Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3146 OF 2009
@ Special Leave Petition (Civil) No.116 of 2008
Roy Estate ……Appellant
Versus
State of Jharkhand & Ors. …… Respondents
J U D G M E N T
HARJIT SINGH BEDI, J.
1. Leave Granted.
2. The facts leading to the appeal are as under: The
property in dispute known as ‘Katras House’ built over an
area of 1.7 acres of land on Circular Road, Ranchi was
purchased by Late Shri Ganesh Chandra Dey vide registered
th
sale deed dated 26 January 1933. World War-II broke out on
rd
3 September 1939 on which the Viceroy promulgated the
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Defence of India Ordinance 1939 under which the Defence of
th
India Rules were issued. On 25 April 1942, Rule 75 A was
inserted in the Defence of India Rules empowering the Central
Government to requisition any property necessary or expedient
for securing the defence of British India and other related
matters. Japan entered World War-II on the side of Nazi
th
Germany on the 7 December 1941, after its attack on the
United States Seventh Fleet in Pearl Harbour, Hawai and soon
after a string of victories over the Allies in South East Asia and
upto Burma brought the Imperial Japanese Army to India’s
Eastern doorstep. It was thereafter thought prudent to shift
the headquarters of the Indian Army’s Eastern Command from
Kolkata to Ranchi. Vast areas of land and other residential
property were accordingly requisitioned under Rule 75 (A) ibid.
Katras House too was requisitioned for this purpose. The
World War ended in 1945 but the property continued to be
remain under requisition. The Requisitioning and
Acquisitioning of Immovable Property Act 1952 ( hereinafter
called ‘the Act’) was thereafter promulgated and Section 23
thereof provided that all the old requisitions were now deemed
to have been made under Section 3 of the Act but by virtue of
3
an amendment made in 1970 Section 6 (1-A), the Central
Government was not authorized to retain any property under
requisition for a period beyond 17 years. The Deputy
Commissioner, Ranchi however, on a misconception of the law
transferred Katras House, undoubtedly a requisitioned
property, to the Civil Surgeon, Ranchi without the consent of
its owner and on vacation of the said property by the Civil
th
Surgeon, vide by Order dated 30 April 1958, transferred the
property to the Principal, Ranchi Women’s College
(Respondent no.3 herein) under Section 11 (2) (b) of the Bihar
Building Lease Rent and Eviction Control Act 1947
(hereinafter called the ‘Rent Act’ ) subject to a monthly
payment of rent directly to the owner. In July 1995, the then
owner of the property through his attorney, filed an Eviction
Title suit no.8 of 1995 under the provisions of the Rent Act for
eviction of Respondent no.3 alleging that the college was a
tenant in the demised premises. Respondent No. 3 as well as
the Deputy Commissioner, Ranchi appeared in the said Suit
as Defendants and filed their written statements. Respondent
no.3 took a categorical stand that Katras House had been
requisitioned for purposes of the Army during World War-II
4
and had been allotted to it by the Deputy Commissioner under
the Act, and an application for its vacation would lie before the
Deputy Commissioner, and as such the Court Civil had no
jurisdiction to entertain the Suit. This Suit was eventually
dismissed in default for non-prosecution in the year 1998.
The compensation payable under Section 8 (2) of the Act was,
however, regularly paid by Respondent no.3 to the owner.
