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ORDER P.G. Chacko, Member (J) 1. These appeals are against an order of the Commissioner of Central Excise confirming a demand of duty of over Rs. 1.8 crores against M/s. Hatsun Food Company (HFC, in short), imposing on them penalties under Section 11AC of the Central Excise Act and Rule 173 Q of the Central Excise Rules, 1944 and also imposing penalties on Shri R.C. Chandramogan (Managing Partner of the above firm) and Shri Raja K.S.P. Ganesan (Partner of the above firm) under Rule 209 A of the said Rules. The demand of duty is on excisable goods cleared by M/s. HFC to M/s. Hatsum Agro Products Ltd. (HAPL, in short) during the period 1995-96 to 98-99. It is on a value addition made by the department on the basis of the price at which M/s. HAPL sold the goods to their customers, which, in turn, is based on a finding that HFC and HAPL are 'related persons' under Section 4(4) (c) of the Central Excise Act. It appears from the records that a major part of the production in HFC's factory was sold to HAPL and the remaining part sold at factory gate to other independent buyers. The value addition proposed by the department in the relevant show-cause was opposed by HFC, who took the view that, where factory gate sales to independent buyers were available, it was the price for such sales that would constitute 'normal price' for the purpose of assessment of the goods to duty of excise and that the price at which the major buyer, whether related or not, sold that goods to the ultimate customers was irrelevant. The show-cause notice, incidentally, also proposed penalties on HFC and its partners. This proposal was also resisted. In adjudication of the dispute, the Commissioner passed the impugned order, the operative part of which has already been outlined. 2. Ld. Chartered Accountant submits that the valuation issue arising in Appeal No. E/307/2004 is similar to the issue which had arisen before this Bench in the case of Hatsun Milk Food Ltd. and Ors. (Appeal Nos. E/1845 to 1849/99/MAS) which was decided as per Final Order No. 1303-1307/2000 dated 16.8.2000 in favour of the assessee. Ld. C.A. submits that the conclusion arrived at in the said order is squarely applicable to the instant case. It is also pointed out that the said Final Order was not challenged by the Revenue and has become final and binding on them. The demand of duty requires to be set aside, following the decision of this Bench in the case of Hatsun Milk Food Ltd. (supra). Consequently, the penalties also require to be vacated. 3. Ld. SDR has endeavoured defend the order of the Commissioner by harping on the aspect of 'lifting the corporate veil". She has spoken of 'unity of interest' between HFC and HAPL. She considers that HFC is the manufacturing unit and HAPL is their marketing limb. This way, she seeks to establish 'mutuality of interest' between them and, thereby, "relationship" between them in terms of Section 4(4) (c) ibid. Ld. SDR, therefore, submits that the valuation of the goods cleared by HFC to HAPL during the material period should be based on the price at which the latter sold the goods to their customers. In his rejoinder, Ld. C.A. submits that any relationship between HFC and HAPL is irrelevant inasmuch as factory gate sale price charged to independent buyers is readily available. His reliance, in this connection, is on the Supreme Court's judgment in the case of Union of India v. Kantilal Chunilal and Ors., 1987 (1) ECC 1 (SC) : 1986 (26) ELT 289 (SC). 4. We have considered the submissions and the cited case law. We find that there is a clear parallel between this case and the case of Hatsun Milk Food. M/s Hatsun Milk Food Ltd. had sold their major production to a party who was considered by the department as "related" to the assessee, and the remaining goods were sold to buyers who were admittedly unrelated. In that case, it was also an admitted fact that the prices at which sales had been effected to the so-called related person were at levels higher than those charged to unrelated buyers during the relevant period. This Bench, by following the ruling of the Apex Court judgment in Kantilal Chunilal (supra), held that the goods sold by M/s Hatsun Milk Food Ltd. to the so-called 'related' buyer were liable to be assessed on the basis of the price at which the former sold identical goods at factory gate to other independent buyers. It was held that the relationship, if any, was irrelevant to such a valuation. We find that the factual matrix of the instant case is, essentially, the same as that of Hatsun Milk Food. The decision in the said case has become final and binding for want of challenge by Revenue and hence the same has to be followed in the instant case. Accordingly, we hold that the clearances effected by HFC to HAPL during the period of dispute are liable to be assessed to duty on the basis of the price at which the former were selling identical goods during the same period at factory gate to other independent buyers, however small the proportion of such sales may be. The assessee, in this case, valued their goods only on this basis and paid duty accordingly. They are not liable to pay any more on those clearances. The demand of duty is, therefore, set aside. Once the demand of duty is set aside, penalties should follow suit and we vacate the same. The impugned order is set aside and the appeals stand allowed.

Hatsun Food Company, Shri R.G. ... vs Commissioner Of Central Excise on 3 September, 2004

Customs, Excise and Gold Tribunal - Tamil Nadu

Court No. - 34 Case :- FIRST APPEAL No. - 818 of 1995 Petitioner :- Atar Singh & Ohters Respondent :- State Of U.P. & Another Petitioner Counsel :- S.M. Yadav,L.P. Singh,Rakesh Singh Respondent Counsel :- Madan Mohan Hon'ble Prakash Chandra Verma,J. Hon'ble Ram Autar Singh,J. Case called out. None appears to press this first appeal on behalf of the appellant. It is, accordingly, dismissed for want of prosecution. The interim order, if any, stands vacated. Order Date :- 02.02.2010. Rks.

Atar Singh & Ohters vs State Of U.P. & Another on 2 February, 2010

Allahabad High Court

Gujarat High Court Case Information System Print CR.MA/15525/2011 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 15525 of 2011 ========================================================= BHARAT @PAILOT RAMESHBHAI THAKOR - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MR.MRUDUL M BAROT for Applicant(s) : 1, MS NAIR, APP for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 18/11/2011 ORAL ORDER Rule. Ms. Nair, learned APP waives service of notice of rule for and on behalf of State. In the meantime, trial Court concerned i.e. Judicial Magistrate, First Class at Nadiad is directed to send a report as regards the status of the trial i.e. Criminal Case No.923 of 2011 arising from First Information Report registered with I-CR No.221 of 2010 with Nadiad (Rural) Police Station on or before returnable date. The trial Court concerned shall specify as to how many witnesses have been examined and how much time is likely to be consumed for completion of a trial. S.O. to 2 nd December, 2011. [J.B. Pardiwala, J.] #MH Dave     Top

Author: J.B.Pardiwala,

Bharat vs State on 18 November, 2011

Gujarat High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 32715 of 2008(T) 1. SAJITH N.L., ... Petitioner 2. SUDHEER S., 3. SUNILKUMAR S., HSST (SOCIOLOGY), 4. SABU GEORGE, HSST (ENGLISH), 5. SITHARA K.M., HSST (GEOGRAPHY), 6. PRAMEELA P.P., HSST (CHEMISTRY), 7. DOLLY K., HSST (PHYSICS), 8. DR.N.KALA, HSST (GEOGRAPHY), 9. REKHA A., HSST (ENGLISH), 10. PRAMOD S., HSST (SOCIOLOGY), 11. AJITH KUMAR V., HSST (COMMERCE), 12. ALEXANDER K., HSST (POLITICAL SCIENCE), 13. ANIL GOMEZ, HSST (COMMERCE), 14. SHYNI P.S., HSST (CHEMISTRY), 15. JAYASREE K./B., HSST (SOCIOLOGY), 16. NISHA V.S, HSST (CHEMISTRY), 17. BIJU JOHN,HSST (CHEMISTRY), 18. SIRAJI S., HSST (ENGLISH), 19. SALEEM PAUL, HSST, (MATHS), 20. PRASEETHA K., HSST (PHYSICS), 21. VIDYA K., HSST (PHYSICS), 22. MARIYA RESHMI ANTONY, HSST (ENGLISH), 23. ASSA LETHA G., HSST (HINDI), 24. RAJESH D., HSST (PHYSICS), 25. SIDDIQUE.S, HSST (CHEMISTRY), 26. DR.Y.MARYDAS, HSST (POLITICS), 27. PRASAD C.J., HSST (COMMERCE), 28. SATHYAN.M., HSST (ECONOMICS), 29. BIJUMON GEORGE, HSST (MATHS), 30. SUNILKUMAR D., HSST (ECONOMICS), 31. LALSON MATHEW, HSST (COMMERCE), 32. BIJU KOSHY ABRAHAM, HSST (C0MMERCE), 33. PRINCE J ANTONY, HSST (COMMERCE), 34. SHARON RACHEL, HSST (ENGLISH), 35. KOSHY ABRAHAM, HSST (PHYSICS), 36. ANNAMMA THOAMS, HSST (COMMERCE), 37. NAJUMA MATHAR V.M., HSST (CHIMESTRY), 38. SUNITHA S.S, HSST (PHYSICS), 39. ANITHA H.R., HSST (HINDI), 40. BINDHU K.S., HSST (CHEMISTRY), 41. LEENA K.S,HSST (MATHS), 42. ASHA VENUGOPAL, HSST (ENGLISH), 43. GIRISH P.R., HSST (ECONOMICS), 44. PRADEEP CHANDRAN B., HSST (PHYSICS), 45. MARTIN CHACKO, HSST (ECONOMICS), 46. SREELAL SREENIVASAN, HSST, 47. JOSEPH GEORGE, HSST, (ENGLISH), 48. JOSEPH V.J., HSSTG, (POLITICAL SCIENCE), Vs 1. STATE OF KERALA REPRESENTED BY THE ... Respondent 2. THE DIREOCTOR OF HIGHER SECONDARY For Petitioner :SRI.ELVIN PETER P.J. For Respondent : No Appearance The Hon'ble MR. Justice ANTONY DOMINIC Dated :07/11/2008 O R D E R ANTONY DOMINIC, J ----------------------------------------------------------- W.P.(C).No.32715/2008 ----------------------------------------------------------- Dated this the 6th day of November, 2008 JUDGMENT Exts.P1 to P47 are the orders appointing the petitioners as HSSTs in the Government Higher Secondary Schools. Petitioners submit that prior to their appointment as HSSTs, they had service in aided schools and relying on Exts.P48 and P49 Govt. orders, it is contended that, for conferring higher grade, prior service in the aided school is liable to be reckoned. With that request they have moved the first respondent by filing Ext.P50 representation and in this writ petition the main complaint is that there is delay in considering and passing orders on Ext.P50. Petitioner therefore seek a direction to the first respondent to dispose of Ext.P50 on an expeditious basis. 2 Having regard to the limited nature of the relief that is sought for, I direct that the first respondent shall dispose of Ext.P50, as expeditiously as possible and at any rate within 3 weeks from the date of production of a coy of the judgment. It is directed that one of the petitioners be heard before final orders are passed. Writ Petition is disposed of as above. ANTONY DOMINIC JUDGE vi. 3

Sajith N.L vs State Of Kerala Represented By The on 7 November, 2008

Kerala High Court

Court No. - 18 Case :- WRIT - A No. - 41650 of 2010 Petitioner :- Chandan Lal Dwivedi Respondent :- State Of U.P. And Others Petitioner Counsel :- Santosh Kumar Tripathi Respondent Counsel :- C.S.C.,A.K.Mehrotra Hon'ble Arun Tandon,J. Petitioner has already filed Writ Petition No. 50979 of 2007 claiming therein that the advertisement of the vacancy qua the post of Lecturer Civics in Obra Intermediate College, Obra for direct recruitment is illegal, inasmuch as vacancy is to be filled by promotion within 50% quota. In the said writ petition an interim order has been granted on 24.10.2007 providing that no selection shall be made on the post of Lecturer Civics in pursuance to the advertisement dated 17.09.2007. The writ petition is still pending. By means of this petition the petitioner seeks consideration of his claim for promotion against the same post. I am of the considered opinion that the issue, as to whether the vacancy is within direct recruitment quota or for promotion, is to be finally adjudicated by this Court in Writ Petition No. 50979 of 2007, filed by the petitioner himself, and therefore he cannot be permitted to seek a mandamus for the post being filled by promotion by means of a separate petition. He may make an application, if so advised, in his pending writ petition. Writ petition is dismissed with the observation made above. Order Date :- 20.7.2010 Pkb/

Chandan Lal Dwivedi vs State Of U.P. And Others on 20 July, 2010

Allahabad High Court

Name of accused- Convicted under section Sentence awarded appellant Bali alias Banal Singh 376 IPC Five years' RI and a fine of Rs. 500/-, in default of payment of fine, to further undergo RI for 3 months. 450 IPC Three years' RI and a fine of Rs. 500/-, in default of payment of fine, to further undergo RI for 3 months. The above sentences were ordered to run concurrently. 2. The facts giving rise to this appeal, in short, are as follows :- JUDGMENT Sunil Kumar Garg, J. 1. This is an appeal by the accused-appellant against the judgment and order dated 30-4-1982 passed by the learned Sessions Judge, Sri Ganganagar in Sessions Case No. 34/1981, by which the learned Sessions Judge convicted the accused-appellant for the offence under Sections 376 and 450, IPC and sentenced in the following manner:- On 10-1-1981, PW-1 Indobai lodged an oral report Ex. P/1 before PW-7 Mani Ram, who was SHO on that day at Police Station, Matilirathan District Sri Ganganagar stating inter alia that day before yesterday she had gone to Gurusar to take the Muklawa of her son Mahendra and Mahendra was also with her. It is further stated in the report that at her house, she has left her daughters Mst. Mukhtyaro, PW-2 (prosecutrix) aged about 28 years and Guddi, PW-3 aged about 16 years and Pappi, aged about 10 years and her husband was also out of station and had gone to Bikaner. PW-2 Mukhtyaro was married and she had one son of one and half years and for the last one and half years, she has been living with PW-1 Indobai. It is further stated in the report that on the previous day i.e. on 9-1-1981, she has come to her house and when she came she was informed by PW-2 Mukhtyaro (prosecutrix) that at about 2.00 p.m. when she was sitting in her house on the cot and combing her hair, Guddi and Pappi had gone to the field and accused-appellant came there and committed rape on her. It is further stated in the report that thereafter PW-3 Shishuguddi came there and she made hue and cry and thereafter, accused-appellant ran away from the scene and when he was running, he was seen by PW-5 Kartar Singh and PW-4 Chandu Ram. It is further stated in the report that as she was having no transportation, therefore, report has been lodged on the next day i.e. on 10-1-1981. On this report, PW-7 Maniram registered the case and started investigation. During investigation, PW-2 Mukhtyaro (prosecutrix) was got medically examined by PW-6 Dr. Rajendra Kumar and her medical examination report is Ex. P/3 and the report determining her age is Ex. P/4, where her age has been determined as 20 years. After usual investigation, a challan was filed against the accused-appellant in the Court of Magistrate and from where the case was committed to the Court of Session. On 28-7-1981, the learned Sessions Judge, Sri Ganganagar framed charges against the accused-appellant for the offence under Sections 376 and 450, IPC. The charges were read over and explained to the accused-appellant. The accused-appellant denied the charges and claimed trial. During the course of trial, the prosecution examined as many as seven witnesses and got exhibited several documents. Thereafter, statement of the accused-appellant under Section 313, Cr.P.C. was recorded. No evidence was led by the accused-appellant in defence. After conclusion of trial, the learned Sessions Judge, Sri Ganganagar vide his judgment and order dated 30-4-1982 convicted the accused-appellant for the offence under Sections 376 and 450, IPC and sentenced in the manner as stated above. Before proceeding further, it may be stated here that when the statement of PW-2 Mukhtyaro (prosecutrix) was being recorded by the learned Sessions Judge, he felt that she was suffering from mental disease and she was not in a position to give statement and, therefore, he ordered that her mental state be got examined by the doctor. On the file, there is a report of the Superintendent, Mental Hospital, Jaipur dated 27-2-1982, which speaks that PW-2 Mukhtyaro was suffering from mental retardation and her mental age was three years and I.Q. was 21. It may further be stated here that because of this fact her statement could not be recorded and proceedings have taken place in the absence of her statement. The learned Sessions Judge while recording conviction of the accused-appellant came to the following conclusions :- 1. That on the date of incident, PW-2 Mukhtyaro (prosecutrix) was patient of mental retardation. 2. That PW-6 Dr. Rajendra Kumar has proved X-ray report Ex. P/4 and has come to the conclusion that on the date of incident, the age of PW-2 Mukhtyaro (prosecutrix) was 20 years. 3. That PW-6 Dr. Rajendra Kumar has come to the conclusion that no definite opinion can be given about the commission of rape with PW-2 Mukhtyaro in the absence of FSL report and the FSL report has not been produced in the present case. 4. That the learned Sessions Judge has relied on the evidence of PW-3 Shishuguddi and after relying on her statement, he has convicted the accused-appellant for the offence under Sections 376 and 450, IPC. Aggrieved from the said judgment and order dated 30-4-1982 passed by the learned Sessions Judge, Sri Ganganagar, the present appeal has been filed by the accused-appellant. 3. In this appeal, the following submissions have been made by the learned counsel for the accused-appellant :- 1. That there is no evidence of intercourse with PW-2 Mukhtyaro (prosecutrix) by accused-appellant and there is also no evidence on record which shows that PW2 Mukhtyaro has any injury on her private part and thus, there is no medical evidence in this case and in such circumstances, in absence of statement of PW-2 Mukhtyaro, the conviction of the accused-appellant for the offence under Sections 376, IPC cannot be maintained. 2. That since there is statement of PW-3 Shishuguddi which shows that she saw the accused-appellant committing rape on PW-2 Mukhtyaro (prosecutrix), therefore, from this point of view also, a case at the most under Section 354, IPC can be said to have been proved beyond reasonable doubt and not under Section 376, IPC, as the fact that sexual intercourse by accused-appellant with her has taken place in actual form has not been established by the prosecution. 3. That the accused-appellant is in jail for the last more than eight months and, therefore, he should be sentenced to the period already undergone by him. 4. The learned Public Prosecutor has not much controverted the above arguments, but has argued that in case the Court comes to the conclusion that a case under Section 354, IPC is made out against the accused-appellant, then, quantum of fine be raised. 5. I have heard the learned counsel for the accused-appellant and the learned Public Prosecutor and perused the record of the case. 6. So far as the fact that PW-2 Mukhtyaro (prosecutrix) was a patient of mental retardation on the date of occurrence is concerned, there is no dispute on this point and because of this reason, she has not been examined in Court and, thus, there is no evidence of the prosecutrix herself to support the findings of conviction of rape. 7. So far as the medical evidence is concerned, PW-6 Dr. Rajendra Kumar has clearly stated in his statement that no definite opinion regarding rape on PW-2 Mukhtyaro can be given for want of FSL report and FSL report has not been produced in the present case. There is no dispute on the point that PW-2 Mukhtyaro was having no injury on her private part when she was got medically examined and she was a married woman. 8. PW-1 Indo Bai, who lodged the oral report Ex. P/1 on 10-1-1981, has stated that she was informed by PW-2 Mukhtyaro that accused-appellant has committed rape on her, but she has admitted in her cross-examination that at that time she did not find her clothes torn up. She has further stated that PW-2 Mukhtyaro is an innocent girl and her mental power is very weak. 9. PW-3 Shishuguddi is the sister of PW-2 Mukhtyaro and daughter of PW-1 Indo Bai and she states that when she came from the field, she saw accused-appellant committing rape on PW-2 Mukhtyaro and when she made hue and cry, her aunty Mst. Kako and PW-4 Chandu Ram also came there and accused-appellant ran away. 10. PW-4 Chandu Ram also admits this fact that he saw the accused-appellant running from the scene. 11. PW-5 Kartar Singh is another witness, who states that he was told by PW-3 Shishuguddi that accused-appellant teased PW-2 Mukhtyaro and, thereafter, he went inside the house and asked PW2 Mukhtyaro as to what has happened and upon this, she told him that accused-appellant has committed intercourse with her. 12. Looking to the above evidence on record and especially looking to the facts that PW-2 Mukhtyaro (prosecutrix) has not been examined in the Court; she was patient of mental retardation on the date of incident; she was married woman; she did not receive any injury on private part or other parts of her body; her clothes were not torn up; there is no actual evidence proving that sexual intercourse in actual terms has taken place with her by accused-appellant; there is statement of PW-5 Kartar Singh that he was told by PW-3 Shishuguddi that accused-appellant teased PW-2 Mukhtyaro, the case of the prosecution cannot travel beyond the offence under Section 354, IPC, as the prosecution has proved that accused-appellant used the criminal force on PW-2 Mukhtyaro with an intention to outrage her modesty and thus, the findings of the learned Sessions Judge convicting accused-appellant for the offence under Section 376, IPC cannot be maintained and accused-appellant is liable to be convicted under Section 354, IPC instead of 376, IPC. 13. So far as the conviction of accused-appellant for the offence under Section 450, IPC is concerned, the findings of the learned Sessions Judge in this respect are maintained. 14. Since the accused-appellant is going to be convicted under Section 354, IPC instead of 376, IPC, the argument of the learned counsel for the accused-appellant that he may be sentenced to the period already undergone becomes relevant. 15. As per the report on the back of the warrant, accused-appellant has been in PC and JC from 16-1-1981 to 30-1-1981 and apart from this, as per the order sheet of this Court dated 7-4-2000, it appears that accused-appellant was sent to jail and he was ordered to be released on his furnishing personal bond of Rs. 2000/- and two sureties in the like amount, but he has not furnished the same so far. Thus, he has been in jail since 7-4-2000. In my considered opinion, for the offence under Sections 354 and 450, IPC, the period which he has already undergone would be sufficient sentence to meet the ends of justice and thus, he should be sentenced to the period already undergone by him for the said offences. 16. In the result, the appeal filed by the accused-appellant Bali alias Bahal Singh is partly allowed. The conviction of the accused-appellant is altered from 376, IPC to 354, I.P.C and he is accordingly convicted under Section 354, IPC in place of 376, IPC. However, his conviction under Section 450, IPC is maintained. For the offence under Sections 354 and 450 IPC, the accused-appellant is sentenced to the period already undergone by him. The judgment and order dated 30-4-1982 passed by the learned Sessions Judge, Sri Ganganagar stand modified accordingly. Since the accused-appellant Bali alias Bahal Singh is in jail, he be released forthwith, if not required in any other case.

Author: S K Garg

Bali Alias Bahal Singh vs State Of Rajasthan on 4 January, 2001

Rajasthan High Court

[Section 30] [Complete Act]

Central Government Act

W.P.No.30839 of 2015 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.12.2021 CORAM : THE HONOURABLE MR. JUSTICE S.M. SUBRAMANIAM W.P.No.30839 of 2015 M/s.Padmavati Enterprises, Represented by its Proprietor, Mr.Dhanraj, No.47/1, Varadhamuthiayappan Street, Chennai -600 001 ... Petitioner Vs. 1. The Deputy Commissioner of Customs (Group 1), Custom House, No.60, Rajaji Salai, Chennai-600 001 2. The Director, Food Safety and Standards Authority of India, Ministry of Health and Family Welfare, New Delhi. 3. Authorised Officer, Food Safety & Standards Authority of India, Ministry of Health and Family Welfare, C.1.D, Rajaji Bhawan, Besant Nagar, https://www.mhc.tn.gov.in/judis Page 1 of 11  W.P.No.30839 of 2015 Chennai-600 090. 4. Inspection Officer, Food Safety & Standards Authority of India, Ministry of Health and Family Welfare, C.1.D, Rajaji Bhawan, Besant Nagar, Chennai-600090. . ..Respondents Prayer : Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Mandamus directing the 3rd and 4th respondents herein to draw samples and certify petitioner's standard based on the specifications applicable under the Food Safety and Standards Act, 2006 and Regulations made thereof. For Petitioner : Mr.S.Murugappan For Respondents : Mr.SU.Srinivasan SPC for respondents. ORDER "Wholesale package means a package containing - 22.12.2021 kan/shr Internet : Yes Index : Yes / No Speaking order / Nonspeaking order To The relief sought for in the present Writ Petition is to direct the respondents 3 and 4 to draw samples and certify petitioner's standard based on the specifications applicable under the Food Safety and Standards Act, 2006. https://www.mhc.tn.gov.in/judis Page 2 of 11  W.P.No.30839 of 2015 2. The petitioner firm is an importer and trader in camphor and other chemicals. In the course of its business activities, the petitioner firm imported 4312 bags of sodium chloride from China. The net quantity imported is 107.8 tonnes in four containers with each bag of Sodium Chloride (Salt) weighing 25 kgs, net. The goods were supplied by M/s.China Salt Jitan Co.Ltd. The goods were accompanied by the suppliers' certificate of Analysis dated 02.07.2015 and also the certificate of Origin dated 02.07.2015. 3. Upon arrival of the goods at the Chennai Port, the petitioner firm filed a bill of entry with the first respondent as required by the Customs Department for due assessment and clearance of the consignment after completion of customs formalities. Since the goods imported were claimed as food grade sodium chloride, the matter was referred to the 3rd respondent for drawal of samples and giving their confirmation with regard to the food safety standards. https://www.mhc.tn.gov.in/judis Page 3 of 11  W.P.No.30839 of 2015 4. The 4th respondent came to inspect and draw the sample as per the directions of the third respondent. However, he did not draw any sample and instead forwarded a message online as per the practice of the 2nd respondent. The message received from the 4th respondent electronically was that “Best Before/ Use by date/ Date of expiry is not mentioned where it is required under clause 2.2.2:10 of FSS (Packaging and labelling Regulation, 2011)”. Thus, an objection was raised for drawing sample on the ground that the details regarding the manufacturing date or date of expiry in the labelling were not found. 5. Thus, the request of the petitioner for conducting the lab test was denied. Therefore, the petitioner is constrained to move the present Writ Petition. 6. The learned counsel for the petitioner drew the attention https://www.mhc.tn.gov.in/judis Page 4 of 11  W.P.No.30839 of 2015 of this Court with reference to the relevant rules, more specifically, as per the Food Safety and Standards (Packaging and Labelling) Regulation, 2011. Such a labelling in respect of wholesale quantity are exempted. When there is an exemption under the regulation in respect of whole sale packaging, there is no reason whatsoever to deny the benefit of lab test for the product imported by the petitioner. 7. The learned Central Government standing counsel reiterated by stating that in the absence of date of expiry and other details under the regulations, the authorities would not be in a position to draw sample, conduct test and send the same for testing in the lab. Relying on the counter affidavit, the learned Central Government standing counsel made a submission that in the present case such labelling and the particulars were missing and therefore the inspecting authorities refused to draw sample and there is no infirmity as such. https://www.mhc.tn.gov.in/judis Page 5 of 11  W.P.No.30839 of 2015 8. Para 1.2.1:(6) of the Regulation defines "Multipiece package means a package containing two or more individually packaged or labelled pieces of the same commodity of identical quantity, intended for retail either in individual pieces or packages as a whole" 9. Clause - 12 of the Regulation states Wholesale as follows: a) a number of retail packages, where such first mentioned package is intended for sale, distribution or delivery to an intermediary and is not intended for sale direct to a single consumer; or b) a commodity of food sold to an intermediary in bulk to enable such intermediary to sell, distribute or deliver such commodity of food https://www.mhc.tn.gov.in/judis Page 6 of 11  W.P.No.30839 of 2015 to the consumer in smaller quantities". 10. Clause 2.6 of the Regulation contemplates exemptions from labelling requirements- Clause 2.6.1(5) enumerates that "In case of wholesale packages the particulars regarding list of ingredients, Date of Manufacture/ packing, best before, expiry date labelling of irradiated food and, vegetarian logo/ non vegetarian log, may not be specified." 11. The learned counsel for the petitioner made a submission that the packages in the case of the petitioner is wholesale package. The commercial invoice issued by the exporting company indicates that the Sodium Chloride (food grade) in 25 kg/PE bag (Polyethylene bags). Therefore, the salt is packed in 25 kgs baggage and is a wholesale package. When it is a wholesale package, the exemption clause has to be applied and therefore, the stand taken by the Department is not in consonance with the https://www.mhc.tn.gov.in/judis Page 7 of 11  W.P.No.30839 of 2015 provisions of the Regulation of the year 2011. 12. This Court is of the considered opinion that it is not in dispute that the petitioner imported salt from China. Further, the invoice indicates that it is a wholesale package. As far as the wholesale package of salt is concerned, the exemption clause is applicable. Furthermore, it is brought to the notice of this Court that there is no expiry date for salt. These are all the facts which were not considered by the competent authorities. Thus, this Court is inclined to consider the Writ Petition. 13. Accordingly, the respondents 3 and 4 are directed to draw samples and certify petitioner's standard based on the specification applicable under the Food Safety and Standards Act, 2006. The said exercise is directed to be done within a period of 4 weeks from the date of receipt of a copy of this order. 14. With this direction, the Writ Petition stands allowed. https://www.mhc.tn.gov.in/judis Page 8 of 11  W.P.No.30839 of 2015 No costs. 1. The Deputy Commissioner of Customs (Group 1), Custom House, No.60, Rajaji Salai, Chennai-600 001 2. The Director, Food Safety and Standards Authority of India, Ministry of Health and Family Welfare, New Delhi. 3. Authorised Officer, https://www.mhc.tn.gov.in/judis Page 9 of 11  W.P.No.30839 of 2015 Food Safety & Standards Authority of India, Ministry of Health and Family Welfare, C.1.D, Rajaji Bhawan, Besant Nagar, Chennai-600 090. 4. Inspection Officer, Food Safety & Standards Authority of India, Ministry of Health and Family Welfare, C.1.D, Rajaji Bhawan, Besant Nagar, Chennai-600 090. . S.M. SUBRAMANIAM, J. kan/shr https://www.mhc.tn.gov.in/judis Page 10 of 11  W.P.No.30839 of 2015 W.P.No.30839 of 2015 22.12.2021 https://www.mhc.tn.gov.in/judis Page 11 of 11

M/S.Padmavati Enterprises vs The Deputy Commissioner Of ... on 22 December, 2021

Madras High Court

[Section 30(1)] [Section 30] [Complete Act]

Central Government Act

JUDGMENT 1. This is an application purporting to be under Section 151, Civil P.C. in First Appeal No. 358 of 1925. The prayer in this application is to be found in para. 8 which runs as follows: That considering that the judgment was not delivered for a considerably long time after the hearing of the argument and that it was possible to miss important points advanced in argument and considering the technical defect in delivery of judgment which makes it a nullity, it is prayed that the case may be treated as undecided and may be re-heard or in the alternative if the judgment may be considered to be a legal judgment it may be revised. 2. This application is signed by a counsel who did not appear in the case, and Mr. K.D. Malaviya on behalf of Mr. Muhammad Husain asked us to postpone the hearing as Mr. Muhammad Husain was not in Court. We did not consider that a sufficient reason for postponing the hearing when the counsel must have known that this Bench was constituted specially to hear the application today. 3. The points urged by Mr. Malaviya are that the judgment of this Court was not properly signed and delivered, because according to him on 8th August 1928, the complete judgment was not read out in Court and was not signed by either of us on that date, that under Order 41, Rule 31, Civil P.C., every judgment of this Court in appeal had to be in writing and had to be signed when it was pronounced and the Judges had to date it. He further submits that under Ch. 7, Rule 3 of the Rules of the High Court when a written judgment is delivered in an appeal it had first to be signed by the Judges who heard the case and only then could be pronounced by one of such Judges. It is urged by Mr. Malaviya that the non-compliance of the rules in view of the affidavit filed by his client makes the judgment a nullity, and therefore the case must be treated as not disposed of and an undecided case, and therefore he prays that his client should be given an opportunity of re-arguing the case before this Bench. 4. An application was presented to Dalal, J., who was the vacation Judge on 14th August 1928 supported by an affidavit that the judgment had not been signed by us and that there was no judgment in the office of the High Court. Dalal, J., directed this application to be land before one of us with an office report on the points raised in the application. The office has submitted a report which is dated 14th December 1928. 5. Sir Tej Bahadur Sapru who appears on behalf of the opposite party, viz. the appellant in the case, submits that Order 41, Rule 31 and Order 20 and the rules thereunder do not apply to the Chartered High Courts when the rules relating to judgments were in force when the Civil Procedure Code was enacted. He has referred to Order 49, Rule 2, and we accept his contention that in view of the fact that before the present Code was enacted the rules were in force, viz., the rules of Court of 18th January 1898, the provisions of Order 20 and that of Order 41, Rule 31 do not apply to the High Court. He has further submitted that if the Judges had agreed to a judgment under the rules of the Court it was not necessary that the judgment should be signed by both the Judges before pronouncing the judgment. It is necessary to state exactly what happened in the case. The appeal was argued by Sir Tej Bahadur Sapru on behalf of the appellant and by Mr. O'Conor and Dr. Katju on behalf of the respondent. The hearing lasted several days and at the conclusion of the hearing we reserved our judgment. Thereafter we met in chambers several times, discussed the points that had to be decided, discussed the value to be attached to the evidence called, both oral and documentary, and we agreed to what the decision on such point raised in the case was to be. There were really three points in the case. The first question was as to whether the plaintiff had proved the pedigree he had set forward, the second was whether the defendant had proved his adoption, and the third point was whether Bhagwan Das and Hira Lal were members of a joint Hindu family. As one of us proceeded on casual leave there was delay in writing out the judgment and on the 8th August the Court sat for the last time before the long vacation. By a mistake of the office the case was listed in Court No. 5 and was by an order transferred to Court No. 1. The judgment on the first question had been typed out and contained the result of the joint consultation between us. On the 8th August, the note made by the officer of the Court whose duty is to record proceedings was as follows: Judgment delivered today: parties present: appeal allowed: judgment with Hon'ble Banerji, 6. Orally it was stated in open Court, what was our finding on the two other points that we had to decide, but the reasons for the decision of the second and third point had not been recorded. The complete judgment was signed by one of us and then sent to the other for signature, but on account of his absence from the station on duty the judgment was not sent into the office until 22nd August 1928 duly signed by both of us. 7. It thus appears that although one of us had pronounced in open Court the joint findings arrived at by us, the record of our reasons was not in Court on 8th August 1928, and the judgment had not been duly signed by both of us on that date. 8. Rule 3, Ch. 7, of rules of the Court, in our opinion, requires that when a written judgment is pronounced by one of the Judges it has to be signed by both the Judges but this, in our opinion, is a mere irregularity and does not in any way affect the merits and in our opinion Section 151, Civil P.C., cannot be invoked to ask us to re-hear the case merely on account of a technical irregularity. 9. The 8th August 1928, being the last date of sittings the office could not arrange that both of us should be sitting together to deliver the judgment orally. It was for the convenience of counsel that in case the parties wanted to appeal to His Majesty in Council that we pronounced our judgment on the 8th to enable counsel to prepare the application for leave to appeal at leisure. Although Mr. Malaviya suggests that the judgment would not be illegal if we had the last page copied out and we signed the last page and then pronounced the judgment, it appears to us that no useful purpose would be served by adopting that course. There is no force in this application, and we dismiss it with costs. We assess counsel's fees for today's hearing at Rs. 200.

Banarsi Das And Ors. vs Sagar Mal on 22 February, 1929

Allahabad High Court

JUDGMENT R.S. Sodhi, J. 1. The criminal appeal is directed against the Order dated 22.9.1992 whereby the appellants, while being admitted to the benefits of the Probation of Offenders Act, were required to deposit cost of proceedings of Rs. 1,500/- each to the State totalling to Rs. 6,000/-, which shall go to the State. Learned Counsel for the appellants submits that the appellants were released on probation and directed to pay a compensation of Rs. 6,000/-. In addition thereto they were required to pay Rs. 6,000/- by way of cost to the State. He submits that Rs. 6,000/- payable as cost to the State cannot be imposed in view of the fact that the appellants have been admitted to the benefit of Probation of Offenders Act. However, Rs. 6,000/- by way of compensation can be imposed. 2. Learned Counsel for the Stage agrees with this proposition of law. 3. Having heard learned Counsel for the parties, I direct that the fine of Rs. 1,500/- each imposed on the appellants is not payable and, therefore, modify the order to the that effect. However, the appellants will be required to pay the compensation as directed by the Court below. 4. With this, Criminal Appeal No. 171/1992 is disposed of. 5. The appellants are on bail. Their bail bonds and sureties shall stand discharged. 6. Non-bailable warrants issued to secure the presence of the appellants are recalled. 7. Appeal disposed of.

Author: R Sodhi

Virender @ Pappu And Ors. vs State on 24 July, 2001

Delhi High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 15688 of 2008(P) 1. M.K.SURENDRAN, S/O.KUNHAMBU, AGED 42 YRS ... Petitioner Vs 1. THE DIRECTOR GENERAL OF INCOME TAX ... Respondent 2. THE CHIEF COMMISSIONER OF INCOME TAX, 3. DIRECTORATE OF INCOME TAX VIGILANCE 4. THE CHAIRMAN, CENTRAL BOARD OF DIRECT 5. UNION OF INDIA, REPRESENTED BY THE For Petitioner :SRI.C.KHALID For Respondent :SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR The Hon'ble MR. Justice P.R.RAMACHANDRA MENON Dated :08/06/2009 O R D E R P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 15688 of 2008 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 8th day of June, 2009 JUDGMENT The petitioner claims to be a recognized "informer" to the Income Tax authorities, on whose information, the departmental authorities conducted a raid and collected incriminating documents from the business premises and residence of the concerned evader of Income Tax. The case of the petitioner is that, the tax recovery resulted because of the contribution of the petitioner being of Rs. 3.6 crores as reward, the petitioner is entitled to have 10 % of the said amount i.e. 36 lakhs as reward, in tune with the relevant guidelines (Guidelines for Grant of Reward for Informants, issued by the Central Board of Direct Taxes in 1993) whereas the petitioner was given only 2.75 lakhs. 2. In response to Ext.P12 lawyers' notice, the first respondent sent Ext.P13 reply, stating that granting of the benefit is in tune with the relevant 'guidelines' and to the extent the petitioner is actually entitled to have the benefit. It was also stated in Ext.P13 that, if the petitioner is aggrieved in any manner, he could very well approach the 4th respondent/appellate authority in this regard. Petitioner has approached this Court, challenging the inaction on the part of the 4th respondent, despite preferring Ext.P14 appeal in this regard. 3. A statement has been filed from the part of the first respondent seeking to sustain the stand taken by the department, also pointing out  WP (C) No. 15688 of 2008 : 2 : in paragraph 11 that, the appeal preferred by the petitioner has already been considered and disposed of, and that the petitioner was conveyed to the petitioner through Ext.R1(A) dated 1.8.2007. A copy of the minutes of the Committee dated 19.9.2006 is also produced and marked as Ext.R1(B). It is contended that the petitioner does not have any legal right to claim the reward as a matter of right, as per the law declared by Apex Court, as well as by this Court on the point. 4. It is true that the legal position as above cannot be in dispute any further. But the point involved is whether Ext.P14 appeal preferred by the petitioner has been considered and disposed of in accordance with the 'guidelines' as offered and stipulated vide Ext.P13 reply. 5. Ext. R1(A) intimation conveyed to the petitioner shows that it was only with reference to the letter dated 29.6.2007 of the 4th respondent; whereas Ext.R1(B) attached along with it, is dated 19.6.2006. That apart, Ext.R1(B) shows that, it is in respect of the proceedings granting "final award" pursuant to the proposal submitted by the Director of Income Tax (Inv.), Kochi and not with reference to Ext.P14 appeal preferred by the petitioner. Besides this, no opportunity of hearing was given to the petitioner before finalizing Ext.P14. 6. After hearing both the sides, this Court finds that, Ext.P14 has to be reconsidered by the fourth respondent with reference to the  WP (C) No. 15688 of 2008 : 3 : relevant 'guidelines' and also with regard to the actual facts and figures. Accordingly, the Writ Petition is disposed of, directing 4th respondent to reconsider Ext.P14 appeal preferred by the petitioner, after giving an opportunity of hearing to the petitioner, as expeditiously as possible, at any rate, within a period of 3 months from the date of receipt of a copy of this judgment. Disposed of as above. P. R. RAMACHANDRA MENON, JUDGE kmd 

M.K.Surendran vs The Director General Of Income Tax on 8 June, 2009

Kerala High Court

JUDGMENT L. Rath, J. 1. The question raised by the learned counsel for the petitioner is that the direction by the learned Magistrate in a complaint case, after recording the statements of the complainant and some witnesses, to the police to investigate into the matter Under Section 202 of the Code of Criminal Procedure (hereinafter referred to as 'Cr PC') is illegal as the power under the section vested in the Magistrate is to either enquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit but not resort to both the methods. The petitioner filed a complaint before the Sub-Divisional Judicial Magistrate, Bhubaneswar, alleging offences against the opposite parties Under Sections 342/347/348/384/465/109/392/354/34, IPC and during the enquiry held by the Magistrate Under Section 200 examined himself, his wife and son as witnesses. The learned Magistrate in his order dated 4-7-1992 held that clear evidence was not available regarding obtaining of signature and recovery of gold from the locker by the opposite parties and that such type of allegation can be properly appreciated if it is investigated by the police. He accordingly directed the Inspector-in-charge of Kharvelanagar Police Station to investigate into the allegation made in the complaint and submit the report. Because of the use of the words "either" and "or", it is clear, according to Mr. Mohapatra appearing for the petitioner, that only one of the options is available to the Magistrate but not both. The question raised by the learned counsel is no longe res Integra in view of the decision of this Court reported in Vol. 33 (1991) OJD 353 (Criminal) Mrutyunjaya Tripathy v. Naba Kumar Misra) wherein interpreting the provisions of Section 202, Cr PC it was held : "The words 'either' and 'or' in Section 202 do not mean that the options of the Magistrate are mutually exclusive in the sense that once he directs an investigation by some other authority he is rendered powerless to hold the enquiry himself. Such an interpretation may result in stiffling of the very complaint since if either the police or any other authority to whom the investigation is entrusted does not choose to carry out the direction in spite of reminders and no report is submitted, the Court would be powerless to proceed with the complaint and the complainant would be without remedy. This could never be the intention of the legislature. Hence the power is inherent in the Magistrate to stop the investigation which has been directed and instead proceed with the enquiry himself. The matter was considered in 1986 Cri. LJ 1266 (Parasuram Jha and Ors. v. The State of Bihar and Anr.) where Sandhawalia. CJ held that where alternative choices have to be given, invariably the language employed has to be in the usual form that the person being given such discretion may either resort to one or the other. It does not necessarily follow that he then cannot either resort to both or intermix the same and that the power so vested may include the exercise of both rather than necessarily exclude one from the other and that the more employment of the two words 'either' and 'or' cannot in any way be conclusive." In AIR 1976 SC 1672 (Deorapalli Laxmi Narain Reddy v. V. Narain Reddy) it was observed that Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceeding under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered Under Section 202 to direct, within the limits circumscribed by that section, an investigation "for the purpose of deciding whether or not there is sufficient ground for proceeding". Thus the object of an investigation Under Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him. The view that the words "either" and "or" are not mutually exclusive to each other is also supported by the decision of the Allahabad High Court reported in 1987 (III) Crimes 379 (Pulloo Jaidev and Ors. v. State of U.P. and Anr.), 2. The question raised by Mr. Mohapatra being thus concluded, to excution can be taken to the order passed by the learned Magistrate. Mr. Mohapatra has also cited some decisions, namely, AIR 1992 All. 211 (Emperor v. Durga Prasad), AIR 1937 Nag. 389 (Tyab Ali Yusuf Ali Bohari v. Husainali Yusafali Bohari),AIR 1949 Pat. 36 (Radha Kishun Sao v. S. K. Misra and Anr.), 1975 Cri LJ 1367 (Nagawwa v. Veeranna Shivalingappa Koujalagi and Ors.) and 1981 Cri LJ 1002 (Sankar Chandra Ghose v. Roopraj S. Bhansally) taking the contrary view, but in view of the decisions of the Supreme Court and this Court, no support can be drawn from those decisions. 3. In that view of the matter, this petition has no merit and is hence dismissed.

Author: L Rath

Ramakanta Mohanty vs Ajay Kumar Routray And Ors. on 22 January, 1993

Orissa High Court

JUDGMENT Tottenham and Ameer Ali, JJ. 1. This was a suit to recover money due upon a mortgage by the sale of the mortgaged properties, which were the five properties originally mortgaged; and it appears that some have since passed out of the hands of the original mortgagor. 2. The present owners were made parties to the suit. The present appeal has been preferred by one of those parties, the original defendant No. 12; and the point which we have to decide is whether by virtue of Section 82 of the Transfer of Property Act this defendant is entitled to require the plaintiff, mortgagee, to apportion his claim amongst the various properties mortgaged, and to accept from the appellant his rateable share only. 3. The learned Pleader for the Appellant has not been able to put before us any authority for his construction of Section 82 of the Transfer of Property Act, nor are we aware of any such authority. 4. We think the position is not tenable, but that the lower Courts are quite right in the view they have taken of Section 82, when the District Judge says, "that the intention of the law is not that the lien of the mortgagee should be split, but simply to determine the liabilities of the purchasers inter se." Section 82 upon the face of it refers to contribution as between the various persons who may be liable with respect to the same debt. It seems to us that the lower Courts were quite right in allowing the plaintiff a decree for the whole sum claimed, making all the mortgaged properties liable for the satisfaction of that decree, and leaving it to any one of the defendants who might have to pay up more than his rateable share to recover with reference to Section 82 of the Transfer of Property Act from his co-debtors. 5. This appeal is dismissed with costs.

