Delhi District Court
Bses Yamuna Power Ltd. vs R.L. Gaur on 11 March, 2015
IN THE COURT OF SH. DEVENDRA KUMAR SHARMA
ADDL. CHIEF METROPOLITAN MAGISTRATE (Spl. Acts) CENTRAL
TIS HAZARI COURTS, DELHI
BSES Yamuna Power Ltd. vs R.L. Gaur
U/s 630 of Companies Act, 1956
CC No.372/3
JUDGMENT
(a) Serial no. of the case : 02401R0449202006
(b) Date of commission of offence: On/after 01.11.1988 continuously
(c)Name of complainant : BSES Yamuna Power Ltd.
(formerly known as DVB)
having its registered office at BSES
Shakti Kiran Building,
Karkardooma, Delhi92
(d) Name, parentage, residence: R.L. Gaur
R/o F49, BlockF, TypeIII
Tripolia Colony, Delhi
(e) Offence complained of/proved : U/s 630 of Companies Act (f) Plea of accused : Pleaded not guilty. (g) Final order : Convicted (h) Date of such order : 11.03.2015 Date of Institution : 22.05.06 Final arguments heard/order reserved: 28.02.2015 Date of of Judgment: 11.03.2015 Brief statement of the reasons for the decision:
1. The complainant company, M/s. BSES Yamuna Power Ltd filed the present complaint u/s 630 of the Companies Act, 1956, against accused R.L. Gaur alleging that he was an employee of Delhi Vidyut Board (in short D.V.B.), which was subsequently divided into different distribution companies and the present complainant BSES Yamuna Delhi Power Limited (which was earlier BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 1 of 33 known as CentralEast Delhi Distribution Company Limited (DISCOMI) took over one of these distribution company through notification No.F11/99/2001 Power/PFIII 2828 dated 13.11.01 by the Dy. Secretary (Power), Govt. of NCT of Delhi. The DVB was unbundled on 30.06.02 and the complainant company came into existence on 01.07.02. Besides taking over assets and liabilities, the present complainant also took over the employees of erstwhile Delhi Vidyut Board.
It is further alleged that accused was alloted Flat No.F49, BlockF, TypeIII, Tripolia Colony, Delhi, by virtue of his employment with the conditions that he was to retain the said quarter till he remains in the services of the company. As contended, accused was relieved from the services of the company w.e.f 30.06.1988 on attaining the age of superannuation but failed to vacate the quarter in question within stipulated period of four months after retirement/cessation of employment and has been residing in the said quarter unauthorizedly since 01.03.1992. A legal notice was issued to the accused for vacation of the aforesaid quarter as well as to pay or deposit the licence fees/damages but accused failed to do so and he has been unlawfully occupying and withholding the said quarter. Hence, present complaint u/s 630 of Companies Act.
2. After examining Mr. PK Saxena as CW1 in presummoning evidence, the accused was summoned for the aforesaid offence and a notice u/s 251 Cr.P.C.
was served upon the accused on 04.08.2007 for the offence punishable u/s BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 2 of 33 630 of Companies Act to which he pleaded not guilty and claimed trial.
3. In order to substantiate the allegations against the accused, initially, the complainant opted to examine Sh. P.K. Saxena as PW1. On 07.06.2010, his examination in chief was recorded and his cross examination was deferred at the request of counsel for accused. Thereafter PW1 Sh. PK Saxena did not turn up for his cross examination as he left the company. Vide order dated 05.05.2012 on the complainant's application, Sh. Sushil Kumar was substituted as new AR. Thereafter, Sh. Sushil Kumar was examined as PW1.
In his evidence, PW1 Sh. Sushil Kumar deposed that present complaint was filed by PW1 Sh. P.K. Saxena who was duly authorized vide authority letter Ex.PW1/5 and he is also duly authorized to prosecute the present complaint and proved copy of authority letter in his favour and board resolution Ex.PW1/6 and Ex.PW1/7. The witness further deposed that the flat in question was allotted to the accused vide allotment letter Ex.PW1/1, being employee of the board. The witness further deposed that accused retired from the services of erstwhile employer on 30.06.1988 but did not vacate the quarter despite vacation notice Ex.PW1/3. The witness also proved on record the reply of the vacation notice Ex.PW1/4, Incorporation Certificate of the complainant company Ex.PW1/A and complaint as Ex.PW1/9. PW1 also deposed that the assets of DVB and the properties situated at Tripolia stood transferred to the complainant company by virtue of notification Ex.PW1/2. Accused failed to vacate the quarter in question even after cessation of his services and has BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 3 of 33 been withholding the said flat illegally and wrongfully. The witness was cross examined at length on behalf of the accused.
4. Statement of accused was recorded u/s 313 Cr.P.C. read with section 281 Cr.P.C. separately wherein accused denied the allegations and stated that he was employee of DESU and not of DVB. He also retired from DESU. Accused did not deny that flat in question was allotted to him by virtue of his employment but stated that same was allotted by DESU and the said allotment is covered under Low Income Group Housing Scheme on the basis of which the flat in question was to be transferred to the employee. Accused further stated that the complainant company is not the owner of the flat in question and also disputed the notification Ex.PW1/2 stating that same was never published and therefore, is not valid one. Present complaint is not filed by the authorized person of the complainant company. Present complaint is not maintainable as the complainant company is not the successor company of DESU from which he retired. Vide order dated 01.11.2014, accused opted not to lead defence evidence.
5. I have given my thoughtful consideration to the submissions advanced on behalf of parties and gone through the records. I have also gone through the relevant provisions of law and written arguments filed on behalf of complainant. Learned defence counsel adopted the arguments, written submissions and case laws filed in another case titled as BSES YPL vs B.L. Jain bearing CC No.1141/3, being identical one. Learned defence counsel also BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 4 of 33 submitted that the cross examination of the witness examined as CW1 in the case titled as BSES Yamuna Power Ltd. Vs B.N. Sharma bearing CC No.71/3 be also read in this case in support of claim and contentions. I have considered the written arguments, case laws filed in B.L. Jain case and cross examination of CW1 examined in B.N. Sharma case. The case laws filed in B.L. Jain case, are reproduced below for ready reference
(i)State Bank of Travancore vs. M/s Kingston Computers (I) Pvt. Ltd.
(ii) Ram Gopal & Anr vs LT Governor, Govt. of NCT & Ors dated 04.09.2014
(iii) Manoj Kumar vs BSES Rajdhani Power Ltd & Anr dated 14.05.2013
6. Section 630 of the Companies Act, 1956 provides as under: "(1) If any officer of employee or a company
(a) wrongfully obtains possession of any property of a company; or
(b) having any such property in his possession, wrongfully withholds it or knowingly applies it to purposes other than expressed or directed in the articles and authorised by this Act, He shall, on the complaint of the company or any creditors or contributory thereof, be punishable with fine which may extend to [ten thousand rupees].