Katras House was purchased by Shri L.N. Dey from its owner
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by a registered sale deed dated 9 January 2001 and
pursuant thereto the necessary mutations were made in the
revenue record and it is the admitted position that the
rent/compensation is now being received by the new owner. It
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is the case of the Appellant that a letter dated 23 November
2002 was received from the Administrator, Ranchi Municipal
Corporation that on inspection it had been found that Katras
House was in a dangerous and uninhabitable state and a
direction was issued under Section 247 (1) of the Ranchi
Municipal Corporation Act 2001 that the building which had
been declared as dangerous, should either be demolished or
subjected to extensive repairs to make it habitable. The
Appellant thereupon served a copy of this notice on the
5
th
Deputy Commissioner on 8 July 2003 requesting him to de-
requisition the building so that it could be demolished or
repaired, as the case may be, failing which there was a
possibility that the girls residing in the building which was
being used as a hostel, may suffer some injury. The request
of the Appellant was accepted and an order was made by the
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Deputy Commissioner on 8 July 2003, de-requisitioning the
property and directing its return to its owner. Vide order
th
dated 25 August 2003, however, the Deputy Commissioner,
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in partial supersession of the order of 8 July 2003, referred
the matter to the Secretary, Human Resource Development,
Government of Jharkhand, Ranchi and the Vice Chancellor,
Ranchi University to take a final decision with respect to the
ownership and title of the said property. On receiving the
revised order, the Appellant approached the Secretary,
th
Department of Education on 14 October 2003 giving evidence
as to his ownership of the property. The Joint Secretary of the
st
Ministry, however, wrote a letter of 1 March 2004 to the
Secretary, Building & Construction Department to arrange for
an inspection of the property and to ascertain as to whether it
was unsafe and unfit for habitation. The inspection was held
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over several days in May & June 2004 and a report was
tendered that as the building had been constructed before the
year 1919 and as the quality of the construction had
deteriorated, the building was no longer fit for habitation.
This report was forwarded to the Secretary, Human Resource
Development Department by the Chief Engineer, Building
st
Construction Department on 21 June 2004 but it appears
that no result followed on which the Appellant filed Writ
Petition (Civil) No.4955 of 2004 in the High Court seeking a
direction to the Respondents, specifically to Respondent No.3
to relinquish the possession of the property forthwith to the
owner so that the building could be demolished or repaired to
make it safe. Respondent No.3 filed its counter affidavit
admitting that Katras House had been originally requisitioned
for Army purposes during World War-II and had later been
allotted to the Civil Surgeon and on its vacation by the Civil
th
Surgeon, had been allotted to the respondent on 30 April
1958 under Section 11(2)(b) of the Rent Act and that it had
been in use as a hostel for girls for more than 45 years. The
matter was heard by a learned Single Judge, who in his
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Judgment dated 20 September 2005 observed that it was not
7
possible to determine the question of right, title and
possession over the land and building in writ proceedings
under Article 226 of the Constitution of India and that this
matter could not be decided by the Secretary, Human
Resource Development Department or the Vice Chancellor of
th
the Ranchi University and therefore, the Order dated 25
August 2003 was bad to extent. It was, however, left to the
Competent Authority under the ‘Act’ to determine whether the
building in question should be de-requisitioned or retained by
the Government.
3. Aggrieved by the aforesaid Judgment, the Appellant
preferred a Letters Patent Appeal before the Division Bench on
th
6 January 2006, but simultaneously pursued the liberty
granted by the Single Bench in the judgment dated
th
20 December 2005 and filed a representation before the
Deputy Commissioner, Ranchi (being the Competent Authority
under the Act) seeking an order of de-requisition of Katras
House. The Deputy Commissioner by his Order dated
th
4 April 2006 ordered that the property should be released
and handed over to the Appellant with effect from
th
4 April 2006. Faced with this situation Respondent No.3, the
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Principal, Women’s College, Ranchi filed Title Suit No.134 of
2006 in the Court of the Munsif, Ranchi challenging the Order
th
dated 4 April 2006 pleading that the aforesaid Order was
without jurisdiction and also seeking on interim injunction
during the pendency of the Suit. The Appellant filed its
nd
written statement on 2 August 2006 pleading inter alia that
the jurisdiction of the Civil Court was barred under Section 19
of the Act, and also an application under Order VII, Rule 11 of
the CPC that the question of jurisdiction be treated as a
preliminary issue. This prayer was rejected by the Munsif vide
th
Order dated 14 November 2006. The Appellant thereupon
preferred Writ Petition (Civil) No.7497 of 2006 pleading that
the proceeding before the Civil Court were barred by Sections
18 and 19 of the Act. The High Court disposed off the writ
petition with the direction that the Munsif should re-consider
the pleas raised in the application aforesaid without being
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prejudiced by his earlier Order dated 14 November 2006.