Author: T A Ali

Roghu Nath Pershad And Anr. vs Harlal Sadhu And Ors. on 4 March, 1891

Calcutta High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl..No. 695 of 2010() 1. RADHAKRISHNAN @ VAVACHAN, ... Petitioner Vs 1. STATE OF KERALA, REP.BY EXCISE ... Respondent For Petitioner :SRI.GEORGE SEBASTIAN For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice K.T.SANKARAN Dated :22/02/2010 O R D E R K.T. SANKARAN, J. --------------------------- B.A. No. 695 of 2010 ------------------------------- Dated this the 22nd day of February, 2010 O R D E R This is an application for bail under Section 439 of the Code of Criminal Procedure. The petitioner is the accused in Crime No.6 of 2010 of Sasthamcotta Excise Range. 2. The offence alleged against the petitioner is under Section 55(i) of the Abkari Act. 3. The prosecution case is that on 5/1/2010, the petitioner was engaged in the sale of Indian Made Foreign Liquor. A quantity of two litres of Indian Made Foreign Liquor was seized from the possession of the petitioner. The petitioner was arrested on 5/1/2010 and he is in judicial custody since then. 4. The learned Public Prosecutor submitted that the petitioner is involved in two other Abkari cases in the year 2009 and four abkari cases in 2008. It is also pointed out that while disposing of B.A. No.6818 of 2009, filed by the petitioner, on 30/11/2009, the undertaking made by the petitioner that he will not commit any offence of similar nature while on bail in that case was recorded. The present crime was committed after the  B.A. No. 695 /2010 2 date of disposal of B.A. No.6818 of 2009. 5. The petitioner had filed B.A. No.168/2010 and that application was dismissed by the order dated 20/1/2010 in the light of the facts mentioned in paragraph 4 above. One month elapsed thereafter. 6. Taking into account the facts and circumstances of the case, the duration of the judicial custody undergone by the petitioner, the nature of the offence and the present stage of investigation, I am of the view that bail can be granted to the petitioner. 7. The petitioner shall be released on bail on his executing bond for Rs.25,000/- with two solvent sureties each for the like amount to the satisfaction of the Judicial Magistrate of the First Class, Sasthamcotta subject to the following conditions:- B.A. No. 695 /2010 3 C) The petitioner shall not try to influence the prosecution witnesses or tamper with the evidence; D) The petitioner shall not commit any offence or indulge in any prejudicial activity while on bail; E) In case of breach of any of the conditions mentioned above, the bail shall be liable to be cancelled. The Bail Application is allowed as above. K.T. SANKARAN, JUDGE scm 

Radhakrishnan @ Vavachan vs State Of Kerala on 22 February, 2010

Kerala High Court

> Title: Need for early completion of gauge conversion project on Katwa-Burdwan railway line in West Bengal. MR. DEPUTY-SPEAKER: Now, we take up Special Mentions. SHRI ABU AYES MONDAL (KATWA): Mr. Deputy-Speaker, Sir, I want to raise a very burning problem relating to my constituency. Katwa-Burdwan is an almost century old narrow gauge railway line in West Bengal. In the last Railway Budget, all the lines have been taken up for conversion into broad gauge. While inaugurating the gauge conversion project of Katwa-Burdwan narrow gauge line, on 30th June, 2007 hon. Minister of Railways, Shri Lalu Prasad announced that the broad gauge project would be completed within two years at an estimated cost of Rs. 203 crore. The conversion from narrow gauge to broad gauge being a 50:50 venture between the Government of West Bengal and Indian Railways, no remarkable achievement has been seen so far. Therefore, I urge upon the Ministry of Railways, Government of India to take immediate action so that the said project can be completed within the estimated budget and time frame.

Need For Early Completion Of Gauge Conversion Project On ... on 4 December, 2007

Lok Sabha Debates

[Section 249(2)] [Section 249] [Complete Act]

Central Government Act

JUDGMENT Malik, C.J. 1. The following question was referred for decision by this Full Bench. "Whether an Assistant Collector of the first class who is empowered by the Local Government to exercise all the powers of a Collector under Chapter III of the U. P. Agriculturists' Relief Act can transfer a case from his court to the court of any other Assistant Collector empowered under Sub-section (1) of Section 22?" This reference became necessary as a Bench of this Court had taken the view in -- 'Sampat Kumar v. Moti', 1950 All WR 103 (A), that the power of transfer given to a Collector under Sub-section (2), Section 22, did not empower the Assistant Collector to transfer a case pending in his court to another Assistant Collector empowered under Sub-section (1), of Section 22. The decision of this Court was given on November, 9, 1949, while the U. P. Agriculturists' Relief Act had remained in force from 1935, and during this period of more than 15 years a very large number of cases might have been transferred by Assistant Collectors purporting to act under Section 22(2) of the Act, and two of such cases were listed on the same date before the Court which made the reference. 2. In Sub-section (4) of Section 2 of the U. P. Agriculturists Relief Act (U. P. Act No. XXVII of 1939), Collector is defined as meaning "the officer appointed as Collector of a district under the Land Revenue Act No. 3 of 1901." Section 22(1) is as follows : "The Local Government may empower any Assistant Collector of the first class to exercise the powers of a Collector under this Chapter." Section 22 is in Chapter III of the Act, and that Chapter begins from Section 9 and ends with Section 27, and only in three sections the word "Collector" is mentioned. Section 10 provides that "applications under this Chapter shall, if the principal money secured does not exceed Rs. 500, be brought before the Collector, and the word "Court" in this Chapter shall in such cases include the "Collector". It is not disputed that if a notification has been issued by the Government then an Assistant Collector can entertain an application under Section 10 of the Act. Section 23, the other section in which this word occurs, is as follows : "An appeal shall lie to the District Judge from an order of a Collector or Assistant Collector passed under this Chapter." The word 'Assistant Collector' being also mentioned, recourse need not be had to Section 22, and orders passed, whether by the Collector or by the Assistant Collector, are made appealable to the District Judge. To come back to Section 22, Sub-section (1) of that section provides that the Local Government may empower any Assistant Collector of the first class to exercise the powers of a Collector under that Chapter, and Sub-section (2) then provides that the Collector may transfer any proceedings under this Chapter -- (a) from his own court to that of an Assistant Collector empowered under Sub-Section (1); (b) from the court of an Assistant Collector subordinate to him either to his own court or to that of any other Assistant Collector empowered under Sub-section (1). If Sub-section (1), Section 22 does not govern Sub-section (2) of that section, then Sub-section (1) would only be necessary for empowering an Assistant Collector to entertain an application under Section 10, and it was not necessary for the legislature to have said that the Local Government may empower any Assistant Collector of the first class to exercise "the powers of a Collector under this Chapter." Mention of Section 10 of the Act would have been quite sufficient. 3. If the words "to exercise the powers of a Collector under this Chapter" are given their ordinary meaning, then wherever the word "Collector" occurs in Chapter 3, it would include an 'Assistant Collector' and, therefore, the word 'Collector' in Sub-section (2) will also include an Assistant Collector. On the other hand, the learned counsel for the applicants has pointed out that there may be some practical difficulties inasmuch as an Assistant Collector empowered under Sub-section (1) may not be subordinate to an Assistant Collector similarly empowered, and it will be anomalous that one Assistant Collector should transfer a case from his own court to a court of equal jurisdiction. He has pointed out that there is nothing in Sub-section (2) which empowers a Collector to transfer a case from his own court to the court of another Collector. 4. In view of the plain language of the section it is not necessary for us to go into these practical difficulties and it may be that in case of any practical difficulty, the District Judge may be able, in an appeal from an order of a Collector or an- Assistant Collector, to set things right. The fact, however, remains that Sub-section (1) provides that the Local Government may empower any Assistant Collector of the first class to exercise the powers of a Collector under Chapter III, and the power to transfer a case to the court of an Assistant Collector is a power exercisable by a Collector under Chapter III. There is no reason, therefore, why an Assistant Collector should not have the power to transfer a case. Sub-section (2) is a part of Chapter III and is governed by Sub-section (1). 5. The U. P. Agriculturists' Relief Act has now been repealed and it will not be desirable to unsettle a large number of decisions by courts of Assistant Collectors to whom cases might have been transferred by other Assistant Collectors purporting to act under Sub-section (2) of Section 22. Taking all these matters into consideration we consider that an Assistant Collector who has been empowered to exercise the powers of the Collector under Chapter 3 has the power in a proper case to transfer a case to the court of another Assistant Collector empowered under Sub-section (1). 6. The Rules framed by the Local Government are in these words : "The powers of a Collector under Chapter III of the Act are under section 22(1) of the Act hereby conferred on all Assistant Collectors of the first class who are in charge of sub-divisions or who have exercised powers of the first class for more than five years." There may be, therefore, more than one Assistant Collector in a district or a sub-division who is able to take cognizance of an application under Section 10, and, if for some reason one Assistant Collector of the first class has transferred the case to another Assistant Collector of the first class of more than five years standing, there is no reason to think that there will be any practical difficulty. 7. We, therefore, answer the question in the affirmative and overrule the decision in 'Sampat Kumar v. Moti (A)' mentioned above. 8. The answer may be sent to the Bench concerned.

Author: Malik

Sheo Mangal vs Ram Charan on 1 April, 1954

Allahabad High Court

an> Title : Need to open branches of nationalised banks at Vedasenthur, Kangayam and Kallimandiyam in Palani Parliamentary Constitutency, Tamil Nadu. MR. DEPUTY-SPEAKER: Shri Kharventhan, in future, whenever you like to speak, first you have to go to your seat. SHRI S.K. KHARVENTHAN (PALANI): In my Palani parliamentary constituency, Vedasenthur in Vedasenthur Taluk, Kangayam in Kangayam Taluk and Kallimandiyam in Oddanchatram Taluk are all very important business centres. Vedasenthur is having nearly 30 spinning mills and a number of textile units. It is on the National Highway No. 7 between Karur and Dindigul. But unfortunately, there is no nationalised bank in Vedasenthur town. The people of the area want to have a branch of Canara Bank or any other nationalised bank in Vedasenthur.             Kangayam in Erode district is one of the famous centres for butter, ghee and textiles. Nearly 30 butter and ghee industries are functioning here. Hundreds of handloom textiles are also functioning here. The people of the region also want to have the facility of Canara Bank branch or any other nationalised bank.             Kallimandiyam is also one of the biggest centres in Oddanchatram Taluk. Kallimandiyam is famous for butter, ghee and financial institutions. Buffaloes and other cattle are transported from here to various parts of the country. Vegetables and food grains are also transported to northern India from here only. The business people of the region want to have a nationalised bank branch, particularly Canara Bank or any other nationalised bank.             I request the Hon. Finance Minister to direct the bank authorities to open bank branches at Vedasenthur, Kangayam and Kallimandiyam at the earliest.

Need To Open Branches Of Nationalised Banks At Vedasenthur, Kangayam ... on 15 December, 2005

Lok Sabha Debates

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8658 of 2010 SRI RAJ KUMAR JHA Versus THE STATE OF BIHAR & ORS ----------- 3. 05.07.2010. Mr. A.S. Thakur, learned Advocate appearing for the petitioner, is not present. Stand over to 26th July, 2010. ( R.M. Doshit, CJ ) ( S.K. Katriar, J ) Dilip

Sri Raj Kumar Jha vs The State Of Bihar &Amp; Ors on 5 July, 2010

Patna High Court - Orders

[Article 367] [Constitution]

Central Government Act

Court No. - 45 Case :- APPLICATION U/S 482 No. - 448 of 1994 Petitioner :- Kali Shankar Respondent :- State Petitioner Counsel :- Rajeev Sharma Respondent Counsel :- Aga Hon'ble Rajesh Dayal Khare,J. Heard learned counsel for the applicant and learned A.G.A. for the State. This Court vide order dated 27.01.1994 had issued notice to the opposite party no.2, in the mean time stayed the further proceedings of Complaint Case No. 80 of 1993 under Sections 420, 406 I.P.C., pending before learned Ist Additional Munsif Magistrate, Kanpur Dehat. Vide office report dated 24.3.1994 indicates that the copy of present application has not been supplied by learned counsel for the applicants for service of notice upon the opposite party no.2. The present 482 Cr.P.C. petition has been filed for quashing the proceedings of Complaint Case No. 80 of 1993 under Sections 420, 406 I.P.C., pending before learned Ist Additional Munsif Magistrate, Kanpur Dehat. It is contended by learned counsel for the applicant is that no offence against the applicant is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment. He pointed out certain documents and statements in support of his contention.It is further contended by learned counsel for the applicants that the opposite party no.2 was married with the sister of the applicant and for want of additional dowry, the opposite party no.2 tortured the sister of the applicant for which the proceedings were drawn against the opposite party no.2 and in a counter blast, the present proceedings has been initiated against the applicant which is bad in law. From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant. All the submission made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicant has got a right of discharge under Section 239 or 227/228, or 245 Cr.P.C. as the case may be through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the Trial Court. The prayer for quashing the proceedings is refused. However, it is provided that if the applicant appears and surrenders before the court below within 30 days from today and applies for bail, his prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. For a period of 30 days from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicant. However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him. With the aforesaid directions, this application is finally disposed off. Interim order dated 27.01.1994 is hereby vacated. The registry of this Court is directed to communicate the order of this Court passed today, to the concerned court below forthwith. Order Date :- 12.8.2010 S.Ali

Kali Shankar vs State on 12 August, 2010

Allahabad High Court

Gujarat High Court Case Information System Print CA/1905/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR AMENDMENT No. 1905 of 2010 In SPECIAL CIVIL APPLICATION No. 337 of 2010 ========================================= ANTALA JETHALAL RAVJIBHAI - Petitioner(s) Versus RESERVE BANK OF INDIA & 2 - Respondent(s) ========================================= Appearance : MR AM PAREKH for Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5, 1.2.6, 1.2.7, 1.2.8, 1.2.9, 1.2.10, 1.2.11, 1.2.12,1.2.13 MR AMAR N BHATT for Respondent(s) : 1, MR. A.J. DESAI ASSISTANT GOVERNMENT PLEADER for Respondent(s) : 2, MR RR TRIVEDI for Respondent(s) : 3, ========================================= CORAM : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA and HONOURABLE MR.JUSTICE AKIL KURESHI Date : 05/03/2010 ORAL ORDER(Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA) Heard learned counsel for the petitioner. Prayer for amendment is allowed. Amendment be incorporated in the main petition and fresh sets be supplied within a week. Civil Application stands disposed of. Post main petition on 16.3.2010. (S.J.Mukhopadhaya, C.J.) (Akil Kureshi, J.) */Mohandas     Top

Author: Mr.S.J.Mukhopadhaya,&Nbsp;Honourable Mr.Justice Kureshi,&Nbsp;

Antala vs Reserve on 5 March, 2010

Gujarat High Court

ORDER T. Anjaneyulu, Member (J) 1. Heard the learned SDR and perused the written submission. 2. This is an application for rectification of mistake crept in the Final Order No. A/937/WZB/2005/CIII dated 31-3-2005 in appeal No. E/3582/2000-Murn. The applicant submits that the actual duty demand was to be recovered to the tune of Rs. 3,15,000/- and not Rs. 3,47,980/- and there was no discussion about the same in the Tribunal's order. As seen from the grounds of appeal, the applicant has not taken any ground or given any data about quantification of duty amount of Rs. 3,15,000/- instead of Rs. 3,47,980/-. It is stated that after discussing the merits involved in the appeal, the same has been rejected. This goes to show that the duty amount and penalty as confirmed by the order-in-original would stand. The applicant cannot re-agitate about the same at this stage. 3. The second ground is that the proprietor, Shri Shaymrao Ramchandra Maskar of M/s. Modern Industries is said to have died on 10-3-2005 after passing the order in the above appeal by this Tribunal. The applicant is legal heir of Shri Shaymrao Ramchandra Maskar, as such the penalty is not recoverable from him. It is stated that the entire duty amount has been paid before issue of show cause notice. The applicant has also enclosed death certificate of the deceased. He also refers to the Hon'ble Calcutta High Court decision wherein it is ruled out that in case, death of accused before recovery of the penalty amount, the same cannot be recovered from the legal representative of accused. We are convinced with the fact that the proprietor of M/s. Modern Industries died on 10-3-2005 as per death certificate enclosed herewith. We are also convinced that the applicant is legal heir of the proprietor of M/s. Modern Industries and penalty is not recoverable from the legal heir. The duty is said to have been already deposited with the department. Therefore, the penalty cannot be recovered from the applicant. Accordingly the ROM application is allowed. (Pronounced in Court)

Modern Industries vs Commissioner Of C. Ex. on 27 April, 2007

Customs, Excise and Gold Tribunal - Mumbai

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Babu vs State Of U.P. Thru Secy. Home & 4 ... on 27 August, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.12585 of 2010 AFSAR BABU @ RAJAN, son of Md. Jiyaul Hasan, resident of Village/Mohalla - Gaighat Babhan Tola (Alamganj Chowki), Police Station - Alamganj, District-Patna. ____ Petitioner Versus STATE OF BIHAR _____Opposite party ----------- rkp ( Ajay Kumar Tripathi, J.) 04. 1/9/2010 Prayer for bail of the petitioner was earlier rejected by this Court. A fresh application has been filed now in view of the certain developments that some other co-accused persons have been granted bail on certain conditions by the High Court. Counsel for the petitioner submits that father of the petitioner undertakes fullest responsibility for the future conduct and behaviour of the petitioner and that he shall not continue with his ways and means of indulging in the crime after he is enlarged on bail. Taking the above into consideration let the petitioner Afsar Babu alias Rajan be enlarged on bail on furnishing bail bond of Rs.15,000/- with two sureties of the like amount each to the satisfaction of the Chief Judicial Magistrate, Patna in Kankarbagh P S Case No.225 of 2009. One of the sureties will be executed by the father of the petitioner on due identification by the court below and the other by a close relation, who shall file an affidavit stating the relationship with due evidence in this regard. It is further recorded that the petitioner will also be bound down by the following conditions: (i) That the bailor will undertake to furnish information to the court below about any change in address of the petitioner. (ii) That the affidavit shall clearly state that the petitioner is not an 2 accused in any other case and if he is, he shall not be released on bail. (iii) That the bailor shall also state on affidavit that he will inform the court concerned if the petitioner is implicated in any other case of similar nature after his release in the present case and thereafter the court below will be at liberty to initiate the proceeding for cancellation of bail on the ground of misuse. (iv) That the petitioner will give an undertaking that he will receive the police papers on the given date and be present on the date fixed for charge and if he fails to do so on two given dates and delays the trial in any manner, his bail will be liable to be cancelled for reasons of misuse. (v) That the petitioner will be well represented on each date and if he fails to do so on two consecutive dates, his bail will be liable to be cancelled.

Afsar Babu @ Rajan vs State Of Bihar on 1 September, 2010

Patna High Court - Orders

Court No. - 27 Case :- WRIT - C No. - 10414 of 2007 Petitioner :- Nakli Singh Respondent :- State Of U.P. Thru Principal Secry. And Others Petitioner Counsel :- Raj endra Singh Sengar,Amar Jeet Singh Respondent Counsel :- C.S.C.,M.N. Singh,Sandeep Chandra Hon'ble Sibghat Ullah Khan,J. List in the next cause list. Order Date :- 5.1.2010 NLY

Nakli Singh vs State Of U.P. Thru Principal ... on 5 January, 2010

Allahabad High Court

[Section 4] [Complete Act]

Central Government Act

JUDGMENT R.L. Narasimham, C.J. 1. These two appeals arise out of the same judgment and are disposed of together. 2. Both the appeals arise out of the appellate judgment of the Additional District Judge, Cuttack partially reversing the judgment of the Munshi 2nd Court Cuttack and decreeing joint possession of the disputed properties between plaintiff No. 2 and the defendants. 3. The suit property consists of a very valuable house site appertaining to Darpattadar Khata No. 1349 in the town of Cuttack, bearing plot No. 2173 and No. 2174 of Current Settlement. 4. There was previous litigation in respect of the same property between plaintiff No. (2) and defendant No. 1 and some other defendants. The judgment of the trial Court in that case was delivered on 29-4-1950 and the suit under appeal was filed on 8-5-1950 a week after the dismissal of the earlier suit. That suit was taken up to the High Court on second appeal and the decisions of the two lower courts were confirmed by the High Court on 2-4-1956. In that litigation the main question for decision was whether the disputed property belonged to Kanungo Durgacharan Mohanty only, or else whether his brothers had interest in the same. It was finally decided that his brothers had no interest in the property. 5. For the purpose of the present litigation therefore, it may be taken as concluded that the disputed property belonged to Kanungo Durgacharan Mohanty. The suit under appeal was, brought by his son Kanungo Bishnucharan Mohanty (through his first wife) who was the sole plaintiff at the commencement of the suit. Plaintiff No. 2 claims to have purchased his interest in the suit house and was subsequently added as plaintiff No. 2. Defendant No. 2 is the second wife of Durgacharan and defendants 3 to 8 are her children. 6. The said Durgacharan Mohanty entered into an agreement for the sale of the disputed property with one Prana Dhan Das (since dead) on 8-10-1937 (Ex. E) and (according to defendant No. 1) put Pranadhan Das in possession of the property on that date. Subsequently on 7-5-38, a registered sale deed (Ex. 1) was executed by Durgacharan Mohanty in favour of defendant No. 1 who is none else but a daughter of Prana Dhana Das and she remained in possession of the same thereafter. Thus, according to defendant No. 1 full title and possession over the disputed property passed to her. 7. The case of plaintiff No. 1 however was that the suit property was the ancestral property of his father Durgacharan, that there was no legal necessity for the sale in favour of defendant No. 1 and that consequently the plaintiff's interest was unaffected by the sale. He even went to the length of saying that the sale deed was collusiva and fraudulent, that there was no passing of consideration, and that no title passed. Hence he asked for a declaration that the title to the properties still subsisted with the plaintiff and with defendants 2 to 8 (the widow and the other sons of Durga Charan). There was also a prayer for confirmation of possession of those persons in respect of the property. But there was also an alternative prayer that they be ordered to recover possession of the properties in case they be found to have been dispossessed. Subsequent to the commencement of the suit as already pointed out, plaintiff No. 2 purchased the interest of plaintifi No. 1 and also of defendant No. 3 on 13-11-1956 and he is the main contestant in this appeal. 8. The lower appellate Court held that the property was' the ancestral property of Durgacharan and not his self-acquisition and that consequently his sons also had a share in them. He held however that the sale by Durgacharan in favour of defendant No. 1 Ex. 1 was genuine and that a substantial portion of the consideration money was actually paid. But he also held that the sale was not for legal necessity and that consequently the interest of Bishnu Charan Mohanty in the property did not pass by the sale. He further held that as plaintiff No. 1 had separated from his father long ago--prior to the sale--he could not get the alienation made by his father set aside in its entirety, though his interest in the property would be unaffected by the sale. Hence, he decreed the suit for joint possession between the plaintiff No. 1 (as the purchaser of the interest of plaintiff No. 1) and defendant No. 2. 9. The main question of law argued before this Court is the question regarding limitation. According to Mr. D. Mohanty, appearing for defendant No. 1 the property passed out of Duraga-charan's family completely on 8-10-1937 when possession was delivered to Prana Dhan Das in pursuance of the agreement for sale (Ex. E) by Durga Charan and as the suit was brought only on 8-5-1950 it was barred by limitation, under Artice 142 of the Limitation Act. Mr. Panda for the contesting plaintiff, urged that Article 126 of the Limitation Act would be applicable and that as the alinee namely defendant No. 1 obtained possession of the property only on the date of the sale deed (Ex. A) viz. 8-5-1935, the suit must be held to have been filed within the period of twelve years (7th May, 1950 being a Sunday). 10. The concurrent findings of the two courts on the question of possession may be summarised. Both the courts believed the evidence of D. W. 1 and D. W. 2 and also the partial admission of the plaintiff that Prana Dhan Das put his lock in the dilapidated house that was standing on the suit land on 8-10-1937 and obtained complete possession of the same. D. Ws. 1 and 2 further stated that after taking possession Prana Dhan Das got the dilapidated house demolished, took away the materials and exercised other acts of possession over the property such as enclosing it with a fence and growing vegetables for several years. As these witnesses have been believed by the Courts of facts it must be held that the family of Durga Charan Das was completely dispossessed from the disputed plots on 8-10-1937. It is true that the sale deed (Ext. A) was taken in the name of defendant No. 1 who is none else but the daughter of Prana Dhan Das, whereas the agreement of sale (Ex. E) was executed on 8-10-1937 in favour of Prana Dkan Das, but it is the evidence of D. W. 1 (who has been believed by the two Courts of fact) that Prana Dhan Das wanted to give the property to his daughter (defendant No. 1) and hence he got the sale deed executed in her name. In that sale deed there is a recital to the effect that there was previous agreement for sale of the property by Kanungo Durga Charan in favour of Prana Dhan Das. It was the plaintiffs case all along that it was Prana Dhan who was the real defendant in this case, that he being a pleader's clerk and a veteran litigant he prevailed upon the plaintiff's father Durgacharan to transfer the property to him--see paragraph 9 of the plaint. Prana Dhan was also alive for some years after the commencement of the present litigation. Hence for the purpose of this case it will not be proper to make a suitable distinction between the possession of Pranadhan Das on 8-10-1937 on the basis of Ext. E (the agreement for sale) and the subsequent possession of his daughter (defendant No. 1) under Ext. A dated 8-6-58. The evidence of defendants 1 and 2 shows that even after the date of sale it was Prana Dhan Das who removed the building materials from the site, enclosed it with a fencing and grew vegetables. For the purpose of this litigation, it is unnecessary to say whether defendant 1 was a mere benamidar for her father Prana Dhan Das, or whether Prana Dhan Das was merely acting on her behalf from the date of agreement of sale 8-10-1937. It is sufficient to say that the possession of Prana Dhan Das and his daughter defendant No. 1 as held by the two Courts was continuous from 8-10-1937. 11. It is true that in the plaint there was no admission of dispossession in respect of the suit plots though in the prayer portion there was an alternative prayer either for confirmation of possession or recovery of possession, thereby admitting though somewhat haltingly that on the date of the suit the plots were not in possession of the plaintiff. But in view of the concurrent findings of the two lower Courts that complete dispossession took place on 8-10-1937 this question is academic. As pointed out in the Full Bench decision of the Allahabad High Court reported in Bindhyachal Chand v. Ram Gharib, AIR 1934 All 993 the applicability of Article 142 depends not solely on the facts in the plaint but also on the finding of the Court on the question of possession. I may quote the following passage at p. 997: "But where the plaintiff admits that he has been dispossessed by the defendant, or at any rate, it is found in the case that he has been dispossessed and is not in possession at the time he brings the suit, then he cannot start with a presumption in his favour that possession of the property was with him." See Badri Khatik v. Narain Singh, AIR 1946 Pat 185 and Chandiprasad v. Awadh Narain Jha, AIR 1952 Pat 143. 12. Mr. Panda's reliance on Article 126 of the Limitation Act seems quite futile. That article says that the limitation of 12 years commences from the date on which the alienee took possession, but there is no rule of law that an alienee's possession must be computed only from the date of execution of the registered sale-deed. It might commence even earlier on the basis of the agreement of sale--on which the doctrine of part performance under Section 53A of the Transfer of Property Act is based. I have already shown that in this case no distinction should be made between the possession of Prana Dhan Das and that of his daughter (defendant No. 1). Hence even if Article 126 is held to apply it must be held that the alienee's possession commenced from the date of the agreement of sale namely 8-10-1937. It is true that there is a conflict of judicial decision on the question whether for the purpose of Article 142 adverse possession for 12 years by several persons in possession successively even though they do not claim from one another, would bar the true owner's claim (In Vennam Ramiah v. Kusru Kotamma, AIR 1922 Mad 59, Chenchurama Reddy v. Ademma, AIR 1949 Mad 673 and Ahmad Ali v. Hata, AIR 1939 Lah 217) which are all based on. the observations of Kay, Lord Justice in Willis v. Howe (Earl), (1893) 2 Ch. 545 and it was held that for the purpose of Article 142 possession of successive trespassers may be tacked on. A contrary view was taken in Janakinath Saha v. Baikuntha Nath, AIR 1922 Cal 176 based on Soiling v. Broughton, 1893 AC 556 where it was held that the possession of independent (though successful) trespassers cannot be tacked even for the purpose of Article 146. But this view is based on the assumption that the trespassers were independent of one another and there was some period of time however short between the possession of one trespasser and that of another, during which period the possession of the true owner is restored. But here the distinguishing features are (i) that defendant No. 1 and her father (Prana Dhan Das) are not independent trespassers and (ii) the possession of Prana Dhan Das as against Durga Charan's family has been continuous and the finding of the two courts is that there has not been even a momentary interruption of his possession. Hence it must be held that for the purpose of Article 142 the plaintiff's suit is completely barred by limitation. As this was the only point raised by Mr. D. Mohanty (for the appellant in S. A. 206 of 1962) it is unnecessary to discuss the other points involved in this litigation. 13. Both these reasons in Second Appeal No. 206 of 1962 is allowed and Second Appeal No. 152 of 1962 is dismissed and the plaintiff's suit is dismissed with costs throughout -- to be paid to defendant No. 1 by the plaintiff. 14. There will be only one set of costs in both these appeals.

Author: R Narasimham

Dayanidhi Sahu vs Sarala Dei And Ors. on 24 December, 1963

Orissa High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.8566 of 2011 SADDAM @ BHURA, S/o Brija Thakur @ Najimullah. Versus THE STATE OF BIHAR ----------- 02. 25.03.2011 Heard learned counsel for the petitioner and the State. The petitioner seeks bail in a case instituted for the offences under Section 414 of the Indian Penal Code. It has been submitted on behalf of the petitioner that with regard to the motor-cycle allegedly recovered from the house of the petitioner there is no parent case of theft and the petitioner has remained in custody since 29.12.2010 and has no criminal antecedent. Considering the same, let the petitioner, above named be released on bail on furnishing bail bond of Rs. 5,000/- (Five Thousand) with two sureties of the like amount each or any other surety as fixed by the Court to the satisfaction of Chief Judicial Magistrate, Gopalganj in connection with Kuchaikot P.S. Case No. 269 of 2010 subject to the following conditions:- (i) That one of the bailors will be a close relative of the petitioner who will give an affidavit giving genealogy as to how he is related with the petitioner and the other bailor shall be the brother of the petitioner namely Md. Alam. The bailor will also undertake to inform the Court if there is any change 2 in the address of the petitioner. (ii) That the affidavit shall clearly state that the petitioner is not an accused in any other case and if he is he shall not be released on bail. (iii) That the bailor shall also state on affidavit that he will inform the court concerned if the petitioner is implicated in any other case of similar nature after his release in the present case and thereafter the court below will be at liberty to initiate the proceeding for cancellation of bail on the ground of misuse. (iv) That the petitioner will give an undertaking that he will receive the police papers on the given date and be present on date fixed for charge and if he fails to do so on two given dates and delays the trial in any manner, his bail will be liable to be cancelled for reasons of misuse. (v) That the petitioner will be well represented on each date and if he fails to do so on two consecutive dates, his bail will be liable to be cancelled. (Anjana Prakash, J.) Vikash/-

Saddam @ Bhura vs The State Of Bihar on 25 March, 2011

Patna High Court - Orders

1.;Bé;S;aP%%§, IN THE'; mm: mum' 9? KARNA'TAI;{A_' * <:::R«.::Lm' BENCH A'? GULBARGA V BATES THIS THE 25TH DAY'SF"??:'13:2Ugx§Y;_2:j0%§«' BgwoRfi '--_ VA ma HGNBLE MR.J:}Jr1cE?' 5:. RA.MAN%£:!§" M.F.A.NO..1"19.§7Iu§EQO?§ 4 BETWEEN: BEi1MASHAN£<;AR, V " SJOPARAPPA s:.w;«:.g;q, ' 1; mag? ms, Q;<:;::,:»35:,:s; VELN£;~f."_>R$ _. 3 , STD, xamxgm /s_:.2é1:2'0F:;:%:£:';f;;:xg"~;:s: V' , ' :NGLEsHwAE<,,. ;f . A. RfO.KMsI51§AD£XS Bfi;£;?!%W"z'%N'E, B§J£3.PUI:2,D1S'T;°;3iJ5P'&§RA--_ '-.___ _ _-- .. APPELLANT' {gar zaé:--;§::~::g:*§?;s._'r9'{3.:@:*:xx:;{im~: ASSTS. 3 a§~m:_;j 'V g,{.;c:i;:s1m;;?P;a, E.;e"ajSH§, 'q>wm:,R r::::«*4..f1':«;:r>'.s:T:«?3::>~~'m=«;;<, Kg'-Q,E2§LBI§'¥;'§k'E;.--,_ BA$§§f€£NABA'QEWABE _ Tgzua I3§1 ST;BIJAFUR. 7 7 azzgiééczi MANAGER * "«?§AI1€;3=}§AL msamwag cmgri'-';3,$ _ .BII_§A'.'€L¥ . ., R_€S}?0:*~é'EENfS £8? SR1 E"€'V,I"3A§_"}z§GG"$§§A, §§3"'§f. FQR E%=-{Z2} §i:iz§r§iré<}2'k%§: M) '§'i~{1S MFA ES m2'.-£2 U;"'S.}';?'3[§} GP' M'-.3 aCT;'_""PRA_2%.:.i§i3_.Vifzvy MGBEFY ma, Juasmam AND AWARD QATED 23/§.g2oi<f_xz.'F:2: Tzw%J_c:" Nomzs/2905 PASSED BY THE M£XCT,.?¥©..1E{,&E3§;3§APU¥«? Ig " @113 APPEAL CQMENG 0:4 mm i¥:;:«:§;:§é 1§~ic3 9I"é¥.z $»Q;xY;.L_%;:cr§ij§f>f§ DELIVERED TI-{E FOLLOWING;~ ;_.JUDG~MR}¥;1? This is an appeal who is statexi to ba the :;i7c,¥.:€n§.*of fled lilldffil' Section 3523(1) of tiéé .1988, chauenging firm inad€qua:.t:ffVbf "_éié¢a:z;ded by MAC'?-iii, Bijapur, in wc.NV¢: 1'0%2s/256$. :33/é/200?. ...-z " .:Th€.V 1<;:a_*Vs.'t': ' G:f the agapfiflant in bziaf is that on I appefiéxt was travelkifig in a f:t:m§::~trax vahicle 08 142 belonging to 15' respondent, iasumd 'g3?i'£3:1 213$ respoudent, when the 831:3 vehicle was "'"--..§i":;ge¢€di}:1g«:'f:'om Engaleshwar to 8.8agewa,di, driver 0f the said draw: Elm same with great sgeed ami last cmatrei aver .t§1_e§:zeh_iC1a, kack '$'€'h€€§ af the said Efcflfiifilfi cams Gui mad the said " .~ i;emp<3 roiled an 13:16 roaé resuiting in grifiveus injmifis is the appsiiaxét, Thfifflffiffi, the apgaeliaflt fiigd a ciaim pfifififlii claimixzg compensation Zilldfil" the varicms heads. After c911si;rié::{ng"vthe era} and documentary avidemze placed on Bijapur, awardeci compensation of R1-:s.'6*.";};:}A()()f» ' j 6% pa from @116 data of petition til} Béifig the: quantum of compansation 3%§éi7¢§.C§; i}1e__a;3p1e}1ai:.=.f"i:aS' come up with this appeal slaimizzg €I1I"12v§i'{3.€?VV1:;;.ZiI§(;ifii{';3;1Z%'§)f céfixpanséafion. 33 Hearfi the 1<=:ar;f:'€:$<:¥_;_' 'céuiisél _:' £c§xf"».V;é17';';§§a11an'5: and the Ieazned C30'LH}.S€':I 1"6:S';§:%j;1{ieVni;« ljouvner of the vehicle am} r€s.p<§i:<Iéi;1~t';V--_SJ7eV.3 ffiompanya 4. 'c:;§';1fiVTssr»§b1V"§7{§i"'<:a:§;3€3}a11t arguefi that {hang}: the a,pp€3},a1A33:_ S11S".€Lfi.iiifff}...v;gf§;€éi'*f0'¥;i'.E'a izxjurias, flit': "§'1*ibu11a_'; awardeci 'V fi2v&;ag&';;? :slu1m. of }Qs.6f:i«.()(}'é}'f --. Thaugh the doctor has eyined that to 25% 0f disability; ma amcmnt has been awfififié {ha hem} 'fiztura loss if aarraixig and £033 af _ "€;f&j:f€iCiEy' anci also the amount awardeé tewards .__2§ii{%::1jdéL3:si chargeg is V61}? mitagm', Sfl aise amount awazded under .___""52?:5aI'i§j;:z$ othar heafis. Therefcm it is praysfii 1:313: appeal he V V 'a§}e:Wcd by enhancing this amaurzt awardxt-rd by the Tribtmai 5' heard the arguzxxsnts of 8012121331 fax' parties gtkéifised the rsccrds. 6, It is an undisputed fact that'.2§fppe1iain;*.§?.'s§é :i:fa3§%e312§11§i11 ' 3 teirapowtrax owned by respendszlt §\A§'Q'.};"-.53 a >§}§1:5's$5€:ILgf£1%~"-. §_:5:l1._-EV unfertuziatezijjg", the said vehicle ;1:1-- §1'3;14::*gti::::i:f4. met 'aéciderii due to rash and negligem 'it?s..a£fiv€r. The Txébunal is expected to $35' were sustained by the claimant .Vi13. fl3_ € af{:E$ifi:'e:;.'+f£ itravfilling £11 the vehicle. E112 %$EiE%}aalI:':'.V>i%é3.r%3.$d""'€£)uflSe1 for aPP6133~11t 3135 }3roduc&{i Vt'h€: !E§#:.P.6, which shows that Whflfl appaflant wéif-i_' Shififii Heaith Center, Basavakalyana Vin B.Bi:3gig-gewzzdi he. w:.=a;.s u3:1s:en3c:i0us as he haé sustaifiad injuxéas "*E"jk_16 dacter W119 has examined the appefiant has flQ:!..1:Cé:;.1_'§hvv3'é'Vi.'i§;}_"1£?f:ii:f'S were grievous in natuxtt and im was iakfifi V V' Tito th€ Bist;.. §;i<;s,§fii%:a1, Bijapur, an the vex}: gamze day an& the Xmay " 'rcgiraaisj. :21z;3t'iT'i:the:*e is 3 fraetum 0f the frag: pariéiai bags can the Z&_ £"t;_ si~§:i<§ chest partial azzfi he was éischargeti against the 'msdicai adviss, wihersas, ths apgaéiéargi wantezi "£9 fake treaiimsm VA higher mefiicai center, Therefare, has has censniteé D1:§%i§.V.§%am&sh.§ whc; has Stated that thcirc was a fmsrstture csf from, bone and therft was impairmsnt in heaiiug, §3§:"'»Twa3 fixamined an 2?'! 1 1/ 2906 1:0 assess the disabfiity csf agpeflant has aim cxamined the {§r.R:-1$ha11k_:ax ia. ' percentags of disabiiity s11fi"€red bf; 'on §:CcQi;u1t'ibf§:;i§1i;fi¢$: sustaineti by him in: thfi accic1e13_t._. C6;:s§id€1'i11g:.?.h§":iatu.1;é éf--. injuries sustained by appellant du€é"L«i%§:"V§mpair::1fir:t:?;f a}:1ci aiso sinus GI}. arsccaunt sffiar;;&t11re' &fi£"'fi"§:}:ifi;a}._ b9n e7,"£h"é Tribunal awarded {-1 sum of Rs.2,OQ(}/'QA ::L:'1dj'£:r;t§"1€ and stsfiefing' which requireg f£)_..7{E}v':'fi:V<E;'.Z'1h.'.7:»'.i§1ACé'::,(:'}. of Rs.15,000l- apart frsgsmigfihci afili}G'::,;::i:a»*2a1'desi, The appeilant is stataé is have spefaiga Eiugfir é};'3€;11i3';--t._ iowartis meéica} 5X§€flS€S as hf: was i:1;3.;f2{ti'zez;:'£ f£am.. iéi 2682 to 3/11;i.G{};2. 'E'h€ apgeiiajszgt E.?'é,'"i". speciafist as weii as radieiagist far '{.Z'éi:§?.'(.}}ZiZ£3f._?,_I'£ff Sustaitxed ami Ehfi ciisabiiity gufiered by him V V' gzameljga. imv_;§3i":fi1ent of hearing ta same axtcmi and 3139 S§..E1'LES. " xgzfai éviflfizécs (pf 'aha appefiant sriiscisses that 3115 flag spam: '::;1}':;.g'3?;i¢:§§'E:I€ amount for Wmch Q13 'E'":ébu:<3.a} has awaxdezi ~ tawazfig exgezzsézs emf tr€ai:n3e11i§ which £3 in pxariigr the magiicai bifls gmduced b€'.fC-P6 scam, Emwevez" it erxzici in 113%: awarding 311:; amaunt ilildfii" the hsaé 'attendam aharges', /35} V '_ .. ,.~ 'cenvayancs and nourishment'. 'Therefore, it is justiand aware} Rs.6,()€){),/ -- under the afoxesaid tigrgze 11e;:.d's; ' : , 2?. Further, accoflling tea appellaifi, h§A.had};; $'1x9p .i$29..Sf:b in 1116 KSRTC bus stand and $¢}ii11.g ::sarl3?. 200 psi; day and 3130 looking after the ag1'§C:iITiuféi1.w0r3;{,"E3u'€; §1ti: has not produced any Zease dead -519 paiéi rem ts KSRTC, He 1~z..vas:;' prod-;;:éé§i'};{;::'v;«Vg§§t fitxamined milk V€I1{i0i'[ cf milk to him is Show that_ and selhing the same in retail. Asiper has stated ':;hat in ardsr in meat tbs mzedfitai éxpéxkseé _E1i:~: izatfigxr was cempelieci to 3611 01:6, Ame Q1" fiazaciy 2§;ifs_{}.:iéV:}1A.is {mi a._§r0u11.d £0 ciaim enhanced compensatian. if 33 p e1"3;::§. '::a$.3;i$faii1ed such 3 tyye of injuréfis in a motor Vfihifjlfi acéigle-é1_£5..A}';n:.};:éi;1ii€i is sgemd such a Image monay in scazfier :0 get cyumd Err He: has also produged the R03, :9 Show that u"':«:.".4A"1;},{§".va[s 'agI*icx1ii:ural Wfifk alga, Whig}: are stafidifig in ma 3.:a,é1m:é':;:§.71:?:37.s fathézt Thérfifflffi, prmvisimzs if 33:13.? mafia by him fer ljjagzticzziturai Eand may :20': came in his Wag; £0 smyerviss. tbs saié VA '--«<fi:2$mtien, '§':a}{iI1g iittfie cfinsiéamiimn {hat ha; has 115?: §:*'aéur:€d my ::§0<:umE:;3.ts and ma: is tmaimfi as the arfiinarjg Wags game}; ii} ''2 .§/' .. K7,. _ , my opinion, the inccrme of the appefiant alight tat; _If13vé{at Rs.80/- per day. 8. As far as the éigabiiity is <:c>::1b."c:¢rJ:;;~.'_é:Tfi; aéTcQftt1i':1g:Vt«:;_L"d{§éVi§;r P.W.2 a§}3€':1L'3_Ifi: $11:iT€:rs 20 to _r:1is.3A..bi1:§ty =tbc;Wh019 ' boay but the Claims Tflbgna} VA'VkV"_n§¥.."k' axgazxiégg a};1y amcmn: towamls 3033 of awning u 02' the zciisability suffered by him." f"{1:.:=:_€:§1:;}"c M.A.C.'I'. is that the appeflang. his work is oniy to coilect the. who use the STD booth facility. any, may net came in his Way of ramming S3s'i'f_II?>%'§:<><V3'?;};;" _ J i.'{";éfiIE1.S;?"t€i{i'§7£°V1;'I:ig"""7'1"s,ai'€ fact that thfi Tribunai has :13': awarded fiixgiitizwf the head 'futurm 1033 of earraing capacity' §..€., hy.' _§i3;?i__r§gIicu1nKal Wcrk and tlsereforeg tha svidence of %TT%%«.%.%4%_W?.w,2 égggagses that appeiiant suifétrs 20 E0 23% fiisabflity :9 A which a;3pea::'s to be an 'éhfi highs: side. in my €0 s;1s§aér.=:refi viaw, it is gust ané prayer ta agges the Whale bofiy u éiisabifiitgz cf appaiiwi: at 35%, Hence; the apptzilant is entifleé '£0 fature ioss 9:? aafiziizg capacity at th& rate sf 159/"ya 0f the Whoie bed}? zéisability and his inateme is taktzn at R380] -= u§4:<:':s3 of eamiizag of the apprsilani per menth Wfilild be " €3ons:£d€z'i11g the age of appcflant, it i:;"j'11--s<t& afifi b j " multiplier '17' to assess the c0mpené5«1a.ti€%:i."'T ;f;h e agpellmat is entitled to cc>z<:ca;1)a<:1'1':§;i§;i:.;s ;t1 of " .K:,é\;;,:«ga1fi's;V V 1033 of future aamitzgs. 'F2_:_n_1s in --r:::ti$§ed to total csampensation of Rs.§4,4-433;'. ; W}1'£Ch1;iS_ of to Rs.94,500l . Thai: aforesaid am011:i1§ W013 j.'.'c'?3i'E_f€:.';éf;s't': pas frona {ha date of petitioxi €x;i é: p0é§;t3. u 18. £9: :g§s*'s'«"'i'Vu--;t."~:;Vj:{,'-* 1333; c:3mpe.nsa':ic::n is concamed the Tzébunéi h'¢i£1Vi%}Si::{§i*;<_i;é1JfitS ii and 2 jointiy azzd sevmfiaily Eiabie {:3 'pay 315'» _<§<§:ié13e§T:$;3.:ion am:3um':. N0 agptéa}. or CFOSSS V%31*;3»3E"';5€'5:;'fi"«§f%}€i1 gifixer sf E336 I'€S':§OI1{i€31{S a;-halienging the Télerefom, mspondents fie. 1 ané 2, who are {ha aiamer .}i;1:1 s11rer 9f the vrzhicie are joimfiy afld severafl}? .. j ' ';§.i':8fl3'1$ 10 §$afg__ §:ompe11safi0;1 ta {ha appe§.}a:::2't/ ciafimajzzi. Aamrémgly, £23313 appeai is ailsxxzsgi in part. The { "§fid:§g§;€ni and awaifi passaé by the "§':*ib:1:1a§ is hegflgy moiiififid. h'§'.he afipgeilamt/ciaimaxzi is enfitled ta iartai aérmgaensafion sf /". I)' R3.94,500I~ together with interest at 6% pa frail: Qéita of petition {ii} the: date of p.-gygaent. Raspendem: Company shail clsposit the aforesaid cempenss;iig2vfi.::jemfiifimt. '»*;fi3€$::V b accrued interest witbizz two montlm fi'QB}:-LE5' date:..§3f-r*éCéiptw»:..gsfAa copy caf this srder. Amount ,2ii1r§a¢§.y ~::iV_e'p0sit€:d ' ;x;?§:) g..1ci ; adjusted,' Sd/-3 JUDGE *'i}3VS -------- _