(2) The Court trying the offence may also order such officer or employee to deliver up or refund, within a time to be fixed by the Court, any such property wrongfully obtained or wrongfully withheld or knowingly misapplied, or in default, to suffer imprisonment for a term which may extend to two years."
7. It is settled law that the scope of inquiry in a proceedings u/s 630 of Companies Act, 1956 is extremely restricted in law and the case is to be confined within those narrow ambit's without permitting any delay. The provision contained in Section 630 has been purposely enacted by the legislature with the object of providing a summary procedure for retrieving the property of the company. It is the duty of the Court to place a broad and liberal construction to the provisions in furtherance of the object and purpose of the BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 5 of 33 legislation which would suppress the mischief and advance the remedy. It was held in "1989 (4) SC 514, Atul Mathur vs Atul Kalra and Another" that the purpose of enacting Section 630 is to provide speedy relief to a company when its property is wrongfully obtained or wrongfully withheld by an employee or an exemployee.
8. While dealing with the case U/s 630 of Companies Act, this court is guided as law laid down by the Hon'ble Bombay High Court in "1993 CRI. L.J. 2791 "
K.G.K. Nair v. P.C. Juneja".
"The provisions of S.630 are intended to provide speedy and efficacious redress in cases where company's property is wrongfully withheld and therefore, the following guidelines are required to be observed:
1. That the complaints be taken up and disposed of on a priority basis, the accent being on the avoidance of any unwarranted delay.
2. That the trial Courts should address themselves to the fact that the scope of the enquiry in a proceeding under Section 630 is extremely restricted in law and, consequently, the parties be confined within those narrow ambits without being permitted to dilate or protract the proceeding through extraneous avenues.
3. That no frivolous application for adjournment, stay of proceedings, etc., should be permitted by the trial Courts because the history of these proceedings indicate that each of such states is responsible for further litigation and years of delay. The pendency of other civil proceedings is no bar to the decision of an application under S. 630 which fact should be taken cognizance of in such situations.
4. That the appeal, i.e., Court of Session, in the first instance, must judiciously scrutinize and vigorously examine the revision applications and appeal before granting stay orders.
5. That applications for discharge on frivolous and untenable pleas are required to be speedily and effectively disposed of and are not to be used as handles for protracting the litigation".
9. In case of "S.K. Sarma v. Mahesh Kumar Verma, AIR 2002 SC 3294 = 2002 AIR SCW 3827" though the case pertains to Section 138 of Railways Act, but it BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 6 of 33 is somewhat similar to section 630 of the Companies Act, which provides a procedure for summary delivery to railway administration of property detained by a railway servant. It was observed as follows:
"The object of the aforesaid Section is to provide speedy summary procedure for taking back the railway property detained by the railway servant or his legal representative. Properties include not only dwelling house, office or other building but also papers and any other matters. This would mean that the Section embraces in its sphere all unlawful detention of any railway property by the railway servant............The word 'discharge' used in context is of widest amplitude and would include cessation of relationship of employer and employee, may be retirement, resignation, dismissal or removal. This Court in "Union of India v. B.N. Prasad [(1978) 2 SCC 462]" considered Section 138 and held that a close perusal of the section clearly reveals that the provisions has widest amplitude and takes within its fold not only a railway servant but even a contractor who is engaged for performing services to the railway, and the termination of his contract by the Railway amounts to his discharge, as mentioned in Section 138. The Court also observed that the said provision is in public interest and must be construed liberally, broadly and meaningfully so as to advance the object sought to be achieved by Railways Act........"
10.Apart from several other arguments, it is vehemently argued on behalf of the accused that complainant is claiming to be the successor of the erstwhile DESU/DVB which was not companies and/or that some of the accused/ex employee were never the employees of the distribution companies but retired as employees of the DVB/DESU. Thus, present complaint u/s 630 of the Act is not maintainable before this court.
The issue raised by the learned defence counsel is a legal issue and therefore, this issue is required to be discussed first as the decision of this issue will affect the decision of the case.
A) Based upon the decision in Writ Petition (Crl.) 1709/2014, CM Nos.
BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 7 of 33 1304613047/2014 in case titled as Ram Gopal & Another Vs Lt. Governor, Govt of NCT & Ors and other connected writ petitions dated 04.09.2014 by the Hon'ble High Court of Delhi, it has been contended on behalf of the accused that the accused/predecessor in interest of the accused was never the employee with the complainant company. It has been further contended that even the predecessor in interest of the complainant company i.e. DESU or DVB were never the companies incorporated under the Companies Act, 1956 and, therefore, were having no right to invoke the provisions under Section 630 of the Companies Act. Therefore, even if for the sake of arguments, it is assumed that the present complainant being the successor of the property in dispute by virtue of any order/notification, the present complaint can not be maintained under Section 630 of the Companies Act, 1956. Further it has been been contended that dispute involved in the present case is of civil nature and therefore, this court has no jurisdiction and reliance has been placed upon judgment reported in "Damodar Das Jain vs Krishna Charan Chakraborth and Another (564 Company Cases [Vol.67 1990 SC]).
B) In this regard the reliance have been placed upon following relevant part of para13 of the said order:
13. As far as the third submission, i.e. with regard to the use by the distribution companies of Clauses 2(d) and 2(e) of the Notification is concerned, to say that Section 630 proceedings are maintainable, this Court is of the opinion that the issue would have to be seen from two angles. At the facial angle, i.e., at the threshold, the respondent distribution companies have to necessarily rely upon the impugned Notification to say that they have the title to the properties. Once having upheld the respondents' authority as licensee (in view of the lack of challenge to the Notification on the ground of it being ultra vires), there can be no BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 8 of 33 controversy as to their right - as licensee, to maintain such properties. We, therefore, overrule the submission of the petitioners at this threshold. The second aspect, i.e., as to whether proceedings under Section 630 are ipso facto maintainable as neither DESU nor DVB, the original entities which owned the properties were companies goes, that is the aspect which goes to the jurisdiction of the Magistrate. The petitioners' argument here is that neither DESU nor DVB were companies and, therefore, not entitled to invoke the provisions of Section 630 of the Companies Act. Factually, all the distribution companies are companies incorporated under the Companies Act. The question as to whether such successors of DESU/DVB are entitled to invoke the provisions when the original entity, i.e., transferors were allegedly unable to invoke them and, consequently, whether such proceedings can or can not be maintained as against the former employees of the DVB/DESU, who never became employees of the successor companies, is a issue which would not arise for consideration by this Court in these proceedings where the petitioners have challenged the validity of the Notification. This Court is conscious of the fact that such issues appear to have been raised and mostly decided against the employees. In some cases, revision proceedings also have been concluded and the decision rendered final. Having regard to these, and the fact that the issue of jurisdiction would require the examination of the Notification and other materials, it would be inappropriate for this Court to examine the correctness of such contentions especially under Articles 226 of the Constitution of India. In these circumstances, this issue is kept open insofar as it is not concluded in any particular instance or cases. In other words, whenever the issue of jurisdiction of a Magistrate to proceed under Section 630 is raised on the grounds that the distribution companies are successors of the erstwhile DESU/DVB, which were not companies and/or that some of the accused/exemployee were never the employees of the distribution companies, but retired as employees of the DVB/DESU, such issues would be gone into specifically by the Magistrate in all pending proceedings, and specific findings, after noticing the contentions of both parties would have to be rendered; the concerned Magistrate will have to decide the question of jurisdiction and the maintainability of Section 630 independently of the title conferred upon the respondents to the properties by virtue of the Notification. The rights and contentions of both the petitioners and respondents are kept open in this regard in respect of cases where the same has not been finally concluded inter parties."
