Delhi District Court
Rajesh Sharma @ Mintu vs B.S.E.S. Yamuna Power Ltd on 31 January, 2022
IN THE COURT OF MS. CHARU AGGARWAL
ADDITIONAL SESSION JUDGE-02: CENTRAL
DISTRICT: TIS HAZARI COURTS: DELHI.
CNR No. DLCT01-005691-2020
CA No. 139/2020
IN THE MATTER OF:-
Rajesh Sharma @ Mintu
S/o Late Sh. Brij Mohan Sharma
R/o Flat No. G-27, Type-II,
Tripolia Colony,
Delhi-110007. .... Appellant.
Versus
B.S.E.S. Yamuna Power Ltd.
Having its Registered Office at :-
Shakti Kiran Building,
Karkardooma, Delhi-110032.
Through its Authorized Officer. .... Respondent
Date of Institution : 15.09.2020
Date of Decision : 31.01.2022
JUDGMENT
1. This appeal is directed against the judgement of conviction dated 23.06.2020 and order on sentence dated 24.06.2020, passed by Ld. Additional Chief Metropolitan Magistrate (Special Acts) whereby the appellant (accused before Ld. Trial Court) was convicted for the offence u/s 452 of Companies Act, 2013 and vide order on sentence he was directed to hand over the peaceful vacant possession of the flat bearing No. G-27, Type II, Tripolia Colony, Delhi-7, to the respondent (complainant before Ld. Digitally signed by CHARU CA No. 139/2020 CHARU AGGARWAL 1 of 19 AGGARWAL Date: 2022.01.31 15:23:01 +0530 Trial Court) within a period of one year, in default to pay user charges @ Rs.1,000/- per month from the date of filing of complaint till vacation of premises.
2. Alongwith the present appeal, the appellant has also moved an application u/s 5 R/w Section 14 of Limitation Act seeking condonation of delay in filing the appeal. The impugned order on sentence was passed by Ld. ACMM on 24.06.2020 and the present appeal has been filed on 14.09.2020. There is some delay in filing the appeal, however, in view of judgement of Hon'ble Supreme Court regarding cognizance for extension of Limitation in Suo Motu Writ Petition (Civil) No. 3 of 2020, the period of filing the present appeal is hereby condoned.
3. The necessary facts to decide the present appeal are that the complainant is a company under the Company Act, 2013. It has taken over the charge of distribution of electricity in various parts of Delhi from Delhi Vidhyut Board (DVB)/DESU, and the right, title, interest, claim, liability and demand qua all the properties/assets belonging to and owned by the erstwhile DVB/DESU were also taken over by the complainant company w.e.f. 01.07.2002 vide notification No. F-11(99)/2001 Power/PF- iii/2828 dated 13.11.01.
4. The case of the complainant is that Sh. Brij Mohan Sharma, father of the appellant, was the employee of DVB/DESU and during his employment he was allotted flat bearing No. G-27, Type II, Tripolia Colony, Delhi-7 (hereinafter referred to as "flat in question"), vide allotment letter dated 24.11.1959. As per the rules of the DVB/DESU, it's employees may retain the possession of the flats allotted to them during their employment till their superannuation/retirement or death or till Digitally signed by CHARU CHARU AGGARWAL CA No. 139/2020 AGGARWAL Date: 2022.01.31 2 of 19 15:23:15 +0530 the time they are in the service of the DVB/DESU or its successor. It is stated that Late Sh. Brij Mohan Sharma retired from the service of DVB/DESU in the year 1986 but despite his retirement, he illegally occupied the flat in question. He expired on 06.04.2013 and after his death the appellant being his son is unauthorisedly occupying the said flat. The complainant sent legal notice dated 12.08.2004 to Sh. Brij Mohan Sharma to hand over the possession of the said flat. However, despite service the flat was not vacated by him but the notice dated 12.08.2004 was replied by him vide reply dated 31.08.2004. The appellant, being son of Late Sh. Brij Mohan Sharma, is still unauthorisedly occupying the flat in question, therefore, the complainant company filed the complaint before Ld. ACMM under the relevant provisions of Companies Act.