Author: K.Ramanna

Bhimashankar vs Basappa S/O Siddappa Kashi on 26 February, 2009

Karnataka High Court

Title: Regarding proposed increase in excise duty imposed on readymade garments industry. श्री मदन लाल खुराना (दिल्ली सदर):अध्यक्ष जी, मैं आपकी आज्ञा से रेडीमेड गारमैंट्स उद्योग पर प्रस्तावित १६ प्रतिशत एक्साइज़ डयूटी लगाने के परिणामस्वरूप देशभर में हो रही हड़ताल और दिल्ली में बेमियादी हड़ताल की ओर सदन का ध्यान आकर्षित करना चाहता हूं।…( व्यवधान ) अध्यक्ष महोदय : खुराना जी, कल यह मामला उठाया था। श्री मदन लाल खुराना: उन्होंने केवल दो लाइनें कही थीं। अध्यक्ष महोदय : क्या अभी ज्यादा बोलेंगे? श्री मदन लाल खुराना: १४ लोगों ने लिख कर दिया है। ढाई से तीन लाख स्मॉल और कॉटेज इंडस्ट्रीज की इकाइयां सारे देश में लगी हुई हैं। देश के ग्यारह शहरों में डेढ़ लाख यूनिट्स हैं जिनमें बीस से पच्चीस लाख लोग रोजगार में हैं। मैं कह सकता हूं कि पिछले कुछ वर्षों से यह उद्योग ऐसा है जिसने बहुत डैवलप किया है, बहुत ज्यादा एक्सपोर्ट किया है। देश के एक्सपोर्ट के अंदर इसका बहुत बड़ा भाग है। कल मैंने वित्त मंत्री जी से बात की थी। उन्होंने कहा था कि हमने केवल ट्रेड मार्क वालों पर लगाया है। लेकिन उन लोगों का कहना है कि जिनका टर्नओवर १५-२० लाख है, उन्होंने भी रजिस्टर करवा रखा है। दिल्ली में अभी ४ प्रतिशत सेल्स टैक्स लगा, ६ प्रतिशत सैंट्रल टैक्स है, १६ प्रतिशत यह लग जाएगा। अगर एक उद्योग में एक साल में २६ प्रतिशत टैक्स लग गया तो वह उद्योग बिल्कुल बर्बाद हो जाएगा। अगर यह कहते हैं कि ब्रांड वालों को करना चाहते हैं तो टर्नओवर लिया जाए कि जिसका टर्नओवर तीन करोड़ से ज्यादा हो, उस पर टैक्स लगाएं, हमें कोई एतराज नहीं है। लेकिन स्मॉल स्केल इंडस्ट्री, जिसका टर्नओवर तीन करोड़ से कम है, उस पर न लगाया जाए, उसे मुक्त रखा जाए। कपड़ा मंत्री जी से भी मेरी बात हुई है। वे भी इसके ऊपर टैक्स लगाने से दुखी हैं। सोमनाथ चटर्जी : इनकी बात कोई सुनता नहीं है। श्री मदन लाल खुराना: मेरा आपसे यह निवेदन है कि क्योंकि आज दिल्ली के अन्दर और सारे देश के अन्दर इसकी हड़ताल है, मजदूर सड़कों पर आ गये हैं, पहले से ही बेरोजगारी बहुत ज्यादा है, उसमें इस तरह से ३०, ४०, ५० लाख लोगों को बेरोजगार करना बहुत बड़ा अन्याय होगा। मैं आपके माध्यम से निवेदन करना चाहूंगा कि वे हमारी भावनाओं को माननीय मंत्री जी तक पहुंचायें। आज देश की जो मांग है कि केवल‘brand’ रजिस्ट्रेशन से नहीं, तीन करोड़ रुपये से जिसका टर्नओवर ज्यादा हो, उसी पर टैक्स लगे और स्माल स्केल इंडस्ट्री पर टैक्स नहीं लगना चाहिए।…( व्यवधान ) श्री विजय गोयल (चांदनी चौक) : खुराना जी की बात से मेरा भी सम्बन्ध है। इसके कारण दिल्ली में बहुत एजीटेशन है।…( व्यवधान ) MR. SPEAKER: You can associate with Shri Khurana. … (Interruptions) SHRI SOMNATH CHATTERJEE : Sir, I have received several representations which I have forwarded to the Finance Minister and has requested his immediate intervention because serious misery is being caused to a large number of small scale units. Lakhs and lakhs of workers are being affected. Sir, this is a very serious matter. I request him to pass it on with a strong recommendation that this should be done. I request immediate intervention by the Government. SHRI K. YERRANNAIDU (SRIKAKULAM): Sir, not only the CPM but also the whole House is supporting Shri Khurana on this point. SHRI SOMNATH CHATTERJEE : However, the CPM always gives the lead. … (Interruptions) MR. SPEAKER: Shri Jaipal Reddy, you can also support him. SHRI S. JAIPAL REDDY ( MIRYALGUDA): Sir, I would like to lend support to what Shri Khurana said. MR. SPEAKER: Shri Khurana, you are getting a lot of support.

Regarding Proposed Increase In Excise Duty Imposed On Readymade ... on 8 March, 2001

Lok Sabha Debates

[Section 12AA] [Complete Act]

Central Government Act

IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.Rev.Pet.No. 576 of 2002() 1. JACOB JOHN, PALAMOOTTIL VADAKKETHIL, ... Petitioner Vs 1. THOMASKUTTY, GRACE BHAVAN, PARKODU MURI, ... Respondent 2. STATE OF KERALA, BY THE PUBLIC For Petitioner :SRI.PHILIP M.VARUGHESE For Respondent :SRI.SUNIL JACOB JOSE The Hon'ble MR. Justice R.BASANT Dated :16/03/2009 O R D E R R.BASANT, J ---------------------- Crl.R.P.No.576 of 2002 ---------------------------------------- Dated this the 16th day of March 2008 O R D E R This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the Negotiable Instruments Act. 2. The cheque was for an amount of Rs.70,000/-. Signature in the cheque is admitted. Handing over of the cheque in connection with creation of a financial liability is also admitted. But contention is raised that the cheque was not issued for the due discharge of any legally enforcible debt or liability; but was issued as security when the accused entered into a financial transaction with the father-in-law of the complainant. That cheque is being misused, it is alleged. 3. Notice of demand though duly received and acknowledged did not evoke any response. The complainant examined PWs 1 to 4 and proved Exts.P1 to P7. The accused examined a witness as DW1. PW1 is the complainant. PWs 2 and 3 are the Managers of the drawing and collecting banks. DW1 claims to have seen the real transaction between the accused and the father-in-law of the complainant. The courts  Crl.R.P.No.576/02 2 below concurrently came to the conclusion that the evidence on the side of the complainant can be safely believed and that shows that there was a legally enforcible debt/liability and for discharge of the same, the cheque was issued. Accordingly, the courts below proceeded to pass the impugned concurrent judgments. 4. Called upon to explain the nature of the challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner reiterates the contention that the cheque was not issued by the accused to the complainant for the due discharge of any legally enforcible debt/liability. It was issued as a blank signed cheque as security when the accused entered into a transaction with the complainant's father-in-law. The evidence of DW1 should have been believed by the courts, it is contended. 5. I have rendered my anxious consideration to the contentions raised. I am unable to agree with the learned counsel for the petitioner. The oral evidence of PW1 clearly shows the circumstances under which the cheque was received by the complainant. That version of the complainant is eminently supported by the absence of a response to the notice  Crl.R.P.No.576/02 3 of demand which was duly served on the accused. The presumption under Section 139 of the N.I.Act stares at the accused. The evidence of DW1 was found by the courts below to be not convincing for acceptance. I am unable to agree that there are any circumstances justifying interference with the findings of fact rendered concurrently by the court below. 6. The learned counsel finally submits that the petitioner is entitled for leniency. The sentence imposed is S.I for six months and compensation of Rs.50,000/-. I have already adverted to the principles governing imposition of sentence in a prosecution under Section 138 of the N.I.Act in the decision in Anilkumar vs.Shammi [2002(3)KLT 852]. I am satisfied that leniency can be shown to the petitioner/accused. Substantive sentence of imprisonment can be modified. An appropriate modification of payment of the direction for compensation coupled with a default sentence can be imposed. 7. In the result: a) This revision petition is allowed in part. b) The impugned verdict of guilty and conviction of the petitioner under Section 138 of the N.I.Act are upheld.  Crl.R.P.No.576/02 4 c) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo imprisonment till rising of court. He is further directed under Section 357(3) Cr.P.C to pay an amount of Rs.70,000/- (Rupees seventy thousand only) as compensation and in default, to undergo S.I for a period of two months. If realised, the entire amount shall be released to the complainant as compensation. 8. The petitioner shall have time till 30/04/2009 to make the payment. The impugned sentence shall not be executed till that date. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on or before 02/05/2009 to serve the modified sentence hereby imposed. (R.BASANT, JUDGE) jsr  Crl.R.P.No.576/02 5 The petitioner now faces a sentence of imprisonment till rising of court/S.I for a period of ............ and there is a direction to pay the actual cheque amount as compensation and in default to undergo S.I for a period of .......... months.  Crl.R.P.No.576/02 6 R.BASANT, J Crl.R.P.No.576 of 2002 ORDER 16th DAY OF MARCH 2009 

Jacob John vs Thomaskutty on 16 March, 2009

Kerala High Court

ORDER S.P. Khare, J. 1. This is a revision by th6 defendants against order dated 3-2-2001 of the First Civil Judge Class-I, Umaria in Civil Suit No. 97-A of 2000 by which it has been held that the valuation of the suit for purposes of the Court-fee and pecuniary jurisdiction is proper. 2. The plaintiffs case is that defendant No. 1 Ram Prasad Agrawal purchased 16 ft. x 40 ft. of land from him for Rs. 25,000/-. He took him for execution and registration of the sale-deed and then played fraud upon him. According to the plaintiff he has been defrauded on two counts. Firstly, the land which has been included in the registered sale-deed dated 28-9-1999 exceeds the area which was agreed to be sold and secondly, the amount of consideration shown in the sale-deed is Rs. 50,000/- whereas he has been paid an amount of Rs. 25,000/- only. He claims that he is in possession of the land in dispute. He has claimed the relief of declaration that the sale-deed is the product of fraud and misrepresentation and he has also claimed the relief that the defendant No. 1 be restrained from interfering with the possession of the , plaintiff on the land in dispute. 3. It is well settled that the question of Court-fee must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by final decision of the suit on merits. This principle was laid down by the Supreme Court long back in Sathappa v. Ramanathan, AIR 1958 SC 245, and has been recently referred to by the Full Bench of this Court in Subhash Chand v. MPEB, 2000(4) M.P.H.T. 318 = 2000(3) MPLJ 522. 4. The present case is covered by Section 7(iv)(c) of the Court Fees Act. The plaintiff has claimed the relief of declaration and the consequential relief of injunction. Therefore, ad valorem Court-fee as per Section 7(iv)(c) is payable. The question is what should be the proper valuation. There is a decision of Division Bench of this Court in Badrilal v. State of M.P., AIR 1964 MP 9, which must be followed. It has been held in this case that while the plaintiff is at liberty to value the relief claimed in suits governed by the various clauses of Section 7(iv)including those for a declaration with the consequential relief of injunction, he cannot be allowed to put an arbitrary value and if he does so and the Court considers that it is too low or unreasonable in that it bears no relation to the right litigated, it may require him to correct the valuation. 5. In the present case the plaintiff is not challenging the receipt of Rs. 25,000/- and the sale of land measuring 16 ft. x 40 ft. He is challenging the receipt of remaining amount of Rs. 25,000/-. In the sale-deed the amount of consideration which has been shown is Rs. 50,000/-. Thus, the plaintiff wants to be relieved of the excess value shown in the sale-deed. In this view of the matter, the valuation made by him is proper. The order of the Trial Court holding that the valuation of the suit for purposes of Court-fee and pecuniary jurisdiction is proper, cannot be said to be suffering from any infirmity. 6. The revision is dismissed.

Author: S Khare

Ram Prasad Agrawal And Anr. vs Bhagwandas on 19 November, 2002

Madhya Pradesh High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM MACA.No. 1255 of 2004(C) 1. DINCY, D/O. RAJU, KALAIL VEEDU, ... Petitioner Vs 1. THE MANAGING DIRECTOR, KSRTC, ... Respondent 2. SAINUDEEN, SAHANA MANZIL, NEAR 3. MATHAI, PADINJAREKUDIYIL VEEDU, For Petitioner :SRI.NAGARAJ NARAYANAN For Respondent :SRI.SAJEEVKUMAR K.GOPAL, SC, KSRTC The Hon'ble MR. Justice M.N.KRISHNAN Dated :10/07/2008 O R D E R M.N.KRISHNAN, J. -------------------------- M.A.C.A. No. 1255 OF 2004 --------------------- Dated this the 10th day of July, 2008 JUDGMENT This appeal is preferred against the award passed by the Motor Accident Claims Tribunal, Neyyattinkara, in OP(MV) 1136/01. The claimant, a student, sustained injuries in a road accident. The KSRTC bus was stopped for alighting passengers and the conductor of the bus before closing the door gave the signal and the driver moved the bus forward. The door of the bus dashed against the appellant herein and she sustained injuries. It is seen that she has suffered haematoma on the left shoulder and contusion on the left shoulder. She was treated as outpatient in the Medical College Hospital and thereafter had undergone Ayurvedic treatment for some days in the Ayurveda College Hospital, Thiruvananthapuram. 2. The grievance of the appellant is that she has sustained 4% disability and the Tribunal has not awarded any compensation for loss of amenities and enjoyment in life. The disability certificate has not been proved by examination of the Doctor and even the claimant has not mounted the box to describe about her disability. The injuries are only contusions and abrasions. But it appears that she  MACA No.1255/04 2 had some sprain on the shoulder and it is only a temporary phenomena. There is noting to show that the accident had caused difficulty or she had undergone treatment continuously. 3. Taking into consideration the fact that she had pain and swelling and had undergone outpatient treatment for some days, I am inclined to hold that there would have been some temporary disability besides loss of amenities and enjoyment in life to the girl. She was a student and it should have affected her free movements and therefore taking into consideration that aspect, I am inclined to additional sum of Rs.4,000/- towards loss of amenities and enjoyment in life. In the result, the MACA is partly allowed and the claimant is entitled to an additional compensation of Rs.4,000/- with 7 % interest on the said sum from the date of petition till realisation from the respondents. The 1st respondent KSRTC is directed to deposit the amount within a period of 60 days from the date of receipt of a copy of this judgment. M.N.KRISHNAN, JUDGE vps  MACA No.1255/04 3

Dincy vs The Managing Director on 10 July, 2008

Kerala High Court

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc.No.M-29266 of 2009 Date of decision : 09.12.2009 Narender @ Soni ... Petitioner Versus State of Haryana ...Respondent Present: Mr.Rakesh Dhiman, Advocate for the petitioner. Mr.Pawan Singh, AAG, Haryana. S.S.Saron, J. Heard learned counsel for the parties. The petitioner seeks regular bail in a case registered against him for the offence punishable under Sections 406, 409, 420, 467, 468, 471 of the Indian Penal Code (IPC - for short) at Police Station Sadar, Bahadurgarh, District Jhajjar. FIR has been registered on the complaint of Subhash Chander, Assistant Food and Supply Officer, Bahadurgarh. It is alleged that Govt. of India under its policy decided to grant financial assistance of Rs.5 lacs for the year 2001-02 to New Gram Vikas Samiti, Tandaheri, District Jhajjar which was formed by the petitioner by nominating 15 members and the petitioner himself became its Secretary. Out of amount decided to be paid, an amount of Rs.2.5 lacs was directly given to the said Samiti by way of bank draft. However, the said Samiti had not opened any District Consumer Centre in the district so far. Accordingly, a decision was taken to get a criminal case registered with the police against the said Samiti for misusing the govt.grant . The petitioner was arrested on 22.4.2009. In pursuance to the disclosure statement made by the petitioner, a rubber stamp which he used for preparing documents of the Samiti was recovered. It was also found during the investigation that the petitioner did not join 12 persons out of 15 persons Crl.Misc.No.M-29266 of 2009 2 named in the FIR as members and office bearers of the Samiti, rather he himself appended their signatures and thumb impression on the relevant papers and thereby embezzled an amount of 2.5 lacs. The challan in this case has been filed and the trial of the case will take its course of time. The case is triable by the Court of Judicial Magistrate Ist Class. The allegations against the petitioner are to be proved by leading evidence. In the circumstances, the petitioner on his furnishing personal bond and surety to the satisfaction of the learned trial Magistrate shall be admitted to bail. Petition stands disposed of. [ S.S.Saron ] Judge 09.12.2009 sd/amit

Narender @ Soni vs State Of Haryana on 9 December, 2009

Punjab-Haryana High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.20500 of 2011 Karu Mian S/o late Hanish Mian, R/o Manjhla Tilha, P.S. Katoriya (Suiya) District-Banka. --Petitioner Versus The State Of Bihar --Opp.Party 2 15.07.2011 AAhmad ( Akhilesh Chandra, J.) Heard. After some arguments, learned counsel for the petitioner, who is an accused in Katoriya (Suiya) P.S. Case no. 11 of 2004, seeks permission to withdraw this application in order to enable the petitioner to surrender within a fornight and pray for regular bail which shall be considered on its own merit without being prejudiced of the instant withdrawal. Permission is granted. The application is dismissed as withdrawn.

Karu Mian vs The State Of Bihar on 15 July, 2011

Patna High Court - Orders

Court No. - 6 Case :- FIRST APPEAL No. - 336 of 1994 Petitioner :- State Of U.P. Respondent :- Gurunam SinghPetitioner Counsel :- S.C. Respondent Counsel :- S.A. Hasmi Hon'ble Prakash Krishna J. Three weeks' and no more time is granted to the learned standing counsel to file the counter affidavit. List thereafter. Order Date :- 5.7.2010 IB

State Of U.P. vs Gurunam Singh on 5 July, 2010

Allahabad High Court

Gujarat High Court Case Information System Print SCA/5265/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5265 of 2010 ====================================== MUKADDAS HUSSAIN ANWAR HUSSAIN SHEIKH - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ====================================== Appearance : MR MM TIRMIZI for Petitioner(s) : 1, MR JIRGA JHAVERI ASST.GOVERNMENT PLEADER for Respondent(s) : 1, None for Respondent(s) : 2 - 3. ====================================== CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 29/04/2010 ORAL ORDER Rule. Ms.Jirga Jhaveri, learned Assistant Government Pleader waives service of notice of Rule on behalf of respondent No.3 jail authority. The Registry is directed to list this matter for final hearing in seriatim considering the actual date of detention. Direct service is permitted qua respondent Nos.1 and 2. (H.B.ANTANI, J.) Amit/-

Author: H.B.Antani,&Nbsp;

Mukaddas vs State on 29 April, 2010

Gujarat High Court

ORDER R. Jayaraman, Member (T) 1. This is an appeal directed against the order-in-original bearing No. S/14-4-1208/83 Pint/(SD/INT/NTFD/749/83), dated 18-8-1984 passed by the Addl. Collector of Customs (P), Bombay, imposing a penalty of Rs. 50,0007- under Section 112 of the Customs Act on the appellant. 2. The brief facts necessary for the disposal of the appeal can be stated as below: On the basis of an information, search of the godown premises of the appellant was carried out on 28-12-1983, as a result of which 7 packages containing Video Cassettes and stereo radio cassette players valued at Rs. 1,68,000/- (m.v) were seized from the loft of the godown. The seizure was effected in the presence of one Shri Aboo Backer Shaikh, Mukadam of the godown - the paid employee of the appellant. In the adjudication proceedings initiated by the Asstt. Collector the appellant as well as the godown keeper Aboo Backer Shaikh were imposed penalties apart from confiscating the goods of foreign origin. The present appeal by the appellant is only with regard to the imposition of penalty on him by the Addl. Collector. 3. Shri Arun Mehta, on behalf of the appellant, contended that this order, so far as the appellant is concerned, has been passed without any legally acceptable evidence. Elaborating on this point further, he contended that it has been brought out in the statement of the godown keeper as well as in the statement of the appellant that the godown keeper is having an independent key of the godown and he is looking after the godown. The appellant visits the godown hardly for a few hours. Even the initial statement of the godown mukadam does not inculpate the appellant as having knowledge of the storage of the goods in the loft of the godown. According to Shri Aboo Backer Shaikh, the goods were brought in by one Shri Rafiq who was known to him because he is to come to play cricket near the godown. The appellant was nowhere in the picture and the appellant has also denied any knowledge about Shri Rafiq in his statement. Even in the subsequent statement of Shri Aboo Backer Shaikh given on 12-1-1984, in reply to a specific query with regard to the knowledge on the part of the appellant. Shri Aboo Backer Shaikh has clearly indicated that the appellant is not aware of the storage of the goods in the godown. Even the appellant was served with summons on 3-1-1984 and in response to the summons the appellant appeared on the next day itself. Even in the statement given on 4-1-1984, no knowledge with regard to the storage of the goods confiscated, on the part of the appellant has been brought out. This statement as well as the subsequent statement of the appellant are totally exculpatory. The learned advocate took me through the various statements referred to above and challenged the Collector's findings to the effect that it is difficult to believe that the goods under seizure were stored in the premisses of the appellant without his knowledge from the evidence on record. The evidences do not show any nexus of the goods under seizure with the appellant. He also took me through the findings of the Addl. Collector to show that the conclusions arrived at are only based on surmises and conjectures and there is no legally acceptable evidence either in the form of statements of the godown keeper or in the form of admission in his own statement. He, therefore, prayed for setting aside the order. 4. Heard Shri Prabhu, the learned departmental representative on behalf of the department. He contended that though the statements of the godown keeper as well as the appellant do not bring out the involvement of the appellant, admittedly he is the owner of the godown, where he is conducting his business. His behaviour, as is evidenced from his own statement is strange in that he noticed one Mulla and another in the godown and he did not bother to enquire about Shri Aboo Backer Shaikh and did not question their presence without the godown keeper. This clearly indicates that all is not well with his conduct. He also did not bother to make any enquiries after the seizure. He did not appear before the Customs authorities excepting in response of the summons dated 3-1-1984. He also contended that the totality of the circumstantial evidences is adequate for coming to the conclusion that the appellant, being the owner of the premises, should have had knowledge about the storage of the goods. The godown keeper is admittedly a faithful servant of 22 years and such a servant is not expected to store the goods without his master's knowledge. He thus supported the order. 5. After hearing both the sides and perusing the available records including the copies of the statements cited by the learned advocate, the main question to be decided is whether the appellant had knowledge about the storage of the smuggled goods in the godown belonging to the appellant. For considering {his main issue, certain undisputed facts have to be kept in view. The undisputed facts are: The appellant is the owner of the godown. One of the keys of the godown is with the mukadam and was operated upon independently by him. This mukadam by name Shri Aboo Backer Shaikh was the person presented at the time of search of the godown. His statement was recorded on 28-12-1983, the date of seizure itself, wherein he was personally questioned about the owner. The owner's name and address were given by Shri Aboo Backer Shaikh. No other question has been put with regard to the knowledge or complicity on the part of the owner of the godown. No follow up action by way of contacting the appellant immediately or carrying out search of the residential premises appears to have been done. Even in the initial statement of Shri Aboo Backer Shaikh, no knowledge on the part of the appellant has been attributed. According to his version given immediately after the seizure, he received the packages from one Shri Rafiq, who used to play cricket near the godown and he kept the cartons in the godown expecting that he would get some monetary benefits. Even in the statement of mukadam, he denies the knowledge of the contents of the packages. He also says that this was the first time he kept the packages like this received from somebody. Even in the subsequent statement given by the mukadam on 12-1-1984, to a pointed question as to whether the appellant was aware of the fact of keeping such contraband goods in the godown, his answer was that he has not told his master regarding the storage of such goods. In the statement recorded from the appellant, it is observed that he has denied his knowledge about Rafiq, the person who is alleged to have kept the goods in the godown. He has, also denied any knowledge about the goods. The goods are found to have been seized from the loft of the godown. It is seen from the statement of the godown mukadam as well as the appellant that none of these statements inculpate the appellant with regard to the knowledge of the storage of the contraband goods in the godown. No other evidences have been brought out either in the form of statement or through any other document to establish any link of the appellant either with the goods or with the undesirable elements resorting to smuggling of the goods. In the context of the aforesaid factual position, penal liability has been fastened on the appellant viz. on the ground that he is the owner of the godown and some of his behaviour is somewhat unusual and his faithful servant would not have stored the goods without his knowledge. The findings of the adjudicating authority precede to inculpate the appellant mainly on the following facts. The appellant was regularly visiting the said premises. The mukadam was under the appellant's employment for nearly 22 years and hence his statement exculpating the appellant in his subsequent statement is not credible because he is a faithful servant. The persons pointed out viz. Rafiq, Mulla are nothing but creatures of Shaikh's imagination. Hence it is difficult to believe that the goods under seizure could have found their way in the premises of the appellant without his knowledge. The appellant's explanation was that when he visited the premises on 28-12-1983 at 6.30 p.m. he found it locked and he did not bother to open the godown. Likewise, when the appellant visited the premises on 28-12-1983 the mukadam was absent and one Mulla and another were present. The appellant did not ask them what they are doing in the absence of Shri Aboobaker Shaikh. The appellant has also referred to Mulla's name in his statement as the person from whom he enquired about the whereabouts of Shri Aboobaker Shaikh. Neither the appellant nor Shri Aboobakar Shaikh made efforts to produce this Mulla to clarify their stand in the matter. It is also difficult to conceive that Aboobakar Shaikh, being a trusted and long time servant of Modi, would undertake a venture of storing goods in the premises of Modi without the knowledge of Shri Modi. 6. All these facts discussed in the findings of the adjudicating authority can only raise a presumption or a cloud of suspicion. When it is not disputed that the godown mukadam was having an independent set of keys of the godown and he was generally supervising the godown, it is quite possiblethat the godown keeper would have accepted the packages without the prior knowledge of the owner. If this possibility is to be ruled out, there should have been an admission either from the godown keeper or from the appellant or by way of independent evidences showing the linkage of the appellant with the smugglers, which could provide the circumstantial evidence for coming to the conclusion about the knowledge of the appellant. In this case, I find there are no such evidences. On the contrary, none of the statements inculpate the appellant. No immediate action seems to have been taken even by the department to bring the appellant to the scene. Even the summons was found to have been issued on 3-1-1984, which was responded to by the appellant immediately on 4-1-1984. There was no allegation that the appellant was absconding. In view of these circumstances, the appellant is definitely entitled to the benefit of doubt, especially when the storage place is not in the open space of the godown but from the loft of the godown, which cannot be seen even during daily visits by the appellant. Moreover, the godown mukadam clearly indicates that he stored the goods on his own without the knowledge of the owner and there is no evidence to contradict this. In the circumstances, I extend the benefit of doubt to the appellant and allow this appeal, discharging him from the penalty imposed.

Ramesh Prabhudas Modi vs Collector Of Customs (P) on 23 May, 1989

Customs, Excise and Gold Tribunal - Mumbai

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 20020 of 2009(V) 1. HOSPITAL DEVELOPMENT COMMITTEE/SOCIETY ... Petitioner Vs 1. P.V. KUNHIRAMAN, ... Respondent 2. K.K. NARAYANAN, PRAJINAS HOUSE, 3. COEMANT BASTAIN,KAARIKKUNNU HOUSE, 4. RAGAHVAN C,JEESHMA NIVAS, 5. M. RAGHAVAN, SHIJIL NIVAS, 6. STANELY FERNANDES, 7. M.BALAKRISHNAN NAMBIAR, 8. M. PRABHAKARAN, THEJAS HOUSE, 9. THE CONTROLLING AUTHORITY UNDER THE 10. THE APPELLATE AUTHORITY For Petitioner :SRI.K.V.SOHAN For Respondent :SRI.P.M.PAREETH The Hon'ble MR. Justice P.N.RAVINDRAN Dated :06/01/2010 O R D E R P.N. RAVINDRAN, J - - - - - - - - - - - - - - - - - - W.P.(C) No.20020 of 2009 - - - - - - - - - - - - - - - - - - - - - - Dated this the 06th day of January, 2010 J U D G M E N T The petitioner is the hospital development committee of Government Hospital, Thalassery. The respondents herein are ex-servicemen who were employed as Security Guards by the petitioner in Government Hospital, Thalassery, on daily wages at the rate of Rs.75/- per day. Their services were terminated and thereupon they moved the Controlling Authority under the Payment of Gratuity Act 1972 seeking payment of gratuity. By Ext.P1 to P8 orders passed on the same date viz. 7.7.2007, the Controlling Authority directed the petitioner to pay various amounts to the respondents towards gratuity. The petitioner thereupon filed appeals against Ext.P1 to P8 orders before the appellate authority. The appeals were dismissed by Ext.P9  W.P.(C) No.20020 of 2009 -2- order delivered on 19.1.2009. Hence this writ petition challenging Ext.P1 to P9. The petitioner contends that their establishment is not the one coming within the purview of the Payment of Gratuity Act,1972. It is also contended that the petitioner is doing an act of charity and therefore they are not bound to pay gratuity to the respondents. 2. Section 1(3) of the Payment of Gratuity Act, 1972, states that it shall apply to "every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State in which ten or more persons are employed or were employee on any day of the preceding 12 months". Section 2(15) of the Kerala Shops and Commercial Establishments Act defines the term 'shop' to mean "any premises where any trade or business is carried on or where services are rendered to customers". The petitioner does not dispute the fact that it provides services to customers namely patients/visitors to Government Hospital, Thalassery by providing inter-alia,  W.P.(C) No.20020 of 2009 -3- the service of security guards. Therefore, going by Section 2(15) of Kerala Shops and Commercial Establishments Act, 1960, the petitioner's establishment is an establishment to which the Payment of Gratuity Act 1972 applies. I therefore, overrule the petitioner's contention that the Payment of Gratuity Act, 1972 does not apply to them. 3. The next contention of the petitioner is that as they are doing an act of charity, they cannot be burdened with liability to pay gratuity. It is also contended that the petitioners are drawing pension and that they had received gratuity at the time of their discharge from the armed forces. The appellate authority had considered these aspects, overruled the said contentions and held that, as the respondents were employed in Government Hospital, Thalassery as security guards by the petitioner, the petitioner is bound to pay gratuity. 4. Under Section 4 of the Payment of Gratuity Act, 1972, gratuity is payable to an employee on the termination  W.P.(C) No.20020 of 2009 -4- of his employment after he has rendered services for not less than five years. The petitioner does not dispute the fact that the respondents have rendered more than 5 years of service, or the fact that their services were dispensed with. Section 4 of the Payment of Gratuity Act, 1972 does not stipulate that, where an establishment is a charitable institution, gratuity need not be paid to employees, otherwise eligible for the same. It also does not stipulate that ex-service men who are receiving pension and have received terminal benefits at the time of their discharge are not eligible for gratuity. In such circumstances, I am not persuaded to agree with the learned counsel appearing for the petitioner that they are not bound to pay gratuity to the respondents. For the reasons stated above, I hold that there is no merit in the writ petition. The writ petition fails and is accordingly dismissed. The petitioner shall pay the amount ordered to be paid towards the gratuity in Ext.P1 to P8  W.P.(C) No.20020 of 2009 -5- orders together with interest at the applicable rates within six weeks from today, failing which the competent authority shall initiate steps for recovery, in accordance with the provisions of Section 8 of the Payment of Gratuity Act 1972. P.N. RAVINDRAN (JUDGE) nl 

Hospital Development ... vs P.V. Kunhiraman on 6 January, 2010

Kerala High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.3301 of 2009 CHANDRA SHEKHAR KUMAR Versus THE STATE OF BIHAR & ORS. ----------- Ibrar/- ( V. N. Sinha, J.) 5. 13.01.2011 Counsel for the State is allowed to seek instruction in the light of the statement made in the supplementary rejoinder filed by the petitioner. Put up on 27.01.2011 maintaining its position in the same list so to enable the counsel for the State to produce the notification in terms of the decision of the Departmental Promotion Committee.

Chandra Shekhar Kumar vs The State Of Bihar &Amp; Ors. on 13 January, 2011

Patna High Court - Orders

Court No. - 19 Case :- SECOND APPEAL No. - 359 of 2008 Petitioner :- Shyam Narayan Respondent :- Sri Ravi KumarPetitioner Counsel :- Suresh Chandra Shukla Respondent Counsel :- J anardan Singh Hon'ble S.C. Chaurasia J. As prayed by the learned counsel for the appellants, list in the next cause list. Interim order, if any, shall continue till the next date of listing. Order Date :- 1.7.2010 AKS

Shyam Narayan vs Sri Ravi Kumar on 1 July, 2010

Allahabad High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl No. 7793 of 2006() 1. N.S. RAJ, S/O.N. SASIDHARAN, ... Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY ... Respondent For Petitioner :SRI.AJAYA KUMAR. G For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice V.RAMKUMAR Dated :09/01/2007 O R D E R V.Ramkumar, J. ======================== B.A.No. 7793 of 2006 ======================== Dated this the 9th day of January, 2007. ORDER In this Petition filed under Sec. 438 Cr.P.C. the petitioner who is the fourth accused in Crime No.494 pf 2006 of Ezhukone Police Station for offences punishable under Sections 141, 143, 147, 148, 325, 353 and 149 I.P.C., seeks anticipatory bail. 2. I heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. Having regard to the nature of the allegations levelled against the petitioner and the other circumstances of the case, I am inclined to grant anticipatory bail to the petitioner. Accordingly, a direction is issued to the officer-in-charge of the police station concerned to release the petitioner on bail for a period of one month in the event of his arrest in connection with the above case on his executing a bond for Rs. 10,000/- with two solvent sureties each for the like amount to the satisfaction to the said officer and subject to the following conditions: If the petitioner commits breach of any of the above conditions, the bail granted to him shall be liable to be cancelled. This application is allowed as above. V.RAMKUMAR, JUDGE. ess 9/1  BA 7793/06 -: 3 :-

N.S. Raj vs State Of Kerala on 9 January, 2007

Kerala High Court

Gujarat High Court Case Information System Print CR.RA/595/2009 3/ 3 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 595 of 2009 ========================================================= MAYUR UMIYASHANKAR VYAS - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MR ROHIT S VERMA for Applicant(s) : 1, MR JK SHAH ADDL PUBLIC PROSECUTOR for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 07/10/2010 ORAL ORDER This revision application is directed against the judgment and order dated 27.02.2009 passed by the learned Metropolitan Magistrate, Ahmedabad as confirmed by the learned Additional City Sessions Judge, Ahmedabad by his judgment and order dated 15.07.2009 passed in Criminal Appeal No.58 of 2009. Petitioner was involved in vehicular accident. On 18.03.2002 in the early morning hours at about 4.00 A.M. by driving his rickshaw negligently and rashly, he caused the accident with scooterist who received injuries including fracture. For such act, he was prosecuted for offence punishable under Sections 279, 337 and 338 of IPC and provisions of Motor Vehicles Act also. Learned Magistrate found him guilty and awarded simple imprisonment of three months and also imposed fine of Rs.500/-. I have heard learned advocate for the parties and having perused the judgments under challenge and other documents, I am of the opinion that though so far as the Courts below holding the petitioner guilty of the offences is concerned, no interference is necessary. There was evidence on record that the petitioner was driving his rickshaw and that due to rash and negligent driving accident was caused. However, I am of the opinion that at this distant point of time nearly eight years after the incident, it is not necessary to send the petitioner to jail. Mitigating factors are as follows: (1) Nearly eight years has passed since the accident. (2) Nature of injuries is not serious. (3) Petitioner is not involved in any other offence. (4) He is prepared to pay compensation which may go to the injured. Under the circumstances, I am of the opinion that though conviction may be sustained, petitioner is required to be extended benefit of probation and suspension of sentence. Under the circumstances, though the order of conviction is maintained, such sentence is suspended. Petitioner shall be on probation for a period of one year. He shall execute a bond of good behaviour before the trial court. During the period of probation if any breach is committed by the petitioner, he shall have to serve out the sentence. Additionally, he shall pay a sum of Rs.10,000/- (Rupees Ten Thousand only) to the injured which shall be in addition to any compensation that might have been paid to him. This shall be done within eight weeks from today. Petition stands disposed of accordingly. ( AKIL KURESHI, J. ) kailash     Top

Author: Akil Kureshi,&Nbsp;

Mayur vs State on 7 October, 2010

Gujarat High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 6167 of 2007(H) 1. PRASANTH V.S., VADAKKEDATH HOUSE, ... Petitioner Vs 1. MAHATMA GANDHI UNIVERSITY, ... Respondent For Petitioner :SRI.V.C.JAMES For Respondent : No Appearance The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN Dated :23/02/2007 O R D E R THOTTATHIL B.RADHAKRISHNAN, J ------------------------------------------- W.P(C).No.6167 OF 2007 ------------------------------------------- Dated this the 23rd day of February, 2007 JUDGMENT Heard. 2. If the application of the petitioner for revaluation is received and pending and is in order, the same shall be considered and results declared within a period of two months from the date of receipt of a copy of this judgment. The writ petition is disposed of with the above direction. THOTTATHIL B.RADHAKRISHNAN Judge kkb.