C) On the other hand, it has been submitted on behalf of the complainant that the issue of maintainability of the petition under Section 630 of the Companies Act and as to whether the accused persons who retired as employee from the BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 9 of 33 DVB/DESU have already been discussed in detail by the predecessor of this Court, learned Sessions Courts as well as by the Hon'ble High Court in various matters in complaint filed under Section 630 of the Companies Act and have been rejected. It has been further contended that the accused/predecessor in interest of the accused were the employees of the DVB/ DESU and complainant being the successor in interest, they became the employee of the complainant by virtue of the statute/various notifications as well as case law. In this regard complainant has placed reliance upon following materials:
In this regard, first reliance has been placed upon Delhi Electricity Reforms (Transfer Scheme) Rules, 2001.
Rule 6 (5) The transfer of personnel to the transferee shall be subject to any orders that may be passed by the Courts or Tribunals in any of the proceedings pending on the date of the transfer.
Rule 6 (8)Subject to subrule (9) below, in respect of all statutory and other schemes and employment related mattters, 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.
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 to 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 for the BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 10 of 33 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 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 proceedings 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.
D) Reliance has been further placed upon judgment reported in 169 (2010) DLT 575 (SC) in case titled as NDPL vs Govt of NCT & Ors. While referring to the various rules of the transfer scheme i.e. Delhi Electricity Reforms (Transfer Scheme) Rules 2001, it was observed as under:
Para 11. The Letters Patent Appeal filed by the appellant before the High Court was dismissed. It so happened, that respondent No.3 herein Shri K.R. Jain, who was an erstwhile employee of the Delhi Electric Supply Undertaking (DESU), superannuated from service on 31.7.1996. Eventually, Delhi Vidyut Board (DVB) became successor of Delhi Electricity Supply Undertaking (DESU). NDPL was incorporated on 4.7.2001 and inherited the distribution undertaking on 1.7.2002 along with the assets, liabilities, personnel and proceedings in pursuance of statutory transfer scheme notified by the Government pursuant to Sections 1416 and 60 of the Delhi Electricity Reforms Act, 2000. It was much before that, that respondent No.3 was superannuated. His pension was paid from the Terminal Benefit Fund, 2002 of DVB. The DVB had floated Time Bound Terminal Scale Scheme by its Office Order dated 23.7.1997 and Resolution No.216 dated BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 11 of 33 16.7.1997. Claiming that though he had superannuated on 31.7.96, still he was covered by the scheme, respondent No.3 filed a Writ Petition No.2337 of 2004 seeking appropriate direction against Delhi Government, Delhi Co. Ltd and Delhi Power Supply Company and claimed benefits arising out of the Scheme.
Significantly enough, NDPL was not made a party nor was there any claim against it. This Writ Petition was allowed by the learned Single Judge, holding that respondent No.3 was entitled to avail the benefits under Time Bound Promotional Scale Scheme (TBPS) and that DVB had unjustly denied him his dues. Holding the present appellant as a successor, Mandamus was issued against the appellant who was not a party and was not given an opportunity of hearing. This was based on the statement of an advocate appearing for respondent Nos.1 and 2 herein to the effect that it was the appellantpetitioner who was the successor and was as such responsible to implement the judgment dated 23.3.2004.
Para 26. The language is extremely clear. It is 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, Subrule (9) requires the Government to make appropriate arrangements in terms of the Tripartite Agreements in regard to the fund of 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 tri partite 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 subrule, 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 personnel as per the applicable scheme; and
(b) "terminal benefits" mean the gratuity, pension, dearness and other terminal benefits to the personnel and existing pensioners."
27. A glance at these subrules is suficient to come to the conclusion that the BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 12 of 33 liabilities have undoubtedly been transferred to the DISCOMS which include both NDPL as well as the BSES. A feeble argument was raised that Subrule (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 concerned to the DISCOMS. Considering the broad language of the Rule, we do not think that such contention is possible.
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."
E) To substantiate the contention that the present complaint is maintainable under Section 630 of the Companies against the retired employees of predecessor in interest reliance has been placed in judgment reported in AIR 2009 Supreme Court 2032 in case titled as Gopika Chandra Bhushan Saran & Ors vs M/s XLO India Limited & Ors. The relevant observation is is reproduced below:
13.The main purpose to make action an offence under Section 630 is to provide a speedy and summary procedure for retrieving the property of the company where it has been wrongly obtained by the employee or officer of the company or where the property has been lawfully obtained but unlawfully retained after termination of the employment of the employee or the officer. From the bare reading of the section, it is apparent that subsection (1) is in two parts.
Clauses (a) and (b) of subsection (1) create two different and separate offences. Clause (a) contemplates a situation wherein an officer or employee of the company wrongfully obtains possession of any property of the company during the course of his employment to which he is not entitled whereas clause (b) contemplates a case whee an officer or employee of the company having any property of the company in his possession wrongfully withholds it or knowingly applies it to be purposes other than those expressed or directed in the articles and authorised by the company. Under this provision, it may be that an officer or an employee may have lawfully obtained possession of any property during the course of his employment, still it is an offence if he BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 13 of 33 wrongfully withholds it after the termination of his employment. Clause (b) also makes it an offence, if any officer or employee of the company having any property of the company in his possession knowingly applies it to purposes other than those expressed or directed in the articles and authorised by the Act. In terms of subsection (2) the court is empowered to impose a fine on the officer or employee of the company if found in breach of the provision of Section 630 of the Companies Act and further to issue direction if the court feels it just and appropriate for delivery of the possession of the property of the company and to impose a sentence of imprisonment when there is non compliance with the order of the Court regarding delivery or refund of the property of the company.