This order of the High Court was challenged by way of a Letter
Patent Appeal. The Appellant also moved an application for
th
review of the Order dated 14 November 2006 which too was
rejected. These facts were brought to the notice of the Division
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Bench of the High Court in the Letters Patent Appeal
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proceedings vide an affidavit dated 7 September 2007. The
High Court, however, by its Judgment and Order dated
st
1 October 2007, dismissed the Letters Patent Appeal in spite
of the changed circumstances holding that the remedy of the
Appellant lay elsewhere and that it was for the Civil Court to
decide the question of jurisdiction raised in the application
under Order 7 Rule 11 of the CPC. It is in these
circumstances that the matter is before us by way of Special
Leave Petition.
4. Several arguments have been addressed before us by Mr.
K. Venugopal, the learned Senior Advocate for the appellant.
He has emphasized that it was the admitted position that
Katras House had been requisitioned under Rule 75 A of the
Defence of India Rules in the year 1942 and by operation of
law, the said requisition would now deemed to have been
made under the Act. He has pointed out that the Order of the
Division Bench observing that only the Civil Court could to go
into the matter was not in accordance with law as the
provisions of the Act were applicable and Section 19 thereof
specifically barred any proceedings before the Civil Court. He
10
has further pointed out that Respondent No.3 in its written
statement filed in 1995 in the eviction suit filed by the power
of attorney holder of the earlier owner had admitted that the
property had been requisitioned for the army and had pleaded
that proceedings before the Civil Court were barred. He has
pointed out that this volte face had been made in order to
th
frustrate the Order of the Deputy Commissioner dated 4 April
2006 which had been validly made under Section 6 (1A) of the
Act. He has further pointed out that the requisition of a
property could not continue indefinitely as the original
purpose of the requisition had ceased to exist and more
particularly as the requisition could not continue beyond the
year 1987 i.e. a period of 17 years from the year 1970 as
provided by Section 6 (1A) ibidem . For these two submissions
Mr. Venugopal has placed reliance on H.D. Vora vs. State of
Maharashtra and Ors. (1984) 2 SCC 337, and Grahak
Sanstha Manch and Ors. Vs. State of Maharashtra (1994) 4
SCC 192. Mr. Venugopal has further pointed out that the
Deputy Commissioner was not authorized to transfer Katras
th
House to Respondent No.3 vide Order dated 30 April 1958
11
purportedly under Section 11 (2) of the Act as the conditions
for the applicability of this provision did not exist. He has also
pleaded that as RespondentNo.3 in the Suit filed in the year
1995 had claimed that the Civil Court had no jurisdiction in
the matter, it was now estopped from the claiming to the
contrary and saying that the Civil Court had the jurisdiction in
proceedings which were now pending in the Civil Court.
5. Mr. Dholakia, the learned senior counsel appearing for
Respondent No.3 has, at the very outset, very fairly conceded,
that the question of title was not disputed but as the question
as to whether the relationship of landlord and tenant existed
inter se the parties was a matter which could be examined
only by the Civil Court and that this procedure that had been
adopted by the respondent by filing a civil suit challenging the
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order dated 4 April, 2006 of de-requisition made by the
Deputy Commissioner.