Prasanth V.S. vs Mahatma Gandhi University on 23 February, 2007

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 31972 of 2009(N) 1. P.V. WILSON, ASSISTANT EXECUTIVE, ... Petitioner 2. S. VIMAL RAJ, Vs 1. STATE OF KERALA, REP. BY THE ... Respondent 2. THE CONVENER (ADDL. CHIEF 3. THE DIRECTOR, GROUND WATER For Petitioner :DR.K.P.SATHEESAN For Respondent : No Appearance The Hon'ble MR. Justice ANTONY DOMINIC Dated :01/12/2009 O R D E R ANTONY DOMINIC, J. ================ W.P.(C) NO. 31972 OF 2009 (N) ===================== Dated this the 1st day of December, 2009 J U D G M E N T Petitioners are Assistant Executive Engineers in the Ground Water Department, who have completed 5 years of service. According to the petitioners, there are three vacancies in the cadre of Executive Engineers and that despite the recommendation made by the Head of the Department, DPC has not been convened so far. It is with this grievance, the writ petition is filed. 2. If as stated by the petitioners, there are vacancies and there is already a recommendation by the Head of the Department for convening a DPC, there cannot be any justifiable reason for delaying the convening of DPC and this has to be done by the 2nd respondent. 3. Having regard to the above, I dispose of this writ petition directing the 2nd respondent to convene the DPC for considering the candidates eligible for the post of Executive Engineer in the Ground Water Department. This shall be done, as expeditiously as possible at any rate within 4 weeks of production  WPC 31972/09 :2 : of a copy of this judgment. Petitioners shall produce a copy of this judgment before the respondents. It is further directed that based on the above, necessary orders of promotion shall also be issued without further delay. ANTONY DOMINIC, JUDGE Rp 

P.V. Wilson vs State Of Kerala on 1 December, 2009

Kerala High Court

ORDER N.H. Bhatt, J. 1. These two revision applications respectively by the original defendant No. 4 and by the original defendants Nos. 1 and 3 are directed against the order of the executing court in the Special Darkhast No. 81 of 1971 pending in the court of the Civil Judge (S. D.) Surat. The challenge is laid against the acceptance of the bid at the court auction, the auction purchaser being the respondent No. 2 Hitendrakumar Jashwantlal Jariwala. The objection to the auction sale is based on the alleged irregularities and illegalities alleged to have been committed in the matter of conducting the auction sale. 2. In the latter of the two revision applications, Mr. Sanjanwala has raised one neat question of law by recourse to Order 21, Rule 86 of the Civil Procedure Code. His submission is that after having deposited 25% of the purchase price spontaneously, the auction purchaser had failed to deposit the remainder of 75% within 15 days of the date of acceptance of the bid and this having been not done, that by itself vitiated the entire proceedings and nothing further remained to be done in the matter. 3. As far as the objections on the merits or the procedural aspect of the auction are concerned, this High Court exercising its revisional jurisdiction under Section 115 of the Civil Procedure Code would be loath to entertain them, particularly when the objectionists had an opportunity to ventilate the grievances by having recourse to Order 21, Rule 90 of the Code. On this ground, I refuse to go into those questions, though they were vigorously sought to be urged before me by Mr. R. A. Mehta for the petitioner of the first of the two revision applications. I make it clear that if it is legally possible for the objectionists now to agitate that question, they may do so and I am not to be understood to have expressed any opinion in that regard here one way or the other. The question of delay can be sought to be thrashed out by recourse to Section 14 of the Indian Limitation Act and the objectionists may invoke this provision and the executing court will consider it on its own merit. 4. Coming to the main point about non-deposit of 75% of the remaining amount of sale consideration. Mr. Sanjanwala, whose arguments were adopted by Mr. R. A. Mehta, urged that provisions of Order 21, Rules 85 and 86, which are reproduced below, provide for no extension. The provisions are:-- "Time for payment in full of purchase-money. 85. The full amount of purchase-money payable shall be paid by the purchaser into court before the court closes on the fifteenth day from the sale of the property. Provided that in calculating the amount to be so paid into court, the purchaser shall have the advantage of any set-off to which he may he entitled under Rule 72. Procedure in default of payment. 86. In default of payment within the period mentioned in the last preceding rule, the deposit may, if the court thinks fit, after defraying the expenses of the sale, be forfeited to the Govt. and the property shall be resold, and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may subsequently be sold." The learned Advocates M/s. Sanjanwala and Mehta submitted that the auction purchaser had made default of payment within those 15 days mentioned in Rule 85 and so there was no alternative for the court but to order re-sale of the property. In this connection, heavy reliance was placed by Mr. Sanjanwala on the judgment of the Supreme Court in the case of Manilal Mohanlal Shah v. Sardar Sayed Ahmed AIR 1954 SC 349. In paragraph 8 of the said judgment, the Supreme Court has categorically ruled that the provision regarding the deposit of 25% by the purchaser other than the decree-holder is mandatory as the language of the rule suggests. The full amount of purchase money must be paid within fifteen days from the date of the sale, but the decree-holder is entitled to the advantage of a set-off.....If the payment is not made within the period of fifteen days the court has the discretion to forfeit the deposit and there the discretion ends, but the obligation of the court to re-sale the property is imperative. A further consequence of non-payment is that the defaulting purchaser forfeits all claim to the property." 5. A ratio of this judgment was followed by the Bombay High Court in the case of Uttamchand Milapchand v. Balkrishna Ramnath AIR 1961 Bom 224, which is the judgment of the Bombay High Court delivered on 26-6-1960, and as per the judgment of the Full Bench of this High Court, this is also the law of the land to be followed. In that Bombay judgment, it was laid down that "the provisions of Order 21, Rule 85 as well as Rule 86 are mandatory in the sense that in the event of the auction purchaser failing to deposit the full purchase price within 15 days from the date of the auction sale, the court will have no option but to order a re-sale of the property. This necessarily implies that the court has no jurisdiction whatever to extend the time for the payment of the balance of the purchase price as fixed under O. 21, R. 85. Where the auction purchaser fails to pay the full purchase price within 15 days of the auction sale, there is no question of any irregularity in such a sale being waived on account of the consent of the judgment-debtor to the time being extended in favour of the auction purchaser". The ratio of this judgment is that even if the extension of time is sought for and is granted by the court, even with the consent of the judgment-debtor, the rigours of the provisions of Order 21, Rule 86 of the Code, latter part, do not stand in any way mitigated. Same is the finding of A. D. Desai J., as he then was, as per his judgment dated 28-3-78 in the civil revision application No. 1088 of 1977, which was pertaining to the very parties and was pertaining to this very execution application. In that case, the auction sale was challenged on the ground that the trial court without jurisdiction had granted time to the auction purchaser to pay up the amount after the expiry of 15 days' period. The facts of that case appear in paragraph 1 of that judgment. In that case, the auction purchaser had deposited 1/4th amount of the sale price on 22-2-1977 and had to deposit the balance with the executing Court before 9-3-1977. On 7-3-1977, the petitioner there filed an application to set aside the sale. On 8-3-1977, the auction purchaser filed an application. Ex. 154, praying for extension of time to deposit the balance of amount on the ground that under the law, sanction of textile authority was necessary before the sale was effected. Upholding the contention of the judgment-debtor, the learned Judge held that the court had no jurisdiction to extend the time and reliance was placed on the judgment of the Supreme Court in the case of Manilal Mohan Lal Shah (AIR 1954 SC 349) (supra). Had the matter been as simple as it was before the Bombay High Court in the case of Uttamchand (AIR 1961 Bom 224) (supra) or in the civil revision application number 1088 of 1977 before this court in the year 1977, no difficulty would have presented itself. The peculiar facts of this case present a unique picture. In this case, the bid was accepted on 12-3-1982, 1/4th of the amount was admittedly deposited soon on the bid having been accepted. The remainder of the 75% of the amount was to be deposited by the auction purchaser on or before 27-3-1982. Now it so happened that before the expiry of those 15 days' period, that is, on 22-3-1982, the original judgment-debtor Ramanlal Nagindas Jariwala filed the present civil revision application No. 597 of 1982, in this High Court with a prayer to stay the proceedings for confirmation of sale and bid of the respondent No. 2 in the special darkhast in question. On behalf of the auction-purchaser, caveat was already filed and when the matter was called out before the learned Judge A. N. Surti, J., on 23-3-1982, an objection was lodged by Mr. Mankad for the auction purchaser. That seems to be the obvious purpose of filing a caveat application and appearing before the court on 23-3-1982, Mr. Mankad in his affidavit produced on the record of the civil revision application No. 710 of 1982 shows that he had invited the attention Of my brother Surti, J. regarding deposit of the remaining 3/4th of the purchase money to be made on or before 27-3-1982 and that under the decision of A. D. Desai, J. in the civil revision application No. 1088 of 1977, already referred to above and which had arisen in the course of these very execution proceedings, the executing court would not have any power to extend the date and accept deposit after the decision of that Civil revision application No. 597 of 1982. My brother A. N. Surti, J., then passed, the following order:-- "Stay of further deposit by the auction purchaser and stay of further proceedings." It is the say of the auction purchaser now before me that the court, despite the objection being raised on behalf of the auction-purchaser, stayed not only the further proceedings but also the deposit of the 3/4th of the remainder amount ol consideration, and, therefore, this action of the court, taken in the face of the opposition by the auction purchaser cannot now go to the detriment of the auction purchaser so as to upset the whole auction sale. For the purpose of putting the record straight, I state that the civil revision application No. 597 of 1982 was filed only by the judgment-debtor, who was the defendant No. 4, Ramanlal Nagindas Jariwala, whereas the civil revision application No. 710 of 1982 is filed by the original firm and Arvindlal Bhagwandas. who were the defendants Nos. 1 and 3 in the execution proceedings. In the earlier civil revision application No. 597 of 1982, the petitioners of the civil revision application No. 710 of 1982 were however certainly parties, though they might not be present before the Court on 23-3-82, the day on which this Court took up the admissional hearing and passed the above-mentioned order. 6. In the light of the facts stated above, the only point that arises for my consideration is whether the Court's staying of even the deposit of the remainder of the purchase price by the auction purchaser can go to mitigate the rigours of provisions of Order 21, R. 86 of the Code. M/s. Sanjanwala and Mehta on the one hand asserted that as laid down in the earlier judicial precedents referred to above, even the Court has no power to rewrite the provisions of O. 21, Rule 86 of the Code and grant time. On the other hand, Mr. Mankad for the auction purchaser and Mr. G. N. Desai for the judgment creditor, urged that for no fault or default of the auction purchaser, the amount could not be deposited despite the auction purchaser's resistance before this court to the move of the original defendant No. 4 that proceedings should be stayed. These learned advocates urged that once the court stayed that part, there would be no impunity. It is evident that once this High Court stayed the payment of the remainder of the 3/4 amount of consideration, this auction purchaser, even if he had gone to the executing court with the remainder of the money, would not have found the court to accept the same. 7. It is conceded for the purposes of this judgment and even M/s. G. N. Desai and Mankad did not urge otherwise that the court has got power to extend the time, but what they argued is that if the court stalls the payment and thereby makes the auction purchaser almost helpless in depositing the remainder of the amount, they cannot be visited with any evil consequences flowing directly from the court's action. In other words, their emphasis is that this is not a case of default. 8. In Oxford English Dictionary, the word 'default' has been defined, as 'failure of something' and 'failure' is a noun from the word 'fail', which from the very nature of things refers to some volitional act. In other words, the word 'default' implies a volitional and deliberate act and if a man for no fault of his is not able to deposit the amount required to be deposited under Order 21 Rr. 85 and 86 of the Code, he cannot be said to have been within the sweep of a mandatory provision of Order 21 Rule 86 of the Code. It is truism to state that wrong assumption of law and thereby consequential non-deposit of or negligence in being ready with the money latest on the 15th day would be covered by the term 'default'. In the facts and circumstances of this case, as said above, it is evident that there is no case of any default on the part of the auction purchaser. For reasons totally beyond his control, he was prevented from depositing the amount and one of the principles known to law is that court's action, when it is suo motu and not ad invitum, cannot go to the detriment of a citizen. In my view, therefore, the otherwise rigorous provisions of Order 21 Rule 86 of the Code will not be applicable to the facts of the present case because this is not a case of any dafault whatsoever. This is a case where the supervening hand of the court intervened, and no party can be allowed to suffer because of the court's order. 9. It is to be noted that there has been produced on record the affidavit of Advocate Mr. K. N. Mankad and it is on the file of the Civil Revision Application No. 710 of 1982 at pages 12-13. He has explained that he had appeared by virtue of the caveat filed on behalf of the auction purchaser and that when A. N. Surti, J, was about to pass an order of stay of further proceedings of the Dar-khast, he had objected to the same on the ground that the deposit of the remaining 3/4th of the purchase money was to be made on Or before 27-3-1982 and that in view of the decision of A. D. Desai, J., in the Civil Revision Application number 1088 of 1977 (supra) in these very proceedings arising out of the previous sale, the executing court would not have any power to extend the date and accept deposit. Mr. Mankad then proceeds to state on oath that A. N. Surti, J. proceeded to observe that in that earlier case extension was sought for by the auction purchaser whereas this time, he (Surti J.) was on his own staying the deposit of the remaining 3/4th amount so as not to cause injustice to the present auction purchaser. 10. There being no counter affidavit to challenge the words of Mr. Mankad and from the very nature of things what Mr. Mankad stated on oath appears to be the possible picture of the time, I act on that word and hold that there was a suo motu order by the court to stay not only the further proceedings in the matter, but also to stay the deposit of the remainder of the amount, which was to be deposited on 27-3-1982. 11. Mr. Sanjanwala had requested me that in view of the categorical ruling of A. D. Desai. J., and looking to the importance of the matter, I must refer this question for the more considered opinion to the Division Bench of this court. Had there been any shred of doubt in my mind about what I have observed above, I would have very willingly referred the matter to the Division Bench, but in my view that court's suo motu action takes the auction purchaser out of the charge of default, which is a condition precedent to the further obligation of the payment of remainder of the amount, 12. The result is that both the petitions are rejected. Time up to 16th September 1982, (and no further) is given to the auction purchaser to deposit the remainder of the amount in the trial court. Rule is accordingly discharged in both the petitions with no order as to costs. Stay is also vacated in both the petitions. A copy of this operative order to be given to Mr. Mankad to-day with which he can go to the executing court and deposit the amount. In order to enable the petitioners to have further recourse in accordance with law, the further proceedings except the depositing of the 3/4th amount of consideration are stayed for a period of four weeks from today.

Author: N Bhatt

Ramanlal Nagindas Jariwala And ... vs State Bank Of India And Ors. on 14 September, 1982

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.22 of 2010 BIGAN CHAUDHARY Versus THE UNION OF INDIA With MA No. 23 of 2010 CHINTA DEVI Versus THE UNION OF INDIA With MA No. 33 of 2010 KARU RAVIDAS Versus THE UNION OF INDIA With MA No. 34 of 2010 SONAMATI DEVI Versus THE UNION OF INDIA With MA No. 55 of 2010 MOSTT. TETRI DEVI Versus THE UNION OF INDIA With MA No. 75 of 2010 JANKI DEVI Versus THE UNION OF INDIA ------------- Praveen ( Akhilesh Chandra, J.) 06. 14.07.2010 As prayed for, by the learned counsel for the parties, let all these Misc. Appeals be listed after two weeks, under same heading.

Mostt. Tetri Devi vs The Union Of India on 14 July, 2010

Patna High Court - Orders

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 504 of 1998 Dr Mrs Geeta Sinha, wife of Sri Narendra Narain Rai, resident of Patel Nagar, Pakari, Ara, P S - Nawada, District - Bhojpur, at present posted as Registrar in the Department of Obs & Gyan, Patna Medical College, Patna - Petitioner Versus 1 The State of Bihar through the Commissioner -cum- Secretary, Department of Health Medical Education and Family Welfare, Government of Bihar, Patna 2 Additional Commissioner -cum- Special Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, Patna 3 Additional Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, Patna 4 Deputy Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, Patna 5 Dr Raj Kumari, Medical Officer, Punpun Block, Punpun at present notified as Assistant Professor, Department of Obs and Gyan, PMCH, Patna - Respondents ----------- 6 30.09.2010 On the last date also, no one appeared to press the writ petition. The case was passed over. State was present. So is the case today. This writ petition is, accordingly, dismissed for non- prosecution. M.E.H./ (Navaniti Prasad Singh)

Dr.Mrs.Geeta Sinha vs The State Of Bihar &Amp; Ors on 30 September, 2010

Patna High Court - Orders

1 AFR HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR DIVISION BENCH Criminal Appeal No. 744/2002 1. Ram Bhadra Tiwari, aged about 24 years, son of Shri Sukhdeo Prasad Tiwari, Occupation Agriculturist. 2. Deowati, w/o Shri Sukhdeo Prasad Tiwari, aged about 65 years, Occupation Agriculturist. Both are residents of village Bharphandiya, Police Station Dhanpuri, district Shahdol (MP). Versus The State of Madhya Pradesh ------------------------------------------------------------------------------------------------ For the Appellant: Shri Akhil Singh and Shri Praveen Dubey, Advocates For the Respondent: Shri J.K. Jain, Dy. Advocate General. ------------------------------------------------------------------------------------------------ ------------------------------------------------------------------------------------------------ PRESENT: HONOURABLE SHRI JUSTICE RAKESH SAKSENA HONOURABLE SHRI JUSTICE N.K. GUPTA ------------------------------------------------------------------------------------------------ Date of hearing: 06/05/2010 Date of Judgment: 14/05/2010 JUDGMENT (RAKESH SAKSENA) (N.K. GUPTA) JUDGE JUDGE shukla 12 HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR Criminal Appeal No. 744/2002 Ram Bhadra Tiwari & Anr Versus The State of Madhya Pradesh JUDGMENT For consideration (Rakesh Saksena) JUDGE __/05/2010 Hon'ble Shri Justice N.K. Gupta JUDGE __/05/2010 POST FOR /05/2010 (Rakesh Saksena) Judge ___/05/2010 Per: Rakesh Saksena, J. Appellants have filed this appeal against the judgment dated 3.5.2002, passed by Special & Additional Sessions Judge, Shahdol, in Sessions Trial No.179/2001, convicting them under Sections 302/34, 304-B/34 and 498-A of the Indian Penal Code and sentencing them to imprisonment for life, rigorous imprisonment for 10 years and rigorous imprisonment for 2 years with fine of Rs.500/-, on each count respectively. 2. Facts, as alleged by the prosecution, are that Sonika, the deceased, was 2 married to appellant Ram Bhadra on 4th June 1997. Appellant Deowati was the mother-in-law of Sonika. After marriage, Sonika went to her nuptial house and kept on visiting her mother's house. After sometime, she complained about harassment meted out to her by her husband and mother-in-law for not bringing a scooter in dowry. On 3.6.2001, at about 5.15 in the morning, Vidya Sagar (PW-1), brother of Sonika, received information on telephone that Sonika had died. Vidya Sagar alongwith his elder brother Rajaram Pathak went to village Garfandia where accused resided and saw the dead body of Sonika lying in the courtyard of their house. There were injuries on her face. None disclosed to them how Sonika died. On the same day, at about 8.30 a.m., Vidya Sagar (PW-1) lodged a report with Police Dhanpuri. Sub Inspector M.S. Karchuli (PW-11) registered a Murg (Ex.P/1). Police, in the presence of Executive Magistrate, Jaithpur, conducted the inquest of the dead body and prepared memorandum (Ex.P/3). Executive Magistrate sent the dead body to community Health Centre, Dhanpuri for postmortem examination. Dr. K.K.Gautam (PW-5) alongwith Dr. B.N. Sharma and Dr. Richa Gupta conducted postmortem examination at about 5.00 p.m. on the same day. He found that deceased was carrying pregnancy of 32 to 36 weeks. She had injuries on her face. There was bleeding from her nose and mouth. The injuries found on the body of the deceased were ante mortem in nature and were caused within 24 hours of the postmortem examination. Postmortem examination reports are Ex.P/9-A and Ex.P/10. 3. In the course of investigation, investigating officer prepared the spot map, arrested the accused persons and at the instance of accused Ram Bhadra on 7.6.2001 seized a stone and a 'Danda' kept under his cot. In the Murg enquiry, it was revealed that accused persons subjected the deceased to cruelty for not meeting the demand of a scooter in dowry and that on some 3 dispute, on not allowing her to go to her parents' house, assaulted her, as a result of which she died. 4. After investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Budhar and the case was committed for trial to the Court of Sessions, Shahdol. 5. On charges being framed, accused abjured their guilt and stated that witnesses spoke false against them due to enmity. They were falsely implicated. No evidence in their defence was adduced. 6. Relying on the evidence of Vidya Sagar (PW-1), Pushpa Pathak (PW-2), Kalpana (PW-3), Hirawati (PW-6), Chintamani Yadav (PW-7), Suryakant Tiwari (PW-8), Rajnikant (PW-12), Dr. K.K. Gautam (PW-5) and the Investigating Officer M.S. Karchuli (PW-11), learned trial judge held accused persons guilty and convicted and sentenced them as mentioned above. 7. We have heard the learned counsel for the parties. 8. Learned counsel for the appellant submitted that it was not established by the prosecution evidence that the deceased met with a homicidal death. According to him, she had fallen down from the staircase and contracted injuries, which resulted into her death. 9. On perusal of the evidence of Dr. K.K. Gautam (PW-5), it is revealed that on postmortem examination of the dead body of the deceased he found following injuries: In cross examination, Dr. K.K. Gautam (PW-5) admitted that injuries found on the body of deceased might have been accidental if she struck against some stone or fallen down from stairs. 10. It is true that Dr. K.K. Gautam (PW-5) did not specifically state that the injuries found on the body of the deceased were homicidal in nature and expressed the possibility of them being caused in an accident, but, in our opinion, it can be gathered from the nature of injuries that they could be homicidal also. Since doctor is not an eyewitness, for establishment of the fact that the injuries were homicidal or accidental in nature, appreciation of the surrounding circumstances is essential. 11. In the statement of accused under Section 313 of the Code of Criminal Procedure, none of the accused stated that the deceased had fallen down from any staircase. It was not even reflected from the spot map (Ex.P/21) drawn by Inspector M.S. Karchuli (PW-11) that there had been any staircase in the courtyard. On the contrary, it was revealed from the spot map that the house where the incident took place was a 'Kachcha' house having roof of earthen tiles (Khaprel). There was nothing on record to indicate that the house of the appellants was a double storeyed house. 12. Suryakant (PW-8) and Rajnikant (PW-12) though in cross-examination admitted that they heard in village that deceased had died by a fall from the staircase, but they did not disclose from whom they heard it. They were declared hostile. Thus, in the absence of any evidence on record to the effect that deceased fell from stairs coupled with the statement of accused wherein they did not say that deceased fell from stairs, it cannot be held that the deceased suffered injuries by an accidental fall. Therefore, the natural corollary is that the injuries and the death of deceased were homicidal in nature. 13. In Trimukh Maroti Kirkan vs. State of Maharashtra-(2006) 10 SCC 681 the Apex Court observed that: 14. Now, the question before us is whether on the basis of facts brought on record, the husband of the deceased viz. Ram Bhadra only or both the accused would be liable for causing injuries to deceased. The indication given by the Apex Court in Trimukh Maroti (supra) appears to be that where an accused is alleged to have committed murder of his wife and prosecution succeeds in leading evidence to show that shortly before commission of crime they were together in the dwelling home, it has to be held that if accused husband does not offer any explanation, how the wife received injuries or offers a false explanation, it would be a strong circumstance indicating that he is responsible for commission of the crime. Thus, it appears to indicate the responsibility of the husband only and not of other members of the family except where there is clear evidence of their involvement. In the opinion of doctor, the cause of death of deceased was coma due to ante mortem head injury. The head injury was a haematoma on the left side of forehead with black left eye. On the basis of the evidence adduced in the case, it is not possible for us to hold all the persons in the house including Deowati liable for causing injuries to deceased in view of the ratio of Trimukh Maroti (supra). However, it can safely be held that the injury was caused by accused Ram Bhadra as his presence in the house stood established by the evidence of Rajnikant (PW-12). Rajnikant, though did not toe the line of prosecution, but he stated that after return from the house of Ganga Singh in the night, Ram Bhadra went to his house. Apart from that, from the evidence of Kalpana (PW-3) also, the presence of Ram Bhadra in the house is clearly established. It is true that circumstances give rise to suspicion against appellant Deowati also, but the 7 suspicion howsoever great; cannot take place of proof. Merely a single stray line appearing in the evidence of Kalpana (PW-3), a child witness of 8 years, that Deowati grappled with the deceased cannot be accepted because of it being merely a suggestion by the prosecution to which she innocently yielded. 15. In these circumstances, we are of the definite view that it has been satisfactorily established by the prosecution evidence that it was only accused Ram Bhadra, who caused the death of deceased. The evidence however does not appear to us sufficient against accused Deowati to hold her guilty under Section 302 of the Indian Penal Code. As such she deserves to be acquitted. 16. Learned counsel for the appellant strenuously urged that the conviction of accused Ram Bhadra under Section 302 IPC is not justified as the origin or the genesis of the occurrence, which resulted into the death of deceased, has not been proved. It is true that no evidence has been adduced by the prosecution to indicate, under what circumstances injuries were caused to deceased. There was only one injury on the forehead, which was the cause of death. There were some abrasions on the cheek and chin and a fracture of clavicle bone of the shoulder. It can, therefore, be inferred that there must have been a scuffle between deceased and the accused. Since accused did not offer any explanation for that, and there is no evidence on record from which the exact situation under which the incident occurred can be gathered, this Court is left with the option only to conjecture the probabilities. It is also significant to note that at the time of death the deceased was carrying pregnancy of 32-36 weeks. There was a full term foetus in her womb. Therefore, it does not stand to reason that her husband would take up in his mind to deliberately kill her. The prosecution has tendered no evidence to establish motive on the part of the accused to kill his wife. In these circumstances, we are of the definite opinion that the conviction of 8 accused/appellant Ram Bhadra under Section 302 IPC is not justified. However, since the act by which he caused the death of the deceased was done by him with the intention of causing such bodily injury to deceased as was likely to cause her death, he is liable to be convicted under Section 304-I of the Indian Penal Code. 17. As far as conviction of accused/appellants under Section 304-B and 498- A of the India Penal Code is concerned, from the evidence of Vidya Sagar (PW-1) and Pushpa Pathak (PW-2) it stands established that deceased Sonika was married to accused Ram Bhadra on 4 th June 1997 and she died a homicidal death in the house of her husband during the intervening night of 2 nd and 3rd June 2001. Thus, it has been proved that deceased died otherwise then under normal circumstances in the house of her husband within seven years of her marriage. The question now remains to be answered is whether soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand of dowry. Vidya Sagar (PW-1), brother of deceased deposed that whenever deceased came to his house, she told that her in-laws used to manhandle her and ask her to bring a scooter. This demand was being made by her husband, mother-in-law and father-in-law. The evidence of Vidya Sagar (PW-1) finds support from the evidence of Pushpa Pathak (PW-2), mother of the deceased, who deposed that for about one year after the marriage of Sonika, her in-laws kept her well, but, thereafter, whenever she came to her house, she complained that accused persons made demand of a scooter. There is nothing in the evidence of these witnesses to indicate that the accused persons caused the death of deceased for not meeting the demand of dowry. There is also no evidence on record to indicate that the accused persons harassed or subjected the deceased to cruelty for or in connection with any demand of dowry soon before her death. 9 In Kailash vs. State of M.P. (2006) 12 SCC 667 the Apex Court, affirming the law laid down in Kans Raj vs. State of Punjab and others (2000) 5 SCC 207, held: 18. On examining the factual position in the present case in the light of above proposition of law, we find that prosecution failed to establish that death of the deceased was caused in connection with demand for dowry that too soon before the death of deceased. Since, no nexus could be established by the prosecution evidence between demand of scooter and the death of deceased, the provision relating to presumption under Section 113-B can also be not made applicable. As such the conviction of accused persons under Section 304-B of Indian Penal Code cannot be sustained. However, from the evidence of Vidya Sagar (PW-1) and Pushpa Pathak (PW-2) it can be gathered that after the marriage, both the accused persons had harassed and subjected Sonika to cruelty to meet their unlawful demand of a scooter. Therefore, their conviction by the trial Court under Section 498-A of the Indian Penal Code deserves to be affirmed. 19. In view of the above discussion, conviction and sentence of both the appellants under Section 302/34 of the Indian Penal Code is set aside. Appellant No.1 Ram Bhadra is, however, convicted under Section 304-I of the Indian Penal Code and sentenced to rigorous imprisonment for 10 years. Conviction of both the appellants under Section 304-B/34 of the Indian Penal Code is set aside. They are acquitted of that charge. Conviction of both the appellants under Section 498-A of the Indian Penal Code is affirmed. However, in view of the old age of appellant No.2 Deowati, who must be of around 70 11 years of age now, and long lapse of time after the incident, sentence of both the appellants on that count is reduced from 2 years to rigorous imprisonment for six months only. It has been pointed out that appellant No.2 Deowati has already suffered custody for a period of six months, therefore, she need not surrender. 20. Appeal partly allowed.

Ram Bhadra Tiwari vs The State Of M.P on 14 May, 2010

Madhya Pradesh High Court

Gujarat High Court Case Information System Print CR.MA/589020/2009 4/ 4 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 5890 of 2009 ========================================== ARJANBHA RUKHADBHA MANEK & 4 - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================== Appearance : MR KANDRAP H DHOLKIA for Applicant(s) : 1 - 5. MR. A.J.DESAI, ADDITIONAL PUBLIC PROSECUTOR for Respondent(s) : 1, ========================================== CORAM : HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 23/06/2009 ORAL ORDERRULE. Mr. A.J.Desai, learned Additional Public Prosecutor waives service of notice of Rule on behalf of the Respondent State of Gujarat. The present application has been filed by the Applicants accused persons under Section 439 of Criminal Procedure Code for grant of regular bail. The Applicants accused are charged with having committed offence under Sections 302, 307, 143 to 149, etc. of the Indian Penal Code, for which complaint has been lodged being I-CR No. 83 of 2008 with Dwarka Police Station. Learned advocate Mr. Kandrap H. Dholkia for the applicant accused referred to the FIR and submitted that it is evident from the manner in which the incident is said to have occurred and the role attributed to the present applicants accused as none of the applicants accused have caused any injury to the deceased. He further submitted that the other co-accused are alleged to have caused injury to the deceased. For that, he specifically referred to the role attributed to each of the applicants accused herein and submitted that the applicant accused No.1 Arjanbha Rukhadbha Manek is said to have been armed with axe and he is alleged to have caused injury to the complainant and not to the deceased. He further submitted that the complainant has been discharged, and therefore, at the most the offence under Section 307 of IPC could be attracted qua the applicant accused no.1- Arjanbha Rukhadbha Manek. He further submitted that the applicant accused no.2 Derajbha Ajabha Manek is said to have been armed with stick and attributed with the injury to the complainant and the mother and not the deceased. Similarly, applicant accused no.3 Rukhadbha Ajabha Manek is said to have been armed with stick and is alleged to have caused injury to the complainant and the father and not the deceased. The applicant accused no.4 Torubha Rukhadbha Manek is alleged to have caught hold of the complainant and the other co-accused have given the stick blow. Similarly, the applicant accused no.5 Gagubha Ajabha Manek is alleged to have caught hold of the complainant. Therefore, learned advocate Mr. Dholkia submitted that at this stage, considering the role attributed to the applicants accused, they may be released on bail. Learned advocate Mr. Dholkia further submitted that the other co-accused having similar role, have been released as per the order passed by this Court in Criminal Misc. Application No. 3097 2009 dated 9.4.2009, the copy of which is also produced on record. He, therefore, submitted that on the ground of parity, the present applicants may also be released. Learned APP Mr.A.J.Desai referred to the statement of witnesses and submitted that the incident is alleged to have occurred near the boundaries of the field, where the applicants and the other co-accused and assaulting party armed with weapons have assaulted, for which the alleged affence is said to have been committed. However, learned APP conceded that the role attributed to the applicants accused in Criminal Misc. Application No. 3097 of 2009 is also similar to the role attributed to the Applicant accused nos. 2, 3, 4 and 5. Heard learned advocate Mr. Dholkia for the applicants and learned APP Mr. A.J.Desai for the Respondent State of Gujarat. Having regard to the gravity of the offence, the nature of the offence alleged and the manner in which the offence is said to have been committed, particularly when 10 persons armed with lethal weapons have assaulted, causing death of the deceased, is a serious offence. Moreover, the offences alleged are also under Sections 143, 147, 148 and 149 of IPC, where the individual role would not be much relevant. However, since the other co-accused having a similar role, have been released as per order passed in Criminal Misc. Application No. 3097 of 2009 dated 9.4.2009, in the opinion of this Court, the Applicant Nos. 2, 3, 4 and 5 are therefore required to be released on bail on the ground of parity. However, Applicant accused no.1 Arjanbha Rukhadbha Manek, who is alleged to have armed with axe and causing injury to the complainant by assaulting with the axe, cannot be said to be on the same footings, and therefore, he would not be entitled for grant of bail on the ground of parity. The present application, therefore, stands rejected qua Applicant No.1 Arjanbha Rukhadbha Manek. Rule discharged qua Applicant No.1. However, the present application stands allowed qua Applicant Nos. 2 to 5. Accordingly, the Applicant accused no. 2 Derajbha Ajabha Manek, Applicant accused no.3 Rukhadbha Ajabha Manek, Applicant accused no.4 Torubha Rukhadbha Manek and Applicant accused No.5 Gagubha Ajabha Manek, are ordered to be released on bail in connection with I-CR No. 83 of 2008 registered with Dwarka Police Station, on their executing a bond of Rs.10,000/- (Rupees Ten Thousand) each, with one solvent surety of the like amount to the satisfaction of the lower Court and subject to the conditions that they shall: (a) not take undue advantage of their liberty or abuse their liberty. (b) not to try to tamper or pressurize the prosecution witnesses or complainant in any manner. (c) not act in any manner injurious to the interest of the prosecution. (d) maintain law and order and should cooperate the investigating officers. (e) mark their presence before Dwearka Police Station on every 1st day of the calendar month, between 11:00 AM to 2:00 PM. (f) furnish the address of their residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change their residence without prior permission of the Court. (g) surrender their passport, if any, to the lower Court, within a week. If breach of any of the above conditions is committed, the concerned Sessions Judge will be free to issue warrant or take appropriate action in the matter. Bail before the lower Court having jurisdiction to try the case. It would be open to the trial Court concerned to give time to furnish the solvency certificate if prayed for. Rule is made absolute quo Applicant accused nos. 2 to 5. Direct service permitted. (Rajesh H.Shukla,J) Jayanti*     Top

Author: Rajesh H.Shukla,&Nbsp;

Arjanbha vs State on 23 June, 2009

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.25831 of 2011 Firan Yadav @ Kieyab Versus The State Of Bihar ----------- 02/- 25/08/2011 Heard. Call for legible carbon/xerox copy of the case diary in connection with Pandaul P.S. Case No. 128 of 2011 from the court of Chief Judicial Magistrate, Madhubani and put up after receipt of the same. Praveen/- ( Akhilesh Chandra, J.)

Firan Yadav @ Kieyab vs The State Of Bihar on 25 August, 2011

Patna High Court - Orders

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.02.2010 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR W.P.NO.33798 OF 2006 1.K.Anguswamy 2.D.Chakravarthy 3.R.Alfred Wilson 4.G.Subramaniyan 5.M.Alagu 6.S.Thennarasu 7.R.Subbaraju 8.V.Gunasekaran 9.R.Lingathirumarn 10.P.Alagusundaram 11.S.Asokmetha 12.N.B.Vijayakumar 13.M.Subbaiyan 14.M.Vetri Chelvan 15.S.P.Sinua Raja 16.R.Ravikumar 17.G.Ravanan. .. Petitioners Vs. 1.The Secretary to the Government, Home (Police III) Department, Fort St. George, Chennai 9. 2.The Director General of Police, Chennai  5. .. Respondents PRAYER : Original Application No.9658 of 1998 was filed before the Tamil Nadu Administrative Tribunal praying to direct the respondents to consider the claim of applicants for inclusion of their name in the 'C' list of Sub-Inspectors of Police fit for promotion to the post of Inspector of Police for the year 1998-99 and promote them as Inspector of Police and grant them all consequential service and monetary benefits and grant such other further relief. Since the Tamil Nadu Administrative Tribunal was abolished, the O.A. was received by transfer and numbered as Writ Petition. For Petitioners : Mr.M.Muthappan For Respondents : Mr.B.Vijay Government Advocate O R D E R The learned counsel for the petitioners submits that the writ petition has become infructuous. He has also made an endorsement to that effect. 2.In view of the endorsement made by the learned counsel for the petitioners this writ petition is dismissed as infructuous. No costs. vsm To 1.The Secretary to the Government, Home (Police III) Department, Fort St. George, Chennai 9. 2.The Director General of Police, Chennai 5

K.Anguswamy vs The Secretary To The Government on 4 February, 2010

Madras High Court

ORDER S.K. Keshote, J. 1. Heard learned counsel appearing for the petitioner transferee company and perused the entire record of the petition. 2. Learned counsel for the petitioner placed on the record copy of the order dated 12th August, 2004 of the High Court of Judicature at Bombay (Ordinary original civil jurisdiction) in Company Petition No. 394 of 2004 connected with Company Application No. 66 of 2004. The order has been passed by the High Court of Judicature at Bombay on the application of M/s. Bung Agribusiness India Private Limited, the Transferor Company. The High Court of Judicature at Bombay sanctioned the scheme of amalgamation of the transferor company with M/s. Geepee Ceval Protiens & Investment Private Limited, the petitioner herein. 3. In pursuance of the notice of the petition issued to the Regional Director, Department of Company Affairs, Northern Region, Kanpur, he has filed affidavit making averments in para No. 4 thereof that the Central Government has no objection to the proposed Scheme of Amalgamation. 4. The Scheme of Arrangement/Amalgamation between the transferee company and the transferor company has been unanimously adopted by equity shareholders, secured creditors and unsecured creditors in their separate meetings convened and held under the Chairmanship of Mr. Manoj Pareek, Advocate, in pursuance of the order dated 20-2-2004 of the Court in SB Company Application No. 2/2004. The report of the Chairman of the aforesaid meetings has been filed before the Court on 24-5-2004. 5. The circumstances, reasons and grounds that have necessitated and/ or justify the said Scheme of Arrangement/Amalgamation of the transferor company in the transferee company have been set out in detail in para No. 2 of the petition. 6. The aggregate assets of the transferee company and the transferor company after the Scheme comes into effect, shall be more than sufficient to meet their respective liabilities and the said Scheme will not adversely affect rights of any of the Creditors of the transferee company and/or transferor company in any manner whatsoever. Due provisions have been made for payment of all liabilities as and when the same fall due in the usual course. The Scheme of Arrangement/Amalgamation has been approved by the respective Board of Directors of the transferee and transferor companies. 7. No investigation/proceedings have been instituted or are pending in relation to the transferee company under sections 235 to 251 of the Companies Act, 1956 and/or under any other provisions of the Act against it and the transferor company. 8. Having carefully gone through the entire petition and the enclosed documents and keeping in view the fact that the Central Government has no objection in case the Scheme of Arrangement/Amalgamation of the transferor company in the transferee company is sanction and that Shri B.C. Meena, the Official Liquidator had also no objection to sanction thereof, I am satisfied that no one will be prejudiced on sanction of the proposed Scheme of Arrangement/Amalgamation of the transferor company in the transferee company, further the sanction of the said Scheme will be beneficial and also in the interest of transferee company and the transferor company, their shareholders, creditors and all concerned. 9. For the reasons stated above I hereby sanction the Scheme of Arrangement/Amalgamation of the transferor company in the transferee company and it shall be binding with effect from the 30th day of September, 2003 on Transferor Company, Transferee Company, their shareholders and Creditors and all concerned. 10. The applications accordingly stand disposed of.

Author: S Keshote

Geepee Ceval Protiens And ... vs Bunge Agribusiness India (P.) ... on 3 August, 2004

Rajasthan High Court

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 06/07/2006 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.E.N.PATRUDU CRIMINAL APPEAL NO.1267 OF 2003 T.R.Murugeswari .. Appellant Vs. State by Inspector of Police, Kombai Police Station, Crime No.21 of 1997 .. Respondent This criminal appeal is preferred under Section 374 Cr.P.C against the judgment passed by the learned Principal Sessions Judge, Madurai on 24.4.2000 in S.C.No.127 of 1998. !For Appellant .. Mr.S.K.Vellaichamy ^For Respondent .. Mr.P.N.Pandi Durai, APP :JUDGMENT (The judgment of the Court was made by M.E.N.PATRUDU, J.) The legality and correctness of the judgment of the learned Principal Sessions Judge, Madurai in S.C.No.127 of 1998 is challenged before us. 2.The facts leading to the offence are: The deceased Jeyakumar married one Vijayalakshmi P.W.2 and lived for some time. Thereafter, he developed illicit intimacy with the accused, Murugeswari and started living in a separate house, resulting P.W.2 went back to her parents' house. 3.While so, on 11.6.1997, on the date of the incident, P.W.2 came back to the village in order to attend the marriage of her cousin. Knowing the same, the deceased went there and met his first wife P.W.2 and also his child and enquired about the family welfare. This has been disliked by the accused. Therefore, she went there and quarrelled with the deceased as well as with P.W.2. The accused uttered to P.W.2 that "if you want to see your husband, see him right now from toe to head as you cannot see him alive from tomorrow onwards". So saying, she caught hold of the shirt of the deceased and dragged him to her house. This happened between 8.30 p.m. and 9.00 p.m. on 11.6.1997. P.W.2 is the direct evidence of circumstances. 4.P.W.3, a mechanic, who is an independent witness, and residing in the same village, also noticed the same. In the presence of P.Ws.2 and 3, the accused took the deceased to her house. On the same day in the mid night, the occurrence has occurred and deceased was killed. 5.The case of the prosecution is that the deceased sustained as many as 17 injuries and majority of them are incised injuries, including penis was cut from the shaft of the penis 2cm from the perinial part of the remannent portion of the shaft. The deceased died due to the injuries sustained. 6.The entire case of the prosecution rests on the circumstantial evidence. 7.Heard the learned counsel for both sides. 8.The learned counsel appearing for the appellant has contended that the deceased is having number of houses and there is no definite evidence that the deceased was staying along with the accused on the date and time of the offence. 9.We do not agree with this contention. 10.The evidence of P.W.3 is convincing and it had established that the accused and the deceased are living together on 11.6.1997 at about 9.00 p.m. and the accused took the deceased to her house where the incident has occurred. P.W.2 also supported this version. P.W.4 is the brother of the deceased and is living in the same village. He has deposed that P.W.2 who was staying away from the deceased, has returned back to the village in order to attend the marriage and the same fact was learnt by the deceased and due to natural love and affection, the deceased went and met P.W.2, who is no other than his legally wedded wife of the deceased, and also met his child. Therefore, the presence of P.W.2 at the village on the date of incident is proved through the evidence of P.W.3 as well as P.W.4 and the accused is residing with the deceased is also proved. 11.The quarrel between the accused and the deceased was established from the evidence of P.Ws.2 and 3. On the same night, the deceased was murdered in the house of the accused. The utterance of the accused directing towards P.W.2 that if you want to see your husband, better see him right now as there will not be any chance for him to alive from tomorrow, established her intention of eliminating the deceased and the reason for this is that she is apprehending that the deceased might go back with P.W.2 and her child and he may desert her. Therefore, with the same intention, the offence has been committed. 12.Though the entire case of prosecution rests on circumstantial evidence, the fact that men may lie, but the circumstances will never lie cannot be ignored. 13.In this case, the incident occurred in the house of the accused, where the deceased and the accused are residing together and the evidence of P.W.3 has clearly established that he has last seen the accused and the deceased together and both of them went inside after quarrel and on the same night the incident occurred and the accused did not account for the incident. Therefore, this fact is sufficient to connect the accused with the crime. 14.On the next morning, the First Information Report has been registered by the police. The learned Sessions Judge has discussed in detail about the other circumstances leading for the offence. 15.The most important circumstance of last seen together alive is deposed by P.W.3 and there is no reason to disbelieve the evidence of P.W.3 as he is an independent witness. He is neither relative nor a friend of the deceased nor having any enmities with the accused. Therefore, the trial court has rightly believed the evidence of P.W.3 and it is not fair for us to disturb the finding of the trial court. 16.The medical evidence has clearly established that the death is homicide. 17.Therefore, we do not find any reason to disagree with the finding of the trial court either with the conviction or the sentence imposed. 18.Accordingly, the conviction and sentence imposed on the appellant by the trial court are confirmed. 19.The criminal appeal fails and the same is dismissed. vvk To 1.The Principal Sessions Judge, Madurai. 2.The Inspector of Police, Kombai Police Station. 3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

T.R.Murugeswari vs State By Inspector Of Police on 6 July, 2006

Madras High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 1343 of 2007(I) 1. JAMAL. T.E., AGED 53, ... Petitioner Vs 1. DISTRICT COLLECTOR, ... Respondent 2. DEPUTY TAHSILDAR (REVENUE RECOVERY) 3. DHANALAKSHMI BANK LIMITED, For Petitioner :SRI.SHAJI CHIRAYATH For Respondent :SRI.C.K.KARUNAKARAN,SC,DHANALAKSHMI BAN The Hon'ble MR. Justice K.M.JOSEPH Dated :05/12/2008 O R D E R K. M. JOSEPH, J. -------------------------------------- W.P.C. NOS.1343/07 I & 30452/08 A -------------------------------------- Dated this the 5th December, 2008 JUDGMENT It is submitted by the learned counsel appearing on behalf of all the parties that the matter has been settled and no further orders are necessary. Recording the submission, the Writ Petitions are closed. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge 

Jamal. T.E. vs District Collector on 5 December, 2008

Kerala High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2699 of 2010 1. NARESH KUMAR AGED ABOUT 53 YEARS, JUNIOR ENGINEER, ZILA PARISHAD, MADHUBANI S/O LATE JAGDISH PARIHAR R/O STDIUM ROAD, CHITRAGUPTA NAGAR, DISTT.- MADHUBANI Versus 1. THE STATE OF BIHAR 2. THE DISTRICT MAGISTRATE MADHUBANI 3. THE DEPUTY DEVELOPMENT COMMISSIONER CUM CHIEF EXECUTIVE OFFICER ZILA PARISHAD, MADHUBANI 4. THE DEPUTY CHIEF EXECUTIVE OFFICER ZILA PARISHAD, MADHUBANI 5. THE DISTRICT ENGINEER ZILA PARISHAD, MADHUBANI 6. THE SUB DIVISIONAL OFFICER (SUPPLY DIVISION) JHANJHARPUR SUB DIVISION, DISTT.- MADHUBANI 7. THE EXECUTIVE ENGINEER R.E.O. ( W ) DIVISION- JHANJHARPUR, DISTT.- MADHUBANI For the Petitioner: Mr. Chitranjan Sinha, Sr. Adv. Mr. Arun Kumar, Adv. For the Zila Parishad: Mr. Mithilesh Kumar, Adv. For the State : Mrs. Nilu Agrawal, Adv. ----------- KC ( Navin Sinha, J.) 4/ 26/10/2010 Heard learned counsel for the petitioner, learned counsel for the Jila Parishad, Madhubani. The petitioner while working as a Junior Engineer was subjected to a departmental proceeding. The enquiry officer recommended warning. The disciplinary authority on 17.8.2009 differing with the same imposed major punishment of stoppage of two increments with cumulative effect and entry in the service book. Learned counsel for the petitioner made a short submission that warning is not a punishment and therefore there was virtually an exoneration by the enquiry officer. If the disciplinary authority proposed to -2- differ with the same he was required to follow the procedure of a second show cause notice indicating the reasons why on the same materials collected during enquiry he proposed to arrive at a different conclusion along with tentative reasons for the same to enable the petitioner to meet it. Failure to follow this procedure vitiates the punishment. Learned counsel for the Jila Parishad has placed the original records of the proceedings before the Court as directed earlier. From the original records it is manifest that the disciplinary authority proceeded to impose the punishment differing with the enquiry report without issuance of a second show cause notice. The order of punishment dated 17.8.2009 is accordingly set aside. The matter is remanded to the disciplinary authority to proceed afresh from the stage of submission of the enquiry report as discussed above. Let the departmental proceedings be then concluded in accordance with law within a maximum period of four months from the date of receipt/presentation of a copy of this order. The application is allowed.

Naresh Kumar vs The State Of Bihar &Amp; Ors on 26 October, 2010

Patna High Court - Orders

ORDER P.C. Jain, Member (T) 1. Matters called. None for the respondents but they have stated that the case may be decided on merits since they are unable to appear being small scale manufacturers. Accordingly we have heard the ld. JDR Shri S. Nunthuk, JDR, for the Revenue. 2 Question involved in the present matters is regarding the classification of bolts, screws, shaft, nuts, etc. for electrical control panels manufactured by the respondents herein on specific drawings and designs supplied by the customers. The question here is whether they have to be classified as parts of electrical machinery under Chapter 85 as contended by the respondents or whether it be classified under Tariff Heading 7318.00 as contended by the Revenue. The lower appellate authority in the impugned order has held regarding the aforesaid products that their exact functions should be ascertained, in case these are only used as fasteners without any other specialised application, they would qualify for classification under Chapter sub-heading 7318.00 If these items perform specialised functions with function of fasteners being only incidental these are classifiable under parts and equipments of machinery for which these are obtained. In view of the said observations the matter was remanded to the original authority for de novo proceedings and classification be determined in accordance with the foregoing observataions. Hence these appeals by the Revenue. 3. Ld. JDR Shri Nunthuk, for the Revenue urges that the lower appellate authority has committed an error of law inasmuch as Note 2(a) of Section XV of CETA, 1985 states inter alia that throughout the Schedule the subject "parts of general use" means articles under Heading 73.18 among articles of other headings, and similar articles of base metal. Now, Heading No. 73.18 specifically includes screws, bolts and nuts and similar articles of iron and steel. It is, therefore, apparent, submits the ld. JDR, that the articles under consideration here in the present cases fall under Tariff Heading 73.18 by virtue of statutory Note 2(a) of Section XV. He, therefore, submits that the impugned order is not correct in law and therefore should be set aside. 4. We are in agreement with the submissions of the ld. JDR in view of the specific Note 2(a) of Section XV of Schedule to the Central Excise Tariff Act, 1985. Consequently these are to be classified under Tariff Heading 7318.10 and we set aside the impugned order and restore the order-in-original. 5. Before parting with this order we may also mention that Note l(g) of Section XVI specifically excludes "parts of general use" as mentioned in Note 2 of Section XV from the scope of Section XVI under which Chapter 85 falls. Therefore, the classification contended by the respondents does not hold good. Appeals disposed of in the above terms.