5. After recording pre-summoning evidence and on being satisfied with the same, Ld. ACMM summoned the appellant and Smt. Kailesh Sharma, wife of Late Sh. Brij Mohan Sharma. Vide impugned judgement, the Ld. Trial Court apart from appellant also convicted Smt. Kailash Sharma but it is stated in the appeal that she (Smt. Kailash Sharma) has expired on 02.08.2020, prior to filing of appeal. Vide order dated 05.05.2018, notice under section 452 Companies Act was served upon the appellant and Smt. Kailash Sharma to which they pleaded not guilty and claimed trial.
6. Complainant examined CW1 Sh. Sushil Kumar, its Assistant Legal Officer in evidence, who reiterated and reaffirmed the same facts in his evidence as the case of the complainant company and relied upon certain documents i.e. Certificate of corporation of company (Ex. CW-1/1), Board of Digitally signed by CHARU CHARU AGGARWAL CA No. 139/2020 AGGARWAL Date: 2022.01.31 3 of 19 15:23:25 +0530 Resolution of the company passed on 22.10.2009 (Ex. CW-1/2), GPA dated 05.10.2010 (Ex. CW-1/3), notification no. F- 11(99)/2001 Power/PF-iii/2828 dated 13.11.2001 (Ex. CW-1/4), allotment letter dated 25.11.1959 (Ex. CW-1/5), legal notice dated 12.08.2004 (Ex. CW-1/6) and reply dated 31.08.2004 (Ex. CW-1/7). Thereafter, statement u/s 313 CrPC of the accused/appellant was recorded in which he stated that he has been falsely implicated in the case and the complainant company has no right to file the complaint for vacation of flat in question since Sh. Brij Mohan Sharma was never the employee of complainant company.
7. The accused has examined three witnesses in his defence.
DW1 is Sh. B.N. Sharma, President of Tripulia Colony Niwasi Kalyan Sangthan who has stated that Tripulia Colony was constructed under the Low Income Group Housing Scheme of Govt. of India in the year 1954 which was under the Ministry of Work Housing and Supply (Mark A & B). The said colony was constructed on no profit no loss basis. The aforesaid flats were constructed after taking the loan of Rs.12,88,000/- by the Govt. The loan was disbursed to the Delhi Govt. and thereafter, to the DESU. The relevant document in this regard is Mark C. He has further stated that Delhi Govt. vide letter dated 10.06.1999 and 11.04.1996 assured the allottees to transfer the flats to them. These letters are Mark E and F respectively. He has stated that the occupants of flat at Tripulia Colony are not unauthorised occupants.
DW2 is Sh. M.K. Gupta, Under Secretary to the Govt. of India, Ministry of Housing and Urban Affairs, who has brought a Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.01.31 15:23:39 +0530 CA No. 139/2020 4 of 19 letter (Ex. DW2/A) as per which the copy of Low Income Group Housing Scheme of Govt. of India was not traceable.
DW3 is Lokesh Kumar, Ahlmad from Record Room, who brought the record of Civil Suit No. 18/06 titled as BSES Vs. Kishori Lal.
The witnesses of both the parties were cross examined by each other counsels.
8. Ld. Trial Court after considering the material on record convicted the appellant for the offence u/s 452 Companies Act.
9. Ld. Counsel for appellant has argued that Ld. Trial Court has not properly appreciated the facts of the case. The appeal has been filed primarily on the following grounds that :-
i. The complaint before Ld. Trial Court was not filed and prosecuted by the competent and authorised person of the complainant company/BSES ; ii. The flats allotted to employee of DVB/DESU were under the Low Income Group Housing Scheme of Govt. of India, 1954 and as per the said scheme the original allottees of the flat became the owner of the same ;
iii. The present complaint is not maintainable since the remedy of the complainant company is before the Civil Court under the Public Premises Act ; iv. Late Sh. Brij Mohan Sharma was not the employee of complainant company as he was the employee of the DVB/DESU from where he retired in the year 1986 and expired in 2013 when the complainant company was not even in existence ; and Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.01.31 CA No. 139/2020 15:23:55 +0530 5 of 19 v. The complainant company is not the owner or having any title in the flat in question to claim possession of the same from the appellant.