6. We have heard the learned counsel for the parties and
gone through the record. Although, a feeble attempt has been
made by the learned counsel for the Respondent doubting the
factum of the requisition made in the year 1942 for the
purpose of the Army, it stands virtually admitted now that
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such an order had indeed been made under Rule 75 A of the
Defence of India Rules. It is also the conceded position that by
virtue of various provisions made in subsequent laws, the said
order would now be deemed to be one made under Section 3 of
the Act. In this view of the matter, the question would arise as
to whether the Civil Court would have jurisdiction in the
matter or that the remedy of the parties elsewhere. It is
significant that in the civil suit filed in the year 1995 by the
previous owner of the property, a comprehensive written
statement had been filed by the Principal of Respondent No.3,
and the positive stand taken was that the building in question
had been requisitioned by the Deputy Commissioner-cum-
District Magistrate, Ranchi for military purposes under the
Defence of India Rules in the year 1942 and that the Deputy
Commissioner had allotted the said premises to the Ranchi
th
Women’s College by order dated 4 April 1958 under Section
11 (2) of the Rent Act and as such the civil suit was barred
and the remedy for de-requisition lay only before the
Competent Authority, that is the Deputy Commissioner-cum-
District Magistrate, Ranchi. Concededly, this suit was
dismissed in default and was not pursued any further. It is
13
equally true that the appellant herein too has taken a
vacillating stand with regard to the jurisdiction of the Civil
Court or otherwise in other legal proceedings inter se the
parties. However, as per findings of all the Courts and as per
written statement filed, the fact that the property had indeed
been requisitioned in the year1942 under Rule 75 A of the
Defence of India Rules stands virtually admitted. In this view
of the matter the controversy would be covered by Sections 3,
6 & 19 of the Act.
7. Section 3 of this Act gives power to the Competent
Authority to requisition any immovable property for any public
purpose, being a purpose of the Union and Section 4 thereof
gives the power to the Competent Authority to take over the
possession of the requisitioned property. Section 6 deals with
release from requisition and insofar as is relevant, is
reproduced below:
6. Release from requisitioning .
(1) The Central Government may at
any time release from requisition any
property requisitioned under this Act and
shall, as far as possible, restore the
property in as good a condition as it was
when possession thereof was taken
subject only to the changes caused by
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reasonable wear and tear and irresistible
force:
Provided that where the purposes for
which any requisitioned property was
being used cease to exist, the Central
Government shall, unless the property is
acquired under section 7, release that
property, as soon as may be, from
requisition.
“(1-A) Notwithstanding anything
contained in sub-section (1), the Central
Government shall release from
requisition, -
(a) any property requisitioned or
deemed to be requisitioned
under this Act before the
commencement of
Requisitioning and Acquisition
of Immovable Property
(Amendment) Act, 1970, on or
before the expiry of a period of
[seventeen years] from such
commencement;
(b) any property requisitioned
under this Act after such
commencement, on or before
the expiry of a period of
[seventeen years] from the date
on which possession of such
property was surrendered or
delivered to, or taken by, the
competent authority under
section 4,unless such property
is acquired under section 7
15
within the period of” [seventeen
years] aforesaid.]
(2) Where any property is to be released
from requisition, [under sub-section (1) or
under sub-section (1-A)] the competent
authority may, after such inquiry, if any,
as it may in any case consider necessary
to make or cause to be made, specify by
order in writing the person to whom
possession of the property shall be given
and such possession shall, as far as
practicable, be given to the person from
whom possession was taken at the time
of the requisition or to the successors-in-
interest of such person.
[3] The delivery of possession of the
property to the person specified in an
order under sub-section (2) shall be full
discharge of the Central Government
from all liability in respect of the
property, but shall not prejudice any
rights in respect of the property which
any other person may be entitled by due
process of law to enforce against the
person to whom possession of the
property is given.
8. A bare perusal of Section 6 (1-A) and 6(2) would show
that the property cannot be requisitioned permanently and
that the maximum period fixed by the Amendment Act of 1970
is 17 years from that date and that Section 6 (2) further
provides that unless the requisitioned property is acquired
under Section 7 within the period of 17 years aforesaid, it
16
shall be released to its owner and as far as practicable, be
given to the person from whom the possession had been taken
at the time of the requisition or to the successor in interest of
such person. Concededly, the appellant herein is the
successor in interest of the owner from whom the property had
been requisitioned in the year 1942. It is, therefore, obvious
that the requisition could not have been continued beyond the
year 1987 unless the property had been acquired, which is
concededly not the case before us.
