way forward. On
an analysis the TRAI report states, in para 2.7, that, in the present
cable TV system, service seekers (consumers) as well as service
providers (Broadcasters, MSOs and LCOs) are at a disadvantage;
the consumer has a limited choice of channels and he is also
compelled to pay for channels which are not of his choice; due to
non-transparent business transactions, broadcasters, MSOs and
LCOs are constantly involved in expensive litigation, which has
come to characterise the very nature of business in this segment of
the TV and entertainment industry. Para 2.8 states that the
limitations of analog cable TV transmission had given rise to non-
transparent business transactions based on negotiated non-
verifiable subscriber bases, differential pricing for the same content
and incidence of carriage and placement fee on account of demand-
supply mismatch arising out of capacity constraints, and the
advertisement-centric market strategy of broadcasters; these factors
had resulted in a lack of collaboration amongst various
stakeholders and, as business models came into conflict, litigation
had become more common. In para 2.9, it is stated that almost all
stakeholders recognize that the single most effective step that can
be taken to resolve the problems of the industry would be the
implementation of digitization of the cable TV system with
addressability; and this consensus had emerged from the written
comments of the stakeholders as well as from the views expressed
by the stakeholders. Para 2.10 states that digitization would solve
the problem of capacity constraint, and would enable incorporation
of value added services (viz. Pay per View, Time Shifted Video,
Personal Video Recorder, Near Video on Demand, Radio services,
Broadband etc.) in the offerings to the customer, which would
enhance the range of choice for the customer, and improve the
financial viability of operations for the service provider;
addressability would ensure choice of channels to the consumer
and transparency in business transactions; it would build
stakeholder confidence in the sector; and it would also effectively
address the issue of piracy.
The TRAI report dated 10.08.2010 also deals with regulatory
issues and the need to amend the 1995 Act. Para 2.43 states that,
in order to facilitate complete digitalisation of cable television
networks in India, it may also be necessary to have a re-look at the
provisions of Section 4-A of the Cable Television Networks
(Regulation) Act, 1995, and carry out necessary amendments
therein. Para 2.4 records that Section 4-A of the 1995 Act clearly
mandates that the basic service tier of free-to-air channels should
be available to subscribers without any addressable system
attached to their TV sets in any manner; in other words, these
provisions imply that, in CAS areas, the programmes of the basic
service tier should be available in the analog mode; the present
recommendations of the Authority contemplate that, after the
proposed sunset date, both FTA and pay channels should be
available to subscribers only through set top boxes helping in
determining subscriber base with transparency; the continuance of
the existing provisions of Section 4-A would result in the
continuance of the analog cable network along with digital network
in CAS notified areas, thus preventing the total analog sunset as
contemplated in these recommendations; further, if pay channels
are offered in digital form, and FTA channels are allowed to
continue in analog form without set top boxes, there is always the
possibility that pay channels will be offered as FTA channels,
resulting in piracy. Para 2.45 records that, in order to make cable
television systems fully digital (with hundred per cent
addressability), it would be necessary for each subscriber to acquire
a set top box, irrespective of whether such subscriber desires to
watch pay channels or not; having regard to the above, the
Authority was of the view that, in order to pave the way for a
complete analog switch off, the relevant provisions of Section 4-A of
the 1995 Act be amended suitably.
Chapter III of the TRAI report dated 05.08.2010 relates to the
roadmap for digitization with addressability. It is stated in para 3.6
that, internationally, concerted efforts are being made for up-
gradation to a fully digitized system; stakeholders in India have
different views on the issue of an appropriate date for analog switch
off; considering the fact that the subscribers of TV channels in
India belonged to a range of socio-economic backgrounds from the
very poor to the very affluent, a phased approach to transition from
the analog system to the addressable digital system would seem to
be most appropriate; the approach of phased implementation was
also supported by all the stakeholders; as the use of set top boxes
increased, set top boxes would be available at more affordable
prices; there arose the question as to whether the date for
migration to digital should be the same for pay and FTA channels,
or whether they should be different; if pay channels were offered in
digital form, and FTA channels continued in analog form without
STB, there was always the possibility that the pay channels would
be offered as FTA, resulting in piracy; additionally, if both pay and
FTA channels were received through STB, it would help in
determining the subscriber base with transparency; and the
Authority was of view that effective implementation would not be
possible if the date of migration was different for pay and FTA
channels.
The report then details the advantages of digitization with
addressability to various stakeholders. It is stated, in para 2.15,
that digitization with addressability would result in a number of
advantages to Consumers, Broadcasters, MSOs, LCOs and
Government. Para 2.16 records that, for the consumer, there
would be a choice of channels, enabling him to budget his bill as
per his choice and affordability; thus, he would pay only for what
he wants to watch; in addition, he would have a choice of
interactive services like Video on Demand (VoD), Personal Video
Recording (PVR), video gaming, teleshopping, with additional
features such as Electronic Program Guide (EPG) and broadband;
and he would derive value for his money with enhanced quality of
service through competition among operators/platforms. It is
stated, in para 2.17, that broadcasters would be able to carry on
their business transactions on auditable and verifiable subscriber
bases instead of negotiated basis; the digital dividend would ensure
availability of channel choice and spectrum, and hence allow viable
business planning for existing broadcasters and new entrants;
regional channels would be encouraged; thus, broadcasters would
get value for their content, commensurate to quality, and content
would be protected against piracy; and the increased capacity
would also enable broadcasters to offer niche channels and HDTV
channels. Para 2.18 records that MSOs would be benefited as
they would be able to choose their channels on a-la-carte basis;
they would be able to market pay channels based on demographics
and socio-economic conditions in their markets; and MSOs would
be able to generate more revenue through broadband, value added
and interactive services like VOD, PVR, video gaming, music and
tele-shopping etc. Para 2.19 states that, for local cable operators,
business transactions would be based on auditable subscriber
base; if the subscriber base declined, he would get commensurate
financial relief for the same; besides FTA subscription, he would get
a share of revenue from all pay channels, broadband services and
other value added services; cable operators would also be better
equipped to meet customer requirements in terms of choice of
channels and services, and in terms of quality of service. Para 2.20
records that, as far as the Government was concerned, tax
collection would match the market size; and the Government
would also earn increased service tax revenue through enhanced
deployment of broadband and other value added services. It is
stated, in para 2.21, that, lastly, greater transparency in business
transactions would greatly reduce litigation amongst service
providers, and reduce the need for regulatory intervention; this
would result in better collaboration among service providers, and
overall growth of the sector; and the Authority was of the view that
digitization with addressability was the way forward for the cable
TV industry in Non-CAS areas. In para 2.22, the Authority
recommended that digitization with addressability be implemented
on priority for Cable TV services in Non-CAS areas. In para 3.11,
the Authority recommended that migration to a digital addressable
cable TV system be implemented with a sunset date for Analog
Cable TV Services as 31st Dec 2013, in four phases as follows:-
Phase I: In four Metros Delhi, Mumbai, Kolkata and
Chennai, by 31st March 2011.

Phase II: In all cities having a population of over one million, by
31st December 2011.

Phase III: In all other urban areas (municipal
corporations/municipalities), by 31st
December 2012.

Phase IV: In the rest of India, by 31st December 2013.

The recommendations of the TRAI, in its earlier report dated
14.09.2005, were that, while digitilisation of cable TV should be
promoted, the choice of analog conditional access system or digital
conditional access system should be left to the cable operators as
per their business plans. In its subsequent report dated
05.08.2010, the TRAI has recommended that digitisation with
addressability be implemented on priority for cable TV services; and
migration to a digital addressable cable TV system should be
implemented with a sunset date for analog cable TV services in 4
phases. While the four metros were placed in Phase I with the
sunset date for analog cable TV services as 31.03.2011, the sunset
date in Phase II areas was recommended to be 31.12.2011, in
Phase III areas as 31st December, 2012, and in Phase IV by 31st
December, 2013. By the impugned notice dated 22.12.2016, the
last date for sunset of the analog system has been prescribed as
31.01.2017 for phase III areas. The recommendations of the TRAI,
in its report dated 05.08.2010 is to ensure that, after the sunset
date, transmission of signals is only through DAS and the earlier
mode of transmission of signals in an analog form is completely
disbanded.
While the impugned notice dated 22.12.2016 accords with
the TRAI recommendations in its report dated 05.08.2010, the
contention of Sri C. Ramachandra Raju, Learned Counsel for the
petitioner, is that Parliament, while enacting Act 21 of 2011
whereby Section 4(A) was substituted, did not accept the
recommendations of TRAI in its report dated 05.08.2010 in its
entirety and, while making it obligatory for cable TV operators to
send signals in an encrypted form, it has not prohibited them from
simultaneously sending signals also in the analog form. Before
examining this issue, it is useful to note the contents of the
Statement of Objects and Reasons for introduction of the Bill
which resulted in enactment of Act 21 of 2011 whereby Section 4-A
was substituted.
III. STATEMENT OF OBJECTS AND REASONS : ITS
RELEVANCE IN INTERPRETING SECTION 4-A(1):

Sri C. Ramachandra Raju, Learned Counsel for the
petitioner, would submit that the Statement of Objects and
Reasons for the bill are distinct from the Statement of Objects and
Reasons of the 2011 amendment Act; Parliament, by not including
the Statement of Objects and Reasons in the 1995 Act itself, must
be deemed to have rejected the bill; no aid can be taken of the
Statement of Objects and Reasons, placed before Parliament, by the
Executive; and such a Statement of Objects and Reasons is not
even an external aid to construction.
It is contended, on behalf of the respondents, that the very
object of the amendment is to switch over from the analog system
to the digital system of transmission of signals in an encrypted
form; not only is the object of the amendment to provide more
number of channels to the subscriber in a lesser band width, but
also to plug leakage of revenues of the State, which cable T.V.
operators are resorting to by the use of the analog system of
transmission; and digitization with addressability is stipulated in
the Statement of Objects and Reasons.
The Statement of Objects and Reasons need to be looked
into, though not by itself a necessary aid, as an aid to construction
only if necessary. To assess the intent of the legislature in the event
of there being any confusion, the Statement of Objects and
Reasons may be looked into, and no exception can be taken thereto
this is not an indispensable requirement but when faced with an
imperative need to appreciate the proper intent of the legislature,
the Statement may be looked into but not otherwise.
(Gurudevdatta VKSSS Maryadit v. State of Maharashtra ; A.
Manjula Bhashini5).
The Statement of Objects and Reasons, and the preamble of
an Act, open the minds of the makers in enacting the law. It cannot
altogether be eschewed from consideration of the relevant
provisions of the Act. (S.S. Bola v. B.D. Sardana ). Although the
Statement of Objects and Reasons contained in the Bill, leading to
enactment of the particular Act, cannot be made the sole basis for
construing the provisions contained therein, the same can be
referred to for understanding the background, the antecedent state
of affairs and the mischief sought to be remedied by the statute.
The Statement of Objects and Reasons can also be looked into as
an external aid for appreciating the true intent of the legislature
and/or the object sought to be achieved by enactment of the
particular Act. (A. Manjula Bhashini5; Gurudevdatta VKSSS
Maryadit9; Narain Khamman v. Parduman Kumar Jain ; Bhaiji
v. SDO ; Principles of Statutory Interpretation by Justice G.P.
Singh, 8th Edn., 2001, pp. 206-09).
The Statement of Objects and Reasons seeks only to explain
what reasons induced the mover to introduce the Bill in the House,
and what objects he sought to achieve (Aswini Kumar Ghose v.
Arabinda Bose ). The Statement of Objects and Reasons
accompanying a Bill, when introduced in Parliament, cannot be
used except for the limited purpose of understanding the
background and the antecedent state of affairs leading up to the
legislation. (State of W.B. v. Union of India ). The Statement of
Objects and Reasons might be admissible not for construing the
Act but for ascertaining the conditions which prevailed when the
legislation was enacted. (State of West Bengal v. Subodh Gopal
Bose ; M.K. Ranganathan v. Government of Madras ; A.
Thangal Kunju Musaliar v. M. Venkitachalam Potti ; CIT v.
Sodra Devi ; and Jai Lal v. Delhi Admn., ).
Although in Aswini Kumar Ghose13 it was held that the
Statement of Objects and Reasons contained in the Bill cannot be
used or relied upon for the purpose of construction of the statute,
this rule has not been strictly followed in subsequent judgments.
In A. Thangal Kunju Musaliar17, the Statement of Objects and
Reasons was used for judging the reasonableness of the
classification made in an enactment to see if it infringed or was
contrary to the Constitution. In Central Bank of India v.
Workmen it was held that the Statement of Objects and Reasons
can be used for the limited purpose of understanding the
background and antecedent state of affairs leading up to the
legislation. The same view was reiterated in a large number of other
judgments including Bhaiji12 in which the Supreme Court referred
to the Principles of Statutory Interpretation by Justice G.P.
Singh, 8th Edn., 2001, and observed that a reference to the
Statement of Objects and Reasons is permissible for understanding
the background, the antecedent state of affairs, the surrounding
circumstances in relation to the statute, and the evil which the
statute sought to remedy. (A. Manjula Bhashini5).
The Statement of Objects and Reasons for the amendment
bill (for Act 21 of 2011, whereby Section 4-A was substituted) refers
to the fact that the Telecom Regulatory Authority of India (TRAI), in
its recommendation dated 05.08.2010 on Implementation of the
Digital Addressable Cable Systems in India, had, inter alia,
recommended that digitalization with addressability be
implemented on priority in cable TV services in non-CAS areas;
they had accordingly recommended a time frame comprising four
phases for switch over from analog system to the digital
addressable system (DAS) in the cable TV sector; in view of the said
recommendations of TRAI, the Central Government had decided to
introduce digitalization with addressability in the cable TV services
in a phased time bound manner on a pan-India basis, leading to
complete switch off of analog TV services by 31.12.2014; for
implementation of DAS, certain amendments were required to be
made in the 1995 Act mandating all cable operators to provide
programmes of all channels including free to Air (FTA) channels, in
encrypted form through DAS in a phased manner at the specified
areas from the specified dates to be notified by the Central
Government; it was mandatory that any such notification should
give atleast six months time to the cable operators to install the
necessary digital equipment for migration, and to educate the
subscribers in this area; in order to protect the interest of
consumers, it was proposed to empower TRAI to specify a package
of free to air channels, called basic service tier, which shall be offered
by every cable operator to the consumer; and it is also necessary
that every cable operator should offer channels in the basic service
tier on a la carte (individual) basis to the consumer at a tariff fixed
by TRAI.
The Statement of Objects and Reasons refer to the TRAI
report dated 05.08.2010 recommending a time frame for switch
over from the analog system to the digital addressable system in
the cable TV sector; to the Central Government having decided to
introduce digitisation with addressability in a phased time bound
manner leading to a complete switch off of analog TGV services by
31.12.2014; and that, for implementation of DAS, certain
amendments were required to be made in the 1995 Act mandating
that all cable operators provide programmes of all channels,
including free to air channels, in an encrypted form through DAS
in a phased manner. It is evident, therefore, that the Statement of
Objects and Reasons also show that the analog system is required
to be disbanded, and to be completely discontinued in a phased
manner.
The Statement of Objects and Reasons accompanies the bill
introduced in the legislature, and should not be confused with the
preamble to an enactment. The preamble of a Statute, like the long
title, is a part of the Act and is an admissible internal aid to
construction. Although not an enacting part, the preamble is
expected to express the scope, object and purpose of the Act more
comprehensively than the long title. It may recite the ground and
cause of making of the statute, the evils sought to be remedied or
the doubts which may be intended to be settled. It is to the
preamble more specially that we are to look for the reason or spirit
of every statute, rehearsing this, as it ordinarily does, the evils
sought to be remedied, or the doubts purported to be removed by
the statute, and so evidencing, in the best and most satisfactory
manner, the object or intention of the Legislature in making or
passing the statute itself. (Brett v. Brett ; Principles of Statutory
Interpretation 13th Edition 2012 by Justice G.P. Singh). The
preamble is a key to open the minds of the makers of the Act, and
the mischiefs which they intended to redress. The preamble being
a part of the statute can be read along with other portions of the
Act to find out the meaning of the words in the enacting provisions
as also to decide whether they are clear or ambiguous. (Union of
India v. Elphinstone Spinning & Weaving Co. Ltd ; Stowel v.
Lord Zouch ; A.G. v. HRH Prince Ernest Augustus ).
While the preamble of an enactment is an internal aid,
unlike the Statement of Objects and Reasons which is an external
aid to the interpretation of statutes, the submission of Sri C.
Ramachandra Raju, Learned Counsel for the petitioner, is that
resort to external or internal aids of interpretation is permissible
only where the statutory provision suffers from some ambiguity
and, as Section 4(A) is clear and unambiguous, it is unnecessary to
take the aid of any other mode of construction of statutes. It is
necessary, therefore, for us to examine the scope of Section 4-A of
the 1995 Act as amended by Act 21 of 2011. Before doing so, it is
necessary to briefly note the distinction between analog and DAS
mode of transmission of signals.
IV. DISTINCTION BETWEEN ANALOG AND DAS:
Sri C. Ramachandra Raju, learned counsel for the petitioner,
would submit that the analog system of transmission did not come
into existence with the permission of the statute; it is a natural
form of transmission; it dates back to transmission of signals itself;
the digital addressable system (DAS) encrypts analog signals and
sends them to the Television sets in a digitised form; Television sets
are incapable of receiving encrypted signals directly, and require a
set top box (STB) to do so; the STB receives encrypted signals, and
decrypts them; after decryption, the signals received by the TV is
only in analog form; both DAS and analog transmission can be
effected through a single cable, albeit in different frequencies; both
the conditional access system (CAS) and the subscriber
management system (SMS) are embedded in the set top box; no set
top box can function merely with either one of them; a combination
of CAS and SMS constitutes the STB; the function of the
conditional access system (CAS) is to decode/decrypt the encrypted
signal, and it is only then would the T.V. Set receive these signals;
comparison of the merits and demerits of analog or DAS is in the
legislative realm; an addressable system also converts analog
signal into an encrypted signal, and is sent by the Multi System
Operator (MSO) to the subscriber; the STB with the subscriber
decrypts the signal sent to it, converts it into analog form, and
sends the analog signal to the television set; and, while every cable
operator is obligated to introduce an addressable system, the
analog mode of transmission of signals can also be continued along
with the encrypted system i.e. DAS.
It is submitted, on behalf of the respondents, that unlike an
analog form of transmission, the encrypted form is digitized; it
occupies far less band width as compared to the analog form of
transmission; an analog form of transmission is incapable of
encryption; and the band width allocation, in an analog form of
transmission, is far higher than in a digitized/encrypted form of
transmission.
The question which necessitates examination is whether the
impugned notice dated 22.12.2016, whereby local cable operators
were prohibited after 31.01.2017 from transmitting analog signals
in Phase-III areas, falls foul of Section 4-A of the 1995 Act. It is
only if Section 4-A is held as enabling the local cable operator to
transmit signals in an analog form, in addition to transmission of
signals in an encrypted form, would the impugned notice dated
22.12.2016 be liable to be struck down as having been passed in
contravention of Section 4-A of the 1995 Act as amended by Act 21
of 2011.
It is necessary therefore to refer, albeit in brief, to the
relevant provisions of the 1995 Act and the rules made thereunder.
Section 2(aii) of the 1995 Act defines Broadcaster to mean a person
or a group of persons, or a body corporate, or any organization or
body providing programming services, and to include his or its
authorised distribution agencies. Section 2(aiii) defines cable
operator to mean any person who provides cable service through a
cable television network or otherwise controls or is responsible for
the management and operation of a cable television network and
fulfils the prescribed eligibility criteria and conditions. Section 2(b)
defines cable service to mean the transmission by cables of
programmes including re-transmission by cables of any broadcast
television signals. Section 2(c) defines cable television network to
mean any system consisting of a set of closed transmission paths
and associated signal generation, control and distribution
equipment, designed to provide cable service for reception by
multiple subscribers. Section 2(i) defines subscriber to mean any
individual, or association of individuals, or a company, or any
other organization or body who receives the signals of cable
television network at a place indicated by him or it to the cable
operator, without further transmitting it to any other person.
Chapter II of the 1995 Act relates to regulation of cable
television network. Section 3 stipulates that no person shall
operate a cable television network unless he is registered as a cable
operator under the 1995 Act. Section 4 relates to registration as
cable operators and, under sub-section (1) thereof, any person who
is desirous of operating or is operating a cable television network
may apply for registration or renewal of registration, as a cable
operator, to the registering authority. Under sub-section (3)
thereof, on and from the date of issue of a notification under
Section 4-A, no new registration in a State, City, town or area
notified under that Section shall be granted to any cable operator
who does not undertake to transmit or re-transmit channels in an
encrypted form through a digital addressable system.
Section 4-A of the 1995 Act was substituted by Act 21 of
2011 with effect from 25.10.2011. Section 4-A(1), after its
substitution, stipulates that, where the Central Government is
satisfied that it is necessary in the public interest so to do, it may,
by notification in the Official Gazette, make it obligatory for every
cable operator to transmit or re-transmit programmes of any
channel in an encrypted form through a digital addressable system
with effect from such date as may be specified in the notification,
and different dates may be specified for different States, Cities,
towns or areas, as the case may be. Under the proviso thereto, the
dates specified in the notification shall not be earlier than six
months from the date of issue of such notification to enable the
cable operators, in different States, Cities, towns or areas, to install
the equipment required for the purposes of Section 4-A(1). Section
4-A(3) provides that, if the Central Government is satisfied that it is
necessary in the public interest so to do and if not otherwise
specified by the Authority, it may direct the Authority to specify, by
notification in the Official Gazette, one or more free-to-air channels
to be included in the package of channels forming the basic service
tier, and any one or more such channels may be specified, in the
notifications, genre-wise for providing a programme mix of
entertainment, information, education and such other
programmes, and fix the tariff for basic service tier which shall be
offered by the cable operators to the consumers, and the consumer
shall have the option to subscribe to any such tier. Under the
proviso thereto, the cable operator shall also offer the channels in
the basic service tier on a la carte basis to the subscriber at a tariff
specified under Section 4-A(3). Section 4-A(6) stipulates that the
cable operator shall not require any subscriber to have a receiver
set of a particular type to receive signals of cable television network.
Under the proviso thereto, the subscriber shall use a digital
addressable system to be attached to his receiver set for receiving
programmes transmitted on any channel.
Explanation (a) to Section 4-A stipulates that, for the
purposes of Section 4-A, addressable system means an electronic
device (which includes hardware and its associated software) or
more than one electronic device put in an integrated system
through which signals of cable television network can be sent in
encrypted form, which can be decoded by the device or devices,
having an activated Conditional Access System at the premises of
the subscriber within the limits of authorisation made, through the
Conditional Access System and the subscriber management
system, on the explicit choice and request of such subscriber, by
the cable operator to the subscriber. Explanation (b) defines basic
service tier to mean a package of free-to-air channels to be offered by
a cable operator to a subscriber with an option to subscribe for a
single price, to subscribers of the area in which his cable television
network is providing service. Explanation (c) defines encrypted, in
respect of a signal of cable television network, to mean the
changing of such signal in a systematic way so that the signal
would be unintelligible without the use of an addressable system,
and the expression “unencrypted” shall be construed accordingly.
Explanation (d) defines free-to-air channel, in respect of a cable
television network, to mean a channel for which no subscription
fee is to be paid by the cable operator to the broadcaster for its re-
transmission on cable. Explanation (e) defines pay channel, in
respect of a cable television network, to mean a channel for which
subscription fees is to be paid to the broadcaster by the cable
operator and due authorisation needs to be taken from the
broadcaster for its re-transmission on cable. Explanation (f)
defines subscriber management system to mean a system or device
which stores the subscriber records and details with respect to
name, address and other information regarding the hardware being
utilised by the subscriber, channels or bouquets of channels
subscribed to by the subscriber, price of such channels or
bouquets of channels as defined in the system, the activation or
deactivation dates and time for any channel or bouquets of
channels, a log of all actions performed on a subscribers record,
invoices raised on each subscriber and the amounts paid or
discount allowed to the subscriber for each billing period.
Chapter III of the 1995 Act relates to seizure and confiscation
of certain equipment. Section 11 relates to the power to seize
equipment used for operating cable television network and,
thereunder, if any authorised officer has reason to believe that,
among others, the provisions of Section 3 and Section 4-A have
been or are being contravened by any cable operator, he may seize
the equipment being used by such cable operator for operating the
cable television network. Chapter IV of the 1995 Act relates to
offences and penalties. Section 16 prescribes the punishment for
contravention of the provisions of the 1995 Act and, thereunder,
whoever contravenes any of the provisions of the 1995 Act shall be
punishable (a) for the first offence, with imprisonment for a term
which may extend to two years or with fine which may extend to
one thousand rupees or with both; and (b) for every subsequent
offence, with imprisonment for a term which may extend to five
years and with fine which may extend to five thousand rupees.
Section 17 relates to offences by companies and, under sub-section
(1) thereof, where an offence under the Act has been committed by
a Company, every person who, at the time the offence was
committed, was in charge of, and was responsible to, the company
for the conduct of the business of the company, as well as the
company, shall be deemed to be guilty of the offence and shall be
liable to be proceeded against and punished accordingly.
The Cable Television Networks Rules, 1994 (hereinafter
called the Rules) came into force on its publication in the Official
Gazette on 29.09.1994. Rule 2(c) defines Multi-System Operator to
mean a cable operator who has been granted registration under
Rule 11-C to receive programming service from a broadcaster or its
authorized agencies and re-transmit the same or transmit his own
programming service for simultaneous reception either by multiple
subscribers directly or through one or more local cable operators,
and includes his authorized distribution agencies, by whatever
name called. Rule 2(d) defines notified area to mean the area in
respect of which the date has been notified by the Central
Government under sub-section (1) of Section 4- of the Act.
Rule 3 relates to application for registration as a cable
television network in India, Rule 5 to the Registration of cable
operator, and Rule 5-A to the terms and conditions for registration.
Rule 5-B relates to deemed registration for transmission in
encrypted form in certain cases and thereunder where, in respect of
an area, a cable operator has already been registered and such
registration is valid as on the date when such area was notified
under 4-A(1), he shall be deemed to have been registered in respect
of such area for the remaining period of its validity. Under the
proviso thereto, such cable operator shall (i) transmit or re-transmit
programmes of any channels in an encrypted form through a
digital addressable system for the remaining period of the validity
of registration in such areas. Under the second proviso thereto
where such cable operator fails to do so, the registration, which is
so deemed to have been valid, shall stand cancelled with effect from
the date when such area is notified. Rule 11 relates to the grant of
permission to multi-system operators to provide cable services with
addressable systems in the notified area and, under sub-rule (1)
thereof, no multi-system operator shall provide cable television
network services with addressable systems in any one or more
notified areas without a valid permission from the Central
Government under Rule 11(3). Rule 11(5) stipulates that no multi-
system operator shall continue to provide any cable television
network services in the notified areas after the date notified therein,
without obtaining prior permission from the Central Government.
Rule 11-F relates to deemed registration of multi-system operators
in certain cases and, thereunder, no multi-system operator,
providing cable television network services in areas as on the date
when such areas are notified under Section 4A(1), shall, with effect
from the date specified in that notification, continue to provide
such services in such areas unless the operator is granted
registration under Section 11-C. Under the second proviso thereto,
the multi-system operator is required to furnish an undertaking to
the registering authority, at least thirty days prior to the notified
date of operation of the digital addressable system, namely that (a)
such operator shall transmit or re-transmit channels only in an
encrypted form through a digital addressable system in the notified
areas. Under the third proviso thereto, where such operator fails to
do so, the permission which is deemed to have been valid, shall,
with effect from the date when such area is notified, stand
cancelled. Rule 12 relates to public awareness, information
channels, price of channels, quality standards and grievance
redressal and, under sub-section (1) thereof, every broadcaster,
multi-system operator and cable operator shall create public
awareness among, and provide information to, the subscribers in
the notified areas from a period at least thirty days prior to the date
such areas are notified, either through advertisements in the print
and electronic media or through such other means including
leaflets, printing on the reverse of the receipts, personal visits,
group meetings with subscribers or consumer groups, cable service
and website, containing salient features of the digital addressable
cable system as approved by the Authority namely (a) a-la-carte
subscription rates and the periodic intervals at which such
subscriptions are payable for receiving the various channels; (b) the
refundable security deposit and the daily or monthly rental payable
for the set-top box and its detailed specifications such as the make,
model, technical specifications, user manuals and maintenance
centres; (c) the number and names of free-to-air channels that the
multi-system operator shall provide to the subscribers; (d) the
monthly service charge to be paid by each subscriber for receiving
the basic service tier fixed by the Authority and the number of
additional free-to-air channels, if any, offered by the Multi-System
Operator; (e) the Quality of Service Standards specified by the
Authority and the arrangements made by the multi-system
operator to comply with these standards; (f) the Subscriber
Management System established by the multi-system operator to
demonstrate the functioning of the set-top boxes, and to interact
with the subscribers to explain the various financial, logistic and
technical aspects of the system for its smooth implementation.
Rule 13 relates to supply and installation of set-top-boxes and,
under sub-Rule (1), every subscriber in the notified areas, who is
desirous of receiving one or more channels, may approach any one
of the multi-system operators who has been registered under Rule
11-C, either directly or through any of his linked local cable
operators, for the supply and installation of one or more set-top
boxes in his premises and deliver the requisite channels through
the same. Under the proviso thereto, every subscriber shall be free
to buy a set-top box of approved quality from the open market, if
available, which is technically compatible with the system of the
multi-system operator, and the multi-system operator or the cable
operator shall not force any subscriber to buy or to take on rent the
set-top box from him alone. Bearing the aforesaid provisions of
the 1995 Act and the Rules in mind, let us now examine whether
Section 4-A(1) of the 1995 Act, as amended by Act 21 of 2011,
prohibits transmission of signals in an analog form after
31.01.2017 in Phase III areas, or whether the local cable operator is
still entitled, notwithstanding the substitution of Section 4-A, to
transmit signals in an analog form so long as he also transmits
signals in an encrypted form.
V. DOES SECTION 4-A PROHIBIT TRANSMISSION OF ANALOG
SIGNALS:

Sri C. Ramachandra Raju, Learned Counsel for the
petitioner, would submit that Section 4-A of the 1995 Act, as
amended by Act 21 of 2011, does not prohibit transmission of
analog signals; while Section 4-A(1) makes it obligatory for every
cable operator to transmit signals through DAS, it does not bar
such an operator from, in addition, transmitting signals in an
analog form; the word only is missing in Section 4-A(1); absence
of the word only in Section 4A(1) of the 1995 Act makes it evident
that, while a cable operator is obligated to transmit signals through
DAS, it is open to him, if he so chooses, to also transmit signals in
an analog form; as Section 4-A is clear and unambiguous, a literal
construction should alone be adopted, and there is no need to take
the aid of any other rule of interpretation of statutes; Parliament
could have, if it intended to prohibit analog mode of transmission,
expressed its intention by stating that all cable T.V. operators
should transmit signals only in DAS; and, as Section 4-A does not
explicitly prohibit analog transmission, the impugned notice dated
22.12.1016 is illegal.
It is submitted, on behalf of the respondents, that Section 4-
A(1) makes it obligatory for signals to be transmitted only through
the digital addressable system giving a go-bye to the earlier analog
system; the provisions of the 1995 Act, as amended by the 2011
Act, must be read as a whole; a few words in Section 4-A(1), or in
explanation (a) thereto, cannot be read out of context to contend
that signals can be transmitted in an analog form in addition to
transmission through the digital addressable system; Section 4-
A(1) does not explicitly provide for transmission of signals in the
analog form; reference in explanation (a) to Section 4-A is to the
addressable system, and not to the mode of transmission; the choice
of the subscriber is only in terms of the addressable system i.e
within the set top box; the sun set clauses, in the Act and the
Rules, make it clear that, after the cut off date, analog form of
transmission should be brought to an end, and thereafter signals
can only be permitted to be sent in an encrypted form; the
provisions of the 1995 Act, when read as a whole, make it clear
that the analog system is required to be brought to an end; it is
evident from the proviso to Section 4-A(6) that, while a subscriber
can have a set top box of his choice, he has necessarily to use a set
top box attached to his receiver for receiving programmes
transmitted on any channel; it is compulsory for all subscribers to
have a set top box, and thereby receive signals only in an encrypted
form; the proviso to Section 4-A(6) is mandatory; Rule 5-B, which
relates to deemed registration, also makes it clear that, after the
licence period of one year, the local cable operator is obligated to
switch over to the digital addressable system, and to transmit
signals only in an encrypted form; different provisions of the 1995
Act cast an obligation on each of the service providers, (which
includes the Multi-System Operators, the local cable operators),
and the recipient of the services i.e. the subscriber; the obligation is
to transmit signals, for every channel, in an encrypted form by the
digital addressable system; the word obligate is another
expression for mandatory; and, as the Statute requires
transmission to be effected in an encrypted form, absence of the
word only will not change its meaning.
Section 4-A(1), as substituted by Act 21 of 2011, confers
power on the Central Government (a) if it is satisfied that it is
necessary in the public interest so to do, and (b) by notification in
the official gazette, to make it obligatory for every cable operator,
from a specified date, to transmit or retransmit programmes of any
channel in an encrypted form, through a digital addressable
system. While Section 4-A mandates transmission of programmes
of any channel in an encrypted form, the submission of Sri C.
Ramachandra Raju, Learned Counsel for the petitioner, is that
Section 4-A(1) does not use the word only; it is therefore open to a
cable operator to transmit programmes of any channel in an analog
form also, so long as he transmits programmes in an encrypted
form; and it would then be open to a subscriber to choose whether
he wishes to receive programmes in an analog form or in an
encrypted form.
Every statutory provision and every word used therein must
be looked at generally before any provision or word is attempted to
be construed. The setting and the pattern are important. It is again
important to remember that Parliament does not waste its breath
unnecessarily. Just as Parliament is not expected to use
unnecessary expressions, Parliament is also not expected to
express itself unnecessarily. Even as Parliament does not use any
word without meaning something, Parliament does not legislate
where no legislation is called for. Parliament cannot be assumed to
legislate for the sake of legislation; nor can it be assumed to make
pointless legislation. Parliament does not indulge in legislation
merely to state what it is unnecessary to state or to do what is
already validly done. Parliament may not be assumed to legislate
unnecessarily. (Utkal Contractors and Joinery (P) Ltd.4; A.
Manjula Bhashini5).
The legislative intent, in enacting Section 4-A(1), can be
ascertained not merely by construing the words used in the said
provision, but on a reading of relevant provisions of the 1995 Act
as a whole, the context and the subject mater of the provisions,
and its effect and consequences. A statute must be interpreted
having regard to the purport and object of the Act. The court must
place itself in the chair of a reasonable legislator. In so doing, it
would not be permissible for the court to construe the provisions in
such a manner which would destroy the very purpose for which
the same was enacted. (Krishna Kumar Birla v. Rajendra Singh
Lodha ). It is a cardinal principle of construction that the courts
must adopt a construction which would suppress the mischief and
advance the remedy. (A-One Granites v. State of U.P., ). It is the
duty of the court to further Parliament’s aim of providing a remedy
for the mischief against which the enactment is directed, and the
court should prefer a construction which advances this object
rather than one which attempts to find some way of circumventing
it. (Francis Bennion on Statutory Interpretation, 2nd Edn., p.
711; Reserve Bank of India v. Peerless General Finance and
Investment Co. Ltd., ). While Section 4-A(1) requires every cable
operator to transmit any channel in an encrypted form through a
digital addressable system, it does not explicitly permit or prohibit
analog transmission.
Sri C. Ramachandra Raju, Learned Counsel for the
petitioner, would commend a literal construction of Section 4-A(1),
and for the said provision to be interpreted independent of
explanation (a) thereto. We must express our inability to agree as
Section 4-A(1) uses the word digital addressable system and
explanation (a) thereto defines an addressable system. Further while
there is no explicit prohibition, Section 4-A(1) does not also
explicitly permit transmission of signals in an analog form. As
Section 4-A(1) is not clear and unambiguous, a literal construction
thereof is of no avail, and we must necessarily, resort to other aids
of statutory interpretation. Whether or not it can be inferred from
Section 4-A(1) that a cable operator can still continue to transmit
signals in an analog form, would require us to ascertain the
legislative intent, the purpose and object for which Section 4-A(1)
was substituted by Act 21 of 2011, and the mischief which was
sought to be remedied thereby.
Purpose is a subjective concept, and the interpreter should
imagine himself or herself in the legislator’s shoes. There are,
however, two elements of objectivity: First, the interpreter should
assume that the legislature is composed of reasonable people
seeking to achieve reasonable goals in a reasonable manner; and
second, the interpreter should accept the non-rebuttable
presumption that members of the legislative body sought to fulfil
their constitutional duties in good faith. This formulation allows
the interpreter to inquire not into the subjective intent of the
author, but rather the intent the author would have had, had he or
she acted reasonably. (Aharon Barak, Purposive Interpretation
in Law, (2007) at p. 87; New India Assurance Company Ltd. v.
Nusli Neville Wadia ; UCO Bank v. Rajinder Lal Capoor ; Union
of India v. Ranbaxy Laboratories Limited ; D. Purushotama
Reddy v. K. Sateesh ; Mahalakshmi Sugar Mills Company
Limited v. Union of India ).
The rule of purposive construction should be resorted to
which would require the construction of the Act in such a manner
so as to see that the object of the Act is fulfilled. (Ashoka
Marketing Ltd. v. Punjab National Bank ; Nusli Neville Wadia28;
Rajinder Lal Capoor29; Ranbaxy Laboratories Limited30; D.
Purushotama Reddy31; Mahalakshmi Sugar Mills Company
Limited32). The courts should, where possible, identify the
mischief which existed before the passing of the statute and then,
if more than one construction is possible, favour that which will
eliminate the mischief so identified. (Anderton v. Ryan ). The
Court must adopt that construction which, suppresses the
mischief and advances the remedy (Pawan Kumar v. State of
Haryana ).
The intention of the legislature must be found by reading the
statute as a whole. The court must ascertain the intention of the
legislature by directing its attention not merely to the clauses to be
construed but to the entire statute; it must compare the clause
with the other parts of the law, and the setting in which the clause
to be interpreted occurs. The rule is of general application as even
the plainest terms may be controlled by the context. The
expressions used in a statute should, ordinarily, be understood in
a sense in which they best harmonize with the object of the
statute, and which effectuate the object of the legislature. (Mor
Modern Cooperative Transport Society Ltd. v. Financial
Commissioner & Secretary to Govt. of Haryana ).
The Court must look at the statute as a whole and consider
the appropriateness of the meaning in a particular context avoiding
absurdity and inconsistencies or unreasonableness which may
render the statute unconstitutional. Where there exists some
ambiguity in the language or the same is capable of two
interpretations, the interpretation which serves the object and
purport of the Act must be given effect to. In such a case the
doctrine of purposive construction should be adopted. (Swedish
Match AB v. Securities & Exchange Board of India ; Nathi Devi
v. Radha Devi Gupta ). We shall, therefore, examine Section 4-
A(1) in the context of the other provisions of the 1995 Act, as also
the mischief which Act 21 of 2011 sought to remedy. As Section 4-
A(1) refers to addressable system which is defined in explanation (a),
it is useful to note the meaning of the words addressable system
therein.
VI. SCOPE OF EXPLANATION (a) TO SECTION 4-A:
Sri C. Ramachandra Raju, Learned Counsel for the
petitioner, would submit that explanation (a) to Section 4-A gives a
choice to the subscriber whether to receive transmission in an
analog form or in the DAS form; on the subscriber exercising his
choice, it is open to such of those cable operators, who are willing
to send signals in both DAS and analog forms, to provide signals of
the choice of the subscriber; the set top boxes contain both a
conditional access system and a subscriber management system;
this system is linked to the local cable operator and the multi-
system operator; the conditional access system unencrypts
encrypted signals; the subscriber management system deals with
the choice of the consumer regarding channels; both CAS & SMS
are integrated; the expression addressable system in Explanation (a)
defines not only an STB but also the transmission of DAS; a
combination of both CAS and SMS is called the STB; the function
of CAS is to decode encrypted signals, and provide subscribers
access to channels according to their choice through SMS; both
CAS and SMS are integrated and inseparable; the choice of the
subscriber is either to have an STB or not to have an STB;
whosoever choose DAS is required to have an STB, and whoever
chooses not to have DAS, and exercises his choice only for the
conventional analog system, need not have an STB; it is the choice
of the subscriber to have DAS or analog; as the analog system does
not require set top boxes, the subscriber can avoid incurring
needless expenditure in purchasing them, if he is satisfied with a
limited number of channels being made available through analog
transmission; the choice of the subscriber, under explanation (a) to
Section 4-A(1) of the 1995 Act, is a choice of the manner in which
signals should be transmitted i.e. either in analog form or through
DAS; the choice is not with respect to TV channels; there is no
reference either in Section 4-A(1) of the 1995 Act, or in explanation
(a) thereto, to TV channels; independent of Explanation (a), Section
4-A does not prohibit transmission through the analog system;
Explanation (a) only strengthens the construction placed on
Section 4-A; Section 4-A does not suffer from any deficiency; the
intention of Parliament, which is explicit in Section 4-A, is
reiterated in Explanation (a); the counter-affidavit is silent
regarding the choice available to the subscriber in terms of the
Explanation; as the contentions urged are mixed question of fact
and law, the counter-affidavit ought to have dealt with them; and
even if it is understood in the context of Explanation (a) thereto, as
Section 4-A(1) does not prohibit analog transmission, no specific
permission is required under the statute to transmit signals in the
analog form.
It is submitted, on behalf of the respondents, that Section 4-
A(1) should be construed in terms of explanation (a) thereto; while
in exceptional situations, an Explanation can be construed
independently, it is ordinarily construed only in terms of the main
provision; when Section 4-A(1) is read in the context of explanation
(a), it is evident that the transmission, required to be effected after
the 2011 amendment to the 1995 Act, and from the date notified
by the Central Government, is only in an encrypted form, and not
through the analog form of transmission of signals.
An addressable system is an electronic device, or more than
one electronic device, in an integrated system through which
signals of cable network can be sent in an encrypted form. The
encrypted signals would be decoded by the device (set top box),
having an activated conditional access system, at the premises of
the subscriber. Decoding of the encrypted signal by the device
(STB) is within the limits of authorisation made through the
conditional access system and the subscriber management system,
on the explicit choice and request of such subscribers. The words
on the explicit choice and request of such subscriber is used in the
definition of an addressable system in explanation (a) to Section 4-A.
The choice which the subscriber can exercise is only within the
addressable system itself, and not beyond. Since an addressable
system is an electronic device whereby signals are sent in an
encrypted form, the explicit choice and request of the subscriber is
not whether he should receive signals in an encrypted form or in
an analog form, as transmission of signals in the analog form falls
outside the addressable system. As explanation (a), whereby an
addressable system is defined, does not give a choice to the
subscriber, to choose between an analog form of transmission or
the encrypted form, the obligation cast on every cable operator by
Section 4-A(1) is only to transmit programmes of any channel in an
encrypted form through a digital addressable system (set top box).
When Section 4-A(1) is read along with explanation (a) thereto, it is
evident that the subscriber no longer has a choice to receive signals
in an analog form, but can receive signals only in an encrypted
form through a digital addressable system i.e. the set top box.
The submission that Section 4-A(1) must be read
independent of explanation (a) does not merit acceptance. An
Explanation, added to a statutory provision, is not a substantive
provision in any sense of the term but, as the plain meaning of the
word itself shows, it is merely meant to explain or clarify certain
ambiguities which may have crept in the statutory provision. The
object of an Explanation is to understand the provision in the light
of the explanation. It does not ordinarily enlarge the scope of the
original section which it explains, but only makes the meaning
clear beyond dispute. (S. Sundaram Pillai v. V.R. Pattabiraman ;
Sarathi in Interpretation of Statutes).
The object, of an Explanation to a statutory provision, is (a)
to explain the meaning and intendment of the Act itself; (b) where
there is any obscurity or vagueness in the main enactment, to
clarify the same so as to make it consistent with the dominant
object which it seems to subserve; (c) to provide an additional
support to the dominant object of the Act in order to make it
meaningful and purposeful; (d) an Explanation cannot in any way
interfere with or change the enactment or any part thereof but
where some gap is left which is relevant for the purpose of the
Explanation, in order to suppress the mischief and advance the
object of the Act, it can help or assist the Court in interpreting the
true purport and intendment of the enactment, and (e) it cannot,
however, take away a statutory right with which any person under
a statute has been clothed or set at naught the working of an Act
by becoming a hindrance in the interpretation of the same. (S.
Sundaram Pillai39; Hiralal Rattanlal v. State of U.P. ).
Sometimes an Explanation is appended to stress upon a
particular thing which, ordinarily, would not appear clearly from
the provisions of the Section. The proper function of an
Explanation is to make plain or elucidate what is enacted in the
substantive provision, and not to add or subtract from it. Thus an
Explanation does not either restrict or extend the enacting part; it
does not enlarge or narrow down the scope of the original Section
that it is supposed to explain. The Explanation must be
interpreted according to its own tenor, that it is meant to explain
and not vice versa. (S. Sundaram Pillai39; Swarup in Legislation
and Interpretation). It is with a view to explain the term
addressable system in Section 4-A(1), has the said term been defined
in explanation (a) thereto. Section 4-A(1) must necessarily be
understood in the light of explanation (a). When Section 4-A(1)
and explanation (a) are read together, it is evident that, after the
specified date, the cable operator is obligated to send signals only
in an encrypted form which a subscriber can receive only through
a digital addressable system (set top box).
The construction to be placed on Section 4-A(1) and
explanation (a) thereto is a pure question of law and not a mixed
question of fact and law. While the meaning of an ordinary word of
the English language is not a question of law, the proper
construction of the Statute is. (Revenue and Customs v. Premier
Foods Ltd. ). The question of what a word means in its context
within the Act is a question of legal interpretation and, therefore, of
law. The Court is required to arrive at the legal meaning of the
term. (Premier Foods Ltd.41; Benyon on Statutory
Interpretation, 3rd Edition, page 945 to 956; Brutus v.
Cozens ). The mere fact that the counter-affidavit does not refer to
the scope and ambit of Section 4-A(1) and explanation (a) thereto,
would not preclude us from examining its scope.