14. In Abhilash Vinodkumar Jain v Cox & Kings (India) Ltd., (1995) 3 SCC 732 this Court had occasion to deal with scope and ambit of the provisions of Section 630 of the Act. This Court analyzed Section 630 and drew a logical deduction in para 13 which is as follows:
"13. The logical deduction of the analysis of Section 630 of the Act in the light of the law laid down by this Court is that:
(i) Clause (a) of the section is self contained and independent of clause (b) with the capacity of creating penal liability embracing the case of an existing employee or an officer of the company and includes a past officer or a past employee of the company:
(ii) Clause(b) is equally independent and distinct from clause (a) as regards penal consequences and it squarely applies to the cases of past employees or officers;
(iii)the entitlement of the officer or employee to the allotted property of the company is contingent upon the right and capacity of the officer or the employee by virtue of his employment to continue in possession of the property belonging to the company, under authority of the company and the duration of such right is coterminous with his/her employment.
In para 14, this Court further laid down the Scope and ambit of Section 630:
14.Thus, inescapably it follows that the capacity, right to possession and the duration of occupation are all features which are integrally blended with the employment and the capacity and the corresponding rights are extinguished with the cessation of employment and an obligation arises to hand over the allotted property back to the company. Where the property of the company is held back whether by the employee, past employee or anyone claiming under them, the retained possession would amount to wrongful withholding of the property of the company actionable under Section 630 of the Act. The BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 14 of 33 argument of the learned counsel for the appellants that since the provisions of Section 630 of the Act are penal in nature the same must be strictly construed and, the parties which have not been expressly included by the legislature in Section 630 of the Act, can not by any interpretative extension be included in the said provision, ignores the situation that by a deeming fiction, the legal representatives or heirs of a past employee or officer, in occupation of the property of the company, would continue to enjoy the personality and status of the employee or the officer only. An argument quite similar in nature was raised in Baldev Krishna Sahi case (1987) 4 SCC 361 also while resisting the extension of the provisions of Sec. 630 of the Act to the past employee or past officer and rejecting the same, this Court opined: (SCC pp.36566, para 6).
"The first and foremost argument of learned counsel for the petitioner is that the provision contained in Section 630 of the Act is a penal provision and therefore must be subject to a strict construction and there is no room for intendment. It is submitted that on a true construction, the scope and effect of the section was limited to such property of the company which was wrongfully obtained by an officer or employee of the company. Emphasis was placed upon words 'any such property' in clause (b) does not stand by itself but is interconnected with clause
(a) and (b) must be read together. In essence, the submission is that subsection (1) of Section 630 of the Act makes it an offence where any officer or employee of a company wrongfully withholds possession of such property of the company.
Secondly, it is contended that the legislature never intended to include past officers and employees of a company within the ambit of Section 630 of the Act which provides for prosecution of an officer or employee of a company for wrongfully withholding the property of the company inasmuch as it has used different languages where it was so intended, namely, in Sections 538 and 545. The entire argument of the learned counsel is based upon the judgment of the High Court of Calcutta in Amritlal Chum case [(1987) 61 Comp Cas 211 (Cal)]. We are afraid, we find it difficult to subscribe to the narrow construction placed by the High Court of Calcutta on the provision contained in subsection(1) of Section 630 of the Act which defeats the very purpose and object with which it had been introduced."
We are in respectful agreement with the above view and are of the opinion that the legal representatives or the heirs of the deceased employee or officer would squarely fall within the ambit of Section 630 of the Act. To exclude them by giving a restrictive interpretation to the provisions would defeat the very object of the provision which declares the wrongful withholding of the property of the company to be an offence. It is immaterial whether the wrongful withholding is done by the employee or the officer or the past employee or the past officer or the heirs of the deceased employee or the officer or anyone claiming their right of occupancy BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 15 of 33 under such an employee or an officer. It can not be ignored that the legal heirs or representatives in possession of the property had acquired the right of occupancy in the property of the company by virtue of being family members of the employee or the officer during the employment of the officer or the employee and not on any independent account. They, therefore, derive their colour and content from the employee or the officer only and have no independent or personal right to hold on to the property of the company. Once the right of the employee or the officer to retain the possession of the property, either on account of termination of service, retirement, resignation or death, gets extinguished, they (person in occupation) are under an obligation to return the property back to the company and on their failure to do so, they render themselves liable to be dealt with under Section 630 of the Act for retrieval of the possession of the property."
F) Further reliance has been placed upon the order passed by the Hon'ble High Court in Crl. Revision Petition no.323/2013 and Crl. Misc. (B) No.1154/2013 dated 10.09.2013 in case titled as Ram Gopal vs State & Ors. The relevant observation are as under :
"Challenge to the impugned order by learned counsel for petitioner is on the ground that petitioner was not an employee of respondent no.2 and erstwhile DESU/DVB was taken over by NDPL and so trial court's order as well appellate court's order deserves to be set aside.
To controvert the aforesaid stand taken on behalf of the petitioner, learned counsel for second respondent had drawn the attention of this Court to the Government Notification of 13.11.2001 (AnnexureP2) to submit that respondent no.2 is the successor entity of petitioner erstwhile employer and this aspect has already been dealt with by the appellate court and there is no substance in this petition.
The finding written in the impugned order on this aspect is as under: " Ex.PW1/C is copy of the order dated 13.11.2001 vide which Govt of NCT of Delhi in consultation with the previous employer - Delhi Vidyut Board decided classification and allocation of residential colonies and sub station flats of the Board to the successor entities. Tripolia Colony falls within the jurisdiction of Central East Delhi Distribution."
Upon hearing both the sides and perusal of the judgment/order, I find no illegality or infirmity in the impugned order. This petition is dismissed being without merits. "
G)Vide notification no.F.11/99/2001Power/PFIII/2828, in clause 2 while BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 16 of 33 allocating the residential colonies and sub station flats of DVB, the condition was imposed which runs as under : a. b. Non 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 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 unauthorized occupation. Maintenance of the colonies/residential quarters will be responsibility of the transferee company.