10. Ld. Counsel for complainant company has argued in support of impugned judgement and order on conviction and submitted that all the issues raised by the appellant before this Court have already been rightly discussed by the Ld. Trial Court in the impugned judgement.
11. I have considered the arguments advanced by both the parties.
12. The first and foremost argument of the appellant/accused is that the complaint was not filed and prosecuted by the competent authorised person of the complainant company. This argument has no merit in view of Section 85 of Evidence Act as per which if the power of attorney is duly notarised, the same is presumed to be true unless the contrary is proved. In "Kamla Rani and Ors. Vs. M/s Texmaco" the Hon'ble Delhi High Court has held that "once a document is authenticated by the Notary Public, it will be presumed that the same has been duly executed and was in order. Here, the GPA (EX. CW-3/A) is duly notarised. In "Union of India Vs. Dilshem Kumar" AIR 1997 SC3, the Hon'ble Apex Court has held that where a suit is filed on behalf of Corporate Company and is duly prosecuted by the person who had filed the suit, a presumption would arise that the said person was authorised to do so.
13. In the case in hand, the complaint was filed by Sh.Sushil Kumar, Assistant Legal Officer of BSES, on the basis of GPA(Ex.CW1/3) executed in his favour by Sh. Ram Narayan, Chief Executive Officer of the complainant company. Sh. Ram Digitally signed by CHARU CA No. 139/2020 CHARU AGGARWAL 6 of 19 AGGARWAL Date: 2022.01.31 15:24:33 +0530 Narayan had derived his power of delegation from the Board of Resolution passed on 22.10.2009 (Ex. CW1/2). Sh. Sushil Kumar in the capacity of Assistant Legal Assistant Officer of the complainant company filed the present complaint and prosecuted the same till its end. Initially, the power to file the complaint was given to him by Sh. Ram Narayan, Chief Executive Officer. During arguments, counsel for appellant submitted that on the date of filing of complaint Sh. Ram Narayan had left the office of complainant company, therefore, any GPA executed by him in favour of Sh. Sushil Kumar is ineffective to file the complaint. This Court does not agree with this submission of Ld. Counsel primarily for the reason that Sh. Ram Narayan had executed the GPA (CW1/3) in favour of Sh. Sushil Kumar in his official capacity, therefore, even if, he had left the office of complainant company, the GPA executed by him does not become in- consequential unless the same is withdrawn by his successor. In this case, even, Sh. Prem R. Kumar, successor of Sh. Ram Narayan, also executed the GPA in favour of Sh. Sushil Kumar for representing the complainant company. Otherwise also, in the judgement relied by Ld. ACMM "MMTC Ltd. Vs. M/s Medchl Chemicals & Pharma Private Ltd." 2002 Criminal J 266, it was observed that the company can rectify the defect of authority at the later stage, which was so done by the complainant company in this case also by placing on record fresh attorney in favour of Sh. Sushil Kumar (Mark CX) executed by Sh. Prem. R. Kumar, present Chief Executive Officer. In view of the same, the objection of the appellant that the complaint was not filed by the competent person of the complainant company is rejected.
14. The next line of argument of the appellant/accused is that Late Sh. Brij Mohan Sharma was never the employee of Digitally signed by CHARU CHARU AGGARWAL CA No. 139/2020 AGGARWAL Date: 2022.01.31 7 of 19 15:24:40 +0530 complainant company as he got retired in the year 1996 when the complainant company was not even in existence, therefore, complainant company had no right to file the complaint. This arguments of appellant again has no force in view of his own admission, various Rules of Delhi Electricity Reforms (Transfer Scheme) Rules 2001 and judgement of Hon'ble High Court and Apex Court. It is admitted case of the appellant that Late Sh. Brij Mohan Sharma was the employee of the DVB/DESU and got retired in the year 1996 from DVB/DESU only. The complainant company has stated that it has stepped into the shoes of DVB/DESU w.e.f. 01.07.2002 vide notification No. F- 11(99)/2001/Power/PF/(iii)2828 dated 13.11.2001(Ex. CW1/4) as per which all the assets, liabilities, proceedings and personnels of DVB/DESU were transferred and vested in the successor entity which is complainant company herein. The said notification is duly proved by the complainant in its evidence and there is no cross-examination of CW1 on this notification. In view of Ex. CW1/4, it is duly established by the complainant that it has taken over the charge of all the assets, liabilities, proceedings and personnels of DVB/DESU. The relevant rules of Delhi Electricity reforms (Transfer Scheme) Rules 2001 are reproduced as under: -
Rule 6 (6) - Subject to the provisions of these rules, the personnel transferred to a transferee shall cease to be in the service of the Board and shall not assert or claim any benefit of service under the Board.