VII. DISTINCTION BETWEEN THE PRE-AMENDED AND
AMENDED SECTION 4-A AND THE DEFINITIONS IN THE
EXPLANATION THERETO:

Sri C. Ramachandra Raju, Learned Counsel for the
petitioner, would submit that the difference between the pre-
amended and the amended Section 4-A is only digitisation and
nothing else; the old Section 4-A also gave a choice to the
subscriber; both analog and DAS signals can co-exist; analog and
encrypted signals can be sent in the same cable, but in different
frequencies; and it is technically feasible to send both form of
signals in one single cable.
It is contended, on behalf of the respondents, that the
difference in language between Section 4-A, prior to its amendment
and after its amendment by the 2011 Act, makes it clear that the
requirement of sending signals in an encrypted form, which was
earlier limited only to pay channels, has now been extended to all
channels; while explanation (a) to the unamended Section 4-A uses
both the words encrypted and unencrypted form, the amended
explanation (a) only uses the word encrypted form; Parliament
intended to remedy the mischief which existed in the pre-amended
Section 4-A; in deleting the words unencrypted form from the
explanation, the legislative intent is evident; and it is to the effect
that signals should be transmitted only in an encrypted form.
The legislation is primarily directed to the problems before
the legislature based on information derived from past and present
experience. The legislative intention, i.e. the true or legal meaning
of an enactment, is derived by considering the meaning of the
words used in the enactment in the light of any discernible
purpose or object which comprehends the mischief and its remedy
to which the enactment is directed. (Ameer Trading Corpn. Ltd. v.
Shapoorji Data Processing Ltd., ; District Mining Officer v. Tata
Iron & Steel Co. ). Parliament intends that an enactment shall
remedy a particular mischief and it is therefore presumed that
Parliament intends that the Court, when considering, in relation to
the facts of the instant case, which of the opposing constructions of
the enactment corresponds to its legal meaning, should find a
construction which applies the remedy provided by it in such a
way as to suppress that mischief. (Ameer Trading Corpn. Ltd.43;
Halsbury’s Laws of England, Vol. 44(1), 4th Reissue, para 1474,
pp. 906-07). Parliament is presumed to have enacted a reasonable
statute. (Breyer, Stephen (2005): Active Liberty: Interpreting
Our Democratic Constitution, Knopf (Chapter on Statutory
Interpretation, p. 99 Reasonable Legislator Presumption;
Bharat Petroleum Corpn. Ltd. v. Maddula Ratnavalli ; Rajinder
Lal Capoor29).
When two interpretations are feasible, the Court will prefer
that which advances the remedy and suppresses the mischief as
the legislature envisioned. (Mor Modern Cooperative Transport
Society Ltd.36). Four things are to be discerned and considered:
(1). What was the common law before the making of the Act., (2).
What was the mischief and defect for which the common law did
not provide., (3). What remedy the Parliament hath resolved and
appointed to cure the disease; and (4). the true reason of the
remedy. Judges should always make such a construction as shall
suppress the mischief, and advance the remedy, and to suppress
subtle inventions and evasions for continuance of the mischief, and
pro privato commodo, and to add force and life to the cure and
remedy, according to the true intent of the makers of the Act, pro
bona publico. (Bengal Immunity Co. Ltd. v. State of Bihar ;
Parayankandiyal Eravath Kanapravan Kalliani Amma (Smt) v.
K. Devi ; K.P. Varghese6; Goodyear India Ltd. v. State of
Haryana ; Pawan Kumar35). It is not only legitimate, but highly
convenient to refer both to the former Act and to the ascertained
evils to which the former Act had given rise, and to the later Act
which provided the remedy. (Eastman Photographic Material
Company Ltd. v. Comptroller General of Patents, Designs and
Trade Marks ; In re Mayfair Property Company ; Bengal
Immunity Co. Ltd.46; Parayankandiyal Eravath Kanapravan
Kalliani Amma (Smt)47).
It is useful therefore to read Section 4-A, explanation (a)
thereto, and the definition of the words, basic services tier,
encrypted, free to air channel, and pay channel in the explanation
both before, and after, its amendment by Act 21 of 2011 in
juxtaposition with each other.

Before amendment
After amendment
Section 4-A. Transmission of
programmes through addressable
system, etc.
(1) Where the Central Government is
satisfied that it is necessary in the
public interest to do so, it may, by
notification in the Official Gazette,
make it obligatory for every cable
operator to transmit or retransmit
programme of any pay channel
through an addressable system with
effect from such date as may be
specified in the notification and
different dates may be specified for
different States, cities, towns or areas,
as the case may be.

Explanation.For the purposes of this
section,
(a) “addressable system” means an
electronic device or more than one
electronic devices put in an
integrated system through which
signals of cable television network
can be sent in encrypted or
unencrypted form, which can be
decoded by the device or devices at
the premises of the subscriber
within the limits of authorisation
made, on the choice and request of
such subscriber, by the cable
operator to the subscriber;

 

 

 

(b) “basic service tier” means a package
of free-to-air channels provided by a
cable operator, for a single price to the
subscribers of the area in which his
cable television network is providing
service and such channels are
receivable for viewing by the
subscribers on the receiver set of a type
existing immediately before the
commencement of the Cable Television
Networks (Regulation) Amendment Act,
2002 without any addressable system
attached to such receiver set in any
manner;
(d) “encrypted”, in respect of a signal of
cable television network, means the
changing of such signal in a systematic
way so that the signal would be
unintelligible without a suitable
receiving equipment and the
expression “unencrypted” shall be
construed accordingly;

(e) “free-to-air-channel”, in respect of a
cable television network, means a
channel, the reception of which would
not require the use of any addressable
system to be attached with the receiver
set of a subscriber;

(f) “pay channel”, in respect of a cable
television network, means a channel
the reception of which by the
subscriber would require the use of an
addressable system to be attached to
his receiver set.]

Section 4-A. Transmission of
programmes through digital
addressable systems, etc.-
(1) Where the Central Government is
satisfied that is necessary in the public
interest so to do, it may, by notification
in the Official Gazette, make it
obligatory for every cable operator to
transmit or re-transmit programmes
of any channel in an encrypted form
through a digital addressable system
with effect from such date as may be
specified in the notification and
different dates may be specified for
different States, cities, towns or areas,
as the case may be:

Explanation For the purposes of this
section,-
(a) addressable system means an
electronic device (which includes
hardware and its associated
software) or more than one
electronic device put in an
integrated system through which
signals of cable television network
can be sent in encrypted form, which
can be decoded by the device or
devices, having an activated
Conditional Access System at the
premises of the subscriber within
the limits of authorisation made,
through the Conditional Access
System and the subscriber
management system, on the explicit
choice and request of such
subscriber, by the cable operator to
the subscriber;

(b) basic service tier means a package
of free-to-air channels to be offered by a
cable operator to a subscriber with an
option to subscriber, for a single price
to subscribers of the area in which his
cable television network is providing
service;

 

 

 

(c) encrypted, in respectof a single of
cable television network, means the
changing of such signal in a systematic
way so that the signal would be
unintelligible without use of an
addressable system and the expression
unencrypted shall be construed
accordingly;

(d) free-to-air channel, in respect of a
cable television network, means a
channel for which no subscription fee
is to be paid by the cable operator to
the broadcaster for its re-transmission
on cable;

(e) pay channel, in respect of a cable
television network, means a channel
for which subscription fees is to be paid
to the broadcaster by the cable
operator and due authorisation needs
to be taken from the broadcaster for its
retransmission on cable.

 

If the legislative intention was not to distinguish, and while
stating can be sent in an encrypted form in explanation (a), as
amended by Act 21 of 2011, it was intended to convey the idea that
the signals of cable television network can be sent in encrypted or
unencrypted form, there would have been no necessity of expressing
the position differently. When the situation has been differently
expressed the legislature must be taken to have intended to express
a different intention. (CIT v. East West Import and Export (P)
Ltd., ).
The setting and context in which the words can be sent in
encrypted or uncrypted form and can be sent in encrypted form are used
in explanation (a) to the pre-amended and amended Section 4-A(1)
respectively would require the words can be sent in encrypted or
unencrypted form in pre-amended explanation (a) not to be
understood as can be sent in encrypted form in the amended
explanation (a) (Ahmedabad (P) Primary Teachers Assn. v.
Administrative Officer ) for, if both the expressions were to mean
the same, it would have sufficed to repeat the earlier expression
and not to delete the words or unencrypted in the amended
explanation (a). It is not a sound principle of construction to add
words in a statute, if they can have no appropriate application in
circumstances conceivable within the contemplation of the Statute.
(Aswini Kumar Ghose13).
In explanation (b) to Section 4-A, which defines a basic service
tier, the words, and such channels are receivable for viewing by the
subscribers on the receiver set of a type existing before the commencement of the
Cable TV net work (regulation) amendment Act without any addressable system
attached to such receiver set in any manner, are deleted in the said
definition after its substitution by the 2011 amendment. While the
pre-amended definition of a basic service tier expressly provided for
channels to be received in a receiver set without an addressable
system attached to it, (meaning thereby receipt of signals in an
analog form), deletion of these words in explanation (b), after the
2011 amendment, shows that this choice is no longer available to a
subscriber. Similarly the change in the language of the definition
encrypted (which was defined under explanation (c) prior to its
amendment, and in explanation (d) after its amendment by the
2011 Act) is significant. While the pre-amended definition of
encrypted used the words so that the signal would be unintelligible without
a suitable receiving equipment, the said definition, after its substitution
by the 2011 Act, has replaced the aforesaid words with the words
so that the signal would be unintelligible without use of an addressable system.
While the pre-amended definition refers to a suitable receiving
equipment, the amended definition refers only to an addressable
system, which can only mean an addressable system as defined in
explanation (a).
Likewise, the definition of free to air channel in explanation (e)
to Section 4-A of the pre-amended 1995 Act has been substituted
by explanation (d) pursuant to the 2011 amendment. The words
the reception of which would not require the use of any addressable system to be
attached with the receiver set of a subscriber has been deleted in the
definition of free to add channel in the amended explanation (d) and,
instead, it stipulates that no subscription fee is to be paid for such
transmission of channels by the cable operator to the broadcaster.
While the definition of a free to air channel before the 2011
amendment specifically stipulated that the use of an addressable
system, to be attached with the receiver set of a subscriber, was not
required, the deletion of these words in the definition, after its
amendment by Act 21 of 2011, shows that an addressable system
(set top box) is required even to view free to air channels. However,
no subscription fee need be paid for its re-transmission. The
change in the definition of a pay channel (under explanation (f) of
Section 4-A before the 2011 amendment, and explanation (e)
thereafter) is also significant. While the pre-amended definition of
a pay channel was a channel, reception of which, a subscriber
would require the use of an addressable system to be attached to
his receiver set, this requirement is deleted in the definition after
the 2011 amendment, evidently because an addressable system,
attached to the subscribers receiver set, is now required for all
channels both free to air and pay channels.
Different use of words in two provisions of a statute is for a
purpose. If the field of the two provisions were to be the same, the
same words would have been used. (Kailash Nath Agarwal v.
Pradeshiya Industrial & Investment Corpn. of U.P. Ltd., ; B.R.
Enterprises v. State of U.P., ). When two words of different
import are used in a statute, it would be difficult to maintain that
they are used in the same sense, and the conclusion must follow
that the two expressions have different connotations. (Member,
Board of Revenue v. Arthur Paul Benthall ). When the
legislature has taken care of using different phrases in different
Sections, normally different meaning is required to be assigned to
the language used by the legislature. If, in relation to the same
subject-matter, words of different import are used, there is a
presumption that they are not used in the same sense. (Arthur
Paul Benthall55; Oriental Insurance Co. Ltd. v. Hansrajbhai V.
Kodala ).
Applying the mischief rule it is clear that the substituted
Section 4(A) and its explanation now require all signals to be
transmitted only in an encrypted form through a digital
addressable system, and transmission of signals in an analog form
is no longer permissible.

VIII. PENAL PROVISIONS OF THE 1995 ACT AND RULE 11-F
OF THE RULES : ITS EFFECT:

Sri C. Ramachandra Raju, Learned Counsel for the
petitioners, would submit that second proviso (a) to Rule 11-F need
not be referred to, as the notifications issued by the Central
Government refer only to Section 4-A, and not to Rule 11-F; and
the penal provisions of the Act are attracted only to such cable TV
network operators who send analog signals alone, without also
sending encrypted signals under DAS.
It is submitted, on behalf of the respondents, that second
proviso (a) to Rule 11-F makes it clear that the operator is required
to transmit channels only in an encrypted form, through the
digital addressable system, in a notified area; the provisions of the
1995 Act, when read harmoniously with the Rules, make it clear
that signals can only be transmitted in a digital form, and not in
the analog form, after expiry of the date stipulated in the
notification issued by the Government of India; Sections 11, 16 (1)
and 17 provide for the consequences of violation of Section 4-A;
and if Section 4-A is to be read as permitting transmission through
the analog form, besides transmission in an encrypted form, it
would render these penal provisions redundant and nugatory.
For the purpose of interpreting Section 4-A, it is permissible
to read the Rules as if it were a part of the 1995 Act. The complex
demands on modern legislation necessitates the plenary legislating
body to discharge its legislative function by laying down broad
guidelines and standards, to lead and guide as it were, leaving it to
the subordinate legislating body to fill up the details by making
necessary rules and to amend the rules from time to time to meet
unforeseen and unpredictable situations, and within the
framework of the power entrusted to it by the plenary legislating
body. (State of T.N. v. M/s. Hind Stone etc. ). Rules framed,
under the provisions of a statute, form part of the statute. But
before a rule can have the effect of a statutory provision, two
conditions must be fulfilled, namely, (1) it must conform to the
provisions of the statute under which it is framed; and (2) it must
also come within the scope and purview of the rule making power
of the authority framing the rule. (General Officer Commanding-
in-Chief v. Subhash Chandra Yadav ; Judgment in The
Prudential Cooperative Bank Ltd. v. The A.P. Cooperative
Tribunal at MJ Market, Nampally, Hyderabad ).
A statutory rule, while ever subordinate to the parent statute,
is otherwise to be treated as part of the statute and as effective.
“Rules made under the Statute must be treated for all purposes of
construction or obligation exactly as if they were in the Act and are
to be of the same effect as if contained in the Act and are to be
judicially noticed for all purposes of construction or obligation
(State of U.P. v. Babu Ram Upadhya ; Maxwell: Interpretation of
Statutes, 11th Edition page 49-50; Hind Stone57).
As the provisions of the Act and the Rules are required to be
read harmoniously, it is necessary to also refer to the relevant rules
to consider whether the amendment brought to the 1995 Act by
Act 21 of 2011, and the Rules, prohibit transmission of signals in
an analog form. It is evident, from a reading of Rule 11(2) of the
Rules, that only a multi-system operator, who desires to provide
cable television network services with addressable system, is
entitled to apply for registration to the Central Government. Cable
network services with an addressable system can be provided only
in an encrypted form, and not by the analog form of transmission
of signals. The second proviso to Rule 11-F requires the multi-
system operator to furnish an undertaking to the registering
authority, among others, that he shall transmit or retransmit
channels only in an encrypted form through a digital addressable
system in the notified areas. The said undertaking would require
the multi-system operator to transmit signals only in an encrypted
form, to decript which a subscriber is required to have a set top
box. The word only in the second proviso (a) to Rule 11F clearly
rules out the multi-system operator being permitted to transmit
signals in an analog form, in addition to transmission of signals in
the encrypted/digitised form. The requirement of public awareness
being created regarding the salient features of the digitised
addressable cable system in Rule 12(1), and the requirement of
Rule 13(1) for every subscriber in the notified areas, who is
desirous of receiving one or more channels, to approach the multi-
system operators for supply and installation of one or more set top
boxes in his premises, make it clear that all channels, whether free
to air or pay channels can now be viewed by a subscriber only
through a set top box, and not directly from the local cable
operator through the analog mode of transmission or signals.
The aforesaid Rules show that, after the sun set date of
31.01.2017, transmission of signals in Phase III areas can only
made in an encrypted/digitised form of transmission of signals,
and not in the analog form. The power to seize equipment under
Section 11 of the 1995 Act, and the penal provisions in Section 16
and 17, when read in conjunction with Section 4-A(1) and
explanation (a) thereto, make it amply clear that failure to transmit
signals in the encrypted/digitised form through the digital
addressable system, after the sunset date of 31.01.2017, would
render cable operators, in Phase III areas, liable for penal action
under Section 16 and 17 or for their equipment to be seized under
Section 11 of the 1995 Act.
IX. DO SECTION 4-A(1) AND EXPLANATION (a) THERETO
RELATE ONLY TO THE CHOICE OF CHANNELS