e. H) In "Prahladbhai Rajaram Mehta vs Popatbhai Haribhai Patel And Anr. on 26 March, 1995" the Hon'ble Gujrat High Court held that two remedies available to the landlords are concurrent, one is for criminal prosecution under section 630 of the Companies Act, whereas, the other remedy is provided under the provisions of the Bombay Rent Act. The relevant paras of the judgment is reproduced below:
13. Two remedies available to the landlords are concurrent, one is for criminal prosecution under section 630 of the Companies Act, whereas, the other remedy is provided under the provisions of the Bombay Rent Act. Once the court finds that where even tenancy and, not a licence was created in consequence of the employment of the accused, the company is empowered to invoke provisions of section 630 for filing prosecution. The company incorporated under the Companies Act can be a landlord for the purposes of section 13(1)(f) and is entitled to file a suit for recovery of possession under the Bombay Rent Act. The right of the serviceoccupier may be as licensee or lessee, is personal and is BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 17 of 33 attributable to the employment with the company or master. Therefore, even in case of death of such an employee, pending the proceedings before the court, his heirs or legal representatives have no "locus standi" and have no right to claim tenancy rights. This proposition is very well explained and established by several decisions. It is also held by many courts that in such a case heirs of deceased employees may be directed to vacate such premises. Entitlement of an employee of a company registered under the Companies Act to occupy the company's premises is coterminous with termination of his service and such right would stand extinguished as soon as the employment ceases and the employee is bound to hand over possession to the company. This view is very well explained and established in Baldev Krishna Sahi v. Shipping Corporation of India Ltd., AIR 1987 SC 2245; [1988] 63 Comp Cas 1. Special provisions are made in section 630 for conviction and eviction which will be rendered unworkable if not nugatory if the contention of the accused is accepted that in a case of tenancy, the provisions of section 630 are not invocable. Special provisions for certain classes of public premises are also made even in the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (Public Premises Act, for short). Section 13(1)(f) of the Rent Act deals with the rights of landlords and tenants in general, while the provisions of section 630 of the Companies Act and section 2(c)(ii) of the Public Premises Act, are special provisions contained in special statutes. The objective of the said statutes cannot be said to be conflicting but as such is common and the remedy is concurrent provided thereunder. It would be interesting to mention at this stage that pursuant to the policy of the Legislature in the similar Act in the Maharashtra State by the Maharashtra Act (XVII of 1973) embodied in section 5(4A) in the Bombay Rent Act, a person in the service or employment of the licensor and occupying his employer's (licensor's) premises is not protected as a licensee under the provisions. It will also be interesting to mention that in one case of Government premises, the employee was allotted premises with a condition in the agreement of tenancy that the premises should exclusively be used by the allottee and his family members but the employee on his marriage shifted to other premises with his wife leaving other members of his family like brothers and sisters to continue to reside in the Government premises, it was held by the apex court in State of West Bengal v. Saral Kumar Sen Gupta [1986] 3 SCC 45; AIR 1987 SC 514, that the employee had violated the terms of tenancy. Thus, the provisions of section 13(1)(f) of the Rent Act are providing two concurrent remedies. Therefore, it cannot be contended that once tenancy is proved, the remedy under section 630 is barred or not available to the company of employer.
21. The decision of the Punjab and Haryana High Court in Sushila Mittal v. VXL India Ltd. [1992] 74 Comp Cas 836 is a very appropriate decision to mention here. In that case, criminal compliant under section 630 was filed by the company BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 18 of 33 against the petitioner Sushila who was allotted residential quarters on the basis of her employment with the company. She continued to be in possession of the said quarters even after she ceased to be an employee of the company. A suit was filed by her for a declaration that she was entitled to possession as a tenant. Thus, it was contended by her that she was in possession of the quarters which was rented to her by the company and she was protected by the Rent Act. She had filed a civil suit for perpetual injunction against the company restraining the company from evicting the petitioner by force. A suit which was also filed by the company for possession was decreed against the employee directing her to vacate the quarters and hand over possession. An appeal which was filed by the petitioner against the decree was also dismissed. The petitioner, however, continued to retain possession, the company thereafter filed a complaint under section 630 of the Companies Act. The petitioner filed a petition under section 482 of the Criminal Procedure Code to have the complaint quashed. It was held, dismissing the petition that the complaint under section 630 of the Companies Act is maintainable. Relying on the said decision, it is contended by the company that, merely because the respondent is intending to file a suit or raise a dispute of tenancy, the criminal prosecution is not incompetent.
22. In Ajay Kumar Banerjee v. Union of India, AIR 1984 SC 1130; [1984] 3 SCC 127, it was held that in case of conflict between the two statutes one special and the other general the tests to determine as to which one would prevail are :
(i) the Legislature has the right to alter a law already promulgated through subsequent legislation,
(ii) a special law may be altered, abrogated or repealed by a latter general law by an express provision,
(iii) a later general law will override a prior special law if the two are so repugnant to each other that they cannot coexist even though no express provision in that behalf is found in the general law, and
(iv) it is only in the absence of a provision to the contrary and of a clear inconsistency that a special law will remain wholly unaffected by a later general law. Thus, it can very well be seen from the said decision that the later general law will also override prior special law if the two are so repugnant to each other that they cannot coexist, even in the absence of a specific provision in that behalf in the general law; whereas, in the present case the special provision is made in section 630 of the Companies Act out of general law of landlords and tenants. Even if the provisions of sections 28 and 630 both are treated as special laws, then also, the Bombay Rent Act is of 1947 and the Companies Act is of 1956. Section 630 even if held to be in conflict will prevail over the provisions of section 28 of the Rent Act. No doubt, it is found by this court that provisions of section 28 read with section 13(1)(f) of the Rent Act and the provisions of section BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 19 of 33 630 of the Companies Act are operating simultaneously and providing different remedies which are concurrent in nature. Thus on a harmonious construction and considering the object and purpose of the both the statutes, this court has found that both can exist together. Even in case of repugnancy or conflict between the two laws, the provisions of section 630 will prevail over the provisions of section 13(1)(f) read with section 28 of the Rent Act being a statute of the State Legislature and an earlier one.
In Ashoka Marketing Ltd. v. Punjab National Bank [1992] 74 Comp Cas 482; AIR 1991 SC 855, the Constitution Bench of the Supreme Court has held that in case of conflicting laws, the later law should abrogate an earlier contrary law. The provisions of the Public Premises Act to the extent they cover premises falling within the ambit of the Delhi Rent Court Act, override the provisions of the Rent Act, and a person in unauthorised occupation of public premises under section 2(c) of the Act cannot invoke the protection of the Rent Control Act. It is also held in that case that one of the principles of statutory interpretation which is applied to resolve conflict in laws is contained in the maxim "leges posteriores priores contrarias abrogant" (later laws abrogate earlier contrary laws). Of course, it is true that this principle is subject to exception embodied in the maxim generalia specialibus non derogant (a general provision does not derogate from a special one). It is observed by the Supreme Court that the Public Premises Act is a later enactment, having been enacted on August 23, 1971, whereas the Delhi Rent Control Act was enacted on December 31, 1958. It represented the later will of Parliament and should prevail over the Rent Control Act unless it can be said that the Public Premises Act is a general enactment whereas the Rent Control Act is a special enactment, and being a special enactment, the Rent Control Act should prevail over the Public Premises Act. The Rent Control Act makes a departure from the general law regulating the relationship of landlord and tenant contained in the Transfer of Property Act inasmuch as it makes provisions for determination of standard rent, it specifies the grounds on which a landlord can seek the eviction of a tenant, it prescribes the forum for adjudication of disputes between landlords and tenants, and the procedure which has to be followed in such proceedings. The Rent Control Act can, therefore, be said to be a special statute regulating the relationship of landlord and tenant in the Union Territory of Delhi. The Public Premises Act makes provision for a speedy machinery to secure eviction of unauthorised occupants from public premises. As opposed to the general law which provides for filing of a regular suit for recovery of possession of property in a competent court and for trial of such a suit in accordance with the procedure laid down in the Civil Procedure Code, the Public Premises Act confers the power to pass an order for eviction of an unauthorised occupant in a public premises on a designated officer and prescribes the procedure to be followed by the said officer before passing such an order. Therefore, the Public BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 20 of 33 Premises Act is also a special statute relating to eviction of unauthorised occupants from public premises. Both the enactments, namely, the Rent Control Act and the Public Premises Act are, therefore, special statutes in relation to the matters dealt with therein, since the Public Premises Act is a special statute and not a general enactment the exception contained in the principle that a subsequent general law cannot derogate from an earlier special law cannot be invoked and in accordance with the principle that later laws abrogate earlier laws, the Public Premises Act must prevail over the Rent Control Act. Thus, the Supreme Court has clearly held that the provisions of the Public Premises Act would override the provisions of the Rent Control Act in relation to premises which fall within the ambit of both the enactments.