Rule 6 (8)−Subject to sub−rule (9) below, in respect of all statutory and other schemes and employment related matters, including the provident fund, gratuity Digitally signed by CHARU CHARU AGGARWAL CA No. 139/2020 AGGARWAL Date: 2022.01.31 8 of 19 15:24:47 +0530 fund, pension and any superannuation fund or special fund created or existing for the benefit of the personnel and the existing pensioners, the relevant transferee shall stand substituted for the Board for all purposes and all the rights, powers and obligations of the Board in relation to any and all such matters shall become those of such transferee and the services of the personnel shall be treated as having been continuous for the purpose of the application of this sub-rule.
Rule 6 (9)− The government shall make appropriate arrangements as provided in the tripartite agreements in regard to the funding of the terminal benefits to the extent it is unfunded on the date of the transfer from the Board. Till such arrangements are made, the payment falling due the existing pensioners shall be made by the TRANSCO, subject to appropriate adjustments with other transferees.
For the purpose of this sub rule, the term -
(a)"existing pensioners" mean all the persons eligible f or the pension as on the date of transfer from the Board and shall include family members of the personnel as per the applicable scheme ; and
(b) "terminal benefits" means the gratuity, pension, dearness and other terminal benefits to the personnel and existing pensioners.
Rule 6 (10) On the effective date of transfer all the existing welfare schemes, like the scheme for Death Relief Fund, DESLU Engineers Benevolent Digitally signed by CHARU CHARU AGGARWAL CA No. 139/2020 AGGARWAL Date: 2022.01.31 9 of 19 15:24:54 +0530 Fund Scheme, or similar schemes which are in operation in the Board shall be continued by the transferees on the same terms and conditions and shall be given full effect and shall not be discontinued on account of deficiency in funds to maintain such schemes.
Rule 6(11) All proceedings including disciplinary proc eedings pending against the personnel prior to the date of the transfer from the Board to the transferees, or which may relate to misconduct, lapses or acts of commission or omission committed before the date of the transfer, shall not abate and may be continued by the relevant transferee.
Rule 6 (12) The personnel transferred to the transferees, shall be deemed to have entered into agreements with the respective transferees to repay loans, advances and other sums due or otherwise perform obligations undertaken by them to the Board which remain outstanding as on the date of the transfer, on the same terms and conditions as contained in the agreements or arrangements with the Board.
15. Here, I would also place reliance on "NDPL Vs. Govt. of NCT & Ors." 169 (2010) DLT 575 (SC). In the said case before Hon'ble Delhi High Court the respondent No. 3 Sh. K.R. Jain, erstwhile employee of DVB/DESU who had retired from the service on 31.07.1996 filed a Writ Petition before Hon'ble Delhi High Court claiming that even though he had retired on 31.07.1996, much prior to NDPL was incorporated and inherited Digitally signed by CHARU CHARU AGGARWAL CA No. 139/2020 AGGARWAL Date: 2022.01.31 10 of 19 15:25:04 +0530 the distribution of power alongwith its assets, liabilities and personnels, he was covered under the time bound terminal scale scheme dated 23.07.1997. The Writ filed by Sh. K.R. Jain was allowed by Hon'ble Delhi High Court even though NDPL was not party in the said proceedings holding that Sh. K.R. Jain was entitled to avail the benefits under the time bound promotional scale schemes and DVB/DESU had unjustly denied him his dues. The NDPL was successor of DVB/DESU, therefore, Writ of Mandmus was issued against NDPL to implement its judgement. On the appeal filed by the NDPL against the judgement passed by Hon'ble Delhi High Court, the Apex Court dealt with the question in detail involved in the present case "whether the appellant are responsible for meeting the liability relating to employees of erstwhile DVB (Predecessor of DVB) prior to 01.07.2002 on account of their retirement/removal/dismissal or compulsory retirement in accordance with the provisions of Delhi Electricity Reforms Act, 2000?" The Hon'ble Apex Court in this judgement (supra) referred to all relevant rules of the transfer scheme i.e. Delhi Electricity Reforms (Transfer Scheme) Rules 2001, which are as under :-