Sri C. Ramachandra Raju, Learned Counsel for the
petitioner, would submit that there is no reference, in Explanation
(a) to Section 4-A, to channels; the choice of channels is dealt with
separately in Section 4-A(3), 4-A(4) and 4-A(5); and Section 4-A(6)
and its proviso apply only to those subscribers who use DAS, and
not to those subscribers who choose analog form of transmission.
It is contended, on behalf of the respondents, that the words
choice and request of such subscriber in explanation (a) to Section 4-A
relate only to the choice of channels by the subscriber, and not to
the form of transmission of signals or to receipt of signals either in
an encrypted form or in an analog form; Section 4-A(3) and its
proviso shows that the option available to a consumer is whether to
have a tier of channel or a la carte; if digital addressable system
was not to be made compulsory, the requirement of Rule 12(1)
would become unnecessary; the choice of channels, available to a
subscriber, is regulated through the subscriber management
system which is available with the Multi-System Operators, and is
integrated into the set top box; and the choice of the subscriber
relates only to the channels sent in an encrypted form.
As noted hereinabove, the explicit choice and request of the
subscriber is referred to in the definition of an addressable system,
which can only mean that the choice or request, which the
subscriber can make, must be within the limits of the addressable
system, and not outside it. Section 4(3) stipulates that, on a
notification being issued under Section 4-A, no new registration
shall be granted to any cable operator who does not undertake to
transmit or re-transmit channels in an encrypted form through a
digital addressable system. The proviso to Section 4-A(6) obligates
the subscriber to use the digitable addressable system, to be
attached to the receiver set, for receiving programme transmitted on
any channel which can only mean both the free to air channel and
the pay channel. This rules out the subscriber exercising his
choice regarding receipt of signals through the analog form of
transmission. Section 4-A(4) confers power on the Central
Government to specify the number of free to air channels to be
included in the package of channels forming the basic service tier
which, in terms of explanation (b), means the package of free to air
channels to be offered to the subscriber for the exercise of his option
to subscribe for a single price. As both free to air channels and pay
channels are now required to be transmitted only through a
digitable addressable system, and such transmission requires the
subscriber to have a set top box attached to his Television set, it is
evident that the choice, which a subscriber can exercise, is only
with regards channels within the limits of the addressable system,
and not a choice regarding the mode of transmission of signals i.e.,
either in the analog or the encrypted form. The mere fact that
explanation (a) does not specifically refer to channels does not
necessitate the conclusion that the choice which a subscriber is
entitled to exercise is regarding the mode of transmission of signals
in an analog form or a digitised form, as the analog form of
transmission of signals is outside the addressable system and not
within it.
X. CONCLUSION:

Viewed from any angle, the impugned notice issued by the
Government of India dated 22.12.2016, prohibiting transmission of
signals in an analog form in phase III areas beyond the sunset date
of 31.01.2017, does not fall foul of Section 4-A(1) of the 1995 Act
as amended by Act 21 of 2011. The challenge, to the validity of the
said notice dated 22.12.2016, must therefore fail. The Writ Petition
is, accordingly, dismissed. However, in the circumstances, without
costs. The miscellaneous petitions pending, if any, shall also stand
dismissed.
________________________________
(RAMESH RANGANATHAN, ACJ)
_____________________________
(DR. SHAMEEM AKTHER, J)
Date: 01.06.2017

Posted in Uncategorized

“Orphanage or Places for Child Abuse”. – orphanages in Mahabalipuram in Tamil Nadu, run by NGOs as well as government institutions were reportedly involved in systematic sexual abuse of children. A sting operation indicated that sexual services of children were being provided to foreigners as well as Indian tourists and that the rates of children whose sexual services were being taken were fixed over telephone or in a meeting at the orphanage. = children in need of care and protection we leave these issues open for consideration and grant liberty to the learned Amicus to move an appropriate application in this regard including any application for modification or clarification of the directions given above. The Union of India is directed to communicate our directions to the concerned Ministry or Department of each State and Union Territory for implementation and to collate necessary information regarding the implementation of these directions with the assistance of the National Commission for the Protection of Child Rights and the State Commission for the Protection of Child Rights. A status report in this regard should be filed in this Court on or before 15thJanuary, 2018. The Registry will list this case immediately thereafter.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 102 OF 2007
Re: Exploitation of Children in Orphanages
in the State of Tamil Nadu
….Petitioner

versus

Union of India & Ors.
….Respondents

J U D G M E N T

Madan B. Lokur, J.

1. This writ petition was taken up on the basis of an article published
in the Hindi newspaper “Hindustan” (Lucknow Edition) on 4thJuly, 2007. The
article was written by Ms. Anjali Sinha and the translated caption of the
article is “Orphanage or Places for Child Abuse”. The article was
forwarded to this Court by one A.S. Choudhury along with a letter and that
is the genesis of this petition which was registered as a Public Interest
Litigation (PIL) on 10th September, 2007. Ms. Aparna Bhat was appointed as
Amicus Curiae to assist this Court. At the outset we must and do
acknowledge the unstinting and excellent efforts put in by Ms. Aparna Bhat
over the last 10 years in rendering assistance in this matter.

2. Broadly, the article written by Ms. Anjali Sinha mentions that
orphanages in Mahabalipuram in Tamil Nadu, run by NGOs as well as
government institutions were reportedly involved in systematic sexual
abuse of children. A sting operation indicated that sexual services of
children were being provided to foreigners as well as Indian tourists and
that the rates of children whose sexual services were being taken were
fixed over telephone or in a meeting at the orphanage.

3. It is further stated that in a program organized by the State
Commission for Women in Tamil Nadu, representatives of the National
Commission for Women participated and it was acknowledged that government
schools have become unsafe for girl students due to sexual abuse. The
incident of an eight year old girl who was harassed by her Principal was
mentioned and it was noted that the Principal was only transferred out by
way of punishment. Another incident was mentioned where the school teacher
misbehaved with students in the presence of other students in a closed
room.

4. The then Ministry of Family and Child Welfare along with UNICEF
brought out a report on the condition of children in which it was reported
that 53% of children suffered from sexual abuse. Children were reported to
be the subject of institutional abuse as well as by relatives.

5. On these broad facts Ms. Anjali Sinha suggested that the problem of
sexual abuse of children especially in government institutions has become a
serious problem and requires immediate redressal. She made some
suggestions including a Counseling Cell in each school where children are
taught how to recognize abuse and providing a complaint mechanism
accessible to children in case of any such incident.

Proceedings in this Court

6. Over the years, this Court passed several orders and also mentioned
that certain other issues such as trafficking of children, schools being
occupied by Central Para Military Forces and the right to education
guaranteed to children require consideration. In other words, this Court
sought to expand the scope of this PIL to include the rights of children in
general.
7. In an order passed on 7th February, 2013 the learned Additional
Solicitor General and the learned Amicus submitted that the main reason for
this Court issuing various orders is to ensure that the provisions for the
rights of children as well as provisions for proper facilities to children
in education as also health are implemented. It was submitted that
obviously the rights of children can be adequately secured only if the
monitoring and controlling provisions contained in statutes relating to
children such as The Commissions for Protection of Child Rights Act, 2005,
The Right of Children to Free and Compulsory Education Act, 2009, The
Protection of Children from Sexual Offences Act, 2012 and The Juvenile
Justice (Care and Protection of Children) Act, 2000 are fully implemented.
8. A detailed order was passed by this Court on 16th December, 2013
lamenting that despite the directions issued, little or no progress was
made by the States in protecting the rights of children. As far as the
Commissions for the Protection of Child Rights are concerned, they exist
only on paper since in some cases the Chairperson had not been appointed or
the Members had not been appointed or no rules and regulations had been
framed. This Court observed that the lackadaisical manner in which the
States and the Union Territories had responded to the rights of children
made it necessary to draw attention to the constitutional rights guaranteed
to children. It was observed that the inaction of the States was in the
teeth of the directions given by this Court and additionally the States and
Union Territories ought to realize that they have to operate in accordance
with the provisions of the Constitution of India.

9. Accordingly, specific information was sought from each State and
Union Territory regarding efforts made by the respective governments.
Affidavits were filed by the States and Union Territories from time to time
as an attempt to respond to the questions raised by this Court regarding
action taken by the concerned governments in protecting the rights of
children as well as implementation of the statutes mentioned above. The
responses were disheartening then and the situation has not changed
substantially even after almost a decade since this Court took cognizance
of the matter. Progress, if any, has been marginal. Unfortunately, it
appears that the governments of some of the States and Union Territories
have little remedial or pro-active concern for children.

10. On 20thMarch, 2015 this Court raised the need for a social audit in
terms of Rule 64 of the Juvenile Justice (Care and Protection of Children)
Rules, 2007 and the utilization of funds given to the States and Union
Territories under the Integrated Child Protection Scheme.

11. On 17thApril, 2015 this Court raised the issue of a concurrent
monitoring audit under the Integrated Child Protection Scheme as well as
the establishment of Juvenile Justice Boards, Child Welfare Committees,
Special Juvenile Police Units, functioning of Child Care Institutions and
functioning of adoption agencies.

12. On 31stJuly, 2015 at the instance of the learned Amicus, the issue of
formulating Child Care Plans was discussed in addition to laying down a
policy for conducting social audits. On 28th August, 2015, the issue of
vacancies in the National Commission for the Protection of Child Rights was
raised by this Court. On 30thOctober, 2015 the format for social audits
was discussed, in the context of finalizing something workable and
pragmatic.

13. Since it appeared that there was a lack of seriousness and more
tragically a lack of empathy towards the well being and welfare of children
amongst some of the States and Union Territories and complete apathy with
respect to the disturbingly increasing instances of child sexual abuse,
often by someone in a position of authority and ineffective implementation
of the laws passed by Parliament virtually making parliamentary legislation
irrelevant, we heard detailed submissions of all the parties with the
intention of passing appropriate directions so as to ensure the meaningful
implementation of the statutes already enacted by Parliament. It must be
appreciated that the Juvenile Justice (Care and Protection of Children)
Act, 2015 is a medium for the State to honour the Directive Principles of
State Policy particularly under Article 39(f) of the Constitution by giving
opportunities to children to develop in a healthy manner and in conditions
of freedom and dignity. Indeed, though the Directive Principles of State
Policy are fundamental to the governance of the country, they are not
enforceable However, as held in Bandhua Mukti Morcha v. Union of India,
once a directive principle is enforced through law the State must be
obligated to enforce the statute to uphold its constitutional
obligation.[1]

14. In this context, it is pertinent to note that India acceded to the
Convention on the Rights of the Child (CRC) on the 11th December, 1992.
Article 19 of the CRC obligates the State Parties to “take all appropriate
legislative, administrative, social and educational measures to protect the
child from all forms of physical or mental violence, injury or abuse,
neglect or negligent treatment, maltreatment or exploitation, including
sexual abuse….”

15. Keeping all this in mind, the learned Amicus focused on three
principal issues namely (1) Children in need of care and protection; (2)
Trafficked children (3) Street children. We do not propose to consider the
plight of trafficked or street children, since that would mean losing focus
on the issues raised by Ms. Anjali Sinha. We leave open the issues of
trafficked children and street children for consideration in an appropriate
case.

16. On the rights of children in need of care and protection it was
submitted that issues relating to child care institutions whether managed
by the State Government or by NGOs or other voluntary organizations need to
follow certain minimum standards of care and in addition, rehabilitation
of such children must be a priority.

Children in need of care and protection

17. Who is a child in need of care and protection? The provisions of the
Protection of Children from Sexual Offences Act, 2012 (for short the ‘POCSO
Act’) do not provide any definition of a child in need of care and
protection. But no one can deny that a child victim of sexual abuse or
sexual assault or sexual harassment is a child in need of care and
protection. Similarly in a given case,a child accused of an offence and
brought before the Juvenile Justice Board or any other authority might also
be a child in need of care and protection.

18. Even though a child in need of care and protection is defined in
Section 2(14) of the Juvenile Justice (Care and Protection of Children)
Act, 2015 (hereinafter referred to as the JJ Act) the definition does not
specifically include some categories of children. Consequently, we are of
the view that since the JJ Act is intended for the benefit of children and
is intended to protect and foster their rights, the definition of a child
in need of care and protection must be given a broad interpretation. It
would be unfortunate if certain categories of children are left out of the
definition, even though they need as much care and protection as categories
of children specifically enlisted in the definition. Beneficial
legislations of the kind that we are dealing with demand an expansive view
to be taken by the Courts and all concerned.

19. In Workmen v. Management of American Express International Banking
Corporation[2] this Court held in paragraph 4 of the Report that:

“The principles of statutory construction are well settled. Words occurring
in statutes of liberal import such as social welfare legislation and human
rights’ legislation are not to be put in Procrustean beds or shrunk to
Liliputian dimensions. In construing these legislations the imposture of
literal construction must be avoided and the prodigality of its
misapplication must be recognised and reduced.”

20. A similar view was expressed in Regional Director, ESI Corporation.
v. Francis De Costa[3] when it was observed that “It is settled law that to
prevent injustice or to promote justice and to effectuate the object and
purpose of the welfare legislation, broad interpretation should be given,
even if it requires a departure from literal construction.”

21. The necessity of giving a purposeful interpretation to a provision in
a statute was recognized in MSR Leathers v. S. Palaniappan[4] when this
Court observed that:

“…..one of the salutary principles of interpretation of statutes is to
adopt an interpretation which promotes and advances the object sought to be
achieved by the legislation, in preference to an interpretation which
defeats such object. This Court has in a long line of decisions recognised
purposive interpretation as a sound principle for the courts to adopt while
interpreting statutory provisions.”

A similar view was expressed, though in a different context, in Badshah v.
Urmila Badshah Godse.[5] A far more detailed discussion on the subject is
to be found in the Constitution Bench decision of this Court in Abhiram
Singh v. C.D. Commachen.[6]

22. Read in this light, the definition of a child in need of care and
protection given in Section 2(14) of the JJ Act should be given a broad and
purposeful interpretation – it ought not to be treated as exhaustive but
illustrative and furthering the requirements of social justice. This
understanding would also be in consonance with Article 40 of the CRC which
stipulates that the “State Parties shall recognize rights of every child
accused of an offence and treatment of such a child shall be in a manner
consistent with promotion of the child’s dignity and worth”.

23. Learned Amicus drew our attention to decisions rendered by some
High Courts which have taken a broad based approach to the meaning of a
child in need of care and protection and some other High Courts that have
adopted a comparatively narrow interpretation. These decisions were
rendered in the context of the Juvenile Justice (Care and Protection) Act,
2000 and would not really be applicable insofar as the JJ Act is concerned.
However, this does not detract from her submission that a child in need of
care and protection must be given a wider meaning and in addition to some
children in conflict with law as discussed above, it must also include
victims of sexual abuse or sexual assault or sexual harassment under the
POCSO Act as also victims of child trafficking. Such children must also be
given protection under the provisions of the JJ Act being victims of crime
under the POCSO Act and the Immoral Traffic (Prevention) Act, 1956.
Child care institutions

24. Children in need of care and protection are given shelter in homes
that are managed by the State Government or by NGOs or by voluntary
organizations. In this context, it is necessary to draw attention to
Section 41 of the JJ Act which mandates, notwithstanding anything contained
in any other law for the time being in force, that all institutions,
whether run by a State Government or by voluntary organizations or NGOs
which are meant, either wholly or partially, for housing children in need
of care and protection shall be registered under the JJ Act in such manner
as may be prescribed within six months of the commencement of the said Act.
The JJ Act came into force on 15th January, 2016 but we were informed that
the process of registration is underway and not yet complete.
25. In this day and age when high quality technology is available and
there is no shortage of manpower in the country we are unable to appreciate
why the provisions of Section 41 of JJ Act have not yet been fully
implemented particularly as regards registration of child care
institutions. It is virtually impossible to find out what is going on
within its four walls. The article by Ms. Anjali Sinha is a prime example
of what can happen in child care institutions. It is not clear from the
article whether all the institutions referred to were registered or not,
but surely the government run institutions must have been registered or
licensed. Therefore, if activities of the nature mentioned by Ms. Anjali
Sinha in her article are carried out in government run institutions, one
can only imagine what possibly can go wrong in unregistered institutions,
which are managed beyond the law.

26. Apart from their registration, the statute requires quite a few
salutary actions to be taken by such institutions including recording the
residential capacity and purpose of the child care institution. Rule 21 of
the Juvenile Justice (Care and Protection of Children) Model Rules, 2016
(hereinafter referred to as the Model Rules) specifies the manner of
registration of child care institutions and provides, inter alia, the
availability of the bye-laws and memorandum of association, office bearers
etc. of such institutions. The State Government is obligated to consider an
application for registration of a child care institution (in Form 27) in
light of aspects like whether provision exists for the care and protection
of children, their health, education, boarding and lodging facilities,
vocational studies and rehabilitation (among others things). It is only
then that a certificate of registration can be issued. The State Government
is also obligated to conduct an inspection of an applicant institution and
it appears to us that if such an inspection is faithfully and sincerely
carried out, it will reveal the dark underbelly, if any, of a dubious child
care institution such as those referred to by Ms. Anjali Sinha. The
strict implementation of the provisions of the JJ Act will go a long way in
making the life of children in such child care institutions safer and far
more comfortable than it has been and also reduce the possibility of crimes
such as trafficking, sexual abuse or sexual assault or sexual harassment of
children. If the registration of child care institutions is not complete,
their management obviously cannot be supervised. Therefore, a misstep in
the very first stage could have a chain reaction and perhaps disastrous
consequences in some cases as is evident from the incidents of child abuse
in institutions as brought out by Ms. Anjali Sinha.

Minimum Standards of care
27. Article 3 of the CRC mandates that all actions concerning children
undertaken by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies shall have the best
interest of the children as a primary consideration. Article 3(3) of the
CRC specifically obligates the State Parties to ensure that institutions
responsible for care and protection of children shall conform to standards
laid down by competent authorities, particularly in areas of safety,
health, staff and supervision. However, the minimum standards of care
prescribed for institutions cannot be ensured if the child care institution
is not identified and registered.
28. In this regard it is necessary to draw attention to the provisions of
Chapter VI of the Model Rules particularly the series of rules starting
from Rule 26 onwards. Amongst other things, these Rules deal with the
staffing pattern of child care institutions, physical infrastructure,
clothing, bedding, toiletries and other articles, sanitation and hygiene,
daily routine, nutrition and diet scale, medical health, mental health,
education, vocational and recreational facilities and genuine efforts in
the rehabilitation and re-integration of such children into society. All
these requirements are rendered unenforceable in the absence of
registration of child care institutions.
29. The Integrated Child Protection Scheme, which also concerns itself
with the minimum standards of care in child care institutions, refers to
several of these requirements and also draws attention to the
rehabilitation programme of children and their recreation. The minimum
standards of care prescribed for child care institutions must be adhered to
in letter and spirit and not only on paper.
30. We have been given to understand by the learned Amicus that
unfortunately, even in registered child care institutions, many of the
statutory facilities and requirements are missing. If that be so, we can
only imagine the living conditions of children in unregistered
institutions.

31. In a given case, failure to maintain a basic or minimum standard of
care can be actionable as negligence. In Jacob Mathew v. State of Punjab[7]
this Court cited Charlesworth & Percy on Negligence[8] and held that the
essential components of negligence are: (1) the existence of a duty to take
care, which is owed by the defendant to the complainant; (2) the failure to
attain that standard of care, prescribed by the law, thereby committing a
breach of such duty; and (3) damage, which is both causally connected with
such breach and recognized by the law, has been suffered by the
complainant. Effectively therefore, if the officers of the State do not
ensure that minimum standards of care are followed in the child care
institutions, they could well be guilty of negligence. Since ours is a
welfare State it would be difficult for uncaring officers to absolve
themselves of a charge of negligence and also perhaps of a violation of the
human rights of children.

Utilization of grants
32. During the course of hearing, we found that many of the Model Rules
though workable and beneficial, exist only on paper and there has been no
serious attempt to implement the provisions or the requirements under the
Integrated Child Protection Scheme. One of the concerns that kept coming
up as an excuse for non-implementation of the Rules was a so-called
shortage of funds. We are surprised that such an excuse was advanced even
though a large amount allocated towards child welfare is lying unspent.

33. Really therefore, the problem is not a lack of funds but the absence
of a will to gainfully utilize the available grants. In this context,
learned Amicus brought to our notice by way of an example, the statement of
expenditure under the Integrated Child Protection Scheme for the year 2013-
14. This indicates that the unspent grant is over Rs.3000 lakhs. (This
figure does not include unspent amounts by the State of Andhra Pradesh and
the State of Uttarakhand). Therefore, it cannot be said that there is a
shortage of funds. The chart brought on record is as follows:-

|Year-wise details of unspent grants |
|Sl. No. |Name of the State|Unspent |
| | |(Amount in |
| | |Lakhs) |
| | |2013-14 |
|1 |Andhra Pradesh |2999.28* |
|2 |Arunachal Pradesh|147.05 |
|3 |Assam |148.47 |
|4 |Bihar |442.14 |
|5 |Chhattisgarh |0.00 |
|6 |Goa |- |
|7 |Gujarat |545.23 |
|8 |Haryana |238.92 |
|9 |Himachal Pradesh |138.10 |
|10 |Jammu & Kashmir |- |
|11 |Jharkhand |147.21 |
|12 |Karnataka |57.94 |
|13 |Kerala |291.52 |
|14 |Madhya Pradesh |1084.67 |
|15 |Maharashtra |0.00 |
|16 |Manipur |473.13 |
|17 |Meghalaya |0.00 |
|18 |Mizoram |0.00 |
|19 |Nagaland |0.00 |
|20 |Orissa |2.63 |
|21 |Punjab |749.37 |
|22 |Rajasthan |253.33 |
|23 |Sikkim |50.36 |
|24 |Tamil Nadu |589.22 |
|25 |Tripura |0.00 |
|26 |Uttar Pradesh |99.92 |
|27 |Uttarakhand |333.92* |
|28 |West Bengal |268.95 |
|29 |Andaman & Nicobar|- |
| |Island | |
|30 |Chandigarh |25.17 |
|31 |Dadra & Nagar |9.63 |
| |Haveli | |
|32 |Daman & Diu |58.63 |
|33 |Delhi |676.68 |
|34 |Lakshadweep |- |
|35 |Puducherry |- |
|Total | |6498.27 |
* States have not submitted their Statement of Expenditure
(SOE)

We are told that the same situation continued for subsequent years as well.