Collector Of Central Excise vs Refair Industries on 20 April, 1998

Customs, Excise and Gold Tribunal - Delhi

Gujarat High Court Case Information System Print FA/5355/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 5355 of 2008 ========================================= BHARTIBEN MAHESHKUMAR RANINGA Versus GIRISH PRABHASHANKAR PANDYA AND OTHERS =========================================Appearance : MR AMAR D MITHANI for the Appellant ========================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 25/03/2010 ORAL ORDER(Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) ADMIT. (BHAGWATI PRASAD, J.) (J.C. UPADHYAYA, J.) omkar     Top

Author: Bhagwati Prasad,&Nbsp;Honourable J.C.Upadhyaya,&Nbsp;

Appearance vs Unknown on 25 March, 2010

Gujarat High Court

JUDGMENT Bennet, J. 1. This is a second appeal by the plaintiffs-appellants against an order, in appeal, of Mr. Norton, the learned District Judge of Jhansi, dismissing the suit of the plaintiffs for possession of a grove No. 704 of mauza Kuthonda in Jalaun District. The sole ground on which the lower appellate Court has proceeded is that the matter is res judicata between the parties on account of previous litigation in the revenue Courts. The previous litigation consists of a suit for ejectment brought by the present respondent Rao Sahib Udaibir Singh against one Mulu as his non-occupancy tenant of less than 12 years standing. The present respondent granted a lease to Mulu and in the same year in which he granted the lease he brought a suit for ejectment against Mulu. That suit for ejectment was dismissed by the Assistant Collector but was decreed in appeal by the Commissioner on 12th July 1922. During the pendency of the suit in the Court of the Assistant Collector the present appellant applied to be made a party. The revenue record is not before this Court but it appears to me that the Assistant Collector allowed the name of the present appellant to be added as a defendant on the analogy of the provision of Section 198, Act 2 of 1901. The plea of Mulu was that he was looking after the land as a grove on behalf of the present appellant who was his master. Section 198, Act 2 of 1901, allows a third party to be added if the alleged tenant pleads that he is a tenant of that third party. In the present case the alleged tenant did not plead that he was tenant of the third party but that he was the servant of third party. It would also have been possible for the revenue Court to have added the present appellant as a party under the general provisions of the Civil Procedure Code, Order 1, Rule 10. But whether the re venue Court purported to act under Section 198, Act 2 of 1901, or under the general provisions of the Civil Procedure Code, I consider that Sub-section 2, Section 198, would limit the decisions of the revenue Court in so far as such decisions concern the rights of the person added as a defendant. That sub-section states: The decision of the Court on such question shall not affect the right of any person entitled to the rent of the holding to establish his title by suit in the civil Court. 2. The next point to which attention may be invited is that the plea of the present appellants that they have the rights of a grove-holder in this number as against the present respondent who is the zamindar of the entire village was not one of the three issues framed by the Assistant Collector. Those three issues were. (1) Whether the relation of landlord and tenant exists between the plaintiff and defendant 1 (i.e., Mulu)? (2) Whether the land in suit is agricultural land or grove? (3) Whether the plaintiff is entitled to eject the defendant (meaning Mulu, defendant 2)? 3. The third point to which attention may be invited is that the learned Commissioner specifically states in his judgment in appeal: Regarding issue 3 I find that appellant is entitled to eject Mulu, respondent 1 who is his tenant. But he is not entitled under the Tenancy Act to eject Sridhar and Ramdin who appear to be trespassers and not tenants. 4. It was argued for the respondent that on issue 2 the learned Commissioner found: I find that the land in suit is neither agricultural land nor a grove. 5. But such a finding in regard to the state of No. 704 in the year 1921, cannot possibly be res judicata in the present suit which is whether the appellant had got the rights of a grove holder in No. 704 in 1924. 6. The fourth point to which attention should be directed is that under Section 11, Civil, P.C. the issue which is res judicata must have been decided "in a Court competent to try such subsequent suit." The revenue Courts are not competent to try the present suit. Therefore the finding of the revenue Court cannot amount to res judicata. The learned Counsel for the respondent admitted that the finding of the learned District Judge that this suit was barred by res judicata could not be upheld. He advanced the argument that the suit of the plaintiff appellant might be barred by estoppel because a decree if granted to him would affect the decree granted by the revenue Courts. It appears to me that the decree granted by the revenue Court was merely that Mulu should be ejected from No. 704. A decree granted to the plaintiff in the present suit would not in any way affect the decree granted by the revenue Court on appeal. Accordingly I allow the appeal with costs and remand the suit for decision by the lower appellate. Court on the other issues.