Para No. 25 By necessary reference .................... uncalled for. The only relevant Rule which would have to be considered for this purpose is Rule 6 which is a complete code by itself in relation to personnel and personnel related matters. The words used in Rule 3(2), namely, personnel related matters are sufficiently broad to take into their sweep the matters regarding the retired, dismissed or dead personnel also. Rule Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.01.31 CA No. 139/2020 15:25:12 +0530 11 of 19 6(8) which we have already quoted but would repeat again for the ready reference is as under:
"(8) Subject to sub-rule (9) below, in respect of all statutory and other schemes and employment related matters, including the provident fund, gratuity fund, pension and any superannuation fund or special fund created or existing for the benefit of the personnel and the existing pensioners, the relevant transferee shall stand substituted for the Board for all purposes and all the rights, powers and obligations of the board in relation to any and all such matters shall become those of such transferee and the services of the personnel shall be treated as having been continuous for the purpose of the application of this sub-rule."
Para 26. The language is extremely clear. It not only specifies the employment related matters but also clarifies what those matters would be which include pension and any superannuation fund or special fund created or existing for the benefit of the personnel and the existing pensioners. The words existing pensioners are extremely important. A plain reading of this Rule would leave no manner of doubt in respect of the liability having been transferred to transferee company and the NDPL is certainly the one. The language is broad enough to include all dismissed, dead, retired and compulsorily retired employees. As if that was not sufficient, Sub rule (9) requires the Government to make appropriate arrangements in terms of the Tripartite Agreements in regard to the fund of Digitally signed by CHARU CHARU AGGARWAL CA No. 139/2020 AGGARWAL Date: 2022.01.31 12 of 19 15:25:19 +0530 terminal benefits to the extent it is unfunded on the date of transfer from the Board.
Rule 9(a) and (b) are also very significant and are as under: -
"9. The Government shall make appropriate arrangements as provided in the tripartite agreements in regard to the funding of the terminal benefits to the extent it is unfunded on the date of transfer from the Board. Till such arrangements are made, the payment falling due to the existing pensioners shall be made by the TRANSCO, subject to appropriate adjustments with other transfers.
For the purpose of this sub−rule, the term −−
(a)"existing pensioners" mean all the persons eligible for the pension as on the date of the transfer from the Board and shall include family members of the person nel as per the applicable scheme; and (b) "terminal benefits" mean the gratuity, pension, dearness and other terminal benefits to the personnel and existing pensioners."
Para 27. A glance at these sub−rules is sufficient to come to the conclusion that the liabilities have undoubtedly been transferred to DISCOMS which include both NDPL as well as the BSES. A feeble argument was raised that Sub−rule (8) does not contemplate pension or any liability on account of the revised pay scale or interpretation of respective scheme of promotion so far as existing pensioners or the erstwhile DVB are Digitally signed by CHARU CHARU AGGARWAL CA No. 139/2020 AGGARWAL Date: 2022.01.31 13 of 19 15:25:34 +0530 concerned to the DISCOMS. Considering the broad language of the Rule, we do not think that such contention is possible.
Para 28 Again relying on Rule 2 (r) it was feebly tried to be suggested that the DISCOMS were not the only transferees but it was also the holding company, namely, the Delhi Power Company Ltd. (DPCL). All transferees came only to the DISCOMS like the NDPL under the transfer scheme. The High Court has correctly interpreted these Rules and has correctly come to the conclusion that the liabilities would rest with the DISCOMS including NDPL and BSES."