34. No doubt, it is the constitutional obligation of the State to ensure
that for safeguarding and fostering the rights of children, adequate funds
are available particularly for children who are in need of care and
protection. The State cannot conflate non-availability of funds to shirk
their obligations with inefficient utilization of grants. We are pained
that such an excuse is being trotted out.

National and State Commissions

35. Parliament has, of course, appreciated the need for protecting the
rights of children in many of the ways that we have mentioned above and
that is why the Commissions for Protection of Child Rights Act, 2005 was
enacted. In fact the Preamble to the said Act is extremely significant and
brings into focus not only the necessity of protecting the rights of
children generally but also as a part of our obligations to the
international community. The Preamble to the Commissions for Protection of
Child Rights Act, 2005 (hereinafter referred to as ‘the CPCR Act’) reads as
follows:
“An Act to provide for the constitution of a National Commission and State
Commissions for Protection of Child Rights and Children’s Courts for
providing speedy trial of offences against children or of violation of
child rights and for matters connected therewith or incidental thereto.
WHEREAS India participated in the United Nations (UN) General Assembly
Summit in 1990, which adopted a Declaration on Survival, Protection and
Development of Children;
AND WHEREAS India has also acceded to the Convention on the Rights of the
Child (CRC) on the 11th December, 1992;
AND WHEREAS CRC is an international treaty that makes it incumbent upon the
signatory States to take all necessary steps to protect children’s rights
enumerated in the Convention;
AND WHEREAS in order to ensure protection of rights of children one of the
recent initiatives that the Government have taken for Children is the
adoption of National Charter for Children, 2003;
AND WHEREAS the UN General Assembly Special Session on Children held in May
2002 adopted an Outcome Document titled “A World Fit for Children”
containing the goals, objectives, strategies and activities to be
undertaken by the member countries for the current decade;
AND WHEREAS it is expedient to enact a law relating to children to give
effect to the policies adopted by the Government in this regard, standards
prescribed in the CRC, and all other relevant international instruments;”

36. To fulfill the obligations to children, the CPCR Act provides for the
constitution of a National Commission for Protection of Child Rights (for
short ‘the NCPCR’) and for the constitution of State Commissions for
Protection of Child Rights (for short ‘the SCPCR’). These Commissions are
intended to function under the provisions of the CPCR Act and their vast
range of functions has been delineated in Section 13 as well as in Section
24 of the CPCR Act.

37. It was pointed out by the learned Amicus that the NCPCR and the SCPCR
can play a very crucial role in fostering child rights. This deserves to
be recognized, but is unfortunately overlooked both by the Union Government
as well as by the State Governments. She pointed out that there are a
large number of vacancies in many of these bodies and in fact the NCPCR
was, at one time, without any Chairperson for more than a year. Some of
the State Governments have also not bothered to fill up the vacancies in
the SCPCR and some others have used the SCPCR as a sinecure for some
favourites. This again, as pointed out, is nothing but providing lip
service to the provisions of a parliamentary legislation and not giving
serious attention to the constitutional rights of children. This is
certainly not acceptable.

38. Similarly, in the implementation of the POCSO Act, the NCPCR and the
SCPCR have a vital role to play. As mentioned above, issues of sexual abuse
or sexual assault or sexual harassment complained of by Ms. Anjali Sinha
need attention and Section 44 of the POCSO Act places a great burden on the
shoulders of the NCPCR and the SCPCRs. These authorities have an obligation
to monitor the implementation of the POCSO Act as is evident from Section
44 thereof which reads as follows:

“44. Monitoring of implementation of Act – (1) The National Commission for
Protection of Child Rights constituted under Section 3, or as the case may
be, the State Commission for Protection of Child Rights constituted under
Section 17, of the Commissions for Protection of Child Rights Act, 2005 (4
of 2006), shall, in addition to the functions assigned to them under that
Act, also monitor the implementation of the provisions of this Act in such
manner as may be prescribed.

(2) The National Commission or, as the case may be, the State Commission,
referred to in sub-section (1), shall, while inquiring into any matter
relating to any offence under this Act, have the same powers as are vested
in it under the Commissions for Protection of Child Rights Act, 2005 (4 of
2006).

(3) The National Commission or, as the case may be, the State Commission,
referred to in sub-section (1), shall, also include, its activities under
this section, in the annual report referred to in Section 16 of the
Commissions for Protection of Child Rights Act, 2005 (4 of 2006).”

39. In our opinion, it is imperative that the NCPCR and the SCPCR be
allowed to function in terms of the CPCR Act and the POCSO Act and only for
the benefit of children. These Commissions are under an obligation to take
action wherever necessary including approaching the Constitutional Courts
wherever necessary. These Commissions are under an obligation to prepare
annual reports and if necessary special reports but it has been pointed out
that this requirement has hardly been implemented mainly because of a lack
of interest that these Commissions have shown in functioning under the
statute and also partly because of the large number of vacancies in these
Commissions.

40. This is not to suggest that the NCPCR or the SCPCRs are not doing a
good job. On the contrary, the NCPCR has of late begun taking its statutory
obligations quite seriously and there are a few SCPCRs that are also
faithfully performing their functions under the relevant statutes. On the
other hand, there are some SCPCRs that are not performing well at all or
are defunct and headless. It is difficult to appreciate how, under these
circumstances, the JJ Act or the POCSO Act can at all be implemented, let
alone implemented effectively.

41. Needless to say, it is obligatory on the part of the Union Government
as well as of the State Governments to ensure that the provisions of laws
enacted by Parliament are faithfully and sincerely implemented and the
statutory Commissions constituted under the provisions of the CPCR Act must
be allowed to function as independent statutory bodies under the provisions
of the said Act, the POCSO Act as well as the JJ Act.

42. The rule of law includes adherence to parliamentary legislation by
all concerned including State Governments and the Union Government and it
would be extremely unfortunate if the concerned governments voluntarily and
knowingly flout the provisions of law solemnly enacted by Parliament. We
need say nothing more on this subject, except that laws solemnly enacted by
Parliament cannot be insulted by putting hurdles in the effective
functioning of these Commissions, such as by not appointing the Chairperson
or Members.

Rehabilitation and social re-integration

43. With regard to the future of children in need of care and protection,
the JJ Act contains obligatory provisions such as Section 53 which deals
with rehabilitation and social re-integration services in child care
institutions. This provision requires the State to take care of the basic
requirements of children in such institutions including children with
special needs, legal aid where required and more importantly assistance in
obtaining proof of identity. There have been instances brought to our
notice where children;particularly in the case of abandoned children, are
unable to give any information about their parentage or permanent address
etc. In such cases, proof of identify is crucial for the welfare of the
child, otherwise he or she is reduced to a mere statistic.

44. The provision for rehabilitation and re-integration services has
several facets and cannot be read in isolation but must be read, inter
alia, in conjunction with Section 54 of the JJ Act which requires the
inspection of child care institutions registered under the said Act.
Inspection Committees are required to be set up which shall mandatorily
visit all facilities housing children in the area allocated, at least once
in three months in a team of not less than three members, of whom at least
one shall be a woman and one shall be a medical officer. Their Inspection
Reports are required to be furnished to the District Child Protection Unit
or the State Government, as the case may be, for further action. Form 46
of the Model Rules prepared under Rule 41 thereof is quite exhaustive and
if the Form is filled up with due seriousness it will go a long way in
improving the living conditions of children in child care institutions.

45. The importance of rehabilitation and social re-integration clearly
stands out if we appreciate the objective of the JJ Act which is to foster
restorative justice. There cannot be any meaningful rehabilitation,
particularly of a child in conflict with law who is also a child in need of
care and protection unless the basic elements and principles of restorative
justice are recognized and practised.

46. Unfortunately, one of the problems faced in introducing restorative
justice is that a child in a child care institution is treated as a number
and no effort is made to introduce any individual child care plan
postulated by Rule 19 of the Model Rules read with Form 7. Learned Amicus
informed us that the Form is very rarely filled up (if at all) and little
or no attention is paid to the needs of each child including a child in
conflict with law. She submitted that specific directions should be given
for the preparation of individual child care plans in every child care
institution since that is really the heart of rehabilitation and social re-
integration of a child in need of care and protection. Of course, some
expertise is involved in this exercise but as we had mentioned earlier,
there is no shortage of manpower in our country and it is only the will of
the State Governments, Union Territories and the Union Government which is
coming in the way of the effective implementation of the provisions of the
JJ Act, Model Rules and filling up various Forms and their analysis.

Training of personnel

47. One of the more important issues raised by the learned Amicus in the
context of rehabilitation and social re-integration is to be found in Rule
89 of the Model Rules which concerns itself with training of personnel
dealing with children. This rule provides for a minimum period of 15 days
training to various categories of personnel under the JJ Act including the
staff of Children’s Courts, Principal Magistrates and Members of Juvenile
Justice Boards, Chairpersons and Members of Child Welfare Committees,
Police Officers including persons in charge of child care institutions etc.
Rule 89 of the Model Rules also postulates that the Judicial Academy and
the Police Academy in the States as well as the State Legal Services
Authorities prepare appropriate training modules, training manuals and
provide training to personnel. It was pointed out by the learned Amicus
that this rule is being followed more in the breach and there is hardly any
Judicial Academy or Police Academy or State Legal Services Authority which
conducts 15 days training programmes. This is quite unfortunate to say the
least.

48. The importance of quality training can best be understood by giving a
negative example, which is that unless proper training is imparted to the
concerned personnel, it is quite possible that strange practices and
procedures may evolve due to the absence of proper guidance. It has been
brought to our notice in cases of adoption of children some extremely
unusual and impracticable orders have been passed by the concerned Courts.
It is high time that the High Courts exercise their supervisory
jurisdiction and intervene and take appropriate remedial steps. It is also
high time that training of personnel be given due importance. We may note
here that it was brought to our attention by the learned Amicus that
untrained or inadequately trained personnel can unwittingly play havoc with
the lives of victims of sexual abuse or sexual assault or sexual
harassment.

De-institutionalization

49. In the context of rehabilitation and social re-integration, it was
submitted before us that institutionalization of children is not
necessarily the only available option. This submission of the learned
Amicus also finds support in Article 20 of the CRC. The Article obligates
the State Parties to provide special protection and assistance to children
temporarily or permanently deprived of family environment. The Article
illustrates alternate care in the form of foster placement, adoption “or if
necessary placement in suitable institution”. It is clear that the first
option exercised by the authorities should not be institutionalization of a
child in need of care and protection and the same is a measure of the last
resort. Article 40(4) of the CRC pertaining to children accused of
violating the law also states that the State Parties shall ensure “care,
guidance, supervision, counseling, probation, foster care, education and
vocational training and other alternatives to institutional care”. Indeed,
in keeping with the spirit of the CRC, the JJ Act itself encourages
alternatives to institutionalization such as adoption (Chapter VIII),
foster care (Section 44) and Sponsorship (Section 45). This too needs some
serious thought, as submitted by the learned Amicus.

50. The learned Additional Solicitor General brought to our notice that
the Union Government has since framed the Adoption Regulations, 2017 as
well as the Model Guidelines for Foster Care, 2016. These need to be
implemented by all concerned including the Courts, particularly those
dealing with issues of adoption. However, as mentioned above, training in
the understanding and appreciation of the JJ Act, the Model Rules,
Regulations and Guidelines is imperative and merely handing over copies of
these documents to the concerned personnel even if they are judicial
officers or police officers or government functionaries is not enough.
Some sort of training is absolutely necessary so that the aims and objects
of the various statutory provisions enacted for the benefit of children and
to foster their rights are implemented in letter and spirit.

51. We must emphasize, at this stage that it is absolutely necessary for
all stakeholders having interest in the welfare of children to work
together towards a common goal. This teamwork would include not only the
government machinery but also the police, civil society and the judiciary.

Juvenile Justice Committee

52. That the judiciary is not far behind in fulfilling its constitutional
responsibilities is obvious from the fact that the rather slack
implementation of the Juvenile Justice (Care and Protection of Children)
Act, 2000 even after four years of its enactment, compelled the Chief
Justice of India to request all the High Courts to set up a Juvenile
Justice Committee to ensure effective implementation of the said Act and
monitor the activities under the said Act. The High Courts have a
constitutional obligation to ensure that the rights of all citizens,
including children, as guaranteed under the Constitution are preserved,
protected and respected. With this in mind, all the High Courts have since
set up a Juvenile Justice Committee consisting of Judges of the High Court
and these Committees ensure that the provisions of the Act are implemented
in letter and spirit. For better co-ordination on issues relating to
children, some High Courts have also provided a Secretariat for the
Juvenile Justice Committee.

53. With the passage of time, it has been realized that the importance of
the Juvenile Justice Committee in the High Court cannot be overemphasized.
It is time for all of us to now realize that judges are no longer required
to remain in an ivory tower. Judges of all the Courts including the
Constitutional Courts have non-judicial duties and obligations to perform
so that the fundamental rights of the people are respected. It is this
realization that led the Constitutional Courts to exercise jurisdiction in
social justice issues through Public Interest Litigation and it is this
that requires judges of the Courts to ensure access to justice under the
Legal Services Authorities Act, 1986 to indigent people and those who
cannot afford legal services due to financial or other constraints. It is
very much in keeping with this constitutional obligation and goals that the
concern and involvement of each Juvenile Justice Committee in the effective
implementation of the Act is an absolute necessity. It is equally the
obligation of the concerned officials of the State, including the police,
to render all assistance to each Juvenile Justice Committee to ensure that
the goals envisaged by the JJ Act and the constitutional vision are
successfully achieved in the shortest possible time.

Social audit

54. For the purposes of ensuring that the implementation of the JJ Act is
proceeding in the right direction, it is necessary that a social audit be
conducted every year. Social audits give reasons for introspection as well
as for improvement in the services.

55. Social audit has gained relevance as a tool of public accountability.
It has been defined as “an assessment of a department’s non financial
objectives through systematic and regular monitoring on the basis of the
views of its stakeholders.”[9] A social audit is considered novel as it is
supposed to serve as a supplement to a conventional Government Audit, often
done in 12 month cycles generating an audit report every time.[10] In fact,
in the Report of the Task Group on Social Audit by the Office of the
Comptroller and Auditor General, it was opined that social audit be brought
into the mainstream of auditing by the Indian Audit and Accounts Department
as an essential process and tool in all the performance audits of social
sector programmes as they afford an opportunity to strengthen the micro
level scrutiny of the programme planning, implementation and
monitoring.[11]

56. The requirement of a social audit is necessary not only for purposes
of introspection but also transparency and accountability in the effective
implementation of the JJ Act. There cannot be any reason to avoid
conducting social audits, more particularly since they have been encouraged
by the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 as well
as by the Integrated Child Protection Scheme, by the Comptroller and
Auditor General of India and the National Food Security Act, 2013. The
impression given to us is that for some inexplicable reason the Union
Government is shying away from social audits.

57. In the hearing on 17th April, 2015, the learned Additional Solicitor
General informed us that no social audit was carried out despite the rule
being notified in 2007. The Union of India was then directed to finalize a
policy for conducting social audits. In the hearing on 30th October, 2015
we were informed that the formats for social audit have been more or less
finalized. In its affidavit filed sometime in November 2015, the Union of
India has annexed copies of Model Social Audit Formats for Child Welfare
Committees, Juvenile Justice Boards, Special Juvenile Police Units,
Children Homes, Specialized Adoption Agencies, Open Shelter/Shelter Homes,
Observation Homes and Special Homes. It is stated in the affidavit that
these formats will be circulated for pilot testing by selected States as
mentioned in an earlier affidavit dated 29th October, 2015.

58. We have not been informed whether any steps have been taken to
conduct social audits in terms of the Model Formats prepared by the Union
of India or the result of the pilot testing, if any. It is therefore
necessary to ensure that these formats are tested out with urgency so that
the implementation of the JJ Act is made more meaningful.

Technology and computers

59. We have been given to understand that there is no data base of all
the child care institutions in the country. State Governments have not even
validated the available data or undertaken the mapping of child care
institutions in collaboration with the Union Government. This is an
essential first step since it is difficult to imagine how children in child
care institutions can be cared for if there is no record of the number of
institutions, number of children in such institutions, relevant information
regarding the children etc. Therefore technology can be put to good use for
collection, revision and access of records of children in need of care and
protection and the child care institutions.

60. It is imperative for the Union Government as well as the State
Governments to make out a complete list of all child care institutions
along with their addresses and the person in charge or the principal
officer as well as full details of the children residing in these child
care institutions. Learned Amicus submitted that all these details,
though necessary, are not available with the Union Government or the NCPCR.
Availability of all this information is possible only with the use of
technology and a massive computerization program.

61. Similarly, for the effective functioning of the Juvenile Justice
Boards as well as the Child Welfare Committees, it is necessary that they
should be equipped with computers and printers along with uninterrupted
power supply units so that their day to day functioning can be taken care
of. Learned Amicus pointed out that perhaps this may be asking for too
much since she has received complaints to the effect that very often
stationery is not available with the Child Welfare Committees or the
Juvenile Justice Boards and an appropriate requisition has to be made to
the State Government or the local authority, which is leisurely processed.
In our opinion if this submission were to be accepted it would indicate a
very sorry state of affairs in which the Juvenile Justice Boards and the
Child Welfare Committees are made to function. This step-child attitude
cannot be permitted to continue since these statutory bodies are vital for
having necessary supervision over child care institutions within their
jurisdiction.

Directions

62. In view of the above discussion, the following directions are issued:

The definition of the expression “child in need of care and protection”
under Section 2(14) of the JJ Act should not be interpreted as an
exhaustive definition. The definition is illustrative and the benefits
envisaged for children in need of care and protection should be extended to
all such children in fact requiring State care and protection.

The Union Government and the governments of the States and Union
Territories must ensure that the process of registration of all child care
institutions is completed positively by 31st December, 2017 with the entire
data being confirmed and validated. The information should be available
with all the concerned officials. The registration process should also
include a data base of all children in need of care and protection which
should be updated every month. While maintaining the database, issues of
confidentiality and privacy must be kept in mind by the concerned
authorities.

The Union Government and the governments of the States and Union
Territories are directed to enforce the minimum standards of care as
required by and in terms of the JJ Act and the Model Rules positively on or
before 31st December, 2017.

The governments of the States and Union Territories should draw up plans
for full and proper utilization of grants (along with expenditure
statements) given by the Union Government under the Integrated Child
Protection Scheme. Returning the grants as unspent or casual utilization
of the grants will not ensure anybody’s benefit and is effectively wasteful
expenditure.

It is imperative that the Union Government and the governments of the
States and Union Territories must concentrate on rehabilitation and social
re-integration of children in need of care and protection. There are
several schemes of the Government of India including skill development,
vocational training etc which must be taken advantage of keeping in mind
the need to rehabilitate such children.

The governments of the States and Union Territories are directed to set up
Inspection Committees as required by the JJ Act and the Model Rules to
conduct regular inspections of child care institutions and to prepare
reports of such inspections so that the living conditions of children in
these institutions undergo positive changes. These Inspection Committees
should be constituted on or before 31st July, 2017 and they should conduct
the first inspection of the child care institutions in their jurisdiction
and submit a report to the concerned government of the States and Union
Territories on or before 31st December, 2017.

The preparation of individual child care plans is extremely important and
all governments of the States and Union Territories must ensure that there
is a child care plan in place for every child in each child care
institution. While this process may appear to be long drawn and
cumbersome, its necessity cannot be underestimated in any circumstances.
The process of preparing individual child care plans is a continuing
process and must be initiated immediately and an individual child care plan
must be prepared for each child in each child care institutions on or
before 31st December, 2017.

Wherever the State Commission for Protection of Child Rights has not been
established or though established is not fully functional in the absence of
a Chairperson or any one or more Members, the governments of the States and
Union Territories must ensure that all vacancies are filled up with
dedicated persons on or before 31st December, 2017. The SCPCRs so
constituted must publish an Annual Report so that everyone is aware of
their activities and can contribute individually or collectively for the
benefit of children in need of care and protection.
The training of personnel as required by the JJ Act and the Model Rules is
essential. There are an adequate number of academies that can take up this
task including police academies and judicial academies in the States. There
are also national level bodies that can assist in this process of training
including bodies like the Bureau of Police Research and Training, the
National Judicial Academy and others including established NGOs. Wherever
possible training modules should be prepared at the earliest.

It is time that the governments of the States and Union Territories
consider de-institutionalization as a viable alternative. It is not
necessary that every child in need of care and protection must be placed in
a child care institutions. Alternatives such as adoption and foster care
need to be seriously considered by the concerned authorities.

The importance of social audits cannot be over-emphasized. The necessity
of having a social audit has been felt in some statutes which have been
mentioned above and also by the Comptroller and Auditor General of India.
That being the position, it is imperative that the process of conducting a
social audit must be taken up in right earnestness by the National
Commission for the Protection of Child Rights as well as by each State
Commission for the Protection of Child Rights. This is perhaps the best
possible method by which transparency and accountability in the management
and functioning of child care institutions and other bodies under the JJ
Act and Model Rules can be monitored and supervised.