Author: Bennet

Shri Dhar And Anr. vs Udaibir Singh Judeo on 30 April, 1928

Allahabad High Court

* HIGH COURT OF DELHI : NEW DELHI Judgment pronounced on: 29.07.2011 + IA No.15781/2008 & IA No. 3085/2009 in CS (OS) No. 2682/2008 SUPER CASSETES INDUSTRIES LTD. ..... Plaintiff Through: Mr Amit Sibal, Adv. with Mr Harsh Kaushik, Mr Rahul Ajatshatru, Mr Siddharth Silwal and Mr Shravanth Shankar, Advs. Versus MYSPACE INC. & ANOTHER ..... Defendants Through: Mr Rajender Kumar, Adv. with Ms Latha R. Nair and Mr Prashant Gupta, Adv. Coram: HON'BLE MR. JUSTICE MANMOHAN SINGH 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported Yes in the Digest? MANMOHAN SINGH, J. b) IA No.3085/2009 under Order 39 Rule 4 CPC. IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.1 of 132 User   MySpace sends the streaming Simultaneously, a copy of the video and audio content from chosen video and/or sound MySpace‟s servers to the user‟s recording is downloaded from computer or other device where it the MySpace website to the can be seen and heard. user‟s computer.   User clicks on preferred search result.  "(i) grant an order of permanent injunction restraining the defendants, their officers, IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.7 of 132 (v) grant costs of the instant suit to the plaintiff; and (vi) pass any other such order(s) in favour of  The Hash Block Filter  Take Down stay Down  Rights management tool (i) As a means of interpretation; (ii) Justification or fortification of a stance taken; (iii) To fulfill spirit of international obligation which India has entered into, when they are not in conflict with the existing domestic law; (iv) To reflect international changes and reflect the wider civilization; (v) To provide a relief contained in a covenant, but not in a national law; (vi) To fill gaps in law. " (i) to reproduce the work in any material form including the storing of it in any medium by electronic means; (ii) to issue copies of the work to the public not being copies already in circulation; (iii) to perform the work in public, or communicate it to the public; IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.47 of 132 (iv) to make any cinematograph film or sound recording in respect of the work; (v) to make any translation of the work; (vi) to make any adaptation of the work; (vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub clauses (I) to (vi) (b) In the case of a computer programme,- (i) to do any of the acts specified in clause (a) (ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme (i) to reproduce the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work; (ii) to communicate the work to the public; (iii) to issue copies of the work to the public not being copies already in circulation; (iv) to include the work in any cinematograph film; (v) to make any adaptation of the work; (vi) to do in relation to an adaptation of the work any of the acts specified in relation to the work in sub clauses (i) to (iv); IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.48 of 132 (d) In the case of a cinematograph film- (i) to make a copy of the film, including a photograph of any image forming part thereof; (ii) to sell or give on hire, or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions; (iii) to communicate the film to the public (e) In the case of a sound recording- (i) to make any other sound recording embodying it; (ii) to sell or give on hire, or offer for sale or hire, any copy of the sound recording regardless of whether such copy has been sold or given on hire on earlier occasions; (a) playing sound recordings, IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.52 of 132 (b) showing films, or (c) receiving visual images or sounds conveyed by electronic means, the following persons are also liable for the infringement. (2) A person who supplied the apparatus, or any a) he knew or had reason to believe that the apparatus was likely to be so used as to infringe copyright, or b) in the case of apparatus whose normal use involves a public performance, playing or showing, he did not believe on reasonable grounds that it would not be so used as to infringe copyright. (3) An occupier of premises who gave permission for 1. By this order, I shall dispose of the following applications: 3. The plaintiff further states that the business of the plaintiff which is film producing, music distribution etc is largely dependant upon the exploitation of its copyright. The said copyright exploitation enables the plaintiff to sustain its creative activities thereby giving opportunities to many talents including composers, artists, singers, etc. The plaintiff states that the monetary gains arising from copyright exploitation further empowers it with financial strength to carry on its business of film making. The infringements of such works of the plaintiff, thus, causes royalty losses to the plaintiff and are responsible for the loss in the business of the plaintiff. 4. The plaintiff claims that the copyright exploitation of the works is done by the licensing system whereby the plaintiff gives public performance licences to the parties who in turn give the plaintiff the necessary royalty. The plaintiff has filed the catalogue in which the plaintiff has claimed copyright and also filed the documents to the effect of showing its licencing scheme. IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.2 of 132 5. The defendant No. 1 is stated to be a social networking and entertainment website which offers a variety of entertainment applications including sharing, viewing of music, images, cinematograph works having its base in the United States of America. The defendant No. 2 is the owner of the defendant No. 1 which is stated to be a division of News Corporation, Fox Interactive media which is offering, border free online network that caters to consumers by giving them platform or tools. 6. As per the plaintiff, the defendant No.1 describes the website as a place for friends and projects its website as a place to upload pictures and videos. The said website myspace.com provides country specific content and is one of the most popular social networking and content sharing website in the world. The plaintiff contends that the defendants‟ basic point of attraction in running this website is to make available the multimedia content including songs, pictures, clips which can be seen and shared by the user over the internet space. The said website of defendant No. 1 not only includes recently released infringing material but also the material which has not yet been released or is authorized for broadcast through the authorized distribution channels. 7. The features of the website are being described as that the user or visitor need not subscribe to the website in order to enable him to search and view the video on the same. But for the purposes of uploading IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.3 of 132 a video on to the website, the user is required to subscribe and create a user profile. It is also pointed out in the plaint that when a user in India visits the said website the said user is immediately forwarded to India centric version of the website namely in.myspace.com which is catering to the Indian community. 8. The plaintiff states that the website of the defendants contains the additional features and instructions which encourages the users and enables them to learn how to share videos. These additional functions create additional unauthorized copying, electronically store, transmit the content that infringes the rights of the others including the plaintiff. 9. The website of the defendants is stated to also generate revenue by offering of this illegal content/ infringing works. The said revenue is made through the medium of advertisements being displayed on each webpage. The whole business of the defendant No. 1 is specifically depends upon authorizing free uploading and then distributing the content through downloading or streaming content to end users. 10. The complaint of the plaintiff emerges from the kind of business model adopted by the defendants wherein it states that the songs, cinematograph works including the ones which are for new movies or upcoming movies distributing which the plaintiff earns its revenue and completes its cost of film making gets deprived due to illegal IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.4 of 132 dissemination of the songs, cinematographs works by the defendants on internet whereby the defendants encourages and authorizes the users to share these contents and the end users are benefitted with the said songs and films free of charge by in turn distribution by the defendants to the public at large. 11. The plaintiff has also explained the operation of the website of the defendants in the following manner: MySpace provides for users a search and indexing function which allows users to search for the video/sound recording and provides a list of thumbnails search results in response to the search.  MySpace makes a copy of the uploaded video or sound recording in its own software format, and stores it on its own servers. IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.5 of 132  Subscriber uploads video recording (cinematograph film) or sound recording on MySpace website using facility provided by MySpace. 12. The plaintiff has stated that in the year 2007 a non disclosure agreement was signed between the plaintiff and the defendants and thereafter there were in talks with the defendants whereby the defendants were called upon to take the licences from the plaintiff. But, the talks broke down and the defendants rather offered the plaintiff to go for registration of rights management tool programme by way of email dated January 18, 2008. However, the plaintiff then gave a legal notice on 20.2.2008 informing the defendants about its rights. The reply to the notice of the plaintiff by the defendants was issued on 12.3.2008 wherein the defendants assumed that the content of the plaintiff copyright has been taken down and also that the same shall not be made available on the website in future. 13. However, in December 2008, it was realized by the plaintiff that the defendants have not removed the said infringing material from the website. The said infringing material despite the assurance of the defendants was still available on the website of the defendants. The plaintiff has enumerated the infringing material as on December 2008 in the plaint which can be outlined as under: IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.6 of 132 LANGUAGE SUB-GENRE TITLE SINGER/ARTIS EXPECTED RELEASE DATE PUNJABI ALBUM Punjaban Pammi Bai 17th Dec 2008 PUNJABI ALBUM As Kudiye Labh Janjua, 17th Dec 2008 Kuldeep Sandhu, Karan Mahi, Onkar Onki, Vicky Bhoi and Kulwinder Singh HINDI ALBUM Hari Om Hari Haran 18th Dec 2008 PUNJABI ALBUM Bottle Wargi Ravinder Grewal 18th Dec 2008 PUNJABI ALBUM Don‟t Mind Aman Riar 24th Dec 2008 HINDI FILM JAANE TU YA IMRAN KHAN, 12.12.08 JAANE NA GENELIA D‟SOURZA, MANDHRI PADHNIS, AIYAZ KHAN & OTHERS HINDI COMPILATIO 2008 IT‟S 12.12.08 N ROCKING (SET) OF TWO CD, MC-SINGLE) HARYANVI RAJA NARENDRA 16.12.08 HARISHCHAND KAUSHIK, RA MEENAKSHI PANCHAL PUNJABI ALBUM DEEWANA SANDEEP 18.12.08 TERA SANDHU PUNJABI ALBUM SARDAR GARY HOTHI 22.12.08 BHOJPURI FILM SWARG JAISAN DHEERAJ 26.12.08 GHAR SANSAR- PANDIT, MILI PART 1 & 2 PRIYA, SUBHASH BHARGAV, VANDANA, KSHITIJ PRAKASH, RENU MISHRA, VIJAI RAI 14. Thereafter, the plaintiff filed the present suit feeling dissatisfied with the assurances of the defendants and sought the interim reliefs from this court to the following terms: employees, agents, servants and representatives and all others acting on their behalf and in active concert or participation with them or any of them from reproducing, adapting, distributing, communicating, transmitting, disseminating or displaying on their website www.myspace.com, www.in.myspace.com or any sub-domain thereof or otherwise infringing in any manner the cinematograph films, sound recordings and/or the underlying literary or musical works in which the plaintiff owns exclusive, valid and subsisting copyright(s); (ii) grant an order of permanent injunction restraining the defendants, their officers, employees, agents, servants and representatives and all others acting on their behalf and in active concert or participation with them or any of them from causing, contributing to, inducing, enabling, facilitating or participating in the infringement of the cinematograph films, sound recordings and/or the underlying literary or musical works in which the plaintiff owns exclusive, valid and subsisting copyright(s) on their website www.myspace.com, www.in.myspace.com or any sub-domain thereof or otherwise; and (iii) grant an order of rendition of accounts by the defendants to the plaintiff; (iv) grant an order requiring the defendants jointly and severally to pay damages as stated hereinabove to the plaintiff; the plaintiff and against the defendants as may be deemed fit and proper by this Hon‟ble Court in the interest of justice and equity." IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.8 of 132 15. The matter was first listed before this court on 19.12.2008 when the defendants also appeared as caveators and this court was passed the following order : 16. The said order was challenged before the Hon‟ble Division Bench, wherein the Hon‟ble Division Bench passed the following order with the observation that the said order is an interim measure and will not come in the way of the Learned Single Judge in deciding the interim IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.9 of 132 applications. The said order of Learned Division Bench is reproduced hereinafter: 17. The defendants have filed its written statement and replied to the application seeking interim injunction. The defendants have also filed an application under Order 39 Rule 4 seeking modification of the order passed on 19.12.2008. The defendants have also amended the written statement and in the amended written statement they have raised the following defences : IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.10 of 132 a) This court does not have territorial jurisdiction to entertain and try the present proceedings on the grounds:  The defendant No.1 is a foreign national and is carrying on business outside the jurisdiction of this court in US.  No part of cause of action has occurred with in the territorial jurisdiction of this court.  The defendant No.1 is not amenable personally to jurisdiction of this court and therefore cannot be compelled to be under the jurisdiction of this court.  The website of defendants cannot close the jurisdiction to this court as it does not pass the tests laid down in the case of Banyan Tree Vs. A. Murali Krishna Reddy & Anr, 2010 (42) PTC 361 (Del).  The exercise of jurisdiction by this court would mean that the court is giving extraterritorial effect. b) That the suit is not maintainable as the prayers made in the suit are non specific and if granted it will impose impossible burden upon the defendant No. 1. The plaintiff has failed to specify in respect of which works, it is seeking injunction order and thus the suit is not maintainable. IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.11 of 132 c) The prayers made in the suit are open ended and the blanket injunction of the kind cannot be granted by the court. No qua timet action is maintainable in suit for copyright infringements d) The plaintiff has made certain misrepresentations about the facts which according to the defendants were not mentioned in the legal notice in the year 2008 and the defendants have clarified all the aspect work wise. e) The acts of defendants are those of intermediatory providing free of cost platform to the users without any actual or direct knowledge of the content being uploaded and has no role in selection of the content so uploaded. The defendants have no control over the said content being uploaded as the portal of the defendants is such where it cannot exercise any such control. f) The acts of the defendants are those of intermediatory and are protected under the provisions of Section 79 of Information Technology Act, 2000. The said provision will act as safe harbor provisions of US Digital Millennium Copyright Act ("DMCA") whereby the liability of the defendants shall be exempted by operation of Section 79 of IT Act, 2000. g) The agreements or the assignments which are placed on record by the plaintiff are defective. The said agreement reveals that the rights of the movies vest with the producers and they have retained IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.12 of 132 the said rights including internet rights. Thus, the rights which are asserted by the plaintiff actually do not belong to the plaintiff. h) The defendants only provides a means for file sharing where the acts which are performed may or may not be infringing and thus mere providing of means is no infringement under the eyes of the law. i) The acts of the defendants are protected under the provisions of Digital Millennium Copyright Act ("DMCA") of United States. j) The defendants have provided the term of use agreement with users which reads as under: IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.13 of 132 8.16 Violates the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person" Thus, the defendants themselves require their users to respect the copyright of the others and have all intention to remove the infringing content whatsoever from its website. k) The defendants do not derive the monetary gains against the advertisement in the user generated content. The advertisements may exist on the same page as on User Generated Content but they are not really against the user generated content but against the licensed content. l) The defendant No. 1 acts as merely a licensee of the user wherein it takes a limited license from the user to add, delete or modify the content so that the same is befitting to its website to make it viewable. But the said defendant does not have any other license to sell those works or make it public outside its services. Vide clause 6.1 of the User Agreement, the said defendant binds its users to grant it a limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and distribute such UGC solely for the purposes of the website. The said clause reads as under: "6.1 MySpace does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.14 of 132 works of authorship, applications, or any other materials (collectively, "Content") that you post on or through the MySpace Services. After posting your Content to the MySpace Services, you continue to retain any such rights that you may have in your Content, subject to the limited license herein. By displaying or publishing ("posting") any Content on or through the MySpace Services, you hereby grant to MySpace a limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce, and distribute such Content solely on or through the MySpace Services, including without limitation distributing part or all of the MySpace Website in any media formats and through any media channels, except Content marked "private" will not be distributed outside the MySpace Website. This limited license does not grant MySpace the right to sell or otherwise distribute your Content outside of the MySpace Services. After you remove your Content from the MySpace Website we will cease distribution as soon as practicable, and at such time when distribution ceases, the license will terminate. If after we have distributed your Content outside the MySpace Website you change the Content‟s privacy setting to "private," we will cease distribution of such "private" Content outside the MySpace Website as soon as practicable after you make the change." m) The uploaded content can be identified only by way of URL (Uniform Resource locator) as an address and the defendants cannot thus segregate the infringing or non infringing works. n) The defendants have installed a notice and take down procedure in compliance of Digital Millennium Copyright Act ("DMCA") of US same as earlier one wherein, any proprietor who has a reason to believe that the copyrighted content has been posted on the website, can issue notice and ask to take down the request and the IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.15 of 132 defendants will immediately take the corrective measures to take down and remove the said content. o) The defendants have also provided three safeguards on its own: The Hash Block filters prevents the deleted content from being reposted by taking finger print of the content. The Take Down stay down contents also prevents the repetitive reposting of the file containing identical content. Thus, the said filter is also a useful identifier for preventing repetitive infringement. The third tool has been explained by the defendants in detail which is as under: The most powerful filtering tool that defendant No.1 makes available to copyright owners is the free RMT Copyright Filter. The defendant No.1 allows any copyright owner to register for and use this tool at no charge subject to a single registration agreement. A copy of the standard RMT Registration Agreement applicable in this behalf has been filed along with the list of documents. To take advantage of the RMT, all that the copyright owner needs to do is, IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.16 of 132 register with the defendant No.1 and then create "fingerprints" of its audio or audio visual content (using the free software that the said defendant makes available through its filtering vendor called Audible Magic). The copyright owner submits the fingerprints to the defendant‟s filtering vendor with associated business rules, e.g., the copyright owner can decide to block all of its content or rather allow users to post certain pieces of content that it is trying to promote. Thereafter, if the copyright owner instructs that all of its content should be blocked, the defendant No.1‟s RMT Copyright Filter will be set to block all content uploaded by users that matches the copyright owner‟s content. This means if any piece of content is uploaded that matches any 30 seconds of the copyright owner‟s content, it would be blocked (the 30 seconds of matched content is the technical limit for the filtering technology). If the copyright owner, therefore, submits fingerprints to the RMT Copyright Filter, it can avail themselves of extremely broad copyright protection on its website. Upon signing up for the RMT (as well as signing Audible Magic‟s own short agreement regarding the use of its signature generation software), the content owner need not ever part with its content to receive the benefits of filtering. Rather, the content owner need only itself create the IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.17 of 132 fingerprints of its content, by using Audible Magic‟s free software, and then send such fingerprints to Audible Magic with appropriate usage instructions (i.e., "block" or "allow"). The defendant No.1 also periodically runs the filter retroactively over its website, again at its own cost, over all the content that has already been posted on its website. Accordingly, if content was uploaded by a user before a copyright owner was able to add it to Audible Magic‟s reference database of fingerprints, the filter will catch such previously uploaded content and remove it. Thus, as per the defendants all these measures are nothing but safeguards to prevent infringement and sufficiently demonstrates their bonafides and non involvement in the infringing acts. p) The defendants have launched their India operations in December 2007 and immediately informed all the music companies about its right management tool so that the infringement can be minimized and the plaintiff cannot blame the defendants for its own reluctance to subscribe to such facility and for the resulting infringements due to its non subscription. q) That the interim arrangement recorded in the Hon‟ble Division Bench‟s Order dated March 6, 2009 embraces the "notice and take down" protocol set forth as a legal norm in the laws across the world including the laws of India to deal with the issues of on-line IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.18 of 132 liability. Consequently, the said interim order represents the only feasible answer to the grievance of the Plaintiff, if found to be well founded in law and fact. r) The Plaintiff has made misrepresentation of facts that the defendants do not have any control over the content posted on their website by the users. Further, the defendants do not target Indian customers. The advertisements that may appear along with the thumbnails are a result of an automated process carried out by a search engine, which is term centric and not content centric. 18. The applications came up for hearing from time to time and clarifications were also sought from the parties after reserving the matter for orders. 19. Learned counsel Mr. Amit Sibal appearing on behalf of the plaintiff has made his submissions which can be enunciated as under: a) Firstly, learned counsel Mr Sibal has submitted that the acts of the defendants wherein the defendants have used the copyrighted works of the plaintiff without licence or any authority, amounts to primary acts of infringement. Learned counsel has placed reliance on the provisions of Section 51 (a) (i) of the Copyright Act, 1957 (herein after referred as to as „Act‟) and argued that the defendants are communicating the works of the plaintiff to the public without IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.19 of 132 authority or licence and thus causing royalty losses in addition to making the work available to the public which only owner of the work is entitled to do. Therefore, the present case is a squarely a case of primary act of infringement as provided under Section 51 (a)(i) of the Act. b) Secondly, learned counsel Mr Sibal has argued that the present case comes within the purview of Section 51 (a) (ii) of the Act as the defendants by providing a space to the users and enabling them to communicate the work to the public for the defendants‟ own profit are actually permitting the place for infringement for their profit which is an infringement prescribed under Section 51 (a) (ii) of the Act. Mr. Sibal argued that providing webspace to the user is amounting to permitting the place. The expression "place" has to be interpreted to subsume not merely physical place or space but also space at the virtual world of internet. It is also pointed by the learned counsel that the defendants has not, in the pleadings, contested that MySpace website is a "place" within the meaning of Section 51 (a) (ii) of the Act. c) Further it is explained by Mr Sibal that the defendants have not disclosed to the court that the defendants‟ acts are not totally without consideration in providing the space to the users. But, actually the defendants have purely and largely have commercial IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.20 of 132 interest in operating this kind of arrangement. As per Mr Sibal, it would not be unapt to call this as purely a commercial model as the defendants are reaping profits from all the advertisers by putting the advertisements along side the sound recordings and the cinematographs works of the plaintiff. By doing all this, the defendants are permitting a place to be used for infringement for profit. The same is an act of infringement under Section 51 (a) (ii) of the Act. In order to support his contention Mr. Sibal relied upon the following judgments: f) Learned counsel Mr. Sibal vehemently argued that the "notice and take down" alternative which has been suggested by the defendants do not mitigate the wrongs of the defendants and is not a sufficient safeguard for an infringement which occurs on day to day basis. This has been explained by Mr. Sibal by informing that the new musical and cinematograph works are made from time to time, as and when there are promotions of new movies. The availability of the said trailors or musical works on internet would mean sharing the same with public at large. Notice and turn down provisions which provides the aggrieved party to get the defendants to notice the already occurring infringement and thereafter the defendants remove the contents on internet. The said procedure is inappropriate and does not remedy the infringement, as by the time notice to turn down is given by the plaintiff to the defendants, infringement is already caused whereby the works of the plaintiff are already circulated to the public at large. Thus, the procedure suggested by the defendants to first make the infringing work available and then to delete on request is IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.24 of 132 bad and puts to the plaintiff into irretrievable harm by causing infringement of each and every new work of the plaintiff and enough damage is already done prior to making such turn down request. As per Mr. Sibal, the question has to be seen from the perspective as why the defendants should be at all allowed to cause infringement of the plaintiff works at the first place and more so when the said acts are the conscious acts where the defendants are also getting benefitted. g) It is also the contention of Mr. Sibal that the defendants, refuge under the safe harbor provisions of the law will not be applicable to the present case. The present case is to be decided upon the existing legal position and the law of the land and not as per the US Digital Millenium Copyright Act. The said act and provisions under the said act does not extend to India and neither there is any provision under the existing laws which provides such safe harbor provisions and in the absence of the same, the discussion relating to the same in relation to infringement of the plaintiff‟s works in India becomes irrelevant. In short, the Digital Millennium Copyright Act ("DMCA") is not applicable to the present dispute. By making the above submissions, Mr. Sibal argued that the plaintiff has prima facie case as there is no denial to the title of the works owned by the plaintiff and there are infringing activities IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.25 of 132 being carried on the internet without authorization of the plaintiff. Further, the defendants are doing the same deliberately and causing the plaintiff royalty losses. The balance of convenience also lies in favour of the plaintiff and they are more inconvenient in the event of non grant of injunction as their works are continuing to be infringed on internet. On the other hand, the defendants can still continue their acts without displaying the works of the plaintiff‟s on the web. The plaintiff is put to irretrievable harm due to the illegal acts of the defendants and its extensive royalty losses due to the same and the defendants have nothing to loose, except, the illegal earnings arising out the infringing activities. Thus, as per the learned counsel Mr Sibal, the present case warrants the grant of injunction as per the prayers made in the injunction application and the order dated 19.12.2008 which has been modified by the Division bench further records that the same shall not come in the way of the learned single judge to decide the injunction application and thus this court can conveniently grant and extend the injunction in terms of the injunction application. 20. Per contra, Mr. Rajinder Kumar, advocate, appearing on behalf of the defendants has resisted the injunction application and also submitted that the present case does not warrant the grant any injunction IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.26 of 132 at all. Learned counsel Mr. Kumar has made the submissions which can be outlined in the following terms. a) Mr. Kumar firstly submitted that this court lacks necessary territorial and personal jurisdiction to entertain and try the proceedings against the defendants who are carrying on business, residing and personally works for gain in the United States of America. Mr. Kumar in order to buttress his submissions relied upon the following :  The present case lacks territorial jurisdiction in view of the well settled law by this court in the case of Banyan Tree (Supra) wherein this court has extensively dealt with the subject of jurisdiction in the cases involving websites. The said case falls within the observations of Banyan Tree IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.27 of 132 (Supra) and thus this court does not have territorial jurisdiction to entertain and try the present proceedings.  Even if the web-site of the defendants is interactive, the same by itself is not sufficient to clothe jurisdiction upon this court.  The defendants‟ web-site, which is accessible and available to all and sundry from any part of the world, is not specifically targeted at users in India. The Plaintiff has not shown or pleaded prima facie that the defendant No.1 „purposefully availed‟ itself of the jurisdiction of this Hon‟ble Court; that the nature of the activity indulged in by the defendants by the use of their web-site was with an intention to conclude a commercial transaction with the web-site user (since the defendant No.1‟s services are completely free of charge); and that the specific targeting of this forum state by the defendants have resulted in an injury or harm to the Plaintiff within this forum court.  The Plaintiff has pleaded that the defendants‟ web-site is a highly interactive web-site which not only permits users to access the contents thereof but also to subscribe to the services provided by the defendants by "signing up" for such services, including, the uploading and downloading of IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.28 of 132 videos available on the web-site. The plaint and the documents filed by the Plaintiff no-where show that the defendants‟ use of its web-site is with an intention to conclude a commercial transaction with its users. On the contrary, the subscription to the services offered on defendants‟ web-site is free and does not involve any future payment.  Even for the purposes of Section 20(c), CPC, in order to show that some part of the cause of action has arisen within the jurisdiction of this Hon‟ble Court by the defendants‟ use of the internet, the Plaintiff must show and prove that not only the defendants‟ specifically targeted viewers within the jurisdiction of this Hon‟ble Court but also that some commercial transaction using the web-site was entered into by the defendants with a user of its web- site within this forum resulting in an injury or harm to the Plaintiff within the jurisdiction of this Hon‟ble Court.  No such material has been placed on record by the Plaintiff that the defendants have entered into commercial transactions with the users of its web-site in Delhi or anywhere in India for that matter. IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.29 of 132  Further, the Plaintiff has sought to establish jurisdiction on the basis of certain print-outs from the defendants‟ web- site to purportedly show availability of the Plaintiff‟s works on the said web-site for public performances, display and communication of the same to the public. No details of the users involved have been provided anywhere in the plaint. These print-outs seem to indicate that the Plaintiff has set-up its own people to access the defendants‟ web-site and engineer the search results to suit its convenience. As held by the Hon‟ble Division Bench in the case of Banyan Tree (Supra), it would have to be a real commercial transaction that the defendants have with someone not set-up by the Plaintiff itself. The Banyan Tree (Supra), opinion further holds that if the only evidence is in the form of a series of trap transactions, they have to be shown as having been obtained using fair means. The Plaintiff in the present case has failed to aver in the plaint and place alongwith it any supporting material to Thus, as per Mr. Kumar, learned counsel for the defendants, this court lacks the territorial jurisdiction due to the above said IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.30 of 132 reasons and this court should reject the plaint or return it to be presented before the appropriate forum. b) Mr. Kumar learned counsel for the defendants has argued by explaining the meaning of copyright in the cinematograph films that the copyright in any work can be infringed when the infringer actually indulge into the said act of infringement. The infringement cannot occur for the acts which the said defendants may indulge in future or which are not even entered into occurrence. It is the contention of learned counsel for the defendants that the plaintiff is seeking the general kind of injunction which is impermissible in law as there must be specific acts complained of for infringement to happen and the court to prevent those. Mr. Kumar has drawn analogy from Trade Marks Act, 1999 wherein the language of provision under the chapter of infringement uses the wordings "Likelihood of confusion" which according to him means permitting the plaintiff to sue for future wrongs, however the as per the learned counsel no such language subsists in the Copyright Act and in that event of the matter, it is inappropriate for this court to consider the grant of injunction for the future wrongs. c) Learned counsel thereafter started explaining the working of the defendant‟s website by showing the technical background of the IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.31 of 132 internet and how it emerged. Learned counsel has taken pains to explain the meaning of the word internet by citing some English judgments. Counsel has then submitted that the defendants‟ website is premised on the newer and the latest version of web 2.0 which permits interactive interface with the users using it which includes, media, games, songs, pictures and other multimedia. d) Learned counsel further argued that the there is a difference between the infringement of the copyright happening in the physical form or the tangible form and the acts which are done in the virtual world of the internet which are not available in the physical form. As per the learned counsel, that makes a lot of difference. As per the learned counsel, there is a world wide debate over the management of communication on the internet. There are two international covenants entered into by the countries who are members of World Intellectual property Organisation which are known as WIPO Copyright Treaty (WCT) and WIPO Performance and Phonograms Treaty (WPPT). Learned counsel argued that the court should consider the provisions of these two treaties though India has not even ratified these conventions in order to consider the provisions relating to communications made over internet and its impact. Learned counsel in order to support his contention also relies upon the IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.32 of 132 judgment passed by the Apex court in Entertainment Network (India) Ltd vs. Super Cassettes Industries, 2008 (9) SCALE 69 wherein the apex court has expressed its opinion about the Application of International Conventions in India in the following words. IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.33 of 132 e) Learned counsel has argued that the defendants by providing online space to the subscribers enabling them to share media online is acting as an intermediary within the meaning of Section 79 of the Information Technology Act (as amended in the year 2009) and the acts of the defendants are thus saved by the Information Technology Act 2000 wherein its acts are without knowledge of the infringing nature of the communication. f) Learned counsel further argued that this court should interpret the provisions of the Copyright Act and information technology Act harmoniously wherein the IT Act will come into play in the same manner as that of the safe harbor provisions of US statute which saves the liability of the defendants. The argument which has been raised by the learned counsel for the defendants is that it cannot be said that on one hand the IT Act saves the intermediaries from the liability and on the other hand the same intermediaries are exposed to strict liability provisions of the Copyright Act. Both should operate simultaneously and the safeguard under IT Act, thus, must also shield the defendants from the liability under the Copyright Act as well which is no different from its operations on the internet. Learned counsel has further explained the preceding argument in detail by enumerating the working process of the IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.34 of 132 defendants on the internet which establish that the defendants are no more than an intermediary who is doing this without knowledge and despite due diligence the content cannot be known to the defendants at the first instance. Learned counsel submitted that defendant No. 1 is predominantly a service provider/ intermediary, providing a free of cost platform to its users and offering an interactive user submitted network of friends, personal profiles, blogs, groups, photos, music, video, instant messaging services, mobile services and videos. It is further submitted that the said defendants do not directly upload any content on its website (except for content that it licenses and creates which constitutes a very small portion of the content on its website), but merely provides a platform to its users for uploading content under certain terms and conditions. Thus, as per the learned counsel for the defendants, the acts of the defendants are purely of the kinds of intermediary and the defendants are just facilitating the space and cannot be held to be within the knowledge of the content which is being uploaded by third party unless the right holder brings it to the notice of the defendants. g) Learned counsel further submitted that it is not merely without the knowledge of the defendants but also impossible to monitor each IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.35 of 132 and every content which is being uploaded on the website. The same is, therefore, the compulsion of the defendants while operating on internet as the internet portal is open to world at large and due to the nature of the portal which is such that anyone can upload anything. The defendants being a facilitating entity cannot be held responsible due to its impossibility of monitoring each and every content over the internet unless the active participation of the defendants is established. h) Learned counsel for the defendants further submitted that the defendants are not gaining any monetary benefits arising out the user generated content. But rather the advertising as per the learned counsel for the defendants is no doubt a business model of the defendants but is against the licensed content. Further it has been argued that the advertisements may also appear automatically as the user types keywords and search for the same. This is usually a part of "Adwords" which are in the nature of hints or options given by the search engines as and when the user asks any query from search engine. The example of the same is given that supposingly if the user is typing Punjaban. The song may appear and along side the same some options of Punjabi matrimonial may appear automatically which happens due to the search engines exercise and not due to the acts of the defendants. IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.36 of 132 j) Learned counsel submitted that indeed it is correct that the defendants takes the licence from the user to use, add, delete from or publicly perform or publicly display, publicly perform, reproduce and distribute the said content for the purposes of the website. However, the said licence is a precautionary step to avoid any objection from any users of the defendants. Learned counsel also states that the same does not mean that the defendants requires the licence for such reformatting. k) Learned counsel for the defendants further submitted that the defendants have already ensured that its website has measures to remove or prevent copyright infringements. The said measures are taken in consonance with the Digitial Millennium Copyright Act of USA. The said procedure is explained by the defendants below : Accordingly, if a copyright owner believes that his or her work has been copied and posted on the Defendant No.1‟s website in such a way that constitutes copyright infringement, the Defendant No.1 has provided information in the Frequently Asked Question (FAQ) section on its website to enable the copyright owner to file an infringement notice. Towards this end, the Defendant No.1 has provided details of its copyright agent in the User Agreement so that such copyright agent may be IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.37 of 132 notified of the claim of infringement, consisting of the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that the copyright owner claims to have been infringed; (iii) a description of where the material that the copyright owner claims to have been infringed is located on the said Defendant‟s website [providing the URLs of the claimed infringing material]; (iv) the address, telephone number, and email address of the copyright owner; (v) a written statement by the copyright owner that he/she has a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (vi) a statement by the copyright owner that the above information in its notice is accurate and, under penalty of perjury, that he /she is the copyright owner or authorized to act on the copyright owner's behalf. The defendant No.1 also automatically, and, at its own initiative and expense, takes two additional steps to hinder users from reposting that same content. The defendants records the "hash" of the file that has been removed which is a unique identifier for that file. The defendants also create a "fingerprint" of the content that has been removed, which is a unique identifier for the content. The defendant No.1 uses both the hash and the fingerprint to achieve the goal of preventing the same content that has been removed from being re-posted. After a copyright owner requests that user-posted content be removed from the defendant No.1‟s website, it automatically adds the hash to the Hash-Block IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.38 of 132 filter and fingerprint to the Take Down Stay Down Filter. If any user tries to repost the same exact file, it should be blocked by the Hash-Block Filter, which will recognize the same file. If any user tries to repost the identical content (even if the file is different because the content comes from a different source), the Take Down Stay Down filter will recognize the identical content and block it from being reposted. These are both precise filters, because the goal is to take the copyright owner‟s specific take down request and apply it prospectively to all new content being posted. Copyright owners often have policies to allow users to post shorter pieces of content, but not the entire piece of content. Further, certain content may be protected under fair dealing protections or authorized by copyright owners themselves. In such situations, the defendant No.1 does not presume to know what the copyright owner might want done with different or shorter portions of the content. But, for content that the copyright owner has already removed, the Take Down Stay Down Filter will automatically block any new content that the filter recognizes as the identical content. The defendant No.1 employs these two filters automatically after receiving a take down request from a copyright owner, and the copyright owner need not take any action on its own to get the benefits of these two filters. IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.39 of 132 The most powerful filtering tool that defendant No.1 makes available to copyright owners is the free RMT Copyright Filter. The defendant No.1 allows any copyright owner to register for and use this tool at no charge subject to a single registration agreement. A copy of the standard RMT Registration Agreement applicable in this behalf has been filed to take advantage of the RMT, all that the copyright owner needs to do is register with the defendant No.1, and then create "fingerprints" of its audio or audio visual content (using the free software that the said defendant makes available through its filtering vendor called Audible Magic). The copyright owner submits the fingerprints to the defendants‟ filtering vendor with associated business rules- e.g., the copyright owner can decide to block all of its content or rather allow users to post certain pieces of content that it is trying to promote. Thereafter, if the copyright owner instructs that all of its content should be blocked, the defendant No.1‟s RMT Copyright Filter will be set to block all content uploaded by users that matches the copyright owner‟s content. This means, if any piece of content is uploaded that matches any 30 seconds of the copyright owner‟s content, it would be blocked (the 30 seconds of matched content is the technical limit for the filtering technology). If the copyright owner, therefore, submits fingerprints to the RMT IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.40 of 132 Copyright Filter, it can avail itself of extremely broad copyright protection on its website. Upon signing up for the RMT (as well as signing Audible Magic‟s own short agreement regarding the use of its signature generation software), the content owner need not ever part with its content to receive the benefits of filtering. Rather, the content owner need only itself create the fingerprints of its content, by using Audible Magic‟s free software, and then send such fingerprints to Audible Magic with appropriate usage instructions (i.e., "block" or "allow"). The defendant No.1 also periodically runs the filter retroactively over its website, again at its own cost, over all content that has already been posted to its website. Accordingly, if content was uploaded by a user before a copyright owner was able to add it to Audible Magic‟s reference database of fingerprints, the filter will catch such previously uploaded content and remove it" 21. Learned counsel states that once the defendants themselves vigilant about the right holders right and at their own expense are operating the measures to cure or filter the infringement. In these circumstances, the defendants cannot be said to be those who are indulging in the infringement when they have no connection whatsoever with the content of the works in question. IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.41 of 132 22. By making these aforementioned submissions, Mr. Rajinder Kumar resisted the grant of injunction and also pressed for the vacation of the earlier order of Division bench by urging that the defences raised above prima facie establish that the defendants could not be held liable for any act of infringement of the copyright being an intermediary. The defendants already have a provision to remedy the grievance of the plaintiff which does not require any further orders as it is within the policy of operation of the defendants that it is required to delete the works which are infringing in nature. Further, the said acts are without knowledge sufficiently are not covered by the second part of the provision of Section 51(a) (ii) read with the provisions of IT Act and therefore no liability of infringement can be attributed against the defendants. Thus, the order passed by Division Bench is liable to vacated and injunction application filed by the plaintiff is to be dismissed. Although during the course of the arguments the defendants‟ counsel admitted that the order passed by the division bench can be confirmed and the same is also stated to be the only answer in the written statement. 23. I have gone through the plaint, written statement and records of the proceedings and also noted the submissions of the parties. However, before commenting upon the submissions of the parties, I deem it fit to first discuss the law on the subject. IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.42 of 132 Law Relating To Copyright And Its Relation With Internet Computing 24. Copyright is a bundle of rights which is meant to encourage creativity. The said rights are negative rights in as much as the same are prohibiting others from using the copyrighted works. The traditional concept of the copyright has undergone a drastic change as traditionally, the law relating to copyright was meant to encourage the original literary, books and also to help the poor authors. But, due to advent of the new technologies, its scope has extended manifolds. Now, the modern law of copyright encompasses musical works, cinematograph works, computer programs, performers rights, broadcasting rights. 24.1 The copyright has now become part of the business of the big organization more specifically in film industry where the major chunk of money is reaped out of the royalties arising out of the licensing and assignment of copyrights in the respective works. Rather, it would not be out of place to state that the royalties have become the backbone of the film making machinery. The companies like the plaintiff and other musical companies on one side earning royalities and thereon investing the same funds in making the films. 24.2 One more stage of complexity has been attained by the copyright law due to emergence of the virtual world of internet. The internet computing has also brought many changes in our lives in stages. IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.43 of 132 The era in 1990s saw the beginning of the computing internet, wherein, the TCPIP internet and windows interface which was so user friendly due to which we became conversant with the emails and network navigation. Thereafter, in the year 2000 and later the type of computing changed and it has been refined and set the benchmarks, there has been a sudden rise in the markets of software be it accounting, designing, photo printing, office using like notepads, gaming, chatting, user to user protocol, music sharing programs like napster, kazaa etc.. All these software development have further taught us that there is much more than emails and typing on the computer and internet is very vast by which one can navigate in several spheres of subjects and can share the data with other users. 24.3 The third and more advance stage of computing which we are witnessing at this stage is the one wherein the level of internet computing is established and there is a tendency to conduct business online. There is a large segment of business models which are growing over the internet wherein the users are participating actively and thereon the companies are earning solely on the basis of the internet services by facilitating users to share their contents which are attractive (which includes pictures, motion pictures, films, songs, graphics, trailors, private communications amongst the eminent personalities, scam disclosures etc) so as to make it common to all and enabling them to view it easily by sitting at home. The more prominent examples of this advance stage is utube, myspace, IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.44 of 132 facebook etc. This is really an advance stage and there is no hesitation in saying that it is a remarkable development wherein one can see motion pictures with high quality graphics on internet which includes filming and other mode of entertainment . 24.4 While facilitating the said sharing process over the internet, the companies like the defendants are gaining business in the nature of advertising, sponsorships, other like businesses which makes them popular and run their show. This can be said to be one more way of conducting business which is comparatively new in its field. The problem however crept in when the content which is a subject matter of sharing on the website operated by the companies are someone else‟s copyright or proprietary material and not owned by the person or the user supplying them. The question then arises, as to whether the said company by providing the medium of sharing to the users and also gaining commercially alongside the same can be said to have infringed the copyright of the right holder. This court is faced with the similar kind of situation wherein the defendants‟ said website operator and the plaintiff is the right holder and the court is called upon to answer the said question by applying the copyright law accordingly to this another mode of doing business which has been innovated by the defendants in the virtual world of internet. IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.45 of 132 25. Copyright and its meaning has been provided under Section 13 and 14 of the Act. The infringement of the copyright has been defined under Section 51 of the Act. The said provisions are reproduced hereinafter for the ease of reference: (i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.49 of 132 (ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright, or] (b) When any person - (i) makes for sale on hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or (ii) Distributes either for the purposes of trade or to such an extent as to affect prejudicially the owner of the copyright, or (iii) By way of trade exhibits in public, or (iv) Imports [***] into India, any infringing copies of the work: [Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work, for the private and domestic use of the importer.] Explanation - For the purposes of this section, the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an "infringing copy". 26. From the bare reading of the Section 51, it becomes apparent that the infringement is, doing of any act by a person who is not authorized by the owner, which the owner is conferred to do under the provisions of the Act or permitting any place for profit for infringement of the copyright is also an infringement under the Act. The said two provisions are disjunctive in as much as that there shall be an IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.50 of 132 infringement even if the acts are done which are of the owner or in the alternative the acts of permitting any place for profit. 27. At this stage, it becomes relevant also to examine that the wordings of Section 51 (a) (ii) which provide permitting "any place" for profit. The use of the words "any place" would include common public place or library or any other kind of place. The wordings do not put any embargo of the kind of the place which is required to be permitted for profit in order to establish an infringement. But rather the wordings used in the sub section are "any place" so as to subsume physical place or place at the internet or webspace. The reference is invited to the provisions of UK Copyright Act, 1956 which are similar in nature to Indian Copyright Act in this respect which brings more clarity on this aspect. The said provisions are reproduced hereinafter: 28. I am also comparing the provisions of UK Copyright Act, 1988 (CDPA) which has been passed in the year 1988 repealing the earlier law. The said provisions are: 29. By comparing the situation as exists in 1956 Act of UK and 1957 Act of India in the provisions, it becomes amply clear that the wordings used in the Section of UK Act are "place of public entertainment" but in Indian Act, the wordings used are "any place" which reflects the intention of the legislature which is to provide a IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.53 of 132 provision for permissive infringement wherein it is not merely a place of public entertainment which is included but any place wherein the infringement is facilitated would be covered by the provision of the Indian Copyright Act, 1957. 30. The situation becomes more clear as one further sees carefully the later enactment of same nature in the UK CDPA Act of 1988 which provides two kinds of infringements separately which are that the "place of public entertainment" and "infringement caused by use of an apparatus". This fine distinction which is present in the later Act of UK is not present in the Indian Act. This would demonstrate that UK legislature was conscious about the kinds of the infringement which are going to be caused in the light of the development in the technology and mere provision of facilitating the infringement at public place of entertainment would not sufficiently cover the protection and the apparatus infringement must be provided separately under the separate head. Therefore, in the light of the same, the provision relating to providing means by way of apparatus is further introduced in addition to the already existing provision which relates to infringement relates to place of public entertainment in the 1988 Act. 31. In the sharp contrast, our Indian Act which has been amended number of times i.e. in 1984, 1994, 1999 which although provided for several crucial amendments including computer programmes as a subject IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.54 of 132 of copyright under the head of literary work but has not provided any separate infringement by way of an apparatus under the separate head or separately and the provision relates to the facilitating infringement is the same as it stood in the 1957 Act. In absence of such amendment in the Indian Act and in view of the loosely worded provision which is "any place", the same can be given a wider connotation so as to include the place on the internet not confining it to place of entertainment but to extend it to other places also. 32. It is now well settled that when there are new technological inventions or change in circumstances which was not in contemplation at the time when the statute was enacted, the said invention or technological advancement may be included in the same enactment if they are falling within the same genus provided in the existing enactment. 33. The reference in this respect is invited to the decision of House of Lords in Comdel Commodities Ltd vs. Siporex Trade SA, (1990) 2 All ER 552, wherein Lord Bridge has said "When a change in social conditions produces a novel situation which was not in contemplation at the time when a statute is first enacted, there can be no a priori assumption that the enactment does not apply to the new circumstances. If the language of the enactment is wide enough to extend to those circumstances, there is no reason why it should not apply." IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.55 of 132 On the same principles, general words are construed as to include new inventions and technological advances not known at the time when the act was passed. The Photograph copy is held to be a copy under the Engraving Copyright Act, 1734 in the case of Gambart v. Ball (1863) 32 LJCP 166. Similarly telephone was not invented in 1869, even then the telephone was held to be a telegraph under the provisions of Telegraphs Act 1863 in the case of A.G. vs. Edison Telephone Co of London (1880) 6 QBD 244 referred in The Senior Electric Inspector vs. Laxminarayan Chopra & Ors., AIR 1962 SC 159. 34. More Recently Hon‟ble Supreme Court in State of Maharashtra vs. Praful B Desai (Dr.), (2003) 4 SCC 601, has accepted the evidence by way of video conferencing as a valid one where the person being tried will satisfy the requirement of Section 273 of Code of Criminal Procedure, 1973 when the technique of video conferencing was not even developed. 35. In view of the same and also the fact that the provision provides for permitting "any place" which itself is loosely worded and is unfettered by any qualification, the said words "any place" have to be construed widely so as to include the place at the webspace or internet in order to give effect to the provision to be operative in cases of newer kind of the infringements being caused at the webspace. IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.56 of 132 36. This is more so, in the absence of the specific provision relating to infringement by way of apparatus, the law in that situation cannot remain static witnessing the infringements which can be otherwise covered under the Act. The provisions which can conveniently cover the said acts must also be interpreted to include those new acts to make the provision workable for the newer kinds of infringement to the extent the wordings permit so. Therefore, the wordings "any place" under Section 51 (a) (ii) of the Act includes the place at the webspace in order to cover the infringements or the wrongs caused at the webspace. 37. The proposition which emerges from the above discussion is that there is an express provision under the Act which prohibits a person from permitting any place including webspace for profit unless the said person is having no knowledge or reason to believe that the communication of the work is infringing in nature. 38. There is, however, another way of approaching the similar kind of proposition which is popularly known as infringement by way of authorization. This is done by interpreting Section 51 (a) (i) read with Section 14 of the Act. The said Sections are reproduced hereinafter: (a) When any person, without a licence granted by the owner of the Copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.57 of 132 conditions imposed by a competent authority under this Act- (i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or........" "14. Meaning of copyright- For the purposes of this Act, "copyright" means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely :- (a) In the case of a literary, dramatic or musical work not being a computer programme,-......" 39. By reading these provisions together, it can be seen doing the acts of owner of copyright without permission or licence amounts to infringement. The acts of owner are defined under Section 14 which include doing or authorize doing the acts. Thus, by virtue of conjoint reading one can say that the infringement of copyright can also be in the cases where there are acts of authorizing the infringement by anyone without permission. 40. The said concept of authorizing the infringement has been succinctly discussed by Copinger & Skone James on Copyright (Fourteenth Edition by Kevin Garnett M.A., Jonathan R. James, MA. LLB, Gillian Davies, Ph.D., 1999 Edition, London, Sweet & Maxwell), who is an authority on the subject in the following words: 41. It is noteworthy to mention that the said concept of authorizing the infringement although looks akin to Section 51 (a) (ii) of the Act but the said authorization does not coincide with the permitting the place for profit. The concept of authorizing the infringement is rather bigger and cannot be equated with merely facilitating the place for profit which is the express provision of the law, which may be said to be one its facets. The act of authorizing is something more than merely providing means with knowledge and require further active participation of the person than that of the permitting the place for infringement. This is due to the reason that the grant of means to an infringement is different than the granting the right to do the act of infringement. 41.1 Sometimes the infringement is not done directly but is done indirectly by the authority of some person for instance where a person handovers a pirated CD to a friend and also asks him to make number of copies and sell them to the public on behalf of the former. In that IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.59 of 132 situation, the former is authorizing infringement which he is doing through another person. Both are parties to an infringement due to their direct or active involvement. In this example, the person retains his control where he can say to his friend to do or not to do the same on his behalf. Besides that, the former person also has knowledge about the pirated nature of the CD which is also relevant. Thus, it is an authorization and it is not merely providing a means for infringement but rather more than the same which is doing the infringement along with the co infringer or under the authority of a person. 41.2 The act of authorizing infringement is premised on the concept of joint tort feasors wherein the person is held liable for commission of equal wrong when there is apparent clear establishment of his involvement in the wrong along with the other person committing the same. The active participation, inducement, approval or countenance, are thus necessary ingredients of authorization may not be sine qua non for the establishment of permission of place for profit. The knowledge of the fact that the acts are going to be infringing is again different from the active participation or any kind of inducement. 41.3 The knowledge is the starting point for authorization which is going to be established unless the clear active participation or reasonable degree of control is proved besides knowledge. But on the other hand the same may not be true with permitting the place for profit wherein there is IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.60 of 132 only knowledge which is sufficient and the further state of affairs may remain irrelevant. Therefore, the onus of proof for establishing the authorization is more onerous than that of the establishing facilitation for profit. 41.4 This distinction between the two concepts is necessary in order to better comprehend the subject which will make the evaluation of arguments raised by the parties easier. 42. Now, I shall deal with the contentions of the parties raised by them relating to the authorization and the applicability of Section 51 (a) (ii) of the Act. 43. It is the contention of learned counsel for the plaintiff that the acts of providing the space over the internet and thereafter continuously doing the same ever after coming to know about the plaintiff‟s proprietary interests amounts to authorization as the defendants are aware that the said space is going to be used for infringement purposes. As per the learned counsel, the said acts become authorization as the defendants retain the control and power to further distribute or communicate the work to the public. The said thing is done by the defendants with knowledge coupled with that of its own participation wherein it is offering the works of the plaintiff to the public at large by enlisting the works of the defendants in their search engine in such a way that when someone types the name of a song or a movie, the same is easily IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.61 of 132 available on the search results. Mr. Sibal has narrated the factors by which the defendants are authorizing the infringement which can be enumerated as under: a) The defendants provide a search facility which enables anyone who visits its website to locate audio-visual or audio files amongst those uploaded by other users, which files are copied by the defendants and stored on their servers. b) The defendants prescribe the terms of use which must necessarily be subscribed to by a User for becoming a defendants‟ User. c) A person has to necessarily be a registered User with the defendant/MySpace to use the uploading facility (which ultimately leads to infringement). d) MySpace /defendant can without anybody‟s approval reject, refuse to post or delete any content for any or no reason uploaded on its website. e) Defendants take license from the User for the content uploaded and can modify, delete from and add to the said content. All these factors as per Mr. Sibal are evidence of the degree of control which the defendants can exercise and thus, the authorization gets established once the defendants are found to be controlling the IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.62 of 132 infringing activities and has its say in preventing them or controlling them. 44. Mr. Sibal has also made submissions that the said acts amounts to infringement as per the provision of Section 51 (a) (ii) of the Act due to aforesaid reasons. 45. On the other hand, Mr. Kumar resisted the same by stating that neither the said acts are authorization and nor the same are falling under Section 51 (a) (ii) due to the following reasons: a) The defendants are having no control over the works which are uploaded on the websites everyday and thus they are no privy to any such works which are infringing in nature. b) The defendants are not having any knowledge about which are the works which are infringing or non infringing. It is only subsequent to uploading and thereafter when the proprietor brings it to their notice, it becomes clear that the works are infringing in nature. Therefore, once it is without knowledge coupled by no control over the works, the defendants cannot be held liable for infringement. c) The defendants have cited the safe harbor provisions of US law and lot of cases decided under English law (which has been commented on later in the judgment as at this stage, the issue of infringement is decided). IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.63 of 132 d) It is well established, that merely providing means for doing the acts which may be infringing, the person cannot be held liable for authorization and therefore, the defendants in the absence of clear establishment of its role in doing or promoting the infringement cannot be held liable for infringement. e) There are several measures or safeguards like notice and turn down and many more are already undertaken by the defendants and therefore, the defendants are not infringers. 46. I have examined the submissions of the parties carefully and have gone through the plaint, written statement and documents filed by the parties and after doing so, I am of the opinion that the acts of defendants of providing the space on internet or webspace for profit are prima facie infringing in nature. The reasons for my prima facie observations can be discussed as follows: a) Firstly, it would be wise to reiterate three proposition which I have already discussed earlier.  The provision of Section 51 (a) (i) and Section 51 (a) (ii) of the Act are disjunctive in nature in as much as the word "or" between the two makes it clear that even on satisfaction of one provision, there would be an infringement of copyright. IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.64 of 132  The infringement by way of authorization would fall within Section 51 (a) (1) read with Section 14 of the Act as against the act of permitting the place for profit which is separately provided under Section 51(a) (ii) of the Act.  There is a distinction between the concept of authorization as well as the concept of permitting the place for profit and the essential ingredients for establishing the same are also different. Keeping these three propositions in mind, I have no hesitation to state that the acts of the defendants whereby they are offering the space over the internet, getting the works uploaded through users, thereafter saving in their own database with the limited licence to add, amend, or delete the content and thereafter communicating the said work to the public by providing some advertisements alongside the work or in the alternative gaining advertisements or sponsorships on the said basis thereafter would prima facie tantamounts to permitting the place for profit for infringement as envisaged under Section 51 (a) (ii) of the Act. b) The said acts of the defendants are certainly falling within the realm of an infringement under Section 51(a) (ii) of the Act. This is due to the reason that the defendants are permitting the place which is place at webspace to the users at large. The said place is IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.65 of 132 not for the profit of the users only but also for the private profits or gains of the defendants. The defendants do not dispute that they are running the advertisement but their stand is that some advertisements are automatically appearing due to the search engines or key words which are typed by the users. The defendants although state that they are not advertising anything or earning anything due to the same. But, I am afraid that it is not the truth, the advertisements which are attached to movie clips or are displayed prior to the starting of the clip or after the movie clip is ended, are not the user provided or automatically emerging ones but are sponsored. There are third kind of advertisements which are displayed till the time work is being downloaded on the website and is ready to play, the said advertisements keep the user busy uptil the user reaches the definite target which is intended movie song or movie clips. All this happens only when the defendants permit this to happen and to the advantage of the defendants. Thus, the defendants are certainly earning profits or gains and not doing anything mistakenly or bonafidely without notice as contended by them. There is certainly complete element of commerce attached to it to increase the bandwidth of the users/customers and sponsorship and/or adds. Thus, the defendants are permitting the place for profit. IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.66 of 132 47. Now, the submission of the defendants that their acts are without knowledge or no reasonable belief of infringement are, therefore, would not fall within the Section 51 (a) (ii) but would be protected by the later part of the Section is also meritless. It is also not difficult now to answer the question of knowledge or reasonable belief which can be immediately discerned due to following factual situations: The defendants could immediately turn and say that the said provisions are made to prevent the infringement as per the international laws more specifically Digital Millennium Copyright Act ("DMCA") of US. However, the said fact does not preclude this court from drawing any inference as to the reasonable belief of the defendants that the activities upon their website are infringing in nature. Perhaps the legislature in US is more conscious of these frequent infringements on the internet and that is the reason it has enacted the special Act for IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.67 of 132 these purposes for providing curative measures and thereby giving such acts a legitimate effect by balancing the two interests one of internet infringer and another of the proprietor by providing that the post infringement curative measures as sufficient safeguards for the purposes of infringement and protecting any such infringement liability . But the same may not be legal in the Indian scenario absenting such situation. Therefore, this Court can infer the reasonable amount of knowledge by the defendants about the infringing nature of the acts which are going to be carried on the defendants‟ website when the defendants on their own provide with these measures. Certainly, there is a reasonable belief by the defendants that the acts are infringing in nature.  Secondly, the reasonable belief or knowledge specifically to that of the plaintiff works is also present in this case. This is due to the reason that the plaintiff has already notified its company name and lists of the titles owned by it. The defendants have also been dealing with the plaintiff prior to the institution of the suit. Thus, the defendants cannot be said to be totally oblivious to the fact that the Bollywood songs which are going to be IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.68 of 132 uploaded on their website may not belong to the plaintiff. Rather the defendants on its own states that while launching India centric operations, the defendants have informed all the music companies about their tools. Furthermore, when the defendants have been notified time and again by the plaintiff about updated works and the defendants are hard pressed to remove those contents. In these circumstances, the defendants‟ stand at this stage that they are totally unaware of the situation is not correct. There is complete knowledge to the defendants of the infringing nature of acts which are going to be carried on their website and rather it would not be out of place to say that the defendants are also aware that the plaintiff‟s works are available on the website which are infringing in nature.  Thirdly, the knowledge and reasonable belief for infringement to the defendants can be seen when one examines the mechanism of working of the defendants. The defendants take the limited licence to amend or delete or modify the works suitably from the user. This itself makes it evident that before uploading on the website or making it available on the website, the works IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.69 of 132 in question go into the servers or the computers of the defendants where the programmers modify the said contents or amend the said contents suitably. Rather the said modification also goes to the extent of adding advertisements prior to the clips or after the clips embellishing them, adding logos of the companies. All this is nothing but knowledge about the content what the defendants are displaying, showing, exhibiting. Thus, the defendants‟ stand that they are totally unaware at the time of uploading what is going on and they should be protected being unconnected with anyone is also ex- facie bad. On the contrary at the time of uploading and till the time the said work is made available to the public on search engine form by the defendants, there are sufficient steps including modification (which has a major role) wherein the knowledge of the defendants can be seen.  Fourthly, the knowledge and reasonable belief of infringement is also apparent on behalf of the defendants when the defendants‟ indulge into India centric operation as contended by the plaintiff. It is also stated that the defendants have whole office dedicated to Indian IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.70 of 132 works which caters the Indian consumers. The modifications of the works, India centric offices or operations, adding advertisements of the same language, seeking licences from users to modify or alter the works, informing the major copyright owners about its tool anticipating actions by them or preventing need for licences, all these makes the knowledge more apparent on the face of the record. Thus, clearly due to complete satisfaction of the provision of Section 51 (a) (ii), the acts of defendants are prima facie infringing in nature, which are violative of Section 51 (a) (ii) of the Act. 48. So far as the act of authorization is concerned, The said act requires sanction, approval or countenance which are the wordings used in English Judgments which are more than the mere act of knowledge. I have already distinguished the authorization which would fall within Section 51 (a) (i) from that Section 51 (a) (ii) of the Act which expressly provides knowledge or reasonable belief as only tests for satisfaction. I shall now examine and test the acts of defendants on the principles of authorization. The principles for satisfaction of authorization are laid down IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.71 of 132 in various cases which are cited at bar. However, for the sake of brevity the same can be culled out as follows: (Kindly see C.B.S. Songs Limited & Others vs. Amstrad Consumer Electronics Plc. & Another (House of Lords), (1988) RPC 567) IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.72 of 132 4. Merely providing means for infringement does not establish control and therefore the person cannot be said to have approved or countenanced such act. 49. Broadly English Courts have tested all the cases on these very principles while attributing the liability over the infringers or in alternative rejecting the case of infringement. Mostly, in cases relating to newer means like tape recorder or in the cases of jukebox which are mere means for providing recordings of songs, the courts in England or common law have rejected the claims of infringement on the ground that these are merely new means for recording and nothing more unless the participation of providing the means must be shown towards the infringement. Let me now examine the acts of the defendants on these principles. 50. It was the contention of the defendants that no clear establishment of their involvement is made out as the portal of the defendants is such wherein every day there is much of data which is being uploaded and thus the defendants could not be held liable for authorization. Further, it has been said on behalf of the defendants that the defendants are themselves cautious by putting notices on the internet by calling upon to users not to upload infringing contents. It is also said that the defendants are providing notice and turn down features which shows IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.73 of 132 that the said acts are not emanating from the defendants. It is not the defendants who are promoting those acts. 51. I have gone through the rival submissions of the parties. While testing the acts of the defendants on the threshold principles available under the common law, the doubts can be expressed at the prima facie stage whether the plaintiff has completely discharged its onus of proving as to whether the acts of communicating the musical works, sound recordings are actuated by the countenance, approval or not. Mr. Sibal has taken pains to inform this court that there is an element of control which has been exercised by the defendants. However, I am not fully satisfied whether the said factors enumerated by the Mr. Sibal would sufficiently establish at this prima facie stage such degree of control by the defendants which can also be called as approval or countenance or sanctioning. No doubt, I have arrived at the prima facie view that there is knowledge which is clearly present at this stage wherein the defendants are aware what they are communicating. But the act of approval or sanction requires, the defendants‟ participation, exercise of control besides knowledge which I feel is a question which can determined only at the time of trial as at this stage it is not clearly emerging from the documents as to the state of affairs after the knowledge which may be relevant for establishing the authorization . This is also more so because the approval or sanction is required to be IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.74 of 132 established particularly towards the present acts of infringement which is difficult to comment upon at this stage. 52. In addition to the above, one more thing which needs to be considered is that the defendants plead that the acts of the defendants are not authorization, to which I have already answered the same at this stage. However, once the plaintiff informs about the works owned by it to the defendants, the said defendants thereafter attain knowledge not only of the means to be used for infringement but also the knowledge about the rights of the plaintiff. The necessary consequence which follows from the same is that once the defendants are put to notice about the rights of the plaintiff in relation to the particular works, thereafter the defendants cannot continue to do the said acts in relation to the works for which the details have been provided without the permission of the plaintiff. In that event, the defendants after putting to notice immediately steps into the shoes of the ordinary infringer under Section 51 (a) (i) of the Act who is aware of the rights of the plaintiff (copyright owner) and then the question of authorization becomes irrelevant and the acts are to be adjudged from the standpoint of ordinary infringement. 53. The defendants have already stated in the written statement that the arrangement done by the Division Bench is the possible solution to this proposition arising in the present case. The defendants‟ counsel has also stated that he would have no objection if the order passed by the IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.75 of 132 Division Bench is continued. Thus, the defendant‟s acts are infringing in violation of Section 51 (a) (i) of the Act once the defendants are put to notice about the plaintiff rights in the respective works and in the event the defendants do not turn down the same or allow the repetition to happen. 54. In these circumstances, I am of the view that though the acts of the defendants are prima facie infringing in view of the satisfaction of provision of Section 51 (a) (ii) of the Act but the question of the authorization requires further proof of participation which has to be tested at the time of trial. Nevertheless, the defendants are infringing the plaintiff‟s work as their acts are falling within the alternative or disjunctive requirement for infringement under Section 51 (a) (ii) of the Act. Further, the defendants‟ act may become infringing if the defendants do not turn down or allow the repeated uploads to happen after put to the notice about the plaintiff‟s rights in the said works. Re: Jurisdiction 55. Now I shall deal with other submissions of the parties point wise including the issue relating to jurisdiction. At the threshold, I would like to state that I have held that this court has the jurisdiction and therefore proceeded to decide the aspect of copyright infringement first. I shall now discuss the reasons for arriving at the conclusion that this Court has necessary territorial jurisdiction which are as under: IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.76 of 132 55.1 Firstly, the present case relates to infringement of copyright wherein the remedies are conferred under the special statute. The said suit for infringement of copyright can be filed and initiated at the place wherein the plaintiff carries on business, or personally works for gain etc. This is by virtue of non obstante clause provided under Section 62 (2) of the Act which reads as under: 55.2 By mere reading of the provision of Section 62(2) of the Act, it becomes amply clear that the suit for infringement can be filed at the forum where the plaintiff resides or carries on business. The opening words of the provision provides "Notwithstanding anything contained in the code of civil procedure" which means that the said provision will operate in addition to what has be provided in the Code of Civil IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.77 of 132 procedure. Thus, the said provision enables the suit to be filed at the place of the plaintiff which is the additional ground for attracting the jurisdiction of the court. 55.3 This question is no longer res integra and put to rest by the Supreme Court while examining the said provision in the case of Exphar SA & Anr vs Eupharma Laboratories Ltd. & Anr, (2004) 3 SCC 688 wherein the Hon‟ble Court observed. Therefore, the plaintiff while it has initiated the said suit at the forum where it is carrying on business has rightly initiated the suit in compliance of the provision of Section 62(2) of the Act which is the additional ground for attracting the jurisdiction. In these circumstances, by operation of non-obstance clause, the principles relating to defendants carrying on business or part of cause of action or subject matter becomes irrelevant as the present case falls under the special provisions prescribed IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.78 of 132 in the special statute. The said provisions under Section 62 are in addition to and not in derogation or conflict with the general law as envisaged in the Code of Civil Procedure. Thus, the recourse of the defendants‟ counsel in relation to the principles of general law is misplaced. 55.4 The personal amenability of the defendants are therefore, not relevant in case of suit for infringement wherein the jurisdiction is sought to be invoked by way of provisions of the special enactment when it provides for non obstante clause. The said non obstante clause thus operate to its full extent and it cannot be said that there is a separate question of personal amenability of the defendants to be in the forum state which is still to be considered. 55.5 It is true that that to sue a foreign defendant in this country, the foreigner either must be resident and or carry on business within the jurisdiction of forum court. These are the principles applicable in private International law. The only exception is if such party submits to the jurisdiction. However the operation of this rule is not absolute but is subject to the municipal law. 55.6 It is now well settled that when the municipal law provides otherwise or overrides the private international law, then the municipal law prevails over and above the principles of private international law. The said principle has been comprehensively decided by Karnataka High Court in Airbus Industries Vs. Laura Howell Linton, ILR 1994 KAR IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.79 of 132 1370 wherein the Court has stated that even the provisions of Section 20 (c) of the Code of Civil Procedure which provides cause of action wholly or in part overrides the private international law. The Madras High Court in Swaminathan v. Somasundaram AIR 1938 Mad 731 in considering whether the Indian Courts have jurisdiction over non-resident foreigners, it was held that even with respect to non-resident foreigners, the Courts in British India have jurisdiction in personam in suits based upon a cause of action arising in British India.) 55.7 Thus, in the present case also even assuming that the rules of private international law may have any role to play, the same stands overridden by the express provision of the special act which is Copyright Act, 1957 which speaks otherwise and entitles the plaintiff to sue at the place of its own forum. 55.8 Secondly, the argument was advanced by the defendants about the commission of torts outside India. The said argument is also rejected as meritless. The commission of tort in the present case is in India. The website of the defendants is one which is engaged in the online business of providing and exhibiting the songs and cinematograph films worldwide including India. The said website is usually accessed by Indians for downloading the songs of upcoming movies from the website of the defendants. The plaintiff has substantiated the cause of action by IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.80 of 132 showing some instances of infringements which has been caused in relation to the specific works. Thus, the said commission of the tort has occurred or occurs in India wherein the Indian user goes to the website, the defendants through its search engine exhibits the said works and the work is communicated to the public by sending the work to him and facilitating downloading or reaching to the computer of Indian user. Similarly, conversely, when the Indian user shares the infringing work with the defendants‟ website which goes into the servers of the defendants and saved there after the uploading. The said actions are sufficient to constitute part of cause of action under Section 20 (c) of the Code of Civil Procedure. 55.9 In the first case, the tort or civil wrong is caused in India as the aspect of downloading to the computer has been occurred in India when the said work is communicated to Indian users without the permission of the plaintiff. In the second case too, the initiation of the tort or part of the same has occurred in India as the infringing work without the authority of the plaintiff is communicated to the defendants with a limited licence to further modify and communicate further. The said commission of the acts or the part of the overt acts constitutes the part of cause of action within the meaning of Section 20 (c) of the Code of Civil Procedure. IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.81 of 132 55.10 Section 20 (c) of the Code confers jurisdiction where the cause of action wholly or in part arises. Thus, the court where the part of cause of action will arise would have the jurisdiction to entertain and try the proceeding like in the present case. So seeing from any standpoint be from special act or general code of civil procedure, this court has necessary territorial jurisdiction to entertain and try the proceedings. However, the discussion to Section 20 (c) of the Code becomes merely academic as the special act itself confers jurisdiction on this court by operation of non obstante clause. Still, I have deemed it fit to discuss the same in view of the categorical objections raised by the defendants on jurisdiction. 55.11 Thirdly, the reliance of the judgment of the Division Bench in Banyan Tree (Supra) is equally misplaced by the defendants and thus does not aid the case of the defendants at all. 55.12 It is a well settled principles the judgment is an authority of what it decides and not for the proposition which can be logically deduced therefrom. [The said proposition has been laid down by the Supreme Court in Bharat Forge Co. Ltd. v. Utam Manohar Nakate (2005) I LLJ 738 SC ; M.P. Gopalakrishnan Nair and Anr. vs. State of Kerala & Ors.: AIR 2005 SC2053] IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.82 of 132 55.13. In Banyan Tree (Supra), the Hon‟ble Division Bench has rightly reframed the issue in the following manner: 56. By mere reading of the question answered by the Hon‟ble Division Bench, it becomes patently clear that the Hon‟ble Division Bench was concerned with the question wherein a passing off action, whether the jurisdiction of the court can be conferred by way of website operation of the defendants or not, or the case of infringement where the plaintiff is not carrying on business within the territorial jurisdiction of the court. The apparent distinguishing features which make Banyan tree case inapposite to the present case are outlined as under: a) Firstly, the case of Banyan Tree (Supra) was a case of passing off, however, the present case is a case of infringement wherein plaintiff invokes the jurisdiction on the basis of carrying on his business at the forum court. It needs no further mention that it is now well settled that the tests of conferring jurisdiction on the court in the case of the passing off and the infringement are totally different. Whereas, the jurisdiction in infringement cases is IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.83 of 132 governed by the provisions of special act like Section 62(2) of the Copyright Act. On the other hand, in the passing off cases, it is governed by the ordinary law of civil procedure. Thus, the case of plaintiff carrying on business or working for gain which is a relevant and significant consideration in the present case in view of operation of special statute was absent in the case of Banyan Tree (Supra) and that was the sole reason the court had difficulty in assuming the jurisdiction in Banyan Tree (Supra) which lead to referral to division Bench for the question to be answered. b) Secondly, The Division Bench in Banyan Tree (Supra) also observed that if the case of Banyan Tree (Supra) would have been of infringement, then the court would have had jurisdiction and the special provisions of Section 62(2) of Copyright Act, 1957 as well as Section 134(2) of the Trade Marks Act are those of the kinds of the long arm provisions in the limited sense. The relevant excerpt from the Banyan Tree (Supra) dicta is reproduced hereinafter: Thus, the said distinction and the caveat expressed by the Division Bench itself is sufficient to exclude the present case from that of the operation of Banyan Tree Judgment as it stands a good law which it decides and cannot be extended to infringement cases which are governed by special provisions. c) Thirdly, assuming that the judgment of Banyan Tree (Supra) may be applied to the present case, even then the difference in the factual matrix further takes out the present case from the application of the said dicta. This is due to the reason in Banyan Tree's case (supra), the court was concerned with the hotel services wherein there was tendency of booking online in the hotel from every place and thus the mere act of booking cannot be held IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.85 of 132 to clothe jurisdiction on this court unless it forms a part of cause of action in the case whereas in the present case concerns with the activities of the defendants which are primarily web based which are interactive due to media presence, downloading, uploading and nothing else. The court propounded doctrine of purposeful availment in Banyan Tree's case (supra) to show the nexus of the transaction with cause of action in the suit. In the sharp contradistinction to the same, the defendants in the present case are offering to show and communicating the Indian works to the Indian public with the interactive media inside and the user is able to view the same online, download it and use it and further communicate to public. The plaintiff has also substantiated the same by providing download of the sample infringement which are also forming part of cause of action. Thus, there is sufficient interactivity in the website which is aiming at the Indian users and shows nexus with the complaint with the suit where the plaintiff is directly aggrieved. The present case would be therefore, different from the case of Trade Mark infringement wherein some online transaction or a trap order is shown to clothe cause of action for the purposes of invoking jurisdiction. The present case relates to complaints arising directly out of the online acts and thus cannot be rejected on the counts of IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.86 of 132 unconnected cause of action. Therefore, the Banyan Tree's case (supra) is inapplicable in the present case and rather if the tests laid down in the same are applied, the present case sufficiently qualifies the tests of Banyan Tree (Supra). 57. Hence, for all these aforesaid reasons, this court will have jurisdiction to entertain and try the proceeding. 58. The related argument as to jurisdiction was also raised by the learned counsel for the defendants that this Court cannot exercise the extra territorial jurisdiction as assuming jurisdiction would in this case would mean exercising extra territorial jurisdiction. The said argument is rejected as baseless and the reasons for variance are outlined as under: a) Firstly, this Court has already arrived at the finding that the court has assumed the jurisdiction on the basis of the part of cause of action which has arisen in India and the infringement is being caused in India. Thus, this court would have jurisdiction to entertain and try the proceedings for infringements which has been caused in India. b) Secondly it is merely the apprehension of the defendants that there will be some effect of extra territorial for which this court is not concerned, it is neither the case of the plaintiff to give this as an extra territorial effect and nor this court is giving any such effect as contended by the defendants. Rather, the court is exercising the IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.87 of 132 jurisdiction on the basis of the law of the land which is Copyright Act of India, 1957. c) Thirdly, it has already been observed that the commission of tort of infringement has occurred in India which is prima facie infringing in nature, the said acts are prohibited under the Copyright Act and thus this court is proceeding to do what is permissible under the law. This court is not concerned with any incidental effects which the defendants are apprehensive of due to the exercise of the jurisdiction of the Court and that cannot come in the way of exercise of jurisdiction of this Court. d) There are lots of cases cited on Article 245 of the Indian Constitution wherein it has been observed about the parliamentary power to enact the extra territorial laws. The said reliance of judgments is equally misplaced as in the present case, this court is not concerned with the legislative competence of the any extra territorial laws. The said judgments are not applicable to the present case as the court is exercising the jurisdiction on the basis of Indian law having force in India and thus the concerns are mere apprehensions of the defendants which this court cannot take care of. IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.88 of 132 PROBABLE EFFECT OF AMENDMENTS UNDER THE IT ACT 2000 (AS AMENDED ON 2009) ON THE REMEDIES PRESCRIBED UNDER COPYRIGHT ACT 1957. 59. Now I shall discuss another aspect of impact of the amended provisions of Information Technology Act 2000 on the provisions of the Copyright Act inturn on the present case as it is the defendants‟ contention that the provisions of IT Act relates to internet related wrongs and thus their acts are protected under the IT laws of India. 60. The submission has been advanced by the defendants that the amendments made in 2009 in the IT Act, 2000 will have great impact on the satisfaction of this Court for the purposes of grant or non grant of the injunction against the defendants. The relevant sections of amended Act relied upon by the defendants which according to the defendants will enable the defendants to escape the liability of infringement are reproduced hereinafter: IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.89 of 132 (a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or (b) the intermediary does not - (c) The intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf. (3) The provisions of sub-section (1) shall not apply if - (a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act; (b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource, controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material or that resource without vitiating the evidence in any manner. Explanation: For the purposes of this section, the expression "third party information" means any information dealt with by an intermediary in his capacity as an intermediary." Section 81 of IT Act, 2000 reads as under : IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.90 of 132 Act to have overriding effect.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. [Provided that nothing contained in this Act shall restrict any person from exercising any right conferred under the Copyright Act, 1957 (14 of 1957) or the Patents Act, 1970 (39 of 1970)]." Section 2(w) of the IT Act defines intermediary as : "Intermediary" with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web hosting service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes. 61. The submission advanced by the learned counsel for the defendants is that the acts of the defendants are protected under Section 79 of the Act even if this court is not convinced by the argument of safe harbor provisions of the Digitial Millenium Act of US as the provision saves the liability of the intermediaries like the defendants. Thus, the defendant‟s acts of providing means of infringement and all other acts communicating the works to the public are mitigated by way of operation of Section 79 of Information Technology Act, 2000 ( as Amended on 2009). The provision according to the defendants‟ counsel is non obstante clause and thus will override the other acts. IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.91 of 132 62. Per contra, learned counsel Mr. Sibal has advanced the argument that the provision of Section 79 of Information Technology Act, 2000 cannot be read in isolation and has to be read along with Section 81 which provides for the overriding effect of the Act. The said provisions also enacts the proviso which is also inserted by way of amendment which states that nothing contained in this Act shall restrict any person from exercising any right conferred under the Copyright Act, 1957 or the Patent Act, 1970. Thus, as per Mr. Sibal, the IT Act may override any other law, but by way of operation of the proviso to Section 81, the rights of the copyright owner cannot be curtailed by applying any other provision of the IT Act. 63. I find that the provisions of Section 79 of the IT Act will have no bearing on the liability of infringement on the defendants due to the reasons entailed hereinafter: a) Firstly, I find merit in the submission of Mr. Sibal that conjoint reading of Section 79 and Section 81 makes it amply clear that the proviso to Section 81 prevents any provisions of IT Act to act as restriction on exercising of the rights by the copyright owner. This makes it clear when read the Section 81 which provides for the overriding effect of the IT act over other laws. IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.92 of 132 The proviso appended to the said section provides that nothing contained in this act shall restrict the exercising of right by any person under the Copyright Act. The said proviso carves out an exception to the main enactment which is under the head of overriding effect of the IT Act. 64. The scope and ambit of the proviso to the enactment has been succinctly discussed by the Apex Court in State of Rajasthan v. Leela Jain (1965) 1 SCR 276, wherein the Apex court has held : 64.1 In the case of Sales Tax Officer, Circle I, Jabalpur v. Hanuman Prasad : [1967]1SCR831 , Hon‟ble Bhargava, J. observed : 64.2 Thus, the combine effect of reading Section 81 and the proviso is that the provisions of IT act may override other laws for the time being in force but the cannot restrict the rights of the owner under the Copyright Act and the Patent Act. In other words, the rights of the IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.93 of 132 owners under the Copyright Act, 1957 and/ or Patent Act, 1970 shall remain unfettered by any of the provisions of IT Act. 64.3 Accordingly, Section 79 cannot restrict the rights of the copyright owner by saving the liability of the defendants of the infringing acts caused under the provisions of Section 51 (a) (ii) of the Act by operation of proviso to Section 81 of the Act. b) Secondly, I am also doubtful that even if the provision of Section 79 of the IT Act is applied to the present case, whether the defendants qualifies to get the benefit of the same under the IT Act. This is due to the reason that Section 79 although is a non obstante clause but is subject to Section 79 (2) and Section 79 (3) which provides the conditions of applicability and non applicability of the Section. The said Section 79 (2) (a) states that the Section will apply if the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or (b) the intermediary does not - (i) initiate the transmission, (ii) select the receiver of the transmission, and IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.94 of 132 (iii) select or modify the information contained in the transmission; (c) The intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf. 64.4 The use of the wordings "or" between (a) and (b) makes them disjunctive, although (c) has to coexist with (a) or (b) whichever is applicable. In the present case, the provisions of Section 79 (2) (a) is not fulfilled as the function of the defendants is not confined to only provide an access to communication system where the third party information is stored, transmitted or hosted. But rather the defendants provides access only after a limited licence to add or modify the work and thereon by adding advertisements to the said works, modifying the works which means permitting the place for profit with knowledge. The said acts are thus of not those kinds prescribed under the provision of Section 79 (2) (a) which are of a limited role of merely providing an access to system containing storage medium or transmission of the third party information. 65. The acts of the defendants also may not fall with Section 79 (2) (b) as the said situation prescribed in the provision has to be satisfied conjunctively or collectively as the word used between the (i), (ii), (iii) is "and" which means all the situations must be satisfied else, the said IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.95 of 132 conditions in the provision are not met with. In the present case, the defendant‟s acts do not satisfy the criteria of modification of information. The defendants have attained the licence to modify the works provided by the users suitably. The complaint of the plaintiff is that adding the advertisement also infringes their rights. Thus, the act of modification of the works by the defendants also excludes the defendants from the purview of Section 79 (2) (b) of the Act. 66. The third condition of due diligence is also doubtful as the due diligence is required while discharging his duties. Thus, if the defendants are put to notice about the rights of the plaintiff in certain works, the defendants should do preliminary check in all the cinematograph works relating Indian titles before communicating the works to the public rather than falling back on post infringement measures. The due diligence is also not satisfied when the defendants uploads the contents of the user on their server and then modify the same as per the limited licence to amend from users. This means that the defendants have the chances to keep a check on the works which defendants avoid so to the reasons best known to them. The due diligence is thus also doubtful although defendants contend for the satisfaction of due diligence. 67. From the above, it is also clear that the applicability of Section 79 is also not satisfied although by operation of proviso to Section 81, the discussion on Section 79 is not really important. I do not IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.96 of 132 also find my agreement with the submission of the defendants that there will be harmonious construction between Copyright Act and IT Act if the provision of Section 79 will save the liability of the copyright infringement of the intermediaries like the defendants. I think rather accepting the submission would lead to apparent disharmony or conflict between the provisions of two Acts. This can be explained as follows: 68. Firstly it is well settled canon of construction that the court should adopt the mode of construction which upholds the provisions of the Act and make them workable and the interpretation which makes any provision of the Act otiose must be eschewed. 68.1 In High Court of Gujarat and Anr. v. Gujarat Kishan Mazdoor Panchayat and Ors. [2003] 2 SCR 799 , the Supreme Court held as under : 68.2 If Section 79 of the IT Act is allowed to operate as an embargo or restriction upon the exercise of the right of right holder by IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.97 of 132 saving the liability of the copyright infringement, the said interpretation will render proviso to Section 81 of the IT Act otiose or unworkable. The said interpretation thus leads the purpose of the proviso as redundant. On the contrary, if the gamut of the Section 79 is allowed to remain confined and subject to the proviso of Section 81 which is intended to be so by the legislature, both the provisions can stand and work in their respective fields. 68.3 Section 79 is, thus, meant for all other internet wrongs wherein intermediaries may be involved including auctioning, networking servicing, news dissemination, uploading of pornographic content but not certainly relating to the copyright infringement or patent infringement which has been specifically excluded by way of proviso to Section 81. This can be only possible harmonious construction between the two Acts which makes both the Acts workable. 68.4 Secondly, besides making proviso to Section 81 otiose, the interpretation canvassed by the defendants lead to conflict between two acts and also leads to absurd results. This is due to the reason that the Copyright Act, 1957 itself provides for an infringement as well as the exceptions of the infringement. Once the infringement is established, the remedies to the same are prescribed by Section 55. In that situation and given the fact that there is an express proviso excluding the copyright infringement from the purview of IT Act if not applied leads to IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.98 of 132 unnecessary adding further restrictions on the copyright infringements which is impermissible and therefore leads to absurd results negating the statutorily prescribed remedies for copyright infringement. 68.5 Further the provisions of authorization or permitting the place for profit requires knowledge or reasonable belief and other common law requirements for establishing the infringement as discussed above. Thus, the said act of authorization and/or permitting the place for profit itself requires knowledge and reasonable belief of infringement which are inbuilt exception to the infringement, The operation of Section 79 to exempt the liability of the intermediary except in cases of knowledge is rather repetition of the same provision and if the same is allowed to operate in the way of infringement which itself requires knowledge and reasonable belief or countenance or approval in respective cases would lead to anomalous situations and would lead to absurd results. 68.6 Thirdly, there is no legislative disharmony by operation of the proviso to Section 81 and rather adding of proviso to Section 81 by way of amendment put the unrest into an end. If Section 79 would have application to the copyright infringement which saves absolutely the liability of the intermediary without insertion of the proviso by the legislature under Section 81, then there would have been apparent conflict between the acts of infringement by way of permitting the place for profit provided under Section 51 (a) (ii) and Section 79 which saves IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.99 of 132 the liability of the intermediary. Thus, without insertion of the proviso to Section 81, there would have been two laws, one, providing the acts of intermediary or facilitator as infringement and another saving the liability. 68.7 In Dwarka Prasad v. Dwarka Das Saraf [1976] 1 SCR 277. Hon‟ble Krishan Iyer, J. speaking for the Court observed thus: 68.8 The adding of proviso is rather not only exclusionary but also clarificatory in nature which clarifies that the provisions of IT Act may not restrict the rights under Copyright Act or Patent Act as its tries to create and confer harmony between two laws and enactments so that they can operate in their respective fields. Thus, there is harmony by adopting the proviso rather than negating it. 69. In view of the above discussion, I find that there is no impact of provisions of Section 79 of IT Act (as amended on 2009) on the copyright infringements relating to internet wrongs where intermediaries are involved and the said provision cannot curtail the rights of the copyright owner by operation of proviso of Section 81 which carves out an exception cases relating to copyright or patent infringement. IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.100 of 132 IMPACT OF PROVISIONS OF DIGITAL MILLENIUM ACT OF US AND OTHER ENGLISH LAW 70. Now I shall deal with the possible impact of Digital Millennium Copyright Act ("DMCA") of US and the other English judgments cited by the parties. 71. The great stress has been laid on the judgments passed by US courts in following cases which are passed on analyzing the provisions of Digital Millennium Copyright Act ("DMCA"): 72. I have gone through the decisions passed by US Courts under the US Digital Millennium Copyright Act ("DMCA") and I am of the firm view, that there is no corresponding law which is in pari materia to that of Digital Millennium Copyright Act ("DMCA"). The said Act specifically addresses the issues relating internet related wrongs, however our existing law of Copyright Act, 1957 does not provide any such safe harbor provisions and rather the later enactment of IT Act, 2000 and its new amendment in 2009 speaks otherwise which I have already examined Section 81 of IT Act (as amended in 2009), proviso to which excludes the operation of the IT law in cases of copyright infringement. IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.101 of 132 73. It is trite that the court cannot re legislate or add words into the statute. this has been followed in Association for Development vs. Union of India & Others, 2010 (115) DRJ 277 wherein this court approved the literal rule and observed that ―it is not the duty of the court to enlarge the scope of the legislation when the language of the provision is plain and unambiguous. The court cannot recast or reframe the legislation for the very reason it has no power to legislate. The court cannot add words to a statute or reads words into it which are not there". 74. It is also well settled that the laws and the provisions which are not pari materia cannot be compared. This has been followed in the decision of the Apex Court in the case of Babu Khan vs. Nazim Khan (2001) 5 SCC 375). The following conclusion of Their Lordships is relevant: (para 5) "5......It is true that the courts while construing a provision of an enactment often follow the decisions by the courts construing similar provision of an enactment in pari materia. The object behind the application of the said rule of construction is to avoid contradiction between the two statutes dealing with the same subject. But in the present case, what we find is that the Madhya Bharat Land Revenue and Tenancy Act contains one integrated scheme providing for remedy to a pucca tenant claiming restoration of possession under Section 91 and 93 of the Act. The Madhya Bharat Land Revenue and Tenancy Act was repealed by the M.P. Land Revenue Code. In the repealing Act i.e. M.P. Land Revenue Code we do not find any provision like Section 93 of the Act. We are, IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.102 of 132 therefore, of the view that Sections 9 1, 92 and 93 of the Act are not in pari materia with the provision of Section 250 of the M.P. Code. It is not a sound principle of construction to interpret a provision of an enactment following the decisions rendered on a similar provision of an enactment when two statutes are not in pari materia" (emphasis supplied) 75. The adoption and drawing aid from the said provisions in the present scenario would thus mean adding provisions into the statute when the existing law says otherwise. Thus, in absence of any such law similar to Digital Millennium Copyright Act ("DMCA"), the reliance of the provisions and judgments passed under the said law is of no avail to the defendants and this court under existing law cannot be convinced by the reliance of the provisions of Digital Millennium Copyright Act ("DMCA") of US. 76. The same view was taken by constitutional bench of Supreme Court in R.L. Arora vs. State of UP, [1962] Supp(2) SCR 149 while rejecting the reading of American constitution 5th Amendment due to inconsistent provisions wherein the court observed as under: and consequently that to make a use public, a duty must devolve on the person or corporation holding property appropriated by the right of eminent domain to furnish the public with the use intended, IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.103 of 132 and that there must be a right on the part of the public, or some portion of it, or some public or quasi-public agency on behalf of the public, to use the property after it is condemned". The later view is that "public use" means "public advantage, convenience, or benefit, and that anything which tends to enlarge the resources, increase the industrial energies, and promote the productive power of any considerable number of the inhabitants of a section of the State, or which leads to the growth of towns and the creation of new resources for the employment of capital and labour contributes to the general welfare and the prosperity of the whole community and giving the Constitution a broad and comprehensive interpretation, constitutes a public use" (see American Jurisprudence. Vol. 18. pp. 661-62). In one State, where the older view is still held, the court pointed out that "if public use were construed to mean that the public would be benefited in the sense that the enterprise or improvement for the use of which the property was taken might contribute to the comfort or convenience of the public, or a portion thereof, or be esteemed necessary for their enjoyment, there would be absolutely no limit to the right to take private property, that it would not be difficult to show that a factory, hotel, etc., the erection of which was contemplated, would result in benefit to the public, and that, under this power, the property of the citizen would never be safe from an invasion." (see ibid. p. 664) It is the later view prevalent in some States in America for which the respondents are contending, and the result of that would be the same as pointed out above. But we do not think it necessary to examine the American cases cited before us because the words in our statute are not pari materia with the words used in the fifth amendment to the American Constitution." (Emphasis Supplied) 77. Likewise, the defendants as well as the plaintiff in order to support the arguments on authorization have placed reliance on the IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.104 of 132 number of cases which are decided by the UK Courts and the other courts of common law jurisdiction some granting the injunction and some refusing the same depending upon the facts and circumstances of the case. The said cases are enlisted as under: 78. No doubt the judgments passed by the UK Courts and in other common law jurisdictions are relevant to take into consideration on the tests laid down by the courts in order to arrive at the conclusion as to whether the acts of the defendants amount to authorization or not. I have already paraphrased the said tests while examining the aspect of authorization in the preceding paragraphs. Beyond that, I feel the conclusions set out in each of all those cases are of less value due to the following reasons: Like in UK Act of 1956, permitting the place of public IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.105 of 132 entertainment for profit is an infringement while in Indian Act of 1957, permitting any place for profit are the wordings under Section 51 which has made the differences in the interpretation as discussed above. Similarly, in UK CDPA Act of 1988, there are separate infringements provided for place for public entertainment for profit in the form Section 25 and infringement by way of apparatus in the form of Section 26. Further in UK Act of 1988 there are statutory indicators which excludes the liability of the persons under certain circumstances in cases of infringement by way of Appratus. However, Indian Act of 1957 remains the same with no such provisions. Thus, there is difference in provisions and the wordings which may ascribe difference meaning. This is also the reason for the English court to rely more on the concept of authorization. In the absence of pari materia provisions, the complete reliance on these decisions may not be useful. b) I have not based my conclusion regarding infringement on authorization (although I have analysed the tests relating to the same) as I have found that the same may require active participation besides knowledge which is a matter of trial and I have found that still the acts of the defendants are hit by the IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.106 of 132 provisions of Section 51 (a) (ii) of the Act. In these circumstances, the decisions on authorization may become of less aid as the acts of the defendants are squarely covered under the express legislative provision. Accordingly, principally, I accept the decisions rendered on authorization and tests laid down in the same and the same can be taken into consideration for the purposes of deciding the acts of authorization but may not be helpful in the cases involving the permitting the place for profit which is a statutorily prescribed infringement. RELIANCE ON INTERNATIONAL COVENANTS 79. Now, I shall be dealing with the submissions advanced by the learned counsel for the defendants on the reading of International covenants and adopting the same in interpreting the copyright law and especially the internet related wrongs which is The WIPO Copyright Treaty and its Article 8. It is also equally well settled that the international law and covenants can be taken recourse of in the municipal law to the extent they are not inconsistent with the municipal law and to fill the gaps in the existing law. {This has been accepted by Supreme Court in Visakha & Ors. vs. State of Rajasthan, (1997) 6 SCC 241)} IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.107 of 132 80. In the present case, the defendants themselves have informed the Court that India has not even ratified the said convention. Thus, the reliance on the said convention into Indian law is thus misplaced. Further, The answer to this can be traced if one reads the judgment of Entertainment Network (Supra) more carefully wherein the court discusses the extent to which the international covenants can be read into the national law. The relevant paragraphs of the judgment are reproduced hereinafter: (iii) To fulfill spirit of international obligation which IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.108 of 132 India has entered into, when they are not in conflict with the existing domestic law; (iv) To reflect international changes and reflect the wider civilization; (v) To provide a relief contained in a covenant, but not in a national law; (vi) To fill gaps in law." "Beginning from the decision of this court in Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225], there is indeed no dearth of case laws where this Court has applied the norms of international laws and in particular the international covenants to interpret domestic legislation. In all these cases, this court has categorically held that there would be no inconsistency in the use of international norms to the domestic legislation, if by reason thereof the tenor of domestic law is not breached and in case of any such inconsistency, the domestic legislation should prevail." "However, applicability of the International Conventions and Covenants, as also the resolutions, etc. for the purpose of interpreting domestic statute will depend upon the acceptability of the Conventions in question. If the country is a signatory thereto subject of course to the provisions of the domestic law, the International Covenants can be utilized. Where International Conventions are framed upon undertaking a great deal of exercise upon giving an opportunity of hearing to both the parties and filtered at several levels as also upon taking into consideration the different societal conditions in different countries by laying down the minimum norm, as for example, the ILO Conventions, the court would freely avail the benefits thereof." "Those Conventions to which India may not be a signatory but have been followed by way of IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.109 of 132 enactment of new Parliamentary statute or amendment to the existing enactment, recourse to International Convention is permissible." 81. From the reading of the aforesaid, it is clear that the international covenant wherein India is a signatory state can be utilized for limited purposes of bridging the gap between national law and international to the extent it is not repugnant with the national law. I am doubtful as to whether any of the tests laid down by Supreme Court are fulfilled in the present case in order to enable this court to consider the international covenant relied upon by the defendants. Firstly India has not ratified the said convention as per the defendants, thus there is no international obligation which is to be respected in the present case. Secondly, the defendants‟ counsel wants this court to read into the following statement to their benefit: 82. There is no disputing this proposition and I have in the preceding paragraphs of my judgment laid down this proposition that merely providing means does not amount to authorization. But this statement as such cannot be read into due to the non fulfillment of IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.110 of 132 principles which enables this court to read into the international covenants. 83 This statement is neither bridging any gaps in the law and is rather part of the statute in India where permitting the place for profit is an infringement and not providing mere means. The reading of this statement itself may not aid the case of the defendants in any event and, thus, I am not convinced and also not sure as to what aid the defendants intend to draw from reading of this article from the convention. This also does not affect the invocation of the provision of Section 51 (a) (ii) of the Act basing upon which I have found prima facie view of the infringement. 84. The submission has been made by the learned counsel for defendants that the defendants‟ acts of providing the tools relating to notice and turn down provisions are sufficient safeguards and amounts to due diligence which should be considered to be a mitigating factor against the grant of the injunction as the defendants are taking curative measures against the possible infringement. 85. I have gone through the submission advanced by the learned counsel for the defendants and I reject it being meritless. This is due to following reasons I find that the said post infringement measures may not be prima facie sufficient safeguards for the infringements: a) Firstly, I wish to again discuss Section 51 (a) (ii) of the Act read with Section 55 proviso, the wordings of which nowhere permits IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.111 of 132 any room for due diligence to be exercised by the infringer and only provides an exemption for mistaken infringement on the count of lack of knowledge or the person was not aware of the said infringement. Under these circumstances, permitting this kind of due diligence post infringement would mean reading the words into the statute which would be impermissible under the canons of construction when the statute does not provides so. b) Secondly, I have already concluded separately that provisions of IT Act would not curtail the remedies under the Copyright Act and Patent Act by virtue of the proviso of IT Act. In these circumstances, the provisions of Section 79 cannot also allow to militate against the case of established infringement under Section 51 and Section 55 of the Act. c) Thirdly, there are no safeguards provided under the Copyright Act for the infringement in the cases like the present one wherein there is a knowledge and exercise of due diligence post infringement. Rather, the conjoint reading of Section 51 of the Act and proviso to the Section 55 of the Act makes it clear that the knowledge or no notice of the infringement can only assist the defendants in resisting the damages and not the injunction. However, in some cases like the present one under Section 51 (a) (ii) of the Act, lack of knowledge can save the liability of infringement as the same is IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.112 of 132 the ingredient of the Section. But certainly, there is no provision which can save the liability when there is an apparent knowledge and exercise of due diligence post infringement. I have already formed an opinion that the defendants are aware and has reasonable belief of infringement and thus the exercise of due diligence after the infringement cannot operate in favour of the defendants to escape the liability. d) Fourthly, if there is any due diligence which has to be exercised in the event of absence of any provision under the Act, the said due diligence must be present at the time of infringement and not when the infringement has already occurred so that the infringement can be prevented at the threshold and not when the same has already occurred. The post infringement measures like the ones informed by the defendants which are in compliances of US statute may hold good in US due to the legislative measure but the same are not operative in India. Such post due diligence on the ground of some inherent helplessness which the defendants are pleading only because they are sitting on internet or cyberspace may not be correct as the law does not exclude cyberspace from its purview to do infringements there. The defendants have sufficient means to modify the work by taking licenses from the users, adding advertisements to the works of the plaintiff. Consequently, the IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.113 of 132 effective means for pre infringement enquires are also necessarily have to be performed by the defendants only. If the defendants state that there no means to do so due to some impossibilities, the defendants must take preliminary measures at the time of modification of the works and prior to making them available to the public so as to ensure that the same does not infringe any ones copyright. 86. It gives me no hesitation to state that the compulsion which the defendants are pointing out of lack of corrective measures at the first instance due to multiplicity of the works or uploads and also the diversified business of the defendants is not only the plea taken by the defendants for the first time in any infringement action relating to copyright infringement. It is rather applicable to any case of infringement. Take for instance, the case of music library or shop selling movies for hire wherein the defendants take the plea that due to multiplicity of numbers or titles, one cannot identify the pirated ones from the originals. But this kind of argument or plea cannot preclude the labour or burden which the defendants ought to have exercised while taking into the possession the pirated titles by enquiring as to whether they are belonging to the owner or emanating from owner or not. The situation will become more complex when the same movie seller or person giving for hire will IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.114 of 132 start keeping the international titles like Hindi Movies, English Movies, French Movies and Pakistani titles. The said labour then increases manifold and the said justification also gains more strength when he says that the due to several sources, it becomes virtually impossible to keep a hold of the each and every title whether original or duplicate. Even if the said person states that once it is brought to his notice by the customer or the owner that it is an infringement, he immediately removes the said title from the library or the shop. The said acts cannot save him from the liability of the infringement. 87. Likewise in the present case, the labour or the due diligence is the enquiry by the defendants themselves to be exercised. The nature of portal due to which the defendants feels helpless is of less avail to mitigate the liability unless there is a statutory exemption to that effect (like in Digital Millennium Copyright Act ("DMCA"). The defendants can do many things to stop this, first that it can enquire at the stage when the defendants modify the works, at that time the defendants can enquire about the titles of the work and about ownership, secondly at the time of the uploading by the user, the content should not immediately made the available to the public, the defendants can put them to the halt subject to enquiries of the titles or authentication of the proprietor and thereafter make them available to the public. IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.115 of 132 88. There is no reason to axiomatically make each and every work available to the public solely because user has supplied them unless the defendants are so sure that it is not infringement. If the defendants cannot exercise diligence of this nature, the necessary inferences can be drawn is that the defendants are making itself liable for infringement by its inactions to enquire about the source of the works at the appropriate stage. 89. Thus, even if the post infringement measures which may be acceptable in certain legal systems due to the specific legislations may not be hold good in India when the statute in India does not culls out any such exception as mitigating factor. 90. Now I shall be discussing the argument raised by the counsel for the parties on the reliefs. The extensive submissions have been made at the Bar about the nature of the relief. 91. Mr. Sibal has submitted that the present case warrants complete interim injunction in terms of the prayers made in interim application wherein the defendants can be restrained from communicating the plaintiff‟s works to the public as the current arrangement as directed by Division Bench is not sufficiently protecting the rights of the plaintiff. Mr. Sibal states that the current arrangement enables the infringement to first happen and then comes corrective action which is belated in cases of internet wrongs therefore, the plaintiff seeks more directions from this IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.116 of 132 Court so that the defendants do not infringe the works of the plaintiff. Mr. Sibal submits that even the order of Division Bench itself states that the same is tentative and cannot come in the way of deciding the injunction application. 92. On the other hand, Mr. Kumar has submitted that the injunction in terms of the prayers made in the interim application cannot be granted due to following reasons: IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.117 of 132 d) That the term of the order granting an injunction should be such that it is quite plain what it presents and what it prohibits. An order which merely prohibits a man from doing what he has no authority to do, without showing him what the limits of his authority are, and leaves him to find what is forbidden and what is allowed, is irregular. e) That in the present matter, the relief of omnibus injunction as sought by the Plaintiff is not only impossible to comply with by the defendants due to the existing technological limitations, but this Hon‟ble Court will not be able to enforce the same unless the legitimate website of the defendant No.1 is shut down. Besides, this Hon‟ble Court would require continuous monitoring of the defendant No.1‟s website, which is neither feasible nor in the spirit of law. f) That the relief of the general injunction cannot be granted as the plaintiff has not shown the title on the copyright on each and every work. The defendants also dispute the assignments of the copyright being not in order. Further, the defendants allege that the assignment in every work pertains to several restrictions such as restriction as to terms, restriction as to home viewing etc. Thus, till the time the assignment deeds are examined. The plaintiff is not IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.118 of 132 entitled to the relief of injunction much less the omnibus injunction. Thus, the defendants contend that the injunction of such nature is difficult to comply which necessitates non grant of such order which cannot be enforced. 93. I have examined the submissions of the parties on the issue of grant of wider relief which has been mentioned in the Interim application. I am of the opinion that the court is not powerless to protect the interest of the party in cases involving civil wrongs when it involves recurring infringements or infractions. I shall now proceed to discuss the reasoning to this effect: 93.1 Firstly, the defendants‟ concern that the plaintiff has not substantiated the cause of action by certainly providing the infringements against which it requires prohibitory relief. The said submission of the defendants do not aid their case as indeed the plaintiff has been able to procure the sample infringements which are entailed in the plaint out of the mass infringements which are occurring over the internet on day to day basis. It is the case of the plaintiff‟s that it is the owner of repertoire of the musical works and sound recordings. Out of this repertoire, if the plaintiff is able to show some sets of infringements and is also able to show that the defendant‟s acts are such which amounts to permitting the IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.119 of 132 place for profit for infringement purposes and there is a complete certainty of future infringements. There is no reason why this court should continue to allow the defendants to use that place for profit of the defendants against the infringement of the plaintiff works which includes current works and future works of the plaintiff. 93.2 It would be wrong understanding of the law to state that the infringements can be prohibited only when the torts are perfected. The principle of quia timet is not only confined to the trade mark infringements as propounded by the learned counsel for the defendants. The said submission is also misplaced and rejected as meritless. 93.3 The principle of quia timet is applicable to any tortuous liability wherever there is an apprehension of infringement likely to happen. This can be seen even in the cases of trespass where the injunctions are sought even when there is threat of invasion in the property of someone. The principle of quia timet has been explained by John George Woodroffe in his book "The Law Relating to Injunctions" in the following words : that is, the Court assists the party who seeks its aid, because he fears (quia timet) some future probable injury to his rights or interests, and not because an injury has already occurred, which requires any compensation or other relief. So the remedy by temporary Injunction being preventive IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.120 of 132 in its nature, it is not necessary that a wrong should have been actually committed before the Court will interfere, since if this were required it would in most cases defeat the very purpose for which the relief is sought by allowing the commission of the act which the complainant seeks to restrain. And satisfactory proof that the defendants threaten the commission of a wrong (which is within their power) is sufficient ground to justify the relief." 93.4 Likewise, Hugh Laddie in his book titled as "The Modern Law of Copyright" by Laddie, Presscott & Victoria at p. 405 observes about the nature of relief which can be sought in relation to infringements by way of authorization like in the present case in the following words: 93.5 In Fletcher v Bealey, {1885] 28.Ch.D.688 the principles that should be followed by a Court when dealing with an application for an injunction quia timet when infringement of the plaintiff's rights is only apprehended were succinctly laid down by Pearson, J. who said as follows at page 698: There must, if no actual damage is proved, be proof of imminent danger, and there must also be proof that the apprehended damage will, if it comes, be very substantial. I should almost say it must be proved that it will be irreparable, because, if the danger is not proved to be so IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.121 of 132 imminent that no one can doubt that, if the remedy is delayed, the damage will be suffered, I think it must be shown that, if the damage does occur at any time, it will come in such a way and under such circumstances that it will be impossible for the plaintiff to protect himself against it if relief is denied to him in a quia timet action." 93.6 Thus, the submission that this court cannot prevent future wrongs on the basis of quia timet injunction is also not correct as it is equally applicable to infringement of copyright like in any other tortuous act. Accordingly, the plaintiff is entitled to relief on the basis of quia timet action as the defendant‟s nature of activities is such where the plaintiff‟s works is liable to infringe and more so when the defendants are notified about the plaintiff‟s several works. The said danger of infringement is imminent risk of substantial damages with certainty as the defendants have already done several infringements and will continue to do so in the light of the continuous acts of the defendants. The plaintiff‟s interest is also to be protected against such infractions which are possible by way of injunction and any court jurisdictionally competent can grant the relief prayed for quia timet action. 93.7 Secondly, the submission of the defendants that the injunction order of the nature wherein the defendants are restrained from infringing the plaintiff‟s works in general cannot be granted as the defendants must know for what the defendants are restrained is also not correct. If the IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.122 of 132 defendants at this stage are already notified about the plaintiff‟s works for the purposes of notice and turn down provisions and is also conscious of the fact that the plaintiff owns most of Hindi movie titles and its copyright, there cannot be anything specific than stating that the defendants are restrained from using the works of the plaintiff. 93.8 It is only the apprehension of the defendants that they could not trace out the ownership of the plaintiff in each and every work. However, if one sees carefully the application of the notice and turn down facility provided by the defendants wherein the owners are chasing the infringers for turning their infringements down from the website as against the infringers chasing the owners, the problem of infringement can be resolved by applying the same conversely wherein infringers must legitimize the acts with the owners prior to committing any such infringements. This can be done only by the order of the court of prohibitory nature wherein the prior notice to the owners and steps to find ownership can be taken by the defendants by taking preventive actions prior to infringements. 93.9 These apprehensions of the defendants about inability of enforce or implement the order of this court are unfounded. Further, the concern of the defendants that their website hosts the acts which are infringing as well as non infringing and it is difficult to segregate all this IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.123 of 132 and rather impossible is also unmeritorious. Such concerns are taken care by the courts while granting injunctions in copyright infringements. 93.10 In Garware Plastics and Polyester Ltd. and Ors. etc. v. Telelink and Ors. etc.; AIR 1989 Bom 331 wherein Hon‟ble Bombay High Court had examined this kind of concern wherein the court observed that it is true that there are certain places like hotels where there are private viewings as well as public viewings, some of which are infringement and some are not. But still, the court proceeded to grant the injunction against the defendants from infringing the plaintiff‟s works in respect of which the plaintiff is the owners and/or assignees of copyright without obtaining an assignment of the same from such owners and assignees or a licensee under the Copyright Act, 1957. 93.11 Similarly in the cases involving mass infringements like the cases instituted by Performing Rights Society, Phonographic Societies which not only espouse the cause of one copyright owner but is a collective action, the mere fact of non crystallization of all the infringements does not preclude the courts from granting the injunctions basing on the prima facie ownership of the plaintiff‟s works and sample infringements. All these injunctions are being granted by this court from time to time. Thus, this concern of the defendants has no meaning and the injunction of the nature asked by the plaintiff cannot be faulted with considering the acts of the defendants which are infringing in nature and IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.124 of 132 the equal level of certainty with which the future infringement may arise. 93.12 Thirdly, the submission that this court cannot grant injunction in view of the Section 14 of the Specific Relief Act, 1963. I am of the opinion, that the Section 14 of the Act puts no embargo for the grant of the relief in the present case. This is due to the following reasons:  The present dispute relates to remedy which is statutorily prescribed by the special law of Copyright. I have already stated that quia timet action can be maintained in the IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.125 of 132 appropriate cases as permissible by the law. Thus, in the present case, the remedies prescribed by the special law will also operate over and above the remedies prescribed under the general law relating to contracts.  Section 14 (d) of the Act has been greatly stressed by the counsel for the defendants has also no applicability in the present case. However, in the present case, it would be incorrect to assume that the court cannot supervise the infringement of copyrights of the plaintiff‟s works in the event the court directs the defendants to take pre infringement measures to cut down infringement of the plaintiff‟s work. If the defendants are guilty of non performance or implementation of the order, the court can call for the records of the cache on the internet and downloads from the relevant sources whereby it can supervise whether the defendants have complied with the said order or not. 94. More importantly, if the plaintiff files separate suits for number of infringements, the moot question is whether the said acts can be monitored in that case or not. The answer to my knowledge is in affirmative. If that is, so then it can be monitored now also by directing IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.126 of 132 the defendants not to do the infringing acts. It would be rather futile exercise to relegate the plaintiff to file separate suits after perfection of infringements and allowing the defendants to continue to ride over the works of the plaintiff till that time. 95. The challenge to the assignment deeds which has been made by the defendants are only confined to the defects in the respective assignment pointed by the defendants. The said defects in the assignments are disputed by the plaintiff by stating that the said assignments are proper and are in order which can be furnished before the court. All this is more of a question of trial at the time of evidence. At this stage, for the purposes of forming a prima facie opinion, the assignments filed with documents are taken as correct as no contrary or no cogent evidence to disprove the same has been placed on the record by the defendants. On the basis of the documents, it can be stated that the plaintiff is the owner of copyright, otherwise no one would have executed the assignment deeds. Therefore, the title of the ownership of the plaintiff is sufficient to form prima facie view. Accordingly, this court is not precluded from passing interim order in terms of the prayers made in IA No.15781/2008 whereby the defendants can be restrained from infringing the copyrighted works of the plaintiff online by permitting place for profit. No further submission remains unanswered. IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.127 of 132 96. The principles for the grant of temporary injunction have been succinctly discussed in Dalpat Kumar & Anr. vs. Prahlad Singh & Ors.; AIR 1993 SC 276 wherein the apex court has stated that for the purposes of grant of temporary injunction, the court must test the case of the parties on threefold tests: 97. The plaintiff has been able to make out a prima facie case as the plaintiff is the owner of the copyright in the works enumerated in the plaint. The plaintiff has also been able to establish prima facie that the acts of the defendants are infringing in nature as the same are permitting the webspace or place on internet for profit. The prima facie case thus is in favour of the plaintiff. The balance of convenience lies in favour of the plaintiff as the defendants would be less inconvenienced if they are directed to not to infringe the plaintiff‟s works as it is their own case is that the defendants are doing business from multifarious jobs on internet and the works of the plaintiff is no means of profit. As against the same, the plaintiff is totally dependants upon its works for the purposes of royalties, reaping fruits of its copyright for further investments etc. thus, the plaintiff would be more inconvenienced if its works are continued to IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.128 of 132 be exploited for profit without its permission. The irreparable loss would also ensue to plaintiff if the works of the plaintiff are allowed to be made public for permitting the place on internet for profit as against the defendants who will loose nothing more than users on internet which as per themselves are trivial part of their business model. 98. Consequently, the present case warrants the grant of interim injunction for the purposes of prevention of infringement of the plaintiff‟s works. However, this court is not precluded from granting the interim relief in the moulded form so that the infringement can be prevented which is in fact the relief asked by the plaintiff in its interim application. Accordingly, the following interim directions and orders are passed: c) Further the defendants are also directed to verify from the plaintiff independently without waiting the direction under (b) to be complied with by the plaintiff on their own by IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.130 of 132 other means continuously or through its India centric operations about the ownership status or updations in the works of the plaintiff and shall do their honest endeavours on their own to remove the offending content or infringing works immediately after the gaining the said knowledge. d) In relation to the works of the plaintiff which are already turned down once by the defendants, the defendants are restrained from further allowing the continuation of the uploadings or its existence on its website of the same works which have already been turned down/ deleted by the defendants at the behest of the plaintiff request. This has been already stated by the defendants by explaining their various tools for preventing infringement wherein the defendants possess the necessary tools and the technology which identifies and prevents the repetitions in infringements after its first posting and deletion. Accordingly, the defendants are directed to ensure the deletions and the preventions of repetitions on their own after putting to notice by the plaintiff about the works by availing their own tools and not by the calling the plaintiff to do this by some subscription. IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.131 of 132 In this way, the parties in the interim can prevent the infringements and its occurrence on the website of the defendants till the disposal of the suit. The orders passed in the interim applications are tentative in nature and does not come in the away of the court at the time of hearing of the matter after the completion of the trial. 99. Consequently, the plaintiff‟s application being IA No.15781/2009 (U/o 39 R 1 & 2 CPC) is allowed and defendants‟ application being IA No.3085/2009 (U/o 39 R 4 CPC) is dismissed with cost of Rs.20,000/-. 100. IA No.15781/2009 and IA No.3085/2009 are accordingly disposed of. CS (OS) No. 2682/2008 List on 16th August, 2011 for direction. MANMOHAN SINGH, J JULY 29, 2011 IA Nos.15781/2008 & 3085/2009 in CS(OS) No. 2682/2008 Page No.132 of 132