16. Reliance is again placed on clause 2 of notification No. . F- 11(99)/2001/Power/PF/(iii)2828 dated 13.11.2001 (Ex. CW1/4) as per which complainant company being transferee/successor of DVB/DESU is vested with the right to get vacated the flat in question situated at Tripolia Colony, Delhi. Relevant clause 2 is reproduced as under: -
"(b) No existing employees will be asked by the transferee company to vacate the flat occupied by him/her till his/her retirement or treating the service of the company or ceasing to be entitled under the existing allotment to him/her of the said flat.
(c) For the residential accommodation allocated to a transferee company but occupied by employees of other companies, a license fee (as decided by the Govt. of NCT of Delhi) shall be paid by the other companies concerned to the transferee company.
Similarly, damage charges/other arrears payable on Digitally signed by CHARU CHARU AGGARWAL AGGARWAL CA No. 139/2020 Date: 2022.01.31 15:25:43 +0530 14 of 19 account of revised license fee etc. will be recovered by the transferee company from the other companies whose employees are in occupation of such accommodation in its jurisdiction.
(d) In the event of a flat falling vacant, transferee company may allot it to its own employees. The transferee company will be responsible for eviction in case of unauthorised occupation. Maintenance of the colonies/residential quarters will be responsibility of the transferee company."
17. The above mentioned rules and ratio of NDPL (supra) makes it clear that all the assets, liabilities, proceedings and personnels including the employees of DVB/DESU were transferred to the transferee company i.e. BSES (complainant herein) for all aspects, be it benefits to the employees including its Ex-employees, dead and retired. Accordingly, it is held that complainant company being successor of DVB/DESU has right to initiate prosecution against the employees of erstwhile DVB/DESU.
18. The appellant has also argued that he is the legal heir of Late Sh. Brij Mohan Sharma, employee of DVB/DESU, therefore, the complainant could not file the complaint against him. The Hon'ble Apex Court has dealt with the similar issue in "Abhilash Vinod Kumar Jain Vs. Cox and Kings (India) Ltd. (1995) 3SCC 732 Baldev Krishna Sahi Vs. Shipping Corporation of India Ltd. & Ors. (1988) (i) SCR 168, wherein it has been observed that the proceedings U/s 630 Companies Act can also be initiated against the ex-employees of the company or their legal heirs. In this case, admittedly Late Sh. Brij Mohan Sharma was the employee of DVB/DESU who retired therefrom Digitally signed by CHARU CHARU AGGARWAL CA No. 139/2020 AGGARWAL Date: 2022.01.31 15 of 19 15:25:51 +0530 in the year 1986 and expired in the year 2013. The appellant is in possession of the flat in question being family member or legal heir of the deceased employee late Sh. Brij Mohan Sharma, therefore, in view of above judgement he is required to vacate the flat in question and the arguments raised by him that the complainant company could not initiate proceedings u/s 452 Companies Act against him, has no force.
19. The next objection taken by the appellant is that the remedy available to the complainant was under the Public Premises Act but not u/s 630 Companies Act. This argument again has no water to hold in view of judgements of "State of West Bengal Vs. Saral Kumar Sen Gupta (1986) 3 SCC 45, AIR 1987 SC 514, Ajay Kumar Banerjee Vs. Union of India AIR 1984 SC 1130 and Govind T Jagitiani's case (1984) 56 Complaint Case 329 (Bombay), wherein it is held that the company has both the remedies, Civil and Criminal, to get vacated its property. Appellant have not brought on record anything which bars the complainant company to initiate criminal proceedings u/s 630 Companies Act for getting the flat vacated from the unauthorised occupants.
20. Ld. Counsel for appellant has also argued that the flat in question was allotted to Late Sh. Brij Mohan Sharma by DVB/DESU under the Low Income Group Housing Scheme of Govt. of India (Mark A). The perusal of Mark A shows that it is just a guidelines to the State mentioning therein to set administrative machinery to work out the details contained therein in order to implement the said guidelines. The appellant cannot claim any legal right of ownership transferred to them in the flat in question under Low Income Group Housing Scheme of Govt. of India as no Resolution passed by the Govt. to sell such Digitally signed by CHARU CA No. 139/2020 16 of 19 CHARU AGGARWAL AGGARWAL Date: 2022.01.31 15:25:59 +0530 quarters to the allottees have been placed on record by the appellant. Undisputedly, the said scheme has not been implemented till date. In view of the above discussion, this Court is of the considered view that the appellant cannot assert his right in the flat in question on the basis of Mark A.