While the Juvenile Justice Committee in each High Court is performing its
role in ensuring the implementation of the JJ Act and Model Rules, there is
no doubt that each Committee will require a small Secretariat by way of
assistance. We request each Juvenile Justice Committee to seriously
consider establishing a Secretariat for its assistance and we direct each
State Government and Union Territory to render assistance to the Juvenile
Justice Committee of each High Court and to cooperate and collaborate with
the Juvenile Justice Committee in this regard.

We acknowledge the contribution made by Ms. Aparna Bhat in taking keen
interest in the issues raised in this PIL and for rendering effective
assistance to this Court at all times. The Supreme Court Legal Services
Committee will give an honorarium of Rs. 2 lakhs to Ms. Aparna Bhat out of
the funds available for juvenile justice issues.

While there may be some other issues specifically concerning children in
need of care and protection we leave these issues open for consideration
and grant liberty to the learned Amicus to move an appropriate application
in this regard including any application for modification or clarification
of the directions given above.

The Union of India is directed to communicate our directions to the
concerned Ministry or Department of each State and Union Territory for
implementation and to collate necessary information regarding the
implementation of these directions with the assistance of the National
Commission for the Protection of Child Rights and the State Commission for
the Protection of Child Rights. A status report in this regard should be
filed in this Court on or before 15thJanuary, 2018. The Registry will list
this case immediately thereafter.
………………………J
(Madan B. Lokur)
………………………J
May 5 , 2017 (Deepak Gupta)
New Delhi;
———————–
[1]

[2](1984) 3 SCC 161
[3]

[4](1985) 4 SCC 71
[5]

[6]1993 Supp (4) SCC 100
[7]

[8](2013) 1 SCC 177
[9]

[10](2014) 1 SCC 188
[11]

[12](2017) 2 SCC 629
[13]

[14](2005) 6 SCC 1
[15]

[16]10th Edition (2001)
[17]

[18]Social Audit: A Toolkit, A Guide for Performance Improvement and
Outcome Measurement available at
https://cgg.gov.in/publicationdownloads2a/Social%20Audit%20Toolkit%20Final.p
df.
[19]

[20] Ibid
[21]

[22]Report of the Task Group on Social Audit, Office of the
Comptroller and Auditor General of India, (2010) at pg 5

Posted in Uncategorized

Land acquisition Act- In the matter on hand, none of the parties have led oral evidence in support of their respective cases. However, certified copies of the two Sale Deeds are available on record which came to be produced by the parties before the Reference Court. The Sale Deed dated 24.01.1974 relied upon by the appellants depicts the price of one bigha of the property sold through the said sale deed was at Rs. 7,000/-, whereas the respondents relied upon the certified copy of Sale Deed dated 19.03.1971 which shows that the land therein was sold at the rate of Rs. 2,000/- per bigha under the said Sale Deed.-Though the Reference Court as well as the High Court have assigned valid reasons for not relying upon the Sale Deed dated 24.01.1974 relied upon by the claimants, have erred in ignoring to consider the Sale Deed dated 19.03.1971 produced by the respondents. The Reference Court as well as the High Court have merely observed, in the course of the judgment, that certified copy of such Sale Deed is produced by the respondents, but no further discussion was made as to why the said Sale Deed was not considered.- we do not find any reason to ignore the Sale Deed produced by the respondents in support of their case. As mentioned supra, the Sale Deed dated 19.03.1971 is in respect of 11 bighas and 10 biswas of land situated in the village Roshan Pura. As per the said Sale Deed, the price per bigha of the land involved therein would be about Rs. 2000/-. Prima facie, the land in question as well as the land covered under the Sale Deed dated 19.03.1971 are approximately having the similar dimension and are situated in the same village i.e. Roshan Pura. The respondents being the beneficiaries under the acquisition have themselves relied upon the Sale Deed dated 19.03.1971 as the sole basis to oppose the prayer of the claimants. Some sort of guess work is necessary while determining compensation for the land acquired. One has to perceive from the view point of the prudent purchaser. As the acquisition is of the year 1973, we do not wish to remit the matter to Reference Court. Having regard to the totality of the facts and circumstances of the matter, in our considered opinion, the compensation may be determined relying upon the Sale Deed dated 19.03.1971 particularly when there is no other reliable material on record. Since the land under the said Sale Deed dated 19.03.1971 was valued at a sum of Rs. 2,000/- per bigha, and as the land in question was acquired in the year 1973, the compensation can be determined by adding 15% of the value of the sale consideration per year keeping in mind the escalation in price of the lands day by day. Normally 15% escalation is taken, per year by this Court in recent times while quantifying compensation. Thus, the claimants would be entitled to Rs. 2,600/- per bigha.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5630 of 2017
(Arising out of S.L.P. (Civil) No.14272 of 2015)

Jage Ram (D) Thr. Lrs. ….Appellant(s)

Versus

Union of India & Anr.
…..Respondent(s)

WITH

CIVIL APPEAL NO. 5631 of 2017
(Arising out of S.L.P. (Civil) No.14277 of 2015)

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.
The appellants are owners of the land to an extent of ½ share in
Khasra No. 46 (4-08), 462 (4-16), 463 (4-14), totally measuring 13 bighas
18 biswas situated in revenue estate of Village Roshan Pura, New Delhi.
The land was acquired for the public purpose of construction of Sub-
Divisional Office. The Land Acquisition Collector passed the Award bearing
no. 45/78-79, awarding compensation at the rate of Rs. 2,200/- per bigha
along with statutory benefits such as solatium, interest etc. as provided
under the Land Acquisition Act, 1894.

1. The appellants, being dissatisfied with the quantum of compensation
awarded by the Land Acquisition Collector, filed petition under Section 18
of the Land Acquisition Act. The said petition came to be dismissed by the
Reference Court/Additional District Judge, Delhi on 04.10.2005 in LA Case
No. 896 of 1993. The appellants further approached the High Court of Delhi
by filing LA.A.No.34/2006 and L.A.A.No.35-54/2006 which also came to be
dismissed. The appellants are aggrieved by the award of the Land
Acquisition Collector, Award passed by the Reference Court as well as by
the judgment of the High Court.

2. Mr. Arvind K. Sharma, the learned counsel for the
claimants/appellants submitted that the Reference Court as well as the High
Court were not justified in ignoring the Sale Deed dated 24.01.1974
produced by the claimants in respect of the land measuring 4 bighas and 16
biswas situated adjoining Chhawla Gurgaon Road in village Roshan Pura,
Delhi which depicts that the price per bigha was about Rs.7,000/-.
According to him, though no relevant evidence is adduced by the parties
including the claimants, the aforementioned certified copy of the sale deed
could be sufficient evidence in support of the case of the claimants for
getting higher compensation.

3. Per contra, Ms. Garima Prashad, learned counsel for the respondents
argued that the Land Acquisition Collector has sufficiently compensated the
claimants in respect of the acquired land therefore, the Reference Court as
well as the High Court were justified in dismissing the contention of the
claimants for enhanced compensation.

4. In the matter on hand, none of the parties have led oral evidence in
support of their respective cases. However, certified copies of the two
Sale Deeds are available on record which came to be produced by the parties
before the Reference Court. The Sale Deed dated 24.01.1974 relied upon by
the appellants depicts the price of one bigha of the property sold through
the said sale deed was at Rs. 7,000/-, whereas the respondents relied upon
the certified copy of Sale Deed dated 19.03.1971 which shows that the land
therein was sold at the rate of Rs. 2,000/- per bigha under the said Sale
Deed.

5. Though the Reference Court as well as the High Court have assigned
valid reasons for not relying upon the Sale Deed dated 24.01.1974 relied
upon by the claimants, have erred in ignoring to consider the Sale Deed
dated 19.03.1971 produced by the respondents. The Reference Court as well
as the High Court have merely observed, in the course of the judgment, that
certified copy of such Sale Deed is produced by the respondents, but no
further discussion was made as to why the said Sale Deed was not
considered.

6. We do not want to burden this judgment by reiterating the reasons
assigned by the Reference Court as well as the High Court while refusing to
rely on the Sale Deed dated 24.01.1974 produced by the claimants
particularly when we find that the courts have on facts justified in doing
so. We also find that there is no evidence to show the similarity in
location/situation of the acquired land vis-à-vis the land which is the
subject matter of the Sale Deed dated 24.01.1974. Moreover, the land
involved in the Sale Deed dated 24.01.1974 is relatively very small piece
of land having dimension to the extent of 1/4th of the land in question.
While awarding the compensation for the acquired land, the Court must take
into account several factors including fertility, yield, nature of soil,
comparative sale statistics, its present use, its capacity for the higher
potential, the precise location, potentiality to use for non-agricultural
purposes, the use to which the land was put, its’ proximity to develop as
urban area etc. etc. It is also to be borne in mind the special value
which ought to be attached in respect of the special advantages, if any,
possessed by the land. In the matter on hand unfortunately, no such
evidence was let in by the claimants to show that the land covered under
Sale Deed dated 24.01.1974 is having the similar characteristics as the
land in question. Therefore, both the Courts below have rightly not relied
upon the Sale Deed dated 24.01.1974 while coming to the conclusion.

7. Learned counsel for the appellants relied upon the judgment in the
case of Suresh Prasad @ Hari Kishan & Ors. Vs. Union of India & Ors. (Civil
Appeal No. 1726 of 2015 decided on 18.3.2015) wherein this Court has fixed
compensation of Rs. 22,00,000/- (Rupees twenty two lakhs only) per acre in
respect of the land acquired under Acquisition Notification issued on
5.8.2003. The land involved in the said matter was of village Masoodabad.
The said judgment cannot be relied upon in the matter on hand, as much as,
in the present matter, the Notification issued was of the year 1973 and
whereas the Notification issued in the case of Suresh Prasad was in the
year 2003 i.e. almost 30 years later. Moreover, the land involved in the
Suresh Prasad’s case is situated in village Masoodabad which is stated to
be about 5 K.Ms. far from village Roshan Pura wherein the land to be
compensated is situated in this matter. In the case of Suresh Prasad,
the Land Acquisition Collector had determined compensation of Rs.15.70
lakhs per acre and the same was enhanced to Rs.24 lakhs by this Court. The
compensation determined in the case of Suresh Prasad was purely based on
the facts of that case and there is nothing on record to show that the land
involved in Suresh Prasad’s case was having the same characteristics as the
land in the present matter.

8. However, we do not find any reason to ignore the Sale Deed produced
by the respondents in support of their case. As mentioned supra, the Sale
Deed dated 19.03.1971 is in respect of 11 bighas and 10 biswas of land
situated in the village Roshan Pura. As per the said Sale Deed, the price
per bigha of the land involved therein would be about Rs. 2000/-. Prima
facie, the land in question as well as the land covered under the Sale Deed
dated 19.03.1971 are approximately having the similar dimension and are
situated in the same village i.e. Roshan Pura. The respondents being the
beneficiaries under the acquisition have themselves relied upon the Sale
Deed dated 19.03.1971 as the sole basis to oppose the prayer of the
claimants. Some sort of guess work is necessary while determining
compensation for the land acquired. One has to perceive from the view
point of the prudent purchaser. As the acquisition is of the year 1973, we
do not wish to remit the matter to Reference Court. Having regard to the
totality of the facts and circumstances of the matter, in our considered
opinion, the compensation may be determined relying upon the Sale Deed
dated 19.03.1971 particularly when there is no other reliable material on
record. Since the land under the said Sale Deed dated 19.03.1971 was
valued at a sum of Rs. 2,000/- per bigha, and as the land in question was
acquired in the year 1973, the compensation can be determined by adding 15%
of the value of the sale consideration per year keeping in mind the
escalation in price of the lands day by day. Normally 15% escalation is
taken, per year by this Court in recent times while quantifying
compensation. Thus, the claimants would be entitled to Rs. 2,600/- per
bigha.

9. Accordingly, these appeals are allowed. The compensation is
enhanced from Rs. 2,200/- to Rs. 2,600/- per bigha. It is needless to
state that the claimants are entitled to all the statutory benefits such as
solatium, interest etc. in accordance with law.

10. There shall be no order as to costs.
……………………….J (Dipak
Misra)
……………………………..J
(A.M. Khanwilkar)

………………………J
(Mohan M. Shantanagoudar)

New Delhi
Dated: May 04, 2017

Posted in Uncategorized

Whether the subsequent purchasers/assignees/power of attorney holders, etc., have locus standi to file a petition for a declaration of lapse of acquisition proceedings under Section 24(2) of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as “the 2013 Act”), is the only issue arising for consideration in these cases.=Thus, the subsequent purchaser, the assignee, the successor in interest, the power of attorney, etc., are all persons who are interested in compensation/land owners/affected persons in terms of the 2013 Act and such persons are entitled to file a case for a declaration that the land acquisition proceedings have lapsed by virtue of operation of Section 24(2) of the 2013 Act. It is a declaration qua the land wherein indisputably they have an interest and they are affected by such acquisition. For such a declaration, it cannot be said that the respondents/writ petitioners do not have any locus standi.- In the peculiar facts and circumstances of these cases, the appellants are given a period of six months to exercise its liberty granted under Section 24(2) of the 2013 Act for initiation of the acquisition proceedings afresh.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6112 OF 2017
(Arising out of S.L.P.(C) No. 13551 of 2015)
GOVT. OF NCT OF DELHI … APPELLANT (S)
VERSUS

MANAV DHARAM TRUST AND ANOTHER … RESPONDENT (S)