Author: Manmohan Singh

Super Cassetes Industries Ltd. vs Myspace Inc. & Another on 29 July, 2011

Delhi High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 8201 of 2009(U) 1. P.B. BABURAJ ... Petitioner Vs 1. COMMERCIAL TAX OFFICER AND OTHERS ... Respondent For Petitioner :SRI.BOBBY JOHN For Respondent : No Appearance The Hon'ble MR. Justice K.M.JOSEPH Dated :13/03/2009 O R D E R K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) No. 8201 OF 2009 U ```````````````````````````````````````````````````` Dated this the 13th day of March, 2009 J U D G M E N T I heard learned counsel for petitioner and learned Government Pleader. Writ petition is disposed of directing the 3rd respondent to consider and take a decision on Ext.P6 and if the delay is condoned, there will be a further direction to the 3rd respondent to consider and take a decision on Ext.P10 in accordance with law, within a period of one month from the date of receipt of a copy of this judgment. Till such time, revenue recovery proceedings against the petitioner pursuant to Ext.P3 shall be kept in abeyance. The petitioner will produce a copy of this judgment before the 3rd respondent as soon as it is received. Sd/- (K.M.JOSEPH, JUDGE) aks // TRUE COPY // P.A. TO JUDGE 

P.B. Baburaj vs Commercial Tax Officer And Others on 13 March, 2009

Kerala High Court

Gujarat High Court Case Information System Print CA/6321/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR BRINGING HEIRS No. 6321 of 2011 In SPECIAL CIVIL APPLICATION No. 4070 of 2005 ================================================= SUDHAKAR BHAGWATPRASAD RAJYAGURU - Petitioner(s) Versus HEAD MISTRESS - SHRI KANYA VINAY MANDIR & 3 - Respondent(s) ================================================= Appearance : MR AS SUPEHIA for Petitioner(s) : 1, 1.2.1, 1.2.2,1.2.3 None for Respondent(s) : 1, GOVERNMENT PLEADER for Respondent(s) : 2 - 4. ================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 07/09/2011 ORAL ORDER Heard learned advocate for the applicants. Issue rule returnable on 12th October, 2011. [Anant S. Dave, J.] *pvv     Top

Author: Anant S. Dave,

Sudhakar vs Head on 7 September, 2011

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.19501 of 2010 RANJEET KUMAR @ RANJEET DAS @ RANJEET RAVIDAS Versus STATE OF BIHAR ----------- AI ( Mandhata Singh, J.) 3 29.6.2010 Learned counsel for the petitioner is permitted to implead complainant as opposite party no.2 in this application. Issue notice to opposite party no. 2 under registered cover with A/D and also ordinary process, for which requisite must be filed within two weeks, failing which this application shall stand rejected as against concerned opposite party, without further reference to a Bench. In the meantime, no coercive step shall be taken against the petitioner in connection with Complaint Case No. 83©/08 pending in the court of Sub-Divisional Judicial Magistrate, Danapur (Patna).

Ranjeet Kumar @ Ranjeet Das @ ... vs State Of Bihar on 29 June, 2010

Patna High Court - Orders

JUDGMENT Untwalia, C.J. 1. This is a reference made under Section 66(1) of the Indian Income-tax Act, 1922 (hereinafter called "the Act"), by the Income-tax Appellate Tribunal for determination by this court of the following question of law : " Whether, on the facts and in the circumstances of the case, the amount of Rs. 2,04,947 was allowable as deduction of selling commission in the assessment for the assessment year 1955-56 ? " Most of the facts may be taken from the statement of the case prepared by the Tribunal. The assessee is a limited company, named Messrs. Shree Krishna Gyanoday Sugar Ltd., Dalmianagar. The assessment year in question is 1955-56, the corresponding previous year of the assessee being from August 1, 1953, to July 31, 1954. The company carries on manufacturing business of sugar and distillery products. On February 25, 1949, an agreement was entered into between the assessee and another company called the Ashoka Marketing Ltd., appointing the latter as the selling agents for the sale of the products of the former as per terms incorporated in the agreement, a copy of which is annexure " A " to the statement of the case. The agent-company was entitled to a commission of 1 per cent, on the sales of sugar and 2 1/4 per cent, on the sales of distillery products. The commission was to be calculated on the gross invoice value of the products. The assessee had to consign, transmit and deliver to the selling agents or at their request to other parties such quantities of the products manufactured by it for which the agent-company might place orders from time to time. The accounts contained details of the commission credited to the selling agents month by month. In the previous year in question the commission payable on sales of sugar came to Rs. 1,82,690 and Rs. 22,257 on sales of distillery products. On August 2, 1954, just two days after the closing of the previous year, the assessee-company wrote a letter to the agent-company, a copy of which is annexure " B " to the statement of the case, stating therein that in view of the poor working result of the company found during the year it was difficult to make payments of commission at the rates stipulated under the agreement dated February 25, 1949. Ashoka Marketing Ltd. was therefore, requested to charge only such commission, brokerage, etc., as had been actually incurred by them. It may be stated here that the said company was incurring some small expenditure on that account by payment to other parties. 2. The board of directors of Ashoka Marketing Ltd. considered the letter of the assessee-company dated August 2, 1954, and passed a resolution on August 11, 1954, stating that the agent-company would charge for the pefiod commencing on September 1, 1953, only such commission, brokerage, etc., as was payable by it in respect of sugar and distillery products sold. The negotiation for revision of the agreement was also referred to in the resolution and a fresh agreement was authorised to be entered into. A copy of the resolution dated August 11, 1954, is annexure " C ". 3. In the books of the assessee-company original entries were made crediting the agent-company with the commission as calculated under the agreement. The books were kept open for making adjustment entries in August, 1954, and when the agent-company passed the resolution in August, 1954, the assessee-company made the necessary journal entries reversing the original entires criditing the commission. The result was that there was ultimately no commission charged in the assessee's profit and loss account as none finally stood cridited to the agent-company. Copies of entries and balance-sheets are annexures " D " and " E ". 4. Return was filed without claiming the two amounts, viz., the sums of Rs. 1,82,690 and Rs. 22,257, total Rs. 2,04,947, as business expenditure of the assessee-company. The assessment order in this case is dated March 30, 1960. Just five days before, probably when the assessment proceedings were going on, the assessee-company claimed dedution of the amounts aforesaid by its letter dated March 25, 1960, a copy of which is annexure " F". The Income-tax Officer held that on the facts and in the circumstances of the case the deduction could not be claimed or allowed. The Appellate Assistant Commissioner, on appeal, affirmed the view of the Income-tax Officer. When the matter was, in second appeal, before the Appellate Tribunal, reference was made to the assessment of the two amounts in the hands of Ashoka Marketing Ltd. on behalf of the assessee-appellant, and it was contended that the amounts, therefore, ought to have been allowed as deductions in the assessment of the assessee-company. I may state here that the Tribunal attached no importance to this aspect of the matter and rightly so. We were further informed at the Bar that the addition of the two amounts in the assessment of Ashoka Marketing Ltd. is sub judice and is under challenge in further proceedings. Be that as it may, the question for consideration in this case is whether the assessee could claim a a deduction of the amounts in question as selling commission for the assessment year 1955-56. 5. The principles of law which are deducible from the decided cases, many of which will be noticed in this judgment hereinafter, are these : (1) In a mercantile system of accounting actual cash receipt of income is not necessary for the purpose of taxing a particular item as income ; it is sufficient if the income has accrued during the period in question. Similarly, if the liability to a particular sum has been incurred during the accounting year and if otherwise the sum is allowable as a revenue expense, then whether the sum has been actually paid or not is immaterial; the liability so incurred has got to be allowed as a revenue expense. (2) If after the accrual of the income or incurring of the liability any party forgoes the sum by way of gift, charity or the like and voluntarily which cannot be characterised as a remission on grounds of commercial expediency, then such forgoing cannot affect either accrual of the income for the purpose of assessing tax on it or the liability incurred for the purpose of carrying on the business, and the liability so incurred cannot be obliterated by such forgoing. (3) Mere book entries are not decisive of the matter. What has to be seen and found out is the effect of the forgoing in law in the accrual of the income or the incurring of the liability for expenditure. If the two trans actions can be called to be part and parcel of the same transaction so as to wipe off the accrual or the liability, then, on remission by one party, neither the income is available for taxation nor the expenses are fit to be allowed as business expenses. If, however, the two can be viewed as separate transactions and the subsequent remission has not the effect of wiping off: the accrual of the income or the liability of the expenses, but is either a unilateral act or some act which has not got that effect, then the accrual of the income or the incurring of the liability of the business expenses remains. In the background of the above principles of law, first, I proceed to examine the facts of this case before I come to discuss the authorities on the point. It was expressly provided in Clause 17 of the agreement that by mutual consent it could be determined at any time. It goes without saying that in the realm of contract law it was open to the parties to vary any term of the agreement by mutual consent. As mentioned in the letter dated August 2, 1954 (annexure " B "), the assessee-company was noticing its bad position, and, therefore, about the beginning of the preceding sugar season, which was in the midst of the accounting year, mutual negotiations had started in terms of the agreement dated February 25, 1949, subject to the ratification by the boards of both companies, in respect of the difficulties of the assessee-company in paying commission on sales stipulated under the agreement. It is further stated in this letter that the matter was not finalised during the accounting year, but it was mutually agreed that the position might be reviewed at the end of the year. The agreement was also sought to be amended as per draft enclosed with the letter. It is not quite correct to say that the amendment of the agreement was de hors the remission of the commission amount for the year in question : it was a part and parcel of the same negotiations and the variation of the agreement. The suggestion in the letter, therefore, was that the agent-company might charge from the assessee-company for the year ending July 31, 1954, the actual expenses or commission, brokerage, etc., expended by the former. This proposal was accepted by the board of directors of Ashoka Marketing Ltd. by their resolution dated-August 11, 1954 (annexure "C"). This also talks about the revision of the agreement dated February 25, 1949, and I have no doubt in my mind that it also relates to the variation for the year in question. Of course, the proposal for the month of August, 1953, does not seem to have been accepted, as the acceptance was for the period of one year commencing from September 1, 1953, only. But that is of no consequence, because the whole of the amount is covered by the period commencing from September 1, 1953, and ending on July 31, 1954. The reversal entry in annexure " D " shows that it was reversed as per statement attached and not because the agent-company remitted it on account of considerations other than commercial expediency. I would better quote the letter written by the assessee-company to the Income-tax Officer on March 25, 1960 (annexure " F "): " We understand that in the case of our selling agents, Messrs. Ashoka Marketing Ltd., you have questioned why the selling commission forgone by them relating to 1953-54 (accounting year), should not be taxed in their hands. In this connection it has already been explained to you that the said commission was remitted by them on grounds of commercial expediency and in view of our working results being much below those of th,e earlier years. It is well established by legal decisions that the commission is not taxable in their hands. It is submitted without prejudice that in case the said commission is taxed in their hands the same should be allowed as a legitimate deduction' in our assessment." It would thus be clear that the assessee-company first pleaded that the amount should not be taxed in the hands of Ashoka Marketing Ltd. as they had remitted the amount of commission on the ground of commercial expediency. If, however, it was taxed in their hands, then it should be allowed as a legitimate deduction in the assessment of the assessee-company. It would thus be seen that in the instant case the liability which was incurred as per the agreement dated February 25, 1949, was obliterated and given a go-by by novation of the agreement between the parties. It was open to them to do so. It mattered little whether novation of the term of the agreement came before the close of the accounting year or after : the two were part and parcel of the same transaction. It was not a case where the agent-company had forgone its claim on commission leaving intact the liability of the assessee-company. In the eye of law, the liability incurred earlier was obliterated later by mutual consent of the parties. That being so, the liability to pay the commission was no longer there, and, therefore, the assessee-company could not claim it as a business expense under Section 10(2)(xv) of the Act. I am not concerned in this case whether the sums in question could be taxed in the hands of Ashoka Marketing Ltd. It will be beyond the scope of this reference to express any opinion in that regard. 6. The Tribunal has relied upon a decision of the Bombay High Court in Commissioner of Income-tax v. New Jehangir Vakil Mills Co. Ltd., [1959] 37 I.T.R. 136 (Bom.) and referred to two decisions of the Supreme Court in Commissioner of Income-tax v. Chamanlal Mangaldas & Co., [1960] 39 I.T.R. 8 ; 30 Comp. Cas. 293 (S.C.) and Commissioner of Income-tax v. Shoorji Vallabhdas and Co., (1962] 46 I.T.R. 144 (S.C.). I shall presently deal with them as also with a few more. However, I want to emphasise at this stage that the Tribunal does not seem to have expressed its view on the footing that the remission by the agent-company was not on the ground of commercial expediency. As I read the order of the Tribunal, it seems to have accepted the stand taken on behalf of the assessee. The facts of the case of New Jehangir Vakil Mills Co. Ltd. were that a total liability to the tune of Rs. 4,00,000 and odd payable as agent's commission was incurred by the assessee-company. The managing agents agreed to forgo a sum of Rs. 1,00,000 and odd out of that amount of remuneration. Ultimately, the net amount received by them was Rs. 3,00,000 and odd. In the balance-sheet of the company one-third of the total commission was shown as "voluntarily given up". The whole sum had been taxed at the hands of the managing agents. But that apart, S. T. Desai J. (as he then was), stated at page 139 : " The question really lies in a very narrow compass. What we have to consider is what was the legal obligation or the liability that was incurred by the company. We are not dealing here with any cash payment or cash receipt and in our judgment the only possible view is that the liability incurred by the company was not the lesser amount but the whole amount of Rs. 4,58,388 and if that be the position, then we do not see how the department was justified in withholding full deduction of Rs. 4,58,388." When the departmental counsel argued that the amount was given up by the managing agents as a matter of business expediency and not ex gratia as stated by the Tribunal, and, therefore, it was a receipt and income in the hands of the company, the argument was repelled by stating: " The rinding of this court in the earlier reference relating to the assessment of the managing agents was that the managing agents were not compelled under the provisions of any agreement to give up the amount but it was voluntarily given up by them. That being the position, it is extremely difficult for us to see how this amount which was voluntarily given up by the managing agents and received as such by the company can be treated as receipt or income in the hands of the company." It would thus be seen that on the facts of this case it was found that the amount was voluntarily given up by the managing agents and not in accordance with the provisions of any agreement. In the instant case, the amounts were given up as a result of the variation of the terms of the agreement between the parties by mutual consent and also for commercial expediency. 7. In my opinion, the Tribunal has not correctly appreciated the facts and ratio of the decision of the Supreme Court in the case of Chamanlal Mangaldas & Co. The income-tax authorities in that case had held that the entire sum of Rs. 2,00,000 was taxable income, having accrued as commission during the previous year and out of it a sum of Rs. 1,00,000 was a mere voluntary surrender which could not affect the taxability of the whole amount of commission accruing to the managing agents. The Tribunal, however, held that as a result of the agreement between the managing agents and the managed-company the right of the managing agents to claim full remuneration had been taken away as from January 1, 1950, and it was not a voluntary relinquishment on the part of the managing agents. Therefore, what was taxable was the amount of Rs. 1,00,000 and odd and not the other lakh. The facts of the other civil appeal which was before the Supreme Court were similar. The discussion at page 13 would show that the amounts payable under the agreement could be determined at the end of the year. An entry to that effect had been made on December 31, 1950, but the directors decided that they should be paid a lakh less, and the balance only was credited to their account. In such a situation it was inferred that the right of the managing agents to receive the commission on its accrual was at the end of the accounting year when all the sales were and could be added up and the accounts were made up. It has, therefore, been said: " Thus, the amount which accrued or which they were entitled to receive was the latter sum, i.e., Rs. 1,05,575, and not what would have been payable had there been no variation in, and modification of, the agreement." Dr. Pal, appearing for the assessee-cornpany, submitted that in the instant case the amounts became payable every month ; they were accordingly credited to the account of Ashoka Marketing Ltd. every month and not at the end of the year. In my opinion, that makes no difference. By mutual consent the liability incurred earlier could be wiped off even though the consensus ad idem was arrived at later. Law did not prevent the parties, by mutual consent, from giving effect to the variation of the agreement from a back date. In the realm of contract law, by retroactive operation of the contract new facts may not be permissible to be brought into existence, but facts or liabilities already created can be obliterated by retroactive operation of the subsequent agreement. Law does not prevent it. In my opinion, the Tribunal has committed an error of law in placing reliance upon the decision of the Supreme Court in the case of Shoorji Vallabhdas and Co., and using this decision in favour of the assessee. In that case, the question was whether the two sums under consideration were income of the previous year ; if so, whether they represented an item of expenditure permissible under the provisions of Section 10(2)(xv) in computing the assessee's income of that previous year from its managing agency business. The departmental authorities came to the conclusion that the amount of larger commission had already accrued during the previous year and was thus assessable. The amount given up could not be allowed as an expenditure under Section 10(2)(xv). In the Appellate Tribunal there was a difference of opinion between the Accountant Member and the Judicial Member, the latter taking the view that the appeal should be allowed. The President agreed with the Judicial Member and opined that, even though the actual reduction took place after the year of account was over, there was, in fact, an agreement to reduce the commission even during the currency of the account" year, and the larger income neither accrued nor was received by the assessee-firm. The assessment was, therefore, reduced by deleting the extra commission from computation. The High Court agreed with the view of the President and answered the first question in the negative and, therefore, declined to answer the second question as to the deducibility of the amounts under Section 10(2)(xv) of the Act. Hidayatullah J. (as he then was) approved the decision of the Bombay High Court which, in its turn, had relied upon its earlier decision in the case of Commissioner of Income-tax v. Chamanlal Mangaldas & Co. This decision of the Bombay High Court was approved by the Supreme Court in the case of Chamanlal Mangaldas & Co. The learned judge said at page 148 : " Where income has, in fact, been received and is subsequently given up in such circumstances that it remains the income of the recipient, even though given up, the tax may be payable. Where, however, the income can be said not to have resulted at all, there is obviously neither accrual nor receipt of income, even though an entry to that effect might, in certain circumstances, have been made in the books of account. This is exactly what has happened in this case, at it happened in the Bombay case Commissioner of Income-tax v. Chamanlal Mangaldas & Co., which was approved by this court. Here too, the agreements within the previous year replaced the earlier agreements, and altered the rate in such a way as to make the income different from what had been entered in the books of account. A mere book-keeping entry cannot be income, unless income has actually resulted, and in the present case, by the change of the terms the income which accrued and was received consisted of the lesser amounts and not the larger. This was not a gift, by the assessee-firm to the managed companies. The reduction was a part of the agreement entered into by the assessee-firm to secure a long-term managing agency arrangement for the two companies which it had floated." In the instant case, as I have said above, negotiations for remission of the commission amounts had started during the previous year. Immediately on close of the year a letter was written by the assessee-company to the agent-company. Books of account were kept open for the purpose. The agent-company agreed to remit the amount of commission, except a portion which was in the nature of actual amounts expended by it. That being so, even though the variation of the agreement was effected subsequently, on the facts of this case, I am definitely of the opinion that it will not detract from the possition that the liability incurred was made non-existent by the subsequent agreement given effect to by the parties concerned. 8. Dr. Pal also placed reliance upon the decision of the Bombay High Court in H. M. Kashiparekh & Co. Ltd. v. Commissioner of Income-tax, [1960] 39 I.T.R. 706 (Bom.). S. T. Desai J., the same learned judge who had decided the case of New Jehangir Vakil Mills Co. Ltd., when the question arose whether the amount was taxable or not, stated at page 722: " In the present case surrender of commission has been made bona fide and as a matter of commercial expediency and at an early point of time when accounts were made up. We need not recapitulate what we have already stated. The accrual of the commission, the making of the accounts, the legal obligation to give up a part of the commission and the forgoing of the commission at the time of the making of the accounts are not disjointed facts. There is a dovetailing about them which cannot be ignored." I, respectfully, adopt the reasoning of the learned judge and apply them mutatis mutandis to the facts of the instant case. 9. Mr. B. P. Rajgarhia, learned counsel for the revenue, cited before us the decision of the Supreme Court in Poona Electric Supply Co. Ltd. v. Commissioner of Income-tax, [1965] 57 I.T.R. 521 (S.C.). The ratio of this case and passages from it have been quoted with approval in a later decision of the Supreme Court in Commissioner of Income-tax v. Birla Gwalior (P.) Ltd., [1973] 89 I.T.R. 266 (S.C.). In the case of Morvi Industries Ltd. v. Commissioner of Income-tax, [1971] 82 I.T.R. 835 (S.C.), it is no doubt true that by resolution of the board of directors of the managing agency company, the assessee relinquished its commission on sales and office allowance, because the managed company had been suffering heavy losses in the past years. This was done after the commission had become due but before it had become payable in terms of Clause 2(e) of the agreement. The Tribunal held that the relinquishment by the assessee of its remuneration after it had become due had no effect and also rejected its claim that the amounts relinquished were allowable under Section 10(2)(xv) of the Act. The Supreme Court affirmed the view of the High Court and held that the commission had accrued to the assessee at the end of the previous years and the fact that the payment had been deferred till after the accounts had been passed in the meetings of the managed-company did not affect the accrual of the income. The amounts of income for the two years were given up unilaterally by the assessee after it had accrued to it; therefore, it could not escape liability to tax on those amounts. Moreover, the amounts were not relinquished for the purpose of the assessee's business and hence the assessee was not entitled to claim deduction of the amounts as business expenditure under Section 10(2)(xv) of the Act. Khanna J., delivering the judgment on behalf of the court, said ; " The accrual of an income is not to be equated with the receipt of the income...... The appellant-company admittedly was maintaining its accounts, according to the mercantile system. It is well-known that the mercantile system of accounting differs substantially from the cash system of bookkeeping. Under the cash system, it is only actual cash receipts and actual cash payments that are recorded as credits and debits, whereas under the mercantile system, credit entries are made in respect of amounts due immediately they become legally due and before they are actually received; similarly, the expenditure items for which legal liability had been incurred are immediately debited even before the amounts in question are actually disbursed. Where accounts are kept on mercantile basis, the profits or gains are credited though they are not actually realised, and the entries thus made really show nothing more than an accrual or arising of the said profits at the material time. The same is the position with regard to debits made." The decision of the Supreme Court in the case of Shoorji Vallabhdas and Co. was distinguished on the ground : " It was held that this was not a case of a gift by the assessee to the managed companies of a portion of income which had already accrued, but an agreement to receive a lesser remuneration than what had been agreed upon. In the present case, the amounts of income for the two years in question were given up unilaterally after they had accrued to the appellant-company. As such, the appellant could not escape the tax liability for those amounts." On a review of several authorities, Hegde J. has said in the case of Birla Gwalior (P.) Ltd. after laying strees on some lines which Khanna J. has quoted in the judgment in the case of Morvi Industries Ltd. from the decision of the Supreme Court in Shoorji Vallabhdas and Co.: " Hence it is clear that this court in Morvi Industries' case did emphasise the fact that the real question for decision was whether the income had really accrued or not. It is not a hypothetical accrual of income that has got to be taken into consideration but the real accrual of the income." On a parity of reasoning, I have no doubt in my mind that what has to be allowed as a business expense is either the actual amount expended or the real liability incurred. But a liability incurred which in law justifiably could be and was given a go-by was not a real liability of the expenditure; it was a hypothetical liability and became non-existent on variation of the terms of the agreement by mutual consent of the parties for the purpose of commercial expediency. That being so, I have no doubt in my mind that the amount was wrongly allowed by the Tribunal under Section 10(2)(xv) of the Act. Learned counsel for the assessed submitted that Sub-section (2A) was introduced in Section 10 with effect from April 1, 1955. Therefore, the subsequent remission brought about in the accounting year commencing from August 1, 1954, which would correspond to the assessment year 1956-57, could be taxed in the hands of the assessee company under Section 10(2A) of the Act. I am not called upon to decide this question in this case as it does hot arise out of the Tribunal's order. I may, however, add that Sub-section (2A) seems to be attracted to a case where after allowance or deduction had been made in the assessment for any year and subsequently during any other previous year, the assessee had received, whether in cash or in any other manner, any amount in respect of such allowance or deduction. In the instant case, the amount was not allowed or claimed as a deduction in the assessment year 1955-56, because by mutual consent the agent-company had agreed not to charge commission from the assessee-company. The claim made in the letter dated March 25, 1960, was a conditional one that if the amount is taxed in the hands of Ashoka Marketing Ltd. then deduction should be allowed. Such a contingent liability claim, it is undisputed, could not be made and allowed. 10. For the reasons stated above, I answer the question referred to this court in the negative, against the assessee and in favour of the revenue. I hold that, on the facts and in the circumstances of this case, the amount of Rs. 2,04,947 was not allowable as deduction of selling commission in the assessment for the assessment year 1955-56. The assessee must pay the costs of this reference. Hearing fee is assessed at Rs. 250 only. Nagendra Peasad Singh, J. 11. I agree.