23. In the present case, it can very well be seen that the Bombay Rent Act is a special law relating to the relationship between landlords and tenants. Thus, special provisions are designed relating to the general class of landlords and tenants in a special enactment, so, the sphere and horizon under the Bombay Rent Act of its subjects is wider in relation to the relationship of landlords and tenants. In the Public Premises Act provisions are also made with a view to provide speedy and effective remedies for eviction against unauthorised occupants of certain premises. Thus, the circle or sphere of the subject and object both is smaller than the Bombay Rent Act and it is still smaller and wholly circumscribed to the special class of corporate owners or landlords and service occupiers under the provisions of section 630 of the Companies Act. Thus, a special class is carved out by Parliament by enacting provisions in section 630. Therefore, the special law regulating relationship between landlords and tenants under the Bombay Rent Act which is wider in nature is circumscribed by the enacting provisions under section 630 limiting to the special class of companies and service occupiers. It can very well be seen from the provisions of section 630 that it is intended to deal with the mischief of rampant unauthorised and wrongful withholding of company premises by providing speedy and summary machinery for eviction of persons in wrongful and unlawful occupation of the premises of the companies. In order to secure such an object and purpose Parliament in its wisdom designedly provided special and specific provisions for speedy and effectual machinery for conviction and eviction under section 630 against service occupiers.
26. The Supreme Court in Jain Ink Mfg. Co. v. LIC of India, AIR 1981 SC 670, had an occasion to consider the provisions of sections 3(a), 14 and 25B of the Public Premises Act and section 1 of the Delhi Rent Control Act. The question was whether the provisions of the Public Premises Act would override the provisions of the Delhi Rent Control Act. The Supreme Court held that in both the Acts, there is a nonobstante clause but the question to be determined is whether the nonobstante clause operates in the same field or two different spheres BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 21 of 33 though there may be some amount of overlapping. Both the scope and the object of the Public Premises Act is quite different from that of the Rent Act. The Rent Act is of much wider application than the Public Premises Act inasmuch as it applies to all private premises which do not fall within the limited exceptions indicated in section 2 of the Public Premises Act. The object of the Rent Act is to afford special protection to all the tenants or private landlords or landlords who are neither corporations nor the Government nor corporate bodies. Even under the Rent Act, by virtue of an amendment a special category has been carved out under section 25B which provides for special procedure for eviction to landlords who require premises for their personal necessity. It is clearly held that there can be no doubt that the Public Premises Act as compared to the Rent Act which has a very broad spectrum is a special Act and overrides the provisions of the Rent Act.
28. In Govind T. Jagtiani's case [1984] 56 Comp Cas 329 (Bom), Ranade J., following the critical analysis of section 630 in the above case, observed that entitlement of an officer to the property of the company and the duration of such right would be coterminous with the terms of employment and the right would stand extinguished with the termination to the employment giving rise to an obligation to hand over the property back to the company. The following observations at page 336 of the said decision are very pertinent (at page 336) :
"If the property is held back, the retained possession would amount to wrongful withholding of the property of the company. While the existence of the capacity, right and possession would be during employment, the withholding may be even after the termination of the employment and though the possession as it precedes the act of retention or withholding may be rightful in the past affording an opportunity to withhold, the withholding may be wrongful in the present case."
It can safely be presumed that while making special speedy mechanism, in section 630 of the Companies Act, Parliament must have taken note of the non obstante clause in section 28 of the Rent Act providing that its provisions will override those of any other law. Of course, the statutory interpretation has no convention or protocol but in frequent situations like the one on hand, it can be inferred that Parliament noticed and took note of the non obstante clause contained in section 28 of the Rent Act which came into force on January 19, 1948, while making the special provisions of section 630 of the Companies Act, 1956, which came into force on April 1, 1956. Therefore, even in case of conflict or repugnancy, the provisions of section 630 shall override the provisions of the Rent Act. Interpretation of the provisions of the statute should be such which would advance the object thereof and not frustrate it. The court cannot be oblivious to the special and specific purpose for which provisions of section 630 of the Companies Act are motivated and enacted. If the interpretation made by BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 22 of 33 the trial court and supported by the learned advocate for the respondent accused is accepted, it would mean that the court would be reading section 630 of the Companies Act with the words "subject to the provisions of the Rent Act as applicable". Had that been the intention while enacting the special provisions of section 630 Parliament would have expressly added such words or expression in section 630. The court cannot legislative, the court can interpret only. One of the fundamental objects and tests of interpretation of statutes is that it should be done in a modern manner which further the end and policy and not frustrate or fetter it. A question would arise, if the interpretation of section 630 made by the learned magistrate is accepted and as supported by the learned advocate for the respondentaccused, would it foster or fetter the underlying aim and policy of the provisions of section 630 ? Undoubtedly, it would fetter and not foster the purpose, such interpretation cannot be accepted. Therefore, such interpretation made by the learned magistrate is, totally, with due respect, without merit.
I) From bare perusal of aforesaid case laws, it is clear that accused was employee for all the purposes with the complainant company in view of the judgment titled as NDPL vs. Govt. of NCT and Others (supra) wherein it was categorically held that all the transferees including the pensioners came only to the DISCOMs like NDPL under the Transfer Scheme and the entire liability including the pensions and terminal benefits etc will be of the NDPL and BSES. Accused though retired as employee of the board in the year 1986 but for the all his benefits after retirement, he was entitled to draw the same from the complainant company being one of the transferee. It is pertinent to mention here that earlier, in Delhi, there was a board known as Delhi Electricity Supply Undertaking (DESU) which was later on changed to Delhi Vidyut Board (DVB) which was taken over by DISCOMI presently known as BSES YPL and this fact has not been disputed at all. Thus, the plea of the accused that he was employee of DESU and retired from the said board is not sustainable at BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 23 of 33 all and it is held that the accused is/was the employee of the complainant company.