WITH

CIVIL APPEAL NO. 6113 OF 2017
(Arising out of S.L.P.(C) No.14802 of 2015),

CIVIL APPEAL NO. 6115 OF 2017
(Arising out of S.L.P.(C) No.15451 of 2015),

CIVIL APPEAL NO. 6118 OF 2017
(Arising out of S.L.P.(C) No.15454 of 2015),

CIVIL APPEAL NO. 6120 OF 2017
(Arising out of S.L.P.(C) No.16995 of 2015),

CIVIL APPEAL NO. 6123 OF 2017
(Arising out of S.L.P.(C) No.17006 of 2015),

CIVIL APPEAL NO. 6128 OF 2017
(Arising out of S.L.P.(C) No.17248 of 2015),

CIVIL APPEAL NO. 6131 OF 2017
(Arising out of S.L.P.(C) No.17740 of 2015),

CIVIL APPEAL NO. 6134 OF 2017
(Arising out of S.L.P.(C) No.18480 of 2015),

CIVIL APPEAL NO. 6136 OF 2017
(Arising out of S.L.P.(C) No.18485 of 2015),

CIVIL APPEAL NO. 6138 OF 2017
(Arising out of S.L.P.(C) No.19204 of 2015),

CIVIL APPEAL NO. 6140 OF 2017
(Arising out of S.L.P.(C) No.19452 of 2015),

CIVIL APPEAL NO. 6142 OF 2017
(Arising out of S.L.P.(C) No.19555 of 2015),

CIVIL APPEAL NO. 6146 OF 2017
(Arising out of S.L.P.(C) No.22067 of 2015),

CIVIL APPEAL NO. 6149 OF 2017
(Arising out of S.L.P.(C) No.22069 of 2015),

CIVIL APPEAL NO. 6152 OF 2017
(Arising out of S.L.P.(C) No.22994 of 2015),

CIVIL APPEAL NO. 6156 OF 2017
(Arising out of S.L.P.(C) No.22995 of 2015),

CIVIL APPEAL NO. 6160 OF 2017
(Arising out of S.L.P.(C) No.23742 of 2015),

CIVIL APPEAL NO. 6163 OF 2017
(Arising out of S.L.P.(C) No.24957 of 2015),

CIVIL APPEAL NO. 6164 OF 2017
(Arising out of S.L.P.(C) No.24963 of 2015),

CIVIL APPEAL NO. 6166 OF 2017
(Arising out of S.L.P.(C) No.25524 of 2015),

CIVIL APPEAL NO. 6170 OF 2017
(Arising out of S.L.P.(C) No.26493 of 2015),

CIVIL APPEAL NO. 6173 OF 2017
(Arising out of S.L.P.(C) No.26606 of 2015),

CIVIL APPEAL NO. 6186 OF 2017
(Arising out of S.L.P.(C) No.26724 of 2015),

CIVIL APPEAL NO. 6190 OF 2017
(Arising out of S.L.P.(C) No.27318 of 2015),

CIVIL APPEAL NO. 6194 OF 2017
(Arising out of S.L.P.(C) No.27485 of 2015),

CIVIL APPEAL NO. 6197 OF 2017
(Arising out of S.L.P.(C) No.27729 of 2015),

CIVIL APPEAL NO. 6203 OF 2017
(Arising out of S.L.P.(C) No.28002 of 2015),

CIVIL APPEAL NO. 6206 OF 2017
(Arising out of S.L.P.(C) No.28579 of 2015),

CIVIL APPEAL NO. 6209 OF 2017
(Arising out of S.L.P.(C) No.28745 of 2015),

CIVIL APPEAL NO. 6213 OF 2017
(Arising out of S.L.P.(C) No.28768 of 2015),

CIVIL APPEAL NO. 6216 OF 2017
(Arising out of S.L.P.(C) No.28922 of 2015),

CIVIL APPEAL NO. 6219 OF 2017
(Arising out of S.L.P.(C) No. 28927 of 2015),

CIVIL APPEAL NO. 6224 OF 2017
(Arising out of S.L.P.(C) No. 28929 of 2015),

CIVIL APPEAL NO. 6228 OF 2017
(Arising out of S.L.P.(C) No.29537 of 2015),

CIVIL APPEAL NO. 6233 OF 2017
(Arising out of S.L.P.(C) No. 30148 of 2015),

CIVIL APPEAL NO. 6237 OF 2017
(Arising out of S.L.P.(C) No. 30211 of 2015),

CIVIL APPEAL NO. 6240 OF 2017
(Arising out of S.L.P.(C) No. 30224 of 2015),

CIVIL APPEAL NO. 6242 OF 2017
(Arising out of S.L.P.(C) No.30228 of 2015),

CIVIL APPEAL NO. 6246 OF 2017
(Arising out of S.L.P.(C) No.30234 of 2015),

CIVIL APPEAL NO. 6249 OF 2017
(Arising out of S.L.P.(C) No.30238 of 2015),

CIVIL APPEAL NO. 6260 OF 2017
(Arising out of S.L.P.(C) No.30243 of 2015),

CIVIL APPEAL NO. 6264 OF 2017
(Arising out of S.L.P.(C) No.30244 of 2015),

CIVIL APPEAL NO. 6267 OF 2017
(Arising out of S.L.P.(C) No.30275 of 2015),

CIVIL APPEAL NO. 6270 OF 2017
(Arising out of S.L.P.(C) No.30733 of 2015),

CIVIL APPEAL NO. 6272 OF 2017
(Arising out of S.L.P.(C) No.30734 of 2015),

CIVIL APPEAL NO. 6274 OF 2017
(Arising out of S.L.P.(C) No.30735 of 2015),

CIVIL APPEAL NO. 6276 OF 2017
(Arising out of S.L.P.(C) No.31250 of 2015),

CIVIL APPEAL NO. 6279 OF 2017
(Arising out of S.L.P.(C) No.31366/2015),

CIVIL APPEAL NO. 6281 OF 2017
(Arising out of S.L.P.(C) No.31673 of 2015),

CIVIL APPEAL NO. 6283 OF 2017
(Arising out of S.L.P.(C) No.32614 of 2015),

CIVIL APPEAL NO. 6285 OF 2017
(Arising out of S.L.P.(C) No.32617 of 2015),

CIVIL APPEAL NO. 6287 OF 2017
(Arising out of S.L.P.(C) No.32640 of 2015),

CIVIL APPEAL NO. 6289 OF 2017
(Arising out of S.L.P.(C) No. 32642 of 2015),

CIVIL APPEAL NO. 6291 OF 2017
(Arising out of S.L.P.(C) No.32643 of 2015),

CIVIL APPEAL NO. 6292 OF 2017
(Arising out of S.L.P.(C) No.32645 of 2015),

CIVIL APPEAL NO. 6294 OF 2017
(Arising out of S.L.P.(C) No.32647 of 2015),

CIVIL APPEAL NO. 6296 OF 2017
(Arising out of S.L.P.(C) No.33344 of 2015),

CIVIL APPEAL NO. 6298 OF 2017
(Arising out of S.L.P.(C) No.34619 of 2015),

CIVIL APPEAL NO. 6300 OF 2017
(Arising out of S.L.P.(C) No.35231 of 2015),

CIVIL APPEAL NO. 6302 OF 2017
(Arising out of S.L.P.(C) No.35243 of 2015),

CIVIL APPEAL NO. 6125 OF 2017
(Arising out of S.L.P.(C) No.545 of 2016),

CIVIL APPEAL NO. 6127 OF 2017
(Arising out of S.L.P.(C) No.848 of 2016),

CIVIL APPEAL NO. 6129 OF 2017
(Arising out of S.L.P.(C) No.1686 of 2016),

CIVIL APPEAL NO. 6130 OF 2017
(Arising out of S.L.P.(C) No.1698 of 2016),

CIVIL APPEAL NO. 6132 OF 2017
(Arising out of S.L.P.(C) No.1700 of 2016),

CIVIL APPEAL NO. 6133 OF 2017
(Arising out of S.L.P.(C) No.2070 of 2016),

CIVIL APPEAL NO. 6135 OF 2017
(Arising out of S.L.P.(C) No.2839 of 2016),

CIVIL APPEAL NO. 6137 OF 2017
(Arising out of S.L.P.(C) No.4221 of 2016),

CIVIL APPEAL NO. 6141 OF 2017
(Arising out of S.L.P.(C) No.7016 of 2016),

CIVIL APPEAL NO. 6143 OF 2017
(Arising out of S.L.P.(C) No. 7564 of 2016),

CIVIL APPEAL NO. 6145 OF 2017
(Arising out of S.L.P.(C) No.7568 of 2016),

CIVIL APPEAL NO. 6147 OF 2017
(Arising out of S.L.P.(C) No.7609 of 2016),

CIVIL APPEAL NO. 6150 OF 2017
(Arising out of S.L.P.(C) No.7735 of 2016),

CIVIL APPEAL NO. 6153 OF 2017
(Arising out of S.L.P.(C) No.7761 of 2016),

CIVIL APPEAL NO. 6155 OF 2017
(Arising out of S.L.P.(C) No.8770 of 2016),

CIVIL APPEAL NO. 6157 OF 2017
(Arising out of S.L.P.(C) No.8793 of 2016),

CIVIL APPEAL NO. 6159 OF 2017
(Arising out of S.L.P.(C) No.8798 of 2016),

CIVIL APPEAL NO. 6161 OF 2017
(Arising out of S.L.P.(C) No.8808 of 2016),

CIVIL APPEAL NO. 6167 OF 2017
(Arising out of S.L.P.(C) No.8811 of 2016),

CIVIL APPEAL NO. 6169 OF 2017
(Arising out of S.L.P.(C) No.8812 of 2016),

CIVIL APPEAL NO. 6172 OF 2017
(Arising out of S.L.P.(C) No.8813 of 2016),

CIVIL APPEAL NO. 6175 OF 2017
(Arising out of S.L.P.(C) No.8817 of 2016),

CIVIL APPEAL NO. 6176 OF 2017
(Arising out of S.L.P.(C) No. 8818 of 2016),

CIVIL APPEAL NO. 6178 OF 2017
(Arising out of S.L.P.(C) No.8819 of 2016),

CIVIL APPEAL NO. 6180 OF 2017
(Arising out of S.L.P.(C) No.8820 of 2016),

CIVIL APPEAL NO. 6181 OF 2017
(Arising out of S.L.P.(C) No.8829 of 2016),

CIVIL APPEAL NO. 6182 OF 2017
(Arising out of S.L.P.(C) No.8836 of 2016),

CIVIL APPEAL NO. 6184 OF 2017
(Arising out of S.L.P.(C) No.9061 of 2016),

CIVIL APPEAL NO. 6185 OF 2017
(Arising out of S.L.P.(C) No.9184 of 2016),

CIVIL APPEAL NO. 6187 OF 2017
(Arising out of S.L.P.(C) No.10009 of 2016),

CIVIL APPEAL NO. 6189 OF 2017
(Arising out of S.L.P.(C) No.10495 of 2016),

CIVIL APPEAL NO. 6191 OF 2017
(Arising out of S.L.P.(C) No.11339 of 2016),

CIVIL APPEAL NO. 6193 OF 2017
(Arising out of S.L.P.(C) No.11349 of 2016),

CIVIL APPEAL NO. 6195 OF 2017
(Arising out of S.L.P.(C) No.11356 of 2016),

CIVIL APPEAL NO. 6198 OF 2017
(Arising out of S.L.P.(C) No.11372 of 2016),

CIVIL APPEAL NO. 6200 OF 2017
(Arising out of S.L.P.(C) No.11380/2016),

CIVIL APPEAL NO. 6202 OF 2017
(Arising out of S.L.P.(C) No.11383 of 2016),

CIVIL APPEAL NO. 6205 OF 2017
(Arising out of S.L.P.(C) No.11448 of 2016),

CIVIL APPEAL NO. 6207 OF 2017
(Arising out of S.L.P.(C) No.11458/2016),

CIVIL APPEAL NO. 6210 OF 2017
(Arising out of S.L.P.(C) No.17354 of 2016),

CIVIL APPEAL NO. 6212 OF 2017
(Arising out of S.L.P.(C) No.19966 of 2016),

CIVIL APPEAL NO. 6214 OF 2017
(Arising out of S.L.P.(C) No.19972 of 2016),

CIVIL APPEAL NO. 6217 OF 2017
(Arising out of S.L.P.(C) No.19976 of 2016),

CIVIL APPEAL NO. 6218 OF 2017
(Arising out of S.L.P.(C) No.23083/2016),

CIVIL APPEAL NO. 6221 OF 2017
(Arising out of S.L.P.(C) No.23085/2016),

CIVIL APPEAL NO. 6222 OF 2017
(Arising out of S.L.P.(C) No.23095/2016),

CIVIL APPEAL NO. 6225 OF 2017
(Arising out of S.L.P.(C) No.23642/2016),

CIVIL APPEAL NO. 6227 OF 2017
(Arising out of S.L.P.(C) No.23646/2016),

CIVIL APPEAL NO. 6230 OF 2017
(Arising out of S.L.P.(C) No.23659 of 2016),

CIVIL APPEAL NO. 6231 OF 2017
(Arising out of S.L.P.(C) No.24307 of 2016),

CIVIL APPEAL NO. 6234 OF 2017
(Arising out of S.L.P.(C) No.24313 of 2016),

CIVIL APPEAL NO. 6236 OF 2017
(Arising out of S.L.P.(C) No.24321 of 2016),

CIVIL APPEAL NO. 6239 OF 2017
(Arising out of S.L.P.(C) No.25136 of 2016),

CIVIL APPEAL NO. 6241 OF 2017
(Arising out of S.L.P.(C) No.28183 of 2016),

CIVIL APPEAL NO. 6243 OF 2017
(Arising out of S.L.P.(C) No.28270 of 2016),

CIVIL APPEAL NO. 6245 OF 2017
(Arising out of S.L.P.(C) No.28272 of 2016),

CIVIL APPEAL NO. 6248 OF 2017
(Arising out of S.L.P.(C) No. 28274/2016),

CIVIL APPEAL NO. 6250 OF 2017
(Arising out of S.L.P.(C) No.28279 of 2016),

CIVIL APPEAL NO. 6252 OF 2017
(Arising out of S.L.P.(C) No.28281 of 2016),

CIVIL APPEAL NO. 6253 OF 2017
(Arising out of S.L.P.(C) No.28661 of 2016),

CIVIL APPEAL NO. 6255 OF 2017
(Arising out of S.L.P.(C) No.28668 of 2016),

CIVIL APPEAL NO. 6256 OF 2017
(Arising out of S.L.P.(C) No.30426 of 2016),

CIVIL APPEAL NO. 6259 OF 2017
(Arising out of S.L.P.(C) No.31440 of 2016),

CIVIL APPEAL NO. 6262 OF 2017
(Arising out of S.L.P.(C) No.31442/2016),

CIVIL APPEAL NO. 6263 OF 2017
(Arising out of S.L.P.(C) No.31444 of 2016),

CIVIL APPEAL NO. 6265 OF 2017
(Arising out of S.L.P.(C) No.31480/2016),

CIVIL APPEAL NO. 6266 OF 2017
(Arising out of S.L.P.(C) No.32231 of 2016),

CIVIL APPEAL NO. 6269 OF 2017
(Arising out of S.L.P.(C) No.32996 of 2016),

CIVIL APPEAL NO. 6119 OF 2017
(Arising out of S.L.P.(C) No.35159 of 2016),

CIVIL APPEAL NO. 6121 OF 2017
(Arising out of S.L.P.(C) No.35160 of 2016),

CIVIL APPEAL NO. 6122 OF 2017
(Arising out of S.L.P.(C) No.35163 of 2016),

CIVIL APPEAL NO. 6139 OF 2017
(Arising out of S.L.P.(C) No.36421 of 2016),

CIVIL APPEAL NO. 6144 OF 2017
(Arising out of S.L.P.(C) No.36792 of 2016),

CIVIL APPEAL NO. 6148 OF 2017
(Arising out of S.L.P.(C) No.37159 of 2016),

CIVIL APPEAL NO. 6151 OF 2017
(Arising out of S.L.P.(C) No.37657 of 2016),

CIVIL APPEAL NO. 6154 OF 2017
(Arising out of S.L.P.(C) No.38279 of 2016),

CIVIL APPEAL NO. 6158 OF 2017
(Arising out of S.L.P.(C) No.38283 of 2016),

CIVIL APPEAL NO. 6162 OF 2017
(Arising out of S.L.P.(C) No.38284 of 2016),

CIVIL APPEAL NO. 6168 OF 2017
(Arising out of S.L.P.(C) No.38286 of 2016),

CIVIL APPEAL NO. 6171 OF 2017
(Arising out of S.L.P.(C) No.38292 of 2016),

CIVIL APPEAL NO. 6174 OF 2017
(Arising out of S.L.P.(C) No.38295 of 2016),

CIVIL APPEAL NO. 6177 OF 2017
(Arising out of S.L.P.(C) No.38300 of 2016),

CIVIL APPEAL NO. 6179 OF 2017
(Arising out of S.L.P.(C) No.38303 of 2016),

CIVIL APPEAL NO. 6183 OF 2017
(Arising out of S.L.P.(C) No.38354 of 2016),

CIVIL APPEAL NO. 6188 OF 2017
(Arising out of S.L.P.(C) No.38358 of 2016),

CIVIL APPEAL NO. 6192 OF 2017
(Arising out of S.L.P.(C) No.38364 of 2016),

CIVIL APPEAL NO. 6196 OF 2017
(Arising out of S.L.P.(C) No.38367 of 2016),

CIVIL APPEAL NO. 6199 OF 2017
(Arising out of S.L.P.(C) No.38370 of 2016),

CIVIL APPEAL NO. 6201 OF 2017
(Arising out of S.L.P.(C) No.38373 of 2016),

CIVIL APPEAL NO. 6204 OF 2017
(Arising out of S.L.P.(C) No.1498 of 2017),

CIVIL APPEAL NO. 6208 OF 2017
(Arising out of S.L.P.(C) No.1499 of 2017),

CIVIL APPEAL NO. 6211 OF 2017
(Arising out of S.L.P.(C) No.1639 of 2017),

CIVIL APPEAL NO. 6215 OF 2017
(Arising out of S.L.P.(C) No.1724 of 2017),

CIVIL APPEAL NO. 6220 OF 2017
(Arising out of S.L.P.(C) No.1726 of 2017),

CIVIL APPEAL NO. 6223 OF 2017
(Arising out of S.L.P.(C) No.1728 of 2017),

CIVIL APPEAL NO. 6226 OF 2017
(Arising out of S.L.P.(C) No.1729 of 2017),

CIVIL APPEAL NO. 6229 OF 2017
(Arising out of S.L.P.(C) No.1730 of 2017),

CIVIL APPEAL NO. 6232 OF 2017
(Arising out of S.L.P.(C) No.1731 of 2017),

CIVIL APPEAL NO. 6235 OF 2017
(Arising out of S.L.P.(C) No.3826 of 2017),

CIVIL APPEAL NO. 6238 OF 2017
(Arising out of S.L.P.(C) No.6911 of 2017),

CIVIL APPEAL NO. 6244 OF 2017
(Arising out of S.L.P.(C) No.8928 of 2017),

CIVIL APPEAL NO. 6247 OF 2017
(Arising out of S.L.P.(C) No.8929 of 2017),

CIVIL APPEAL NO. 6251 OF 2017
(Arising out of S.L.P.(C) No.9586 of 2017),

CIVIL APPEAL NO. 6254 OF 2017
(Arising out of S.L.P.(C) No.9734 of 2017),

CIVIL APPEAL NOS. 6257-6258 OF 2017
(Arising out of S.L.P.(C) Nos.10556-10557 of 2017)

CIVIL APPEAL NO. 6261 OF 2017
(Arising out of S.L.P.(C) No.11873 of 2017),

CIVIL APPEAL NO. 6268 OF 2017
(Arising out of S.L.P.(C) No.25536 of 2015),

CIVIL APPEAL NO. 6271 OF 2017
(Arising out of S.L.P.(C) No.38374 of 2016),

CIVIL APPEAL NO. 6273 OF 2017
(Arising out of S.L.P.(C) No.28305 of 2015),

CIVIL APPEAL NO. 6275 OF 2017
(Arising out of S.L.P.(C) No.30167 of 2015),

CIVIL APPEAL NO. 6278 OF 2017
(Arising out of S.L.P.(C) No.30170 of 2015),

CIVIL APPEAL NO. 6280 OF 2017
(Arising out of S.L.P.(C) No.13381 of 2015),

CIVIL APPEAL NO. 6282 OF 2017
(Arising out of S.L.P.(C) No.7731 of 2016),

CIVIL APPEAL NO. 6284 OF 2017
(Arising out of S.L.P.(C) No.7754 of 2016),

CIVIL APPEAL NO. 6286 OF 2017
(Arising out of S.L.P.(C) No.8762 of 2016),

CIVIL APPEAL NO. 6288 OF 2017
(Arising out of S.L.P.(C) No.11404 of 2016),

CIVIL APPEAL NO. 6290 OF 2017
(Arising out of S.L.P.(C) No.11479/2016),

CIVIL APPEAL NO. 6293 OF 2017
(Arising out of S.L.P.(C) No.38296 of 2016),

CIVIL APPEAL NO. 6295 OF 2017
(Arising out of S.L.P.(C) No.38299 of 2016),

CIVIL APPEAL NO. 6297 OF 2017
(Arising out of S.L.P.(C) No.38355 of 2016),

CIVIL APPEAL NO. 6299 OF 2017
(Arising out of S.L.P.(C) No.38360 of 2016)

AND

CIVIL APPEAL NO. 6301 OF 2017
(Arising out of S.L.P.(C) No.38366 of 2016)

J U D G M E N T

KURIAN, J.:

Leave granted.
Whether the subsequent purchasers/assignees/power of attorney holders,
etc., have locus standi to file a petition for a declaration of lapse of
acquisition proceedings under Section 24(2) of The Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (hereinafter referred to as “the 2013 Act”), is the
only issue arising for consideration in these cases.

The High Court has taken the view in favour of such people. Thus, aggrieved
the NCT of Delhi and Delhi Development Authority are in appeals before this
Court.

At the outset, we may note that in these cases, the land acquisition
proceedings have otherwise lapsed by the operation of Section 24(2) of the
2013 Act since either compensation was not paid or possession was not taken
within five years prior to 01.01.2014, the date of coming into force of the
2013 Act. Thus, the dispute is only on the locus standi.
Shri Amarendra Saran, learned Senior Counsel leading the arguments on
behalf of the appellants submits that in all these cases, the transfer is
in violation of The Delhi Lands (Restrictions on Transfer) Act, 1972
(hereinafter referred to as “the Delhi Act, 1972”). The transfers in favour
of the writ petitioners are hence void, and accordingly, the beneficiary of
an illegal/void transaction is not entitled to file a case for any relief.
Reliance is placed on Sections 3,4,8, and 9 of the 1972 Act, which read as
follows:

1 “3. Prohibition on transfer of lands acquired by Central Government –
No person shall purport to transfer by sale, mortgage, gift, lease or
otherwise any land or part thereof situated in the Union territory of Delhi
which has been acquired by the Central Government under the Land
Acquisition Act, 1984 or under any other law providing for acquisition of
land for a public purpose.
2 4. Regulation on transfer of lands in relation to which acquisition
proceedings have been initiated.
No person shall, except with the previous permission in writing of the
competent authority, transfer or purport to transfer by sale, mortgage,
gift, lease or otherwise any land or part thereof situated in the Union
territory of Delhi, which is proposed to be acquired in connection with the
Scheme and in relation to which a declaration to the effect that such land
or part thereof is needed for a public purpose having been made by the
Central Government under section 6 of the Land Acquisition Act, 1894, the
Central Government has not withdrawn from the acquisition under section 48
of that Act.
xxx xxx xxx
3 8. Restrictions on registration of transfers of land –
Notwithstanding any thing contained in any other law for the time being in
force, where any document required to be registered under the provisions of
clause (a) to clause (e) of sub-section (1) of section 17 of the
Registration Act, 1908, purports to transfer by sale, mortgage, gift, lease
or otherwise any land or part thereof referred to in section 4, no
registering officer appointed under that Act shall register any such
document unless the transferor produces before such registering officer a
permission in writing of the competent authority for such transfer.
4 9. Penalty –

If any person contravenes the provisions of section 3 or section 4, he
shall be punishable with imprisonment for a term which may extend to three
years or with fine or with both.”
Learned Senior Counsel and other learned Counsel further submitted that the
issue is no more res integra in view of the following decisions of this
Court:
(i) U.P. Jal Nigam, Lucknow Through Its Chairman and another v. Kalra
Properties (P) Ltd., Lucknow and others[1],

(ii) Sneh Prabha (Smt.) and others v. State of U.P. and another[2],

(iii) Meera Sahni v. Lieutenant Governor of Delhi and others[3],

(iv) V. Chandrasekaran and another v. Administrative Officer and
others[4],

(v) Rajasthan State Industrial Development and Investment
Corporation v. Subhash Sindhi Cooperative Housing Society, Jaipur and
others[5] and
U.P. Jal Nigam, Lucknow (supra), is a case where this Court considered the
consequences of a transfer of the land after issuance of notification under
Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as
“the 1894 Act”) in the State of Uttar Pradesh. It was held that any
encumbrances created by the owner after Section 4(1) Notification is
published, does not bind the Government and such a purchaser does not
acquire any title to the property. Therefore, such a purchaser cannot
challenge the validity of the notification or the regularity of the process
of taking possession of the land. To quote paragraph-3:

“3. … It is settled law that after the notification under Section 4(1) is
published in the Gazette any encumbrance created by the owner does not bind
the Government and the purchaser does not acquire any title to the
property. In this case, notification under Section 4(1) was published on 24-
3-1973, possession of the land admittedly was taken on 5-7-1973 and pumping
station house was constructed. No doubt, declaration under Section 6 was
published later on 8-7-1973. Admittedly power under Section 17(4) was
exercised dispensing with the enquiry under Section 5-A and on service of
the notice under Section 9 possession was taken, since urgency was acute,
viz., pumping station house was to be constructed to drain out flood water.
Consequently, the land stood vested in the State under Section 17(2) free
from all encumbrances. It is further settled law that once possession is
taken, by operation of Section 17(2), the land vests in the State free from
all encumbrances unless a notification under Section 48(1) is published in
the Gazette withdrawing from the acquisition. Section 11-A, as amended by
Act 68 of 1984, therefore, does not apply and the acquisition does not
lapse. The notification under Section 4(1) and the declaration under
Section 6, therefore, remain valid. There is no other provision under the
Act to have the acquired land divested, unless, as stated earlier,
notification under Section 48(1) was published and the possession is
surrendered pursuant thereto. That apart, since M/s Kalra Properties,
respondent had purchased the land after the notification under Section 4(1)
was published, its sale is void against the State and it acquired no right,
title or interest in the land. Consequently, it is settled law that it
cannot challenge the validity of the notification or the regularity in
taking possession of the land before publication of the declaration under
Section 6 was published.”

In Sneh Prabha (supra), this Court reiterated the position that any
alienation of land after the publication of the notification under Section
4(1) of the 1894 Act does not bind the Government or the beneficiary under
the acquisition. It has also been held that once the possession of the land
is taken under Section 16 of the Act, the land vests with the Government
free from all encumbrances and the absolute title is vested in the
Government. To quote from paragraph-5:

“5. … It is settled law that any person who purchases land after
publication of the notification under Section 4(1), does so at his/her own
peril. The object of publication of the notification under Section 4(1) is
notice to everyone that the land is needed or is likely to be needed for
public purpose and the acquisition proceedings point out an impediment to
anyone to encumber the land acquired thereunder. It authorises the
designated officer to enter upon the land to do preliminaries etc.
Therefore, any alienation of land after the publication of the notification
under Section 4(1) does not bind the Government or the beneficiary under
the acquisition. On taking possession of the land, all rights, titles and
interests in land stand vested in the State, under Section 16 of the Act,
free from all encumbrances and thereby absolute title in the land is
acquired thereunder. If any subsequent purchaser acquires land, his/her
only right would be subject to the provisions of the Act and/or to receive
compensation for the land. In a recent judgment, this Court in Union of
India v. Shivkumar Bhargava considered the controversy and held that a
person who purchases land subsequent to the notification is not entitled to
alternative site. It is seen that the Land Policy expressly conferred that
right only on that person whose land was acquired. In other words, the
person must be the owner of the land on the date on which notification
under Section 4(1) was published. By necessary implication, the subsequent
purchaser was elbowed out from the policy and became disentitled to the
benefit of the Land Policy.”
In Meera Sahni (supra), this Court dealt with the provisions under the
Delhi Act, 1972. After referring to U.P. Jal Nigam and Sneh Prabha cases
(supra), in paragraph-21 of the judgment, it was held that … “it is by
now well settled law that under the Land Acquisition Act, the subsequent
purchaser cannot challenge the acquisition proceedings and that he would be
only entitled to get the compensation”.

In V. Chandrasekaran (supra), this Court again addressed the issue as to
whether the subsequent purchaser can challenge the acquisition proceedings.
After referring to some of the earlier judgments, at paragraph-18, the law
has been laid down as follows:

“18. In view of the above, the law on the issue can be summarised to the
effect that a person who purchases land subsequent to the issuance of a
Section 4 notification with respect to it, is not competent to challenge
the validity of the acquisition proceedings on any ground whatsoever, for
the reason that the sale deed executed in his favour does not confer upon
him, any title and at the most he can claim compensation on the basis of
his vendor’s title.”