21. Ld. Counsel for appellant has argued that the complainant company is neither the owner nor having any title to claim the possession of the flat in question from the appellant. CW-1 has specifically deposed that the flat in question was allotted to late Sh. Brij Mohan Sharma by virtue of his employment vide allotment letter Ex. CW-1/5. The fact that the flat in question was allotted to late Sh. Brij Mohan Sharma by virtue of his employment with DVB/DESU and the letter Ex. CW-1/5 has not been disputed by the appellant. This proves the relationship of employer and employee between the complainant company and late Sh. Brij Mohan Sharma, thus it stands established that he was the licensee and complainant company is the licensor qua the flat in question, therefore, in view of Section 116 of Evidence Act, licensee or his heirs are estopped from challenging the title of licensor i.e. complainant company herein. For this reliance can be placed on "S. K. Sarma Vs. Mahesh Kumar Verma", (2002) 7 SCC 505 (Criminal Appeal No. 960 of 2002 decided on September 17, 2002). Accordingly, the argument of appellant regarding the ownership and title of the complainant company in the flat in question has no substance.
22. The complainant is a registered company under the Companies Act, 2013 as proved from its certificate of corporation (Ex. CW-1/A). In view of notification No. F-11 (99) / 2001/Power/PF/(iii)2828 dated 13.11.2001 (Ex. CW-1/4), all the Digitally signed by CHARU CHARU AGGARWAL CA No. 139/2020 AGGARWAL Date:
17 of 19 2022.01.31 15:26:06 +0530 assets, liabilities, personnels and proceedings of the DVB/DESU including the flats in question have been taken by the complainant company. Admittedly, Late Sh. Brij Mohan Sharma was the employee of DVB//DESU to whom the flat in question was allotted vide allotment letter Ex. CW1/5 during his employment, hence, there was a relationship of licensor and licensee between employer and employee. Undisputedly, Late Sh. Brij Mohan Sharma Pal retired from the service of DVB/DESU in the year 1986 and expired in the year 2013. After the death of Sh. Brij Mohan Sharma, the appellant is in occupation of the flat in question in the capacity of his family member. After the retirement of Late Sh. Brij Mohan Sharma, the possession of Late Sh. Brij Mohan Sharma and his family members in the flat in question is unauthorised. Accordingly, this Court finds no infirmity in the impugned judgement of conviction.
23. With regard to order on sentence, Ld. Trial Court has directed the appellant to hand over the possession of flat in question to the complainant company within a period of one year from the date of said order and in default to pay user charges @ Rs.1,000/- per month from the date of filing of complaint till vacation of the flat. This Court finds no infirmity in the first portion of order on sentence whereby appellant has been directed to vacate the flat, however, the direction to pay user charges is de-hors the provision of 452 Companies Act since as per the said provision the Court may impose the fine to the tune of Rs.1,00,000/- to Rs.5,00,000/-, direct to vacate the premises and to deliver the benefit derived from property and in default to undergo imprisonment maximum for two years. In view of the same, the order on sentence passed by Ld. Trial Court is modified Digitally signed by CHARU CHARU AGGARWAL CA No. 139/2020 AGGARWAL Date: 2022.01.31 18 of 19 15:26:35 +0530 to the extent that fine of Rs.1,00,000/- is imposed upon the appellant and he is directed to hand over the vacant possession of the flat in question to the complainant within 45 days from today in default to undergo simple imprisonment for three months.
24. In view of above discussion, the present appeal is dismissed qua the judgement on conviction passed by Ld. Trial Court and order on sentence is modified in terms of the directions given in the preceding para. The appeal is accordingly disposed off.
Trial Court Record be sent back to the concerned court alongwith copy of this order.
Appeal file be consigned to record room.
Digitally signed by CHARU CHARU AGGARWAL
AGGARWAL Date:
2022.01.31
15:26:15 +0530
Announced in the open court (Charu Aggarwal)
on 31.01.2022(through Cisco Webex) ASJ-02/Central Distt.
THC/Delhi (j)
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