Further, from the aforesaid discussions, it is clear that clause(b) of Subsection(1) of Section 630 of the Act, is quite distinct from clause(a). It covers all the properties of the complainant company which were in possession of the employee and it does not talk about obtaining possession of any property being the officer or employee of the company. Moreover, it is clear from the law laid down that in cases u/s 630 of the Act that the intention of the Parliament has been for a liberal interpretation of the provision for the speed recovery of the property belonging to the company. Section 630 of the Act is meant for the speedy recovery of the property of the company. In the present case the subject matter in dispute is the employee's quarter meant for allotment to the employees of the complainant company as on date and earlier to the employees of the DVB/DESU. In such circumstances, if the interpretation is given that the present complainant has no right to maintain the complaint u/s 630 of the Act, it will frustrate the very purposes of enactment as well as notification Ex.PW1/2 wherein the complainant company was made entitled to allotment of all the flats to its own employees with the right to get it evicted in case of unauthorized occupation under subclause(d) of clause(2).
Further, in subclause(b), the complainant company was given right to ask all the nonexisting employees to vacate the flat occupied by him/her till his/her retirement or otherwise. Thus, if the narrow meaning will be given while considering the aforesaid notification read with Scheme of 630 of the Act, the BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 24 of 33 complainant company will not be in a position to get the subject quarters vacated which is under occupation of the employees who have been retired or even in some cases has expired even prior to the filing of the complaint.
J) Furthermore, the Hon'ble High Court of Delhi while dealing with the issue that if the property initially was not of the company or was not allotted by the company but subsequently it became the property of the company, the same would not have made any difference. Reliance may be placed upon the judgment reported in "CM(M) No. 407/2004 titled as M/s Texmaco Ltd. vs Pooran Chand" dated 13th November, 2006 passed by Hon'ble High Court of Delhi.
Though, two remedies are available with the complainant company to seek eviction or possession of the property in question which was allotted to accused and the pleas of the accused that present complaint u/s 630 of the Act is not maintainable and present complaint ought to have been filed by the complainant under Public Premises Act or the same can be get evicted by initiating the civil proceeding is meritless and accordingly are rejected. It is respectfully observed that the case laws relied upon by the learned defence counsel are not applicable to the peculiar facts and circumstances of the present case.
K) Accused has taken one another stand that present complaint is not maintainable being not filed by the competent person. It is argued that neither Mr. Pradeep Kumar Saxena nor Sh. Sushil Kumar was/is duly authorized to BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 25 of 33 file/prosecute the present complaint. It also argued that none of the CEO Mr. Rakesh Aggarwal nor present or Mr. Ramesh Narayanan had/has any authority to appoint Mr. Pradeep Kumar Saxena or Mr. Sushil Kumar as attorney to file/prosecute the present complaint and no board resolution authorizing Mr. PK Saxena and Sh. Sushil Kumar, filed on record. The persons who delegated his power to the alleged attorney i.e PW1 Sh. Sushil Kumar did not file his power to delegate. It is also a defence of the accused that the resolution regarding power of attorney in favour of complainant has not been proved. Reliance is placed upon the judgment reported in "State Bank of Travancore vs. M/s Kingston Computers (I) Pvt. Ltd." in support of claim and contentions.
i. Perusal of power of attorney shows that it has been perfectly and legally notarized and it fulfills all the ingredients of section 85 of Indian Evidence Act.
Section 85 of the Indian Evidence Act provides that once there is a duly notarized power of attorney, then it shall be presumed to be true unless the contrary is proved. Accused has not produced any thing to disprove the power of attorney. This court is supported with the law laid down by the Hon'ble Supreme Court in "AIR 1971, SC 761, Jugraj Singh vs Jaswant Singh".
ii. This court is further supported with the case law "AIR, 1982 Delhi 4897, Citibank N.A., New Delhi vs Juggilal Kamlapat Jute Mills ©. Ltd." in which it has been held that execution of power of attorney by a Bank's Executive Officer and Cashier delegating certain powers to one employee and documents bearing Bank's seal and attested by Notary Public raises BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 26 of 33 presumption that power of attorney is executed by the bank. Word "person" in section 85 includes legal person. It is further held by the Hon'ble High Court in "AIR 1981 Delhi 222" and "AIR 1972 Allahabad 219" that a power of attorney along with verifications are to be presumed to be true u/s 85 of Evidence Act.
This court is further supported with the case law laid down by the Hon'ble High Court in "AIR 2007 Delhi 147, Kamla Rani and Ors vs M/s Texmaco". It was contended by the employee before Hon'ble High Court that eviction case was not filed by a properly authorized person and Hon'ble High Court held that: ...Once a document is authenticated by a notary public, it will be presumed that the document was duly executed and was in order. As observed in AIR 1984 (363( (sic) M/s E.C. and E.Co. Ltd. v. M/s J. E. Works, if two conditions are satisfied, firstly the power of attorney being executed before a notary public and secondly it being authenticated by a notary public, a presumption would arise under section 85 about the executant of the power of attorney. ...Decision of the Hon'ble Supreme Court reported as "AIR 1997 SC 3 Union of India vs Gresham Kumar" is additionally relied upon by me. The said decision states that where a suit has been filed on behalf of a corporate body and is duly prosecuted by the person who had filed the suit, a presumption would arise that the person concerned was authorized to do so".
L) Now, let the case of the complainant be discussed on merits. The case of the complaint is that accused was alloted Flat No.F45, BlockF, TypeIII, Tripolia Colony, Delhi, in his capacity as employee with the conditions that he was to retain the said quarter till he remains in the services of the company. Accused was relieved from the services of the company w.e.f 30.06.1988 on attaining the age of superannuation but failed to vacate the quarter in question. Thus, the complainant was required to establish on record the following ingredients to prove the offence u/s 630 of the Act.
BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 27 of 33
(a) That the complainant company became owner/licensor of flat in question by virtue of notification Ex.PW1/2 and there exists/existed the relationship of employer and employee between complainant company and accused;
(b) That the flat in question was allotted on licence basis;
(c) That accused has been wrongfully withholding the flat in question.
M)It is argued on behalf of the complainant that the complainant is not the owner of the quarter in question and no title document qua the ownership of the said quarter has been placed on record. Accused has also taken defence that the quarter in question is covered under BPL Scheme and this court has no jurisdiction. The question of ownership is not at all required to be gone into the proceedings under section 630 of Companies Act. As per section 116 of Evidence Act, neither the tenant nor the licensee can be allowed to challenge the title of their landlord/licensor. The provisions of Section 116 of Evidence Act reads as under: Section 116 "Estoppel of tenant; and of licensee of person in possession - No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the property, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given".
As held in "Bilas Kunwar vs Desraj Ranjit Singh & Others (1995) ILR 37 All 557.
"A tenant who has been let into possession can not deny his landlords title, howsoever, defective it may be, so long as he has not openly restored possession by surrender to his landlord".
The estoppel u/s 116 is applicable upon the tenant as well as licensee.
BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 28 of 33 In this regard this court is supported by the law laid down in "Krishna Prasad Lal vs Barabani Coal Concern Ltd, AIR 1937 P.C. 251". In regard to the provisions of 116 of Evidence Act, Hon'ble Supreme Court has made the following observation in the case of "Bansraj Laltaprasd Misra vs Stanley Parker Jones, AIR 2006 SC 3569 = 2006 AIR SCW 1073".
"14..... a person who comes upon any immovable property by the license of the person in possession thereof, shall not be permitted to deny such person and title of such person at the time when such license was given".
N) Accused disputed the document Ex.PW1/2 through which the complainant company become owner/licensor of the property in question, stating that same is not applicable to the flat in question as the flat in question is covered under the Low Income Group Housing Scheme. However, this plea of the accused does not hold much water. From the document Ex.PW1/2, it is clear that DISCOMI now known as BSES Yamuna Power Ltd., took over the assets and liabilities of erstwhile DVB in the Trans Yamuna and Central East District by virtue of notification No.F11/99/2001Power/PFIII 2828 dated 13.11.01. validity of which has been upheld by Hon'ble High Court in writ petitions filed by the company. Besides taking over assets and liabilities, the present complainant also took over the employees including of erstwhile board DESU which was later on changed to Delhi Vidyut Board which was taken over by the present complainant. Accused has vehemently relied upon the documents proved by DW1 in B.L. Jain case and stated that entire colony including the flat in question was given to the predecessor in interest of the present respondent/accused due to result of a 1954 scheme known as "Low Income BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 29 of 33 Group Housing Scheme". It is also argued that the objects of the said scheme was to provide shelter to the persons who do not have/own any home and whose income does not exceed to Rs.6000/ per annum at that time. The flat in question was constructed under the said 1954 Scheme, the house so constructed constitutes an entity distinct from the other staff quarters constructed by the Undertakings and its predecessor DVB.
In rebuttal learned counsel for complainant denied the plea of the accused and relied upon the judgment reported in "AIR 1993 Supreme Court 1254". Relevant portion of the judgment is reproduced below: Constitution of India, Arts. 226, 39 - Mandamus - Allotment of quarters to low income group employees of a local body - No resolution passed by local body to sell quarters to such employees - Employees having no legal right under housing scheme - No mandamus can be issued on the ground that welfare state should provide house to every citizen specially of low income group.
Housing Scheme - Allotment of quarters to low income group employees - Can not be demanded as of right from welfare state.
O) From bare perusal of documents Ex.DW1/A, Ex.DW1/B and Ex.DW1/C proved by DW1 Mr. Kumar Sanjeet (the then SO from the Ministry of Housing and Urban Poverty Alleviation, Govt. of India) in B.L. Jain case (supra), it appears to be just a guideline to the State mentioned therein to set up administrative machinery to work out the details contained therein in order to implement the Scheme. Merely on the basis of documents Ex.DW1/A, Ex. DW1/B and Ex.DW1/C, accused can not claim legal right to have ownership transferred to them of such quarters under low income housing scheme of 1954 when there was no resolution passed by the Undertaking to sell such quarters to them.
Furthermore, in his statement, DW1 Mr. Kumar Sanjeet has stated that the BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 30 of 33 said scheme pertaining to Low Income Group Housing Society has not specified with regard to the strict implementation on the employees of the DESU. From bare perusal of Ex.DW1/A, Ex.DW1/B and Ex.DW1/C, it appears that the said Scheme has not been implemented till date. Accused has failed to bring any thing on record which could suggest that said Scheme has been implemented. Accused has not filed any document on record whereby any promise was made by the complainant or erstwhile DVB to the existing or ex employee including accused that ownership will be transferred to them. The judgment (supra) cited by the learned counsel for complainant thus, appears to be squarely applicable to the peculiar facts and circumstances of the present case. Relevant portion of judgment is reproduced as under: "Where the employees of Delhi Electricity Supply Undertaking, a local body were allotted the quarters constructed by the Undertaking on loan approved by the Central Gov., they cannot claim legal right to have ownership transferred to them of such quarters under low income housing scheme of 1954 when there was no resolution passed by the Undertaking to sell such quarters to them and a mandamus cannot be issued on ground that welfare state may provide house to every citizen and specially the persons belonging to low income group. In such case, the fact that a resolution was passed by the Municipal Corporation to sell the quarters in respect of its own employees can not be of any help to employees of the said undertaking by applying the principle of equality when their employer was different. It was more so when claimants were either employees retired from service or legal representatives of the erstwhile employees and it can not be denied that there is a great dearth of housing accommodation in Delhi and large number of employees of said undertaking who are already in service are standing in queue for allotment of residential quarters".
P) In view of the aforesaid discussions, it is clear that by virtue of notification No.F11/99/2001 Power/PFIII 2828 dated 13.11.01 Ex.PW1/2, the assets of DVB and the properties situated at Tripolia also stood transferred to the BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 31 of 33 present complainant. Perusal of Ex.PW1/2 further shows that besides taking over assets and liabilities, the DISCOMI also took over the employees of erstwhile DESU/DVB as discussed herein above. Thus, relation of employer and employee stands proved and it is held that accused was the licensee and DISCOMI now known as BSES YPL, the present complainant company became owner/licensor by virtue of notification Ex.PW1/2.
Q)Now let us examine whether complainant company has established that accused is wrongfully withholding the quarter in question. PW1 specifically deposed that quarter in question was allotted to accused by virtue of his employment and he was to retain the same so long as he remains in the service. Accused did not deny this fact and simply stated that the complainant company has no power to ask him to vacate the quarter in question. It is not disputed that accused retired from the service on 30.06.1988. Thus, accused was under obligation to vacate the flat in question but he failed to do so even after passing of grace period after cessation from his service. Accused did not deny that he is still in possession of the quarter in question. Since, accused did not vacate and hand over the possession of the quarter in question after cessation of his service, it is held that accused is wrongfully withholding the aforesaid quarter.
11.In view of the aforesaid discussions, it is held that complainant has proved that the accused was allotted the aforesaid quarter by virtue of his employment and he was liable to vacate the quarter after his retirement. However, even after BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 32 of 33 expiry of extension period, accused failed to vacate and hand over the possession of the quarter in dispute to the complainant. As such, it is held that accused has been wrongfully withholding the quarter of the complainant company. Thus, it is held that complainant has been successful in proving its case against the accused beyond reasonable doubt. Accordingly, accused is held guilty and convicted for the offence punishable u/s 630 of the Companies Act 1956.
Let accused be heard on sentence on 16.03.2015.
Judgment be sent to the server www.delhidistrictcourt.nic.in.
(DEVENDRA KUMAR SHARMA) ACMM(Special Acts) CENTRAL TIS HAZARI COURTS DELHI Announced in open court on 11th March, 2015 (Total number of page 33) (One spare copy attached) BSES YPL vs RL Gaur CC No.372/3 U/s 630 of Companies Act 33 of 33