9. Mr. Dholakia has, however, emphasized that the status
inter se the parties was that of landlord and tenant, the
appellant being the landlord, and as the appellant had been
accepting rent and had also sought and received an
enhancement thereof on several occasions , the suit could not
be dismissed on the ground that the civil court’s jurisdiction
was barred. We are of the opinion, however, that the payment
of rent in such matters would not change the legal position
with regard to the rights and obligations of the requisitioning
authority and the person from whom the property had been
requisitioned. It is impossible to accept the plea that if the
appellant whose property has been requisitioned in
17
desperation seeks an enhancement of the rent, that would
ipso-facto create a tenancy so as to preclude the obligations
imposed on the Central Government under the Act. While
repelling a similar submission in H.D. Vora’s case this is what
this Court had to say:
“There was also one other
contention urged on behalf of the
appellant in a desperate attempt to
protect his possession of the flat and that
contention was, since he had paid rent of
the flat to Rukmanibai and such rent was
accepted by her, he had become a direct
tenant of Rukmanibai and the order of
requisition had become totally irrelevant
so far as his possession of the flat is
concerned. This contention is, in our
opinion, wholly unfounded. The
appellant admittedly came into
occupation of the flat as an allottee under
the order of requisition passed by the
State Government and even if any rent
was paid by the appellant to Rukmanibai
and such rent was accepted by her, it did
not have the effect of putting an end to
the order or requisition. The appellant
was an allottee of the flat under the order
of requisition and he was liable to pay
compensation for the use and occupation
of the flat to the State Government and
the State Government was in its turn
liable to pay compensation to
Rukmanibai for the requisitioning of the
flat and if, therefore, instead of the
appellant paying compensation to the
State Government and the State
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Government making payment of an
identical amount to Rukmanibai, the
appellant paid directly to Rukmanibai
with the express or any event implied
assent of the State Government, the order
of requisition could not cease to be valid
and effective. It did not matter at all
whether the appellant described the
amount paid by him to Rukkanibai as
rent, because whatever was done by him
was under the order of requisition and so
long as the order of requisition stood, his
possession of the flat was attributable
only to the order of requisition and no
payment of an amount described as rent
could possibly alter the nature of his
occupation of the flat or make him a
tenant of Rukmanibai in respect of the
flat”.
Some of the observations in H.D. Vora’s case were modified on
some other matters in Grahak Sanstha Manch case (Supra)
but the observation in paragraph 7 afore-quoted were duly
affirmed.
10. To our mind there exists yet another circumstance which
militates against the case of Respondent No. 3 with regard to
the creation of a tenancy vis-à-vis the appellant. Admittedly,
Respondent No.3 had been inducted into Katras House under
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the order of the Deputy Commissioner dated 30 April 1958,
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under Section 11 (2) of the Rent Act. This provision reads as
under:
“(2) (a) Where a servant of the
Government in possession of any building
as a tenant intends to vacate such
building, he shall give fifteen day’s
previous notice in writing of his intention
to do so to the landlord, and to the
District Magistrate who shall under
intimation to the landlord, within a week
of the receipt of the notice either allot
building to any other servant of the
Government whom the District
Magistrate thinks suitable, subject to the
payment of rent, and the observance of
the conditions of the tenancy by such
servant of the Government, or direct that
the landlord shall be put in possession of
the building:
Provided that when no such order is
passed by the District Magistrate, the
landlord shall be deemed to have been
put in possession of the building.
(a] xxx xxx xxx xxx
(b) Where a building is vacated by a
servant of the Government, any person
occupying such building other than the
persons referred to in clause (a) shall be
liable to be evicted by the District
Magistrate in such manner as may be
prescribed:
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Provided that, after a landlord has
been or is deemed to have been put in
possession of such building, he may let it
to any person”.