In Rajasthan State Industrial Development and Investment Corporation
(supra), this Court held that such transactions after initiation of
acquisition proceedings would be void and would not be binding on the
Government. To quote paragraph-13:

“13. There can be no quarrel with respect to the settled legal proposition
that a purchaser, subsequent to the issuance of a Section 4 notification in
respect of the land, cannot challenge the acquisition proceedings, and can
only claim compensation as the sale transaction in such a situation is void
qua the Government. Any such encumbrance created by the owner, or any
transfer of the land in question, that is made after the issuance of such a
notification, would be deemed to be void and would not be binding on the
Government. …”

On behalf of the respondents, it has been mainly contended that the
subsequent purchasers are persons interested and they have every right to
file a case to protect their interests. It was also pointed out that under
the Delhi Act, 1972, there is no absolute bar on transfer since under
Section 5, the transfer was possible with the permission of the Competent
Authority and that under Section 5, the Competent Authority cannot refuse
to grant the permission except on any of the grounds under sub-Section (3)
of Section 5. To quote Section 5:

5 “5. Application for grant of permission for transfer under section 4 –
6 xxxx xxxx xxxx xxxx
(3) The competent authority shall not refuse to grant the permission
applied for under this section except on one or more of the following
grounds, namely:-
(i) That the land is needed or is likely to be needed for the effective
implementation of the Scheme;
(ii) That the land is needed or is likely to be needed for securing the
objects of the Delhi Development Authority referred to in section 6 of the
Development Act;
(iii) That the land is needed or is likely to be needed for any development
within the meaning of clause (d) of section 2 of the Development Act or for
such things as public building and other public works and utilities, roads,
housing, recreation, industry, business, markets, schools and other
educational institutions, hospitals and public open spaces and other
categories of public uses.”
It was also contended that the 2013 Act has not exempted the acquisitions
under The Delhi Development Act, 1957, and for that matter the Delhi Act,
1972 under the Fourth Schedule to Section 105.

Yet another contention was that in all these cases, the challenge was not
to the acquisition proceedings but for a declaration under Section 24(2) of
the 2013 Act to the effect that by virtue of operation of the said
provision, the acquisition proceedings have lapsed.

“Person interested”, under the 1894 Act, is defined under Section 3(b) of
the Act, which reads as follows:

“3(b) the expression “person interested” includes all persons claiming an
interest in compensation to be made on account of the acquisition of land
under this Act; and a person shall be deemed to be interested in land if he
is interested in an easement affecting the land;”
Under the 2013 Act, “person interested” has been given a much wider meaning
under Section 3(x). To quote:
“3(x).     “person interested” means—

all persons claiming an interest in compensation to be made on account of
the acquisition of land under this Act;

the Scheduled Tribes and other traditional forest dwellers, who have lost
any forest rights recognised under the Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006;

a person interested in an easement affecting the land;

persons having tenancy rights under the relevant State laws including share-
croppers by whatever name they may be called; and

any person whose primary source of livelihood is likely to be adversely
affected;”

Thus, under the 2013 Act, all persons claiming interest in compensation to
be paid on account of the acquisition of land under the 2013 Act, are
persons interested. Among others, any person whose primary source of
livelihood is likely to be adversely affected is also a person interested.
“Land owner” under the 2013 Act is defined under Section 3(r), which reads
as follows:
“3(r)      “land owner” includes any person,—

whose name is recorded as the owner of the land or building or part
thereof, in the records of the authority concerned; or

any person who is granted forest rights under the Scheduled Tribes and
Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006
or under any other law for the time being in force; or

who is entitled to be granted Patta rights on the land under any law of the
State including assigned lands; or

any person who has been declared as such by an order of the court or
Authority;
Thus, among others, a person whose name is recorded as owner of the land or
building or part thereof in the records of the Authority concerned, is a
land owner.

“Affected family” has been defined in the 2013 Act under Section 3(c)
which reads as follows :-

“3(c) ?affected family? includes—
a family whose land or other immovable property has been acquired;
a family which does not own any land but a member or members of such
family may be agricultural labourers, tenants including any form of tenancy
or holding of usufruct right, share-croppers or artisans or who may be
working in the affected area for three years prior to the acquisition of
the land, whose primary source of livelihood stand affected by the
acquisition of land;
the Scheduled Tribes and other traditional forest dwellers who have lost
any of their forest rights recognised under the Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (2 of
2007) due to acquisition of land;
family whose primary source of livelihood for three years prior to the
acquisition of the land is dependent on forests or water bodies and
includes gatherers of forest produce, hunters, fisher folk and boatmen and
such livelihood is affected due to acquisition of land;
a member of the family who has been assigned land by the State
Government or the Central Government under any of its schemes and such land
is under acquisition;
a family residing on any land in the urban areas for preceding three
years or more prior to the acquisition of the land or whose primary source
of livelihood for three years prior to the acquisition of the land is
affected by the acquisition of such land;”

This definition of affected family also indicates that even a family
residing in the lands sought to be acquired, be it an owner or not, is an
affected family, and if a family or a person is affected, necessarily, he
has a right to approach the Court to protect his interests.

It is also to be specifically noted that the challenge made by the writ
petitioners in the Miscellaneous Application filed by them is not to the
acquisition or to the regularity of the process of acquisition including
the taking of possession. Their only prayer is for a declaration that the
proceedings qua the land referred to in the Application have lapsed by
virtue of the operation of Section 24(2) of the 2013 Act.

All the decisions cited by the learned Senior Counsel appearing for the
appellants, no doubt, have categorically held that the subsequent
purchasers do not have locus standi to challenge the acquisition
proceedings. But in the present case, the challenge is not to the
acquisition proceeding; it is only for a declaration that the acquisition
proceedings have lapsed in view of the operation of Section 24(2) of the
2013 Act, and therefore, the ratio in those cases has no application to
these cases.

It is one thing to say that there is a challenge to the legality or
propriety or validity of the acquisition proceedings and yet another thing
to say that by virtue of operation of a subsequent legislation, the
acquisition proceedings have lapsed.

In all the decisions cited by the learned Senior Counsel for the
appellants, which we have referred to above, this Court has protected the
rights of the subsequent purchaser to claim compensation, being a person
interested in the compensation, despite holding that they have no locus
standi to challenge the acquisition proceedings.

The 2013 Act has made a sea change in the approach on the acquisition of
land and compensation thereof. The only lapse under the 1894 Act was under
Section 11A where what would lapse is the … “entire proceedings for the
acquisition of land” whereas under Section 24(2) of the 2013 Act, what gets
lapsed is the land acquisition proceedings initiated under the 1894 Act
which has culminated in passing of an award under Section 11 but where
either possession was not taken or compensation was not paid within five
years prior to 01.01.2014. In other words, the land acquisition proceedings
contemplated under Section 24(2) of the 2013 Act would take in both,
payment of compensation and taking of possession within the five year
period prior to 01.01.2014. If either of them is not satisfied, the entire
land acquisition proceedings would lapse under the deeming provision. The
impact of deemed lapse under Section 24(2) is that pervasive. To quote R.F.
Nariman, J. in Delhi Development Authority v. Sukbhir Singh and others[6].
To quote:

“… As is well settled, a deeming fiction is enacted so that a putative
state of affairs must be imagined, the mind not being allowed to boggle at
the logical consequence of such putative state of affairs … In fact,
Section 24(2) uses the expression “deemed to have lapsed” because the
Legislature was cognisant of the fact that, in cases where compensation has
not been paid, and physical possession handed over to the State/vesting has
taken place, after which land acquisition proceedings could be said to have
been ended. …” (Paragraph-27).
Thus, on account of the lapse, the encumbrance created in favour of
the State comes to an end, and resultantly, the impediment to encumber the
land also comes to an end. Even, according to the appellants, the transfers
were illegal and void for the reason that there was an impediment for the
transfer. Once the acquisition proceedings lapse, all impediments cease to
exist.

As we have already noted above, the whole face of land acquisition has
changed by the 2013 Act. Section 105 of the 2013 Act has provided that the
provisions of the Act shall not apply to the enactments specified in the
Fourth Schedule. So far, only 13 Acts have been notified under the Fourth
Schedule. Neither The Delhi Development Act, 1957 nor The Delhi Lands
(Restrictions on Transfers) Act, 1972 is included in the Fourth Schedule.

The main purpose of the 2013 Act is clearly stated in the preamble which
reads as follows :-

“An Act to ensure, in consultation with institutions of local self-
government and Gram Sabhas established under the Constitution, a humane,
participative, informed and transparent process for land acquisition for
industrialisation, development of essential infrastructural facilities and
urbanisation with the least disturbance to the owners of the land and other
affected families and provide just and fair compensation to the affected
families whose land has been acquired or proposed to be acquired or are
affected by such acquisition and make adequate provisions for such affected
persons for their rehabilitation and resettlement and for ensuring that the
cumulative outcome of compulsory acquisition should be that affected
persons become partners in development leading to an improvement in their
post acquisition social and economic status and for matters connected
therewith or incidental thereto.”
There is a clear indication that the Act proposes to protect the interest
of those persons, among others who are affected by the acquisition. The
subsequent purchasers/successors, etc., in the cases before us, are all
people affected by the acquisition, and therefore, also they are entitled
to seek a declaration on lapse under the 2013 Act.
The High Court of Karnataka at Bengaluru in Suryaprakash and others v.
State of Karnataka and others[7] has considered a situation of lapse and
locus standi of the subsequent purchaser to file a writ petition for a
declaration on lapse, though not under Section 24(2) of the 2013 Act. At
paragraph-16, it has been held:
“16. … the principle that transferee of land after the publication of
preliminary notification cannot maintain a writ petition challenging the
acquisition, cannot be made applicable to a case where the acquisition
itself has been abandoned and has stood lapsed due to efflux of time on
account of the omission and inaction on the part of the acquiring
authority, particularly because, it is because of the lapse of time and the
abandonment of the acquisition, right accrues to the original owner to deal
with his property including by way of the sale and the purchaser will
acquire right to protect his interest. Hence, the judgment in the case of
Rajasthan State Industrial Development and Investment Corporation v.
Subhash Sindhi Cooperative Housing Society, Jaipur and others (2013) 5 SCC
427, will have no application to the facts of the present case.”
We are of the view that this decision, in principle, applies to the
facts of these appeals as well.
Thus, the subsequent purchaser, the assignee, the successor in interest,
the power of attorney, etc., are all persons who are interested in
compensation/land owners/affected persons in terms of the 2013 Act and such
persons are entitled to file a case for a declaration that the land
acquisition proceedings have lapsed by virtue of operation of Section 24(2)
of the 2013 Act. It is a declaration qua the land wherein indisputably they
have an interest and they are affected by such acquisition. For such a
declaration, it cannot be said that the respondents/writ petitioners do not
have any locus standi.

Thus, we do not find any merit in these appeals and they are accordingly
dismissed. All Interlocutory Applications for Impleadment and Intervention,
other than those by Legal Representatives, are also rejected. Applications
for Impleadment of Legal Representatives are allowed. There shall be no
order as to costs.

In the peculiar facts and circumstances of these cases, the appellants are
given a period of six months to exercise its liberty granted under Section
24(2) of the 2013 Act for initiation of the acquisition proceedings afresh.

We make it clear that we have not gone into the inter se disputes between
the parties in some cases or other claims regarding the ownership.
…………………..J.
(KURIAN JOSEPH)

.……………………J.
(R. BANUMATHI)

New Delhi;
May 4, 2017.
———————–
[1]

(1996) 3 SCC 124
[2] (1996) 7 SCC 426
[3] (2008) 9 SCC 177
[4] (2012) 12 SCC 133
[5] (2013) 5 SCC 427
[6] (2016) 8 SCALE 655
[7] MANU/KA/3319/2016 (Writ Petition No. 10286-291 of 2014, decided on
05.12.2016).
———————–
REPORTABLE

———————–
33

Posted in Uncategorized

failed to appreciate = but not discussed as to why their testimony as to the fact that married sister-in-law (of the deceased) and her husband used to live in village Sabutar, is not believed. – we find that both the courts below have erred in law in holding that the charge under Section 304B read with Section 34 IPC stood proved as against the present appellants. In our opinion, in view of the evidence discussed above, it cannot be said that it is proved beyond reasonable doubt that the present appellants, who are sister-in-law and brother-in-law of the deceased, tortured the victim for any demand of dowry. In our opinion, in the present case which is based on circumstantial evidence it cannot be said that appellants had any common intention with the husband of the deceased in commission of the crime. It is sufficiently shown on the record that they used to live in a different village. Therefore, we are inclined to allow the present appeal. Accordingly, this appeal is allowed, and conviction and sentence recorded as against the present appellants Bibi Parwana Khatoon @ Parwana Khatoon and Md. Hasan @ Hasan Raja is set aside.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURSIDICTION

CRIMINAL APPEAL NO. 888 OF 2017
(Arising out of S.L.P. (Crl.) No. 6630 of 2016)
Bibi Parwana Khatoon @
Parwana Khatoon and another … Appellants

Versus

State of Bihar …Respondent

J U D G M E N T
Prafulla C. Pant, J.
Leave granted.

2. The appellants, who are sister-in-law and brother-in-law of the
deceased, have challenged the judgment and order dated 09.12.2016 passed by
the High Court of Judicature at Patna in Criminal Appeal (SJ) No. 48 of
2014 whereby said Court has dismissed the criminal appeal affirming their
conviction and sentence under Section 304B read with Section 34 of Indian
Penal Code (IPC) recorded by the Ad hoc Additional District Judge, Purnea
in Sessions Trial No. 1219 of 2010 (with Sessions Trial No. 617 of 2011).

3. Prosecution story, in brief, is that Tamkinat Ara @ Bulbul got
married to Md. Parwez Alam on 30.09.2009 and she used to live in her in-
laws’ house. The prosecution case is that after her marriage deceased used
to live with Md. Parwez Alam (husband), Abdul Gaffar (father-in-law),
Baitun Nisha (mother-in-law), Bibi Parwana Khatoon (sister of husband) and
her husband Md. Hasan (both appellants). It is alleged by the informant
Md. Faisal PW-5 (brother of the deceased) that the deceased was killed by
setting her on fire by all the above accused. On receiving telephonic
information on 30.05.2010 from father-in-law of the deceased, PW-5 Md.
Faisal went to see his sister and found that she had died of burn injuries.
On the basis of First Information Report given by Md. Faisal Crime Case
No. 184 of 2010 was registered relating to offence punishable under Section
304B read with Section 34 IPC against all the five accused at Police
Station Khajanchi Hat, Madhubani. PW-7 Arti Kumari Jaiswal, Station House
Officer, started investigation. Dead body of the deceased was sealed and
sent for post mortem examination. PW-6 Dr. Umesh Kumar of Sadar Hospital,
Purnea, conducted post mortem examination on the dead body of Tamkinat Ara
and found following ante mortem injuries: –
“(i) Rigor mortis present in all four limbs and trunk

(ii) Tongue was protruded between teeth

(iii) Burned (burnt) blood clot from/in ear opening

(iv) 100% burn of five degree with smell. Key oil and roasted smell, line
of redness along burn area absent, vesication and sign of inflammation was
absent, formation of granulation tissue absent, indicating post mortem
burnt.”

The Medical Officer opined that the deceased died of asphyxia due to
strangulation.

4. Later, investigation was taken over by PW-8 Lal Babu Prasad who
submitted charge sheet against all the five accused. Accused Baitun Nisha
(mother-in-law of the deceased) died during the course of trial, as such,
case as against her stood abated and the trial court proceeded against
remaining four accused.

5. After framing charge against the accused, the trial court recorded
the evidence of PW-1 Syed Masuf Ahmad, PW-2 Md. Azam Rad, PW-3 Samim
Akhtar, PW-4 Taleba Kauser (brother of the deceased), PW-5 Md. Faisal
(brother of the deceased and informant), PW-6 Dr. Umesh Kumar (who
conducted post mortem examination), PW-7 Arti Kumari Jaiswal (who started
investigation) and PW-8 Lal Babu Prasad (who concluded the investigation).

6. The prosecution evidence appears to have been put to the accused
under Section 313 of Criminal Procedure Code whereafter, on behalf of the
accused, defence evidence was adduced, and DW-1 Md. Mozammil Hussain, DW-2
Md. Shamim, DW-3 Manish Kumar Srivastava, DW-4 Raghunandan Yadav, DW-5
Rahul Kumar, DW-6 Mukesh Kumar, DW-7 Nakir Yadav, DW-8 Dhani Yadav, DW-9
Md. Jasir and DW-10 Sanni Yadav, were got examined.

7. The trial court, after hearing the parties, found all the four
accused guilty of offence punishable under Section 304B read with Section
34 IPC, and convicted them accordingly. Md. Parwez Alam (husband of the
deceased) was sentenced to rigorous imprisonment for ten years, and each
one of the remaining three convicts was sentenced to seven years rigorous
imprisonment.

8. Aggrieved by the judgment and order dated 19.11.2013/ 26.11.2013,
passed by the trial court in Sessions Trial No. 1219 of 2010 (with Sessions
Trial No. 617 of 2011), whereby the accused were convicted and sentenced,
as above, three appeals were filed before the High Court. Criminal Appeal
(SJ) No. 59 of 2014 was filed by Md. Parwez Alam (husband of the deceased),
Criminal Appeal (SJ) No. 20 of 2014 was filed by Abdul Gaffar (father-in-
law of the deceased) and Criminal Appeal (SJ) No. 48 of 2014 was filed by
present appellants Bibi Parwana Khatoon and Md. Hasan. The High Court,
after hearing the parties, allowed the appeal of father-in-law of the
deceased but maintained the conviction and sentence recorded against other
three. Hence, this appeal through special leave by sister-in-law Parwana
Khatoon and brother-in-law Md. Hasan.

9. Our attention is drawn on behalf of the appellants to the testimony
of the defence witnesses relating to the fact that they were not residing
in Kali Prasad Tola, and it is argued that the courts below have failed to
appreciate the same. It is also pointed out that there is no special role
assigned to the appellants in the First Information Report.

10. DW-1 Md. Mozammil Hussain, cousin of husband of the deceased, has
stated that Parwana Khatoon and Md. Hasan used to live in village Sabutar,
and on the day of the incident they were not in village Kali Prasad Tola,
Madhubani, i.e. the place where the deceased and her husband used to live.
DW-4 Raghunandan Yadav, who is resident of Kali Prasad Tola, has also
stated that the present appellants used to live in village Sabutar
(Purnea). This witness belongs to village Sabutar. DW-7 Nakir Yadav also
corroborated the fact that Parwana and her husband Hasan used to live in
Sabutar. This fact is further corroborated by DW-8 Dhani Yadav, DW-9 Md.
Jasir and DW-10 Sanni Yadav, all neighbours of the deceased and her
husband.

11. We have gone through the judgment and order passed by the trial court
(copy Annexure P-9) in which the trial court has mentioned the name of
defence witnesses but not discussed as to why their testimony as to the
fact that married sister-in-law (of the deceased) and her husband used to
live in village Sabutar, is not believed. The High Court has also
committed the same error.

12. Apart from the above, in support of their plea, there are three
documents filed on behalf of the appellants, which are copies of public
documents, to show that they are residents of village Sabutar in District
Purnea. Copy of the Residence Certificate is Annexure A-1, which shows
that Sub Divisional Officer, Sadar, Purnea, has certified on 31.10.2008
that Hasan Raja (appellant No. 2) used to live in village Sabutar, P.S. K.
Nagar, District Purnea. Another document (Annexure A-2) is copy of PAN
issued by Income-tax Department of Government of India, which appears to
have been sent on the address of the account holder Parwana Khatoon
(appellant No. 1) on her address of Sabutar, Purnea, Pin Code 854205. Not
only this, copy of service book (Annexure A-3) of appellant No. 1 Parwana
Khatoon shows that she was Panchayat teacher in primary school, K. Nagar
(Purnea). This document also shows that address of appellant No. 1 is
village Sabutar, P.O. Kajha, Police Station K. Nagar, District Purnea. All
these public documents read with the oral testimony adduced before the
trial court, create serious doubt in the prosecution story, so far it
relates as against the present appellants. (We are not commenting on the
evidence as against the husband of the deceased.)

13. In view of the above discussion of oral and documentary evidence, we
find that both the courts below have erred in law in holding that the
charge under Section 304B read with Section 34 IPC stood proved as against
the present appellants. In our opinion, in view of the evidence discussed
above, it cannot be said that it is proved beyond reasonable doubt that the
present appellants, who are sister-in-law and brother-in-law of the
deceased, tortured the victim for any demand of dowry. In our opinion, in
the present case which is based on circumstantial evidence it cannot be
said that appellants had any common intention with the husband of the
deceased in commission of the crime. It is sufficiently shown on the record
that they used to live in a different village. Therefore, we are inclined
to allow the present appeal.

14. Accordingly, this appeal is allowed, and conviction and sentence
recorded as against the present appellants Bibi Parwana Khatoon @ Parwana
Khatoon and Md. Hasan @ Hasan Raja is set aside. They are acquitted of
charge of offence punishable under Section 304B read with Section 34 IPC.
They are in jail. They shall be released forthwith if not required in
connection with any other crime.
………………………..…….J.
[N.V. Ramana]

………………………..…….J.
[Prafulla C. Pant]
New Delhi;
May 04, 2017.

Posted in Uncategorized