11. It would be clear from a bare perusal of Section 11(2)
(a) that it postulates several conditions for the transfer of a
building already in possession of a Servant of the Government
to any other servant of the Government, but it does not
authorize the transfer of such a building to any other person.
It has been conceded before us that respondent No.3, the
Ranchi Women’s College, is not run or controlled by the
Government but is a private college under private
management. To our mind, therefore, the very order of
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allotment made on 30 April, 1958 was completely
unauthorized. Concededly also Katras House was under
requisition with the Union of India for purpose of the Union
and there is no provision under the Act for transfer of such a
property to any other person. Even assuming for a moment,
the Act did authorize such a transfer, the condition of transfer
visualized under section 11(2)(a) did not exist and the transfer
was thus, bad at the very outset.
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12. In this background, the question now arises is as to
whether the jurisdiction of the Civil Court was barred and
whether the appellant should undergo a trial on facts which
are admitted. Section 19 of the Act is reproduced hereunder:
“Save as otherwise expressly
provided in this Act, no civil court shall
have jurisdiction in respect of any matter
which the competent authority or
arbitrator is empowered by or under this
Act to determine, and no injunction shall
be granted by any court or other
authority in respect of any action taken
or to be taken in pursuance of any power
conferred by or under this Act”.
13. A bare perusal of this provision would show that it is
only the Competent Authority (read Deputy Commissioner)
who would have jurisdiction in respect of any matter under
the Act, and the jurisdiction of the Civil Court was explicitly
barred. We also find that in the suit filed in the year 1995,
Respondent No.3 had taken a specific plea that it was only the
Competent Authority under the Act who could make an order
of de-requisition sought by the owner and the jurisdiction of
the Civil Court was barred. Mr. Dholakia has, however, (and
rightly), pointed out that Appellant too had been taken a
22
vacillating stand in a different set of proceedings. We find that
both appellant and the respondent have been equally
ambivalent with respect to their relationship and rights inter-
se with the sole purpose of defeating the other party’s rights by
whatever means possible. To our mind, this ambivalence
would not be determinative of the legal issues that have been
raised on the basis of admitted facts. It is the admitted fact
that the property had been requisitioned in the year 1942 for
Army purposes under Rule 75 A of the Defence of India Rules
which would be deemed to be a requisition under Section 3 of
the Act. The maximum period for requisition in such cases is
17 years and ought to have ended in the year 1987, but has in
fact continued for almost 22 years thereafter. The creation of
the so called tenancy in favour of a respondent of a
requisitioned property is not visualized under the Act and even
otherwise the conditions for the creation of such a tenancy by
virtue of Section 11 (2) of the Rent Act do not exist. The
Competent Authority under the Act was, therefore, under an
obligation imposed under Section 6(2) to return it to its owner.
To our mind, therefore, the observations of the Munsif and
High Court, that the appellant must have his remedies in the
23
Civil Court is adding insult to injury in a situation where
almost none of the material facts are in dispute.
14. Mr. Venugopal has also raised a plea of estoppel based
on the conflicting stand on the question of jurisdiction taken
by respondent no.3 from time to time. In view of the fact that
the appellant has been equally guilty of a similar stand and
our findings on the other issues, we are disinclined to go into
this aspect.
15. We accordingly allow the appeal, set aside the Order of
the Division Bench and direct that Katras House and the
entire requisitioned property shall be released in favour of the
appellant by the end of this year. The respondent is directed
to pay all the arrears of rent due as of now and the rent upto
December and also files an undertaking to vacate the premises
as ordered within a period of two months from today. Should
such an undertaking not be filed, we issue a direction to the
Competent Authority, that is the Deputy Commissioner,
Ranchi to take steps to evict the respondent and hand over the
property to the appellant forthwith. The appellant will also
have its costs from Respondent No.3 which we determine at
Rs. One lakh.
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……………………………..J.
(DALVEER BHANDARI)
…………………………….J.
(HARJIT SINGH BEDI)
New Delhi,
Dated: May 1, 2009