Author: Untwalia

Commissioner Of Income-Tax vs S.K.G. Sugar Ltd. on 11 January, 1974

Patna High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.27341 of 2010 RAHUL KUMAR SINGH Versus STATE OF BIHAR & ANR ------ shail (Mandhata Singh, J.) 2/ 31.08.2010 Issue notice to the Opposite Party No. 2 by ordinary process as well as registered cover with A/D for which requisites etc. must be filed within two weeks, failing which the application shall stand rejected without further reference to a Bench. In the meantime, no coercive action be taken against the petitioner in connection with Akbarpur P.S. Case No. 22 of 2010 pending in the Court of C.J.M., Nawada. Let the order be communicated through F.A.X. at the cost of the petitioner.

Rahul Kumar Singh vs State Of Bihar &Amp; Anr on 31 August, 2010

Patna High Court - Orders

ORDER Mufti Baha-Ud-Din Farooqi, Ag.C.J. 1. This revision arises out of a suit for the eviction of the defendants from a double storeyed house situate in Jammu city, inter alia, on the ground that the tenant-defendant No. 1 has sublet the house to defendants Nos. 2 to 7 in contravention of the terms of the lease deed dated 4th Bhadoon, 2008 (BK) which expressly provide that the tenant shall not sublet the house or any portion thereof to any person without the permission of the landlord. The defendants have resisted the suit, inter alia, on the ground that the sub-tenants are necessary parties and that the suit is bad because all the sub-tenants have not been impleaded as defendants in it. The trial Court has held that the subletting in this case is a ground of eviction under Clause (c) of Sub-section (1) of Section 11 of the Jammu and Kashmir Houses and Shops Rent Control Act, (shortly 'the Act') which comprehends the creation of unauthorised sub-tenancy by a tenant in the sense that he does it without the permission of the landlord and the inevitable consequence is that the landlord need not make the sub-tenant a party to the suit for eviction based on this ground. The Court has proceeded to observe that the position is not the same under Clause (h) of Sub-section (1) of Section 11 of the Act which comprehends authorised sub-tenancy in the sense that it is permitted by the terms of the lease or otherwise consented to by the landlord and the effect is that the landlord is under an obligation to make the sub-tenant a party to a suit for eviction based on any of the grounds mentioned in this clause. The Court has concluded that, in any view of the matter, the suit cannot be said to be bad because the landlord has already impleaded the subtenants as defendants and, consequently, the controversy is meaningless. 2. The argument of the learned counsel for the revisionist is that the distinction drawn by the trial Court is erroneous. He urged that, irrespective of the fact whether the suit is based upon Clause (c) or Clause (h) of Sub-section (1) of Section 11 of the Act, the subtenant is necessary party. He emphasized that the sub-tenant is a person to whom and the tenant is the person by whom subletting is made and it is immaterial whether such subletting is with or without the consent of the landlord. In order to appreciate and determine the point, it will be necessary to refer to the relevant provisions of the Act. Section 11 (1) of the Act, so far as relevant, reads:-- "11. Protection of a tenant against eviction.-- Notwithstanding anything to the contrary in any other Act or law, no order or decree for the recovery of possession of any house or shop shall be made by any Court in favour of the landlord against a tenant, including a tenant whose lease has expired: Provided that nothing in this sub-section shall apply to any suit for decree for such recovery of possession -- (a) ...... .... ..... ...... ...... ...... .... (c) against a tenant who has sublet the whole or a major portion of the house or shop for more than seven consecutive months: Provided that if a tenant, who has sublet major portion of the house or shop, agrees to possess as a tenant the portion of the house or shop not sublet on payment of rent fixed by the Court, the Court shall pass a decree for ejectment from only a portion of the house or shop sublet and fix proportionately fair rent for the portion kept in possession of such tenant, which portion shall thenceforth constitute house or shop under Clause (3) or Clause (5) of Section 2 and the rent so fixed shall be deemed fair rent fixed under Section 8;(h) Where the house or shop is reasonably required by the landlord either for purposes of building or re-building, or for his own occupation or for the occupation of any person for whose benefit the house or shop is held: Provided that all sub-tenants in the house or shop are made parties to the suit and allowed opportunity of contesting claim to decree for ejectment. Explanation.-- The Court in determining the reasonableness of requirement for purposes of building or re-building shall have regard to the comparative public benefit or disadvantage by extending or diminishing accommodation, and in determining reasonableness of requirement for occupation shall have regard to the comparative advantage or disadvantage of the landlord or the person for whose benefit the house or shop is held and of the tenant: Provided where the Court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the house or shop and allowing the tenant to continue occupation of the rest, and the tenant agrees to such occupation, the Court shall pass a decree accordingly and fix a proportionately fair rent for the portion in occupation of the tenant, which portion shall henceforth constitute the house or shop within Clause (2) or Clause (5) of Section 2 and the rent fixed shall be deemed to be the fair rent fixed under Section 8; (1) Subject to the provisions of Section 12 where tie amount of two months rent legally payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract, or in the absence of such contract by the fifteenth day of the month next following that for which the rent is payable or by not having been validly deposited in accordance with Section 14: Provided that no such amount shall be deemed to be in arrears unless the landlord on the rent becoming due serves a notice in writing through Post Office under a registered cover on the tenant to pay or deposit the arrears within a period of fifteen days from the date of the receipt of such notice and the tenant fails to pay or deposit the Raid arrears within the specified period." 3. Section 11 contains a non obstante clause implying that the grounds of eviction under the Act are not subject to enlargement or curtailment by anything to the contrary contained in any other Act or law in force in the State. It necessarily follows that these grounds of eviction are not equally amenable to variation by the terms of the contract of the parties to the contrary even if the other Act or law countenances such contract. Accordingly it is not material that the landlord has consented or not to the creation of sub-tenancy by the tenant, but what is material is whether such sub-tenancy is countenanced by the Act. In this view, the trial Court has not tried to approach the matter in proper perspective in making the validity of sub-tenancy dependent upon the permission or absence of permission of the landlord. The validity or invalidity of sub-tenancy would really depend upon the fact whether it is permitted or not permitted by the Act. If it is permitted by the Act, then whether the landlord wanted it or not, it would be a valid sub-tenancy and in any suit for ejectment against the tenant, the sub-tenant would be a necessary party. On the other hand, if the sub-tenancy is not countenanced by the Act, then it would be an invalid sub-tenancy and the consent of the landlord would not lend validity to it and in a suit for ejectment by the landlord against the tenant, the sub-tenant would not be a necessary party. In this background, let me proceed to consider Clause (c) of Sub-section (1) of Section 11 of the Act, Clause (c) provides for eviction of a tenant where he has sublet the whole or major portion of the house or shop for more than seven consecutive months. It will be noticed that, in effect and substance, Clause (c) provides for ground of eviction based upon forfeiture of tenancy where the following two conditions are satisfied viz.: (i) That the tenant has sublet the whole or major portion of the house or the shop, and (ii) That the period of sub-tenancy has exceeded seven consecutive months. |Thus Clause (c) disentitles a tenant from creating a sub-tenancy, the essential features of I which are that it takes in whole or major portion of the demised premises and moreover extends over a period exceeding seven consecutive months. The sub-tenancy so created a unauthorised by the Act and if the tenant creates such sub-tenancy, whether with or without the consent of the landlord, he runs the risk of being evicted by the landlord and in a suit for eviction based on this ground, whether alone or in conjunction with any other ground, the sub-tenant would not be a necessary party. On the other hand, if the sub-tenancy is of a nature which does not impinge upon Clause (c), the sub-tenancy would be deemed to be a permitted sub-tenancy and in a suit for eviction brought by the landlord against the tenant, on any ground whatsoever, the sub-tenant would be a necessary party, irrespective of the fact whether the landlord had consented or not to the creation of such sub-tenancy. Viewed thus, Clause (h) takes care of a sub-tenancy permitted by the Act in the sense explained above and where the landlord seeks to sue the tenant on any ground mentioned in this sub-clause during the subsistence of such permitted sub-tenancy, the law requires the landlord to make the sub-tenant a party to the suit and enjoins upon the Court to allow him opportunity of contesting the claim of ejectment. The question whether the sub-tenancy is one permitted by the Act or not depends upon the circumstances of each case. In the present case, the trial Court has not thought it necessary to go into this question because of the fact that, in its opinion, the validity or invalidity of sub-tenancy was dependent upon the fact whether it was created with or without the permission of the landlord, and as I have said, this is an erroneous view of law. In the circumstances the order of the trial Court cannot be allowed to stand. It must be set aside and the trial Court must be asked to reconsider the matter and pass fresh orders after keeping in view the principles set out above. Allowing this revision, I make an order accordingly. The parties are directed to appear in the trial Court on 7th April, 1982.

S. Chela Singh And Ors. vs S. Tejinder Singh on 30 March, 1982

Jammu & Kashmir High Court

JUDGMENT Prafulla C. Pant, J. 1. This appeal, preferred under Section 96 of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated 9.5.1988, passed in Original Suit No. 8 of 1986, by the learned District Judge, Tehri Garhwal, whereby said suit is decreed with costs for perpetual injunction against the defendants (appellants) restraining them from creating any obstruction over land in dispute against the right of plaintiffs (respondents) to use it as a pathway. The trial court has further decreed the suit for Rs. 3,000 as damages. 2. Heard learned Counsel for the parties and perused the entire record. 3. As per the plaint case, the plaintiffs are residents of village Moliya, Patti Upli Ramoli, District Tehri Gahrwal. From the period of their ancestors it is alleged that they were using the plot No. 1356 situated in Semalhari Tok, owned by the defendants No. 1 and 2 as pathway for reaching to the plots owned by them (plaintiffs). It is further pleaded by the plaintiffs that they were using said land in that manner for over fifty years, openly and as of right. Claiming the easementary right, it is alleged by the plaintiffs that on 21.2.1983, they were obstructed by the defendants No. 2 in their user of the above plot as pathway, and thereafter, raised a wall obstructing the pathway. The wall was removed on 6.3.1983 but pathway was again closed by the defendants No. 1 and 2. On this, the proceedings under Section 147 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr. P.C.) were initiated against defendants No. 1 and 2, before the Sub-Divisional Magistrate, Tehri, in which an order was passed in favour of the plaintiffs directing defendants No. 1 and 2 to remove the obstruction, till the rights are determined from a competent court. It is further pleaded in the plaint that to save themselves from the order of the Magistrate defendants Nos. 1 and 2 instituted a suit No. 54 of 1983 against the plaintiffs/respondents seeking permanent injunction, but said suit was later on withdrawn by the defendants. By amending the plaint, it is further pleaded that again the defendants No. 1 and 2 raised the wall and there was another round of litigation before the criminal court. With these allegations. Suit No. 8 of 1986 was filed by the plaintiffs on 6.2.1986 alleging that the cause of action has arisen to them on 22.2.1983. When wall was raised by defendants No. 1 and 2 over their plot No. 1356 preventing thereby plaintiffs to use it as passage to their fields. 4. Defendants No. 1 and 2 contested the suit and filed the written statement denying the easementary rights claimed by the plaintiffs. It is pleaded in the written statement that the plaintiffs have a separate way to reach to their plots. It is further pleaded in the written statement that the plaintiffs forcibly want to use the defendants' plot No. 1356, as a pathway to reach their fields. As to the proceedings under Section 147, Cr. P.C, the allegations contained in the plaint are admitted by the answering defendants. 5. Learned trial court on the basis of the pleadings of the parties, framed following issues: (1) Whether, the plaintiffs have a right of way through plot No, 1356, as claimed in the plaint? (2) Is the suit barred by time as alleged in para 17 of the written statement? (3) Whether, the defendants are estopped from denying plaintiffs' right of way and passage, as alleged in para 5 of the amended plaint? (4) Whether, the plaintiffs have been deprived of six crops on account of the defendants action and have they suffered loss of Rs. 6,000, as alleged? (5) To what relief, if any, the plaintiffs are entitled? 6. After recording the evidence and hearing the parties, the trial court found that the plaintiffs have been successful in proving easementary right acquired by prescription over plot No. 1356 of the defendants No. 1 and 2. It further found that the neither the plaintiffs' suit is barred by time nor the defendants are estopped from denying right claimed by the plaintiffs? As to the damages it found that the plaintiffs are entitled to Rs. 3,000 from the defendants No. 1 and 2, and accordingly, the trial court vide its judgment and decree dated 9.5.1988, decreed the suit for perpetual injunction restraining defendants No. 1 and 2 from making any obstruction over plot No. 1356 used as passage by the plaintiffs and for damages to the tune of Rs. 3,000 from said defendants (However, impugned decree is silent as to the relief of mandatory injunction for removal of obstruction from the defendants' plot). Aggrieved by which, this Appeal was preferred by the defendants No. 1 and 2 before the Allahabad High Court in the year 1988, from where it is received by transfer to this Court, under Section 35 of the U.P. Re-organization Act, 2000, for its disposal. 7. Before further discussions, it is pertinent to mention here, the relevant provision of law applicable to this case. Section 15 of the Indian Easements Act, 1882, which relates to acquisition of easement by prescription, provides as under: 75. Acquisition by prescription.--... and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title. thereto, as an easement and as of right, without interruption, and for twenty years, the right, to such access and use of light or air, support, or other easement, shall be absolute. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.... 8. From the above provision, it is clear that to claim a right of easement by prescription, the plaintiffs must plead and establish, following conditions: (i) a pre-existing easement having being enjoyed by the dominant owner, (ii) peaceably, (iii) as an easement, (iv) as of right, (v) openly, (vi) for twenty years, and (vii) without interruption. 9. in the present case, plaintiffs (respondents) in their para 2 of the plaint have pleaded that they were using land of plot No. 1356, openly, as of right, without interruption, for a period of fifty yeaRs. However, there is no pleading that the plot of the defendants No. 1 and 2 was being used as passage peaceably. Assuming for a moment, that 'peaceably' is covered from the pleadings contained in the plaint, there is no evidence of said fact adduced on behalf of the plaintiffs. The plaintiffs got examined P.W. 1 Doma (plaintiff/respondent), P.W. 2 Vijay Singh and P.W. 3 Kirti Singh. All the three witnesses examined on behalf of the plaintiffs have stated that the plaintiffs have a passage through the defendants' plot since the period of their ancestoRs. None of these witnesses have stated that the plaintiffs used the plot of the contesting defendants as passage peaceably. As such, it cannot be said that it is established on the record that the alleged easement was being enjoyed peaceably. Particularly in the circumstances, that admittedly, from February 1983, there was continuous litigation, either in the criminal court or in the civil court, arising out of the alleged right to use the plot No. 1356 as passage by the plaintiffs. Therefore, this Court is unable to find Itself in agreement with the trial court that the plaintiffs have successfully proved easementary right of passage by way of prescription over plot No. 1356. It is pertinent to mention here that plot No. 1356 is neither adjoining to the plaintiffs house nor to their fields, as is clear from the plaint map itself, and also from the map (Ext. A-2) filed by the defendants. in the circumstances, it cannot be said that the plaintiffs have successfully proved easementary right of their passage over the plot No. 1356. 10. On examination of the evidence or record, and after hearing the arguments of the parties before this Court, it is found that the trial court has taken an erroneous view that the intervening period of two years between the date when the obstruction was made and the date of in stitution of suit, which is more than two years, does not affect the suit. From the relevant provision contained in Section 15, as quoted above, it is clear that the "period of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates, is contested." From the pleadings contained in the plaint, it is clear that admittedly, on 21.2.1983 and 22.2.1983, defendants No. 1 and 2 (present appellants) objected and by raising wall refused to permit the plaintiffs (respondents) to pass through plot No. 1356. The plaint is presented before the trial court on 6.2.1986. As such, the period between 22.12.1983 and 6.2.1986 is more than two years, rather, almost three yeaRs. As such the period of user, even after more than twenty years, if stands expired before two years of institution of suit due to the obstructions raised by the defendants No. 1 and 2, it cannot be said that the plaintiffs are entitled to the relief claimed on the basis of the right of easement pleaded by them, by way of prescription. It is pertinent to mention here that in the suit not only relief of perpetual in junction is sought but also mandatory in junction is sought for removal of wall raised by the defendants. 11. For the reasons as discussed above, in the opinion of this Court, the appeal deserves to be allowed. The impugned judgment and decree passed by the trial court is liable to be set aside, and the suit No. 8 of 1986 is also liable to be dismissed. Accordingly, the appeal is allowed. Impugned Judgment and decree dated 9.5.1988, passed in Original Suit No. 8 of 1986 is set aside. The suit is dismissed. Costs easy.

Author: P C Pant

Sarnu And Anr. vs Fagania And Ors. on 28 August, 2006

Uttaranchal High Court

JUDGMENT Shashank Kumar Singh, J. 1. All the 16 (sixteen) writ applications were heard together as the petitioners are teaching and/or non-teaching staff of project schools which were taken over and subsequently services of those teachers and non-teaching staff regularised, now were being terminated or already terminated. 2. Contention on behalf of the petitioners is that a decision was taken to terminate the services of all teaching staff in all such project schools though the non-teaching staff have been allowed to continue. The consequential orders in some of the cases have not been passed which according to learned counsel for the petitioners have now been passed though in the order of Director, Secondary Education, Bihar which have been appended a decision regarding removal of all of them have been taken. 3. Petitioners in this regard have relied on letter No. 1115 dated 27.5.1981 issued under the signature of Mr. Vijay Shankar Dubey, the then Director, Secondary Education cum Special Secretary, Bihar circulated to all the District Education Officers and the Regional Deputy Director of Education. The same relates to at least having four project high schools in each block of which at least one school should be a girls school. The said letter goes to further show that as per the policy decision of the State Government within the remaining period of sixth five year, plan detailed number of schools to be opened in the block were given. The same relates to 50 schools. In subsequent paragraphs details of district in which number of schools were required to be opened were also there. Subsequently vide Government order issued in the Education Department contained in letter No. Wa-109 dated 15 March, 1982, sent to the Accountant General, Bihar at Ranchi relating to approval of the establishment of four schools including one girls high school in non-tribal area in each block, granted for establishment of the school. In subsequent paragraphs of the said order, description of the school in the said district which was taken over has been given at serial No. 4 relating to petitioners of CWJC No. 12302. Subsequently other names are there which relate to the schools in which petitioners of other writ applications are working. 4. Further reliance has been made on a letter No. 405 dated 19 July, 1986 sent by the Secretary, Education Department, Bihar to the Director, Secondary Education, Bihar, Patna regarding payment of salary to the teachers of project schools which were opened in view of policy decisions in 1981-82. The said letter gave in detail as what amount would be paid to the teachers appointed on the recommendation of the Divisional Establishment Committee by the District Education Officer and also regarding the teachers appointed by the Managing Committee who were trained teachers and the untrained teachers in the reserve category. The same was followed by a wireless message vide Memo No. 208/C/Edn. dated 14 April, 1987. The same is quoted hereinbelow : Reference Education Department's circular No. 405 dated 19th July, 1986 regarding granting of regular scale of pay to untrained teachers appointed in project schools by Managing Committees with effect from 1 April, 1986. It is further clarified with the approval of the State Government now that there will be no restriction of giving this benefit of regular pay scale to such teachers irrespective of whether they belong to schedule castes or schedule tribes or are female teachers. All teachers who are appointed by Managing Committees in project schools started in 1981-82 in the State including the sub plan area will now be entitled to the benefit of regular pay scale without any restriction. Please ensure payment according to the given scale to all such teachers with effect from 1 April, 1986, who have so far been denied of the benefit of regular pay. Chief Minister desires that the payment should be released immediately. Necessary Additional Funds may be asked for if required so that the same can be sanctioned expeditiously. All Regional Deputy Directors are directed to issue clear instructions to the respective District Education Officer for such payments out of available funds within one week at the latest. Regional Development Commissioner Ranchi is requested to kindly release funds to all districts in sub plan area forthwith before the visit of the Chief Minister. Matter most urgent. 5. The wireless message was modified further by issuing another wireless message vide Memo No. 212/C/Edn. dated 14 April, 1987. The same is also quoted hereinbelow : Kindly reference this office wireless No. 208/C Edn. dated fourteenth April, 1987 regarding payment salary to teachers of the project school sanctioned in this year 1981-82. The wireless will cover not only teachers appointed by the Managing Committee but also by the District Education Officer till the Thirteenth February, 1985 on daily wages or otherwise. 6. Plain reading of the aforesaid two wireless message goes to show that all the restrictions in giving benefit of regular pay scale to such teachers belong to scheduled caste or scheduled tribe or female teachers were removed. It was further clarified that all teachers who were appointed by the Managing Committee in the project school started in 1981-82 including sub plan area will now be entitled to benefit of regular pay scale without any restriction. Regular payment was directed to be made to all the teachers. Subsequently modification in wireless message is clear to the effect that the wireless as sent above is not covered only teachers appointed by the Managing Committee but also by the District Education Officer till the 13th February, 1985 meaning thereby that any teacher in the said school appointed earlier to 13th February, 1985 were treated in the same category and to be paid the same pay scale may be by the Managing Committee or District Education Officer. 7. One aspect which is also required to be recorded is that a letter No. 405 dated 19 July, 1986 sent by the State Government through the Education Secretary, in paragraph 4 thereof clarify shows that regarding salary and other emoluments all earlier directions issued by the State Government stands superseded and merged in the said order. 8. Now contention on behalf of the petitioners is that as the schools in question were taken over and services of teaching and non-teaching staff regularised and they in view of wireless message and directive of the State Government were being paid their regular salary. The indulgence of the Director, Secondary Education relying on some report of three men committee on non est ground directing the authorities to remove the petitioners and other such situated persons on the ground that they were not appointed through the procedure prescribed and have not come through the main door rather the petitioners were also given notice, only after a decision had been taken by him to remove them from service. These two aspects have been relied to show that the impugned annexure-6 and annexure-10 series in CWJC No. 50/2005 is bad and be quashed. Mr. Udit Narayan Singh, G.P. 8, on the other hand relying on the instruction sent by the Director, Secondary Education, Bihar has contended that though it is a fact that the Government of Bihar decided to set up four high schools in each block of the State, one out of which would be a girls high school vide letter Nos. 30 dated 22.1.1980, 109 dated 15.3.1982 and 182 dated 15.3.1982. In the year 1981-82, a total of 150 such project schools were established in the undivided State of Bihar, out of which only 39 such project schools are now in the present State of Bihar. Learned counsel for the State has further contended that subsequently it was provided that till a permanent headmaster is appointed, the District Education Officers would make arrangement by appointing a suitable person as acting headmaster and with the prior consent of the Regional Deputy Director of Education concerned, ad hoc teachers should be appointed. Taking into consideration the delay in all in appointment of teachers, it has further been contended that in the aforesaid Government order it was further provided that the committee headed by the Regional Deputy Director wouid interview the teachers appointed by the previous Managing Committee of the school and all the District Education Officers of the division would be members of the committee and this committee would scrutinise the qualification and utility of the teachers appointed by the Managing Committee in relation to the syllabus and would appoint only such teachers who were found suitable for appointment in Government service on ad hoc basis. It has further been contended that their appointment after scrutiny on ad hoc basis their cases were required to be concurred by the Vidyalaya Sewa Board before they were appointed on regular basis. This direction was covered also the untrained scheduled caste, scheduled tribe and female teachers. 9. It has further been contended that a decision was taken vide Government letter No. 749 dated 19.11.1982 that the appointment letter was only required to be issued by the District Education Officer of the concerned district. Counsel for the State further contended that qualifications were also prescribed for consideration for appointment. The candidates were also required to have B.Ed, or equivalent qualification. 10. It has further been contended that in view of recommendation of the three men committee a decision was taken to remove all the teachers as such, they were asked to show cause and subsequently termination order passed. 11. This Court has gone into the comparative arguments made by the parties and looked into the records, though normal procedure of appointment has been shown and relied upon by counsel for the State to show that the said procedure was not adopted. The present case relates to project schools which were required to be opened, in each block for which a decision was taken by the State Government under the sixth five year plan. In this regard, the schools which were functioning from before were identified and taken over by the State Government. Teachers were already functioning in the said schools appointed by the Managing Committee. Other teachers appointed by the District Education Officer and the Regional Deputy Director of Education were also functioning. Initially daily wages were required to be paid to them. Subsequently the State by its decision superseding its earlier decision has sent a wireless message regarding payment of salary and mode of payment to the teachers having different qualifications. The same included all the teachers either appointed by the Managing Committee or by the District Education Officer or otherwise. This was the circumstances which led to their entry into service and a decision of the State had been taken, now whether normal procedure was adopted or not was not required to be gone into, entire exercise which was gone into cannot be said to be a useless exercise, only aspect now required to be considered was as to whether they were working on the posts approved for the said school, had the minimum qualification was required to be gone into as they have already been continuing in: service for more than 20-25 years. 12. Another aspect which becomes relevant is that a three member committee was earlier appointed under the Chairmanship of Regional Deputy Director of Education having the District Education Officer and the District Inspector of Schools as member. Three members committee had recommended that all teachers were regularly appointed. If that was the report, the matter should have perhaps come to an end. It appears that the Director, Secondary Education got the same again examined at the level of the District Magistrate, came to the conclusion regarding their removal and once the decision has been taken to remove them, subsequent show cause/explanation was called. Is it not futile ? 13. Taking these aspects of the matter, the order of termination for the discussions as made above is bad. As such, this Court without going into the merit as to whether the Director, Secondary Education was required to look into their appointment as genuine or not, in view of discussions as made above, is satisfied that the present orders as contained in Annexure-6 and Annexure-10 in CWJC No. 450 of 2005 and similar order/orders appended as annexures in the analogous writ applications are also quashed. 14. These writ applications stand allowed to the extent indication above. 15. As petitioners have contended that for a short period i.e. few months in some of the earlier orders they have discharged their duties have not been paid salary, as such, this Court feels that to adjudicate the said matter records are required to be verified as during the aforesaid period, petitioners have discharged their duties or not. As such, petitioners are directed to make representation before the concerned District Education Officer in the district in which petitioners are posted and the said District Education Officers shall verify their claims and if the petitioners have discharged their duties during the aforesaid period, salary for the said period shall be released in favour of the petitioners.

Author: S K Singh

Ram Naresh Mishra And Ors. vs The State Of Bihar And Ors. on 6 July, 2005

Patna High Court

Court No. - 39 Case :- WRIT - C No. - 38599 of 2010 Petitioner :- C/M Sri Ram Pandey Janta Uch. Madh. Vid. And Another Respondent :- State Of U.P. And Others Petitioner Counsel :- R.C. Dwivedi Respondent Counsel :- C.S.C.,Girijesh Tiwari Hon'ble Dilip Gupta,J. Sri Anil Bhushan, learned counsel appearing for the respondents states that the District Basic Education Officer has attested the signatures of the Manager of the Committee of Management of the Institution on 28th June, 2010. Sri R.C. Dwivedi, learned counsel for the petitioners prays that the petition may be dismissed as withdrawn with liberty to file a fresh petition. The petition is dismissed with liberty aforesaid. Order Date :- 12.7.2010 NSC

C/M Sri Ram Pandey Janta Uch. Madh. ... vs State Of U.P. And Others on 12 July, 2010

Allahabad High Court

CENTRAL INFORMATION COMMISSION Club Building, Opposite Ber Sarai Market, Old JNU Campus, New Delhi - 110067. Tel: +91-11-26161796 Decision No. CIC/SG/C/2009/001162/5869 Complaint No. CIC/SG/C/2009/001162 Complainant : Mr. V C Jain, 9/241 Sector III, Rajendra Nagar, Sahibabad, Ghaziabad, Uttar Pradesh- 201005. Respondent : Ms. Sonika Singh Public Information Officer & Dy. Secretary Govt. of NCT of Delhi, Services Department: Coordination Branch, Delhi Secretariat, 7th Level, B Wing, IP Estate, New Delhi- 110113. RTI application filed on : 16/06/2009 PIO replied : No reply. First Appeal filed on : Not filed Complaint filed on : 24/07/2009 Complaint notice issued on : 24/08/2009 Hearing Notice Issued on : 30/10/2009 Date of Hearing : 14/12/2009 Information Sought: a) The total no of officers appointed by Delhi Government on an Ad hoc DA NICS basis since 01/01/2002 and the reasons for such appointments. b) The no of Ad hoc DA NICS appointees who retired without regular appointments, fixation of pay and seniority. c) Whether Ad hoc DA NICS were considered for higher responsibilities and given retrospective benefits. d) The date when the last regularization was made and the orders to that effect. e) The time frame when the job of Ad hoc DA NICS will be regularized. f) Whether the regularization process is done on a yearly and the reasons if they are not done on a yearly basis. g) The expected day when the Ad hoc DA NICS appointed during the year 2003 to 2006 will be regularized. h) The criteria, rules, regulations and procedure being followed in the regularization process. i) Information which the Government would like to disclose voluntarily in response to the queries of the Appellant. Reply of the PIO: (The Complainant did not enclose the PIO's reply as per the submission of PIO) Query 1 to 8: "Requisition is clarificatory. Further, compilation as requisitioned is also not available w.r.t relevant requisitions". Query 9: "GOI, MHA appoints feeder category officers to DANICS. As per records available, GOI, MHA vide order No 14016/5/2006-UTS-II dated 12/08/2008 appointed 28 feeder category officers to entry grade of DANICS". Grounds for First Appeal: Not appealed. Grounds for Complaint: Non-receipt of information from the PIO within the stipulated time. Submission received from the PIO: (In response of Complaint notice dated 24/08/2009) The PIO has attached a copy of the reply (dated 24/07/2009) send out to the Complainant. In reply to the 9 queries of Complainant: Query 1 to 8: "Requisition is clarificatory. Further, compilation as requisitioned is also not available w.r.t relevant requisitions". Query 9: "GOI, MHA appoints feeder category officers to DANICS. As per records available, GOI, MHA vide order No 14016/5/2006-UTS-II dated 12/08/2008 appointed 28 feeder category officers to entry grade of DANICS". The PIO wrote a letter to the Commission on 18/09/2009 stating that information to all the 9 queries of the Complainant had been provided through the letter dated 24/07/2009 and therefore reply was given within the stipulated time limit of the RTI Act. The RTI application was transferred to the department from LG Secretariat and a new ID given to it (ID No 826/RTI/Services) in the PIO's department. Submission received from the Complainant The Complainant wrote a letter to the Commission dated 29/09/2009. Complainant mentioned that SPIO had still not replied or adhered to the Commission's directive to provide information to the Complainant before 18/09/2009. Relevant Facts emerging during Hearing: The following were present: Complainant: Absent; Respondent: Ms. Sonika Singh, Public Information Officer & Dy. Secretary; The PIO did not have the information sought at query-1 in the compiled manner and the other queries were no seeking information as defined under Section 2(f) of the RTI Act. However, the PIO has now obtained the orders for appointment of Grade-I Dass on adhoc basis against the Ex-cader post of DANICS. She has now sent copies of these orders to the appellant on 11/12/2009. Decision: The Complaint is allowed. The information has been provided. This decision is announced in open chamber. Notice of this decision be given free of cost to the parties. Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act. Shailesh Gandhi Information Commissioner 14 December 2009 (In any correspondence on this decision, mention the complete decision number.) (RR)

Mr. V C Jain vs Govt. Of Nct Of Delhi on 14 December, 2009

Central Information Commission

[Section 62] [Complete Act]

Central Government Act

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Ashfaq vs Smt. Noor Jahan & Others on 20 August, 2010

Allahabad High Court

JUDGMENT D.A. Mehta, J. 1. The short dispute in this petition under Article 226 of the Constitution is as to whether the penalty levied on the petitioner of reduction to four stages lower in the timescale as confirmed by the appellate authority is required to be quashed and set aside as prayed for. 2. The facts in brief : The petitioner, who is serving as Higher Grade Assistant with Life Insurance Corporation of India in Veraval Branch Office availed off Leave Travel Concession (LTC) advance on six different occasions. The petitioner did not undertake the proposed journey nor did he proceed on leave. On 14th March, 1996 a charge-sheet came to be issued in the aforesaid backdrop of facts that the petitioner had misused facility of LTC advance and by utilizing the monies so obtained, for his personal purposes, temporarily misappropriated the same. Inquiry officer appointed by the respondent-Corporation found the charges proved as per Report dated 21st August, 1997. The disciplinary authority concurred with the findings in the inquiry report and after giving opportunity to the petitioner imposed penalty of reduction to four stages lower in the timescale vide order dated 30th September, 1997. Exercising his right of appeal, the petitioner preferred appeal but did not succeed. The appellate authority vide order dated 15th May, 1998 confirmed the penalty imposed by the disciplinary authority. 3. The learned advocate for the petitioner submitted that the order made by the disciplinary authority was required to be quashed and set aside for the simple reason that the explanation tendered by the petitioner had not been considered by the disciplinary authority. That except for referring to the reply given by the petitioner the grounds raised by the petitioner have not been dealt with by the disciplinary authority. The second contention was that instruction No. 19 of Life Insurance Corporation of India (Leave Travel Concession) Instructions, 1994 (Instructions), which pertains to advances specifically provides that in case an employee does not refund the LTC advance within seven days after the advance drawn by the employee becomes due for refund as per Clause (vi), the amount of advance so due for refund shall be recovered from the next pay bill of the employee. Thus, according to him, it could not be stated that the petitioner had committed any breach of any rules and regulations amounting to any misconduct calling for initiation of disciplinary proceedings. A further contention was raised that Regulation 39 of the Life Insurance Corporation of India (Staff) Regulations, 1960, which deals with penalties did not permit, in any event levy of penalty by way of reduction to more than one lower stage in timescale and the penalty imposed of reduction to four lower stages in timescale was thus bad in law. In support of the submissions made the learned advocate placed reliance on the following decisions in the case of: i. A.L. Kalra v. Project & Equipment Corporation of India Ltd. 1984-II L.L.J. 186; ii. Glaxo Laboratories (I) Ltd. v. Presiding Officer, Labour Court, Meerut and Ors. ; iii. Raj Kumar Mehrotra v. State of Bihar and Ors. (2005) 12 SCC 256; iv. Director (Marketing), Indian Oil Corporation Ltd. and Anr. v. Santosh Kumar 2006 AIR SCW 2849; v. Unreported decision in case of G.H. Chakarverty v. State of Gujarat rendered on 10.09.2003 in Special Civil Application No. 499 of 1999 as confirmed by order dated 29.01.2005 made in Letters Patent Appeal No. 50 of 2005; AND vi. Unreported decision in case of State of Gujarat v. Tushar C. Shah rendered on 18.08.2005/21.10.2005 in Letters Patent Appeal No. 1798 of 2004. 4. Responding to the submissions made the learned advocate for the respondent-Corporation submitted that the petitioner could not have any grievance and should not be heard to say that the reply was not considered by the disciplinary authority because as can be seen from the last but one paragraph of the order of disciplinary authority the disciplinary authority has specifically stated that reply dated 29.09.1997 had been carefully considered. That even otherwise, against the said order appeal had been preferred and the final order was that of the appellate authority made on 15th May, 1998. The order of the disciplinary authority had merged in the order made by the appellate authority. In relation to the interpretation canvassed qua Regulation 39(1)(d) of the Regulations, it was submitted that if what the petitioner contended was to be accepted the word Simmediately had to be read as preceding the phrase Slower stage in a timescale; alternatively, it was submitted that instead of using words Sreduction to a lower stage the words would have been Sreduction by a lower stage, and only then could the contention made on behalf of the petitioner be accepted. In support of the submissions reliance was placed on the decision in case of Bharat Petroleum Corpn. Ltd. and Ors. v. T.K. Raju . 5. Having heard the learned Counsel appearing for the respective parties it is apparent that in exercise of jurisdiction under Article 226 of the Constitution the Court has very limited role to play while appreciating the punishment levied by the employer. The position of law is well settled that it is not open to the High Court to undertake re-appreciation of evidence if, on the same set of facts and circumstances and evidence, it is possible to arrive at the view adopted by the authority merely because the High Court feels that another view is possible in the matter. That the Court does not function as an appellate Court qua findings recorded by the domestic Court in the inquiry and the only circumstance in which the punishment can be interfered with is :- (i) when the punishment imposed by the domestic Court is shockingly disproportionate to the offence committed by the delinquent; (ii) when there is absence of good faith; (iii) when the facts and evidence suggest victimization or unfair labour practice; (iv) when the domestic inquiry has been conducted in violation of the principles of natural justice or is based upon a fundamental error; (v) when the materials available on record show that the finding of the domestic Court is without any basis or perverse. That normally awarding of proper punishment for the misconduct proved is the function of the management and the Court would not sit in appeal qua the findings recorded by the domestic Court. Another factor which would permit the Court to interfere is in a case where it is found that the inquiry procedure is so perverted as to amount to no inquiry at all, but it is not open to the Court to substitute its own appraisal of evidence. While adjudging the severity or the adequacy of the punishment qua the nature of the offence committed Court cannot adopt any substantive standard but the same has to be considered from the view point of the management which is required to administer the establishment in accordance with its own rules of functioning. The concept of punishment being shockingly disproportionate only conveys that the punishment is totally irrational in the sense that it was in outrageous defiance of logic or moral standards. 6. Applying the aforesaid principles to the facts of the case it is not possible to accept the contention raised on behalf of the petitioner. None of the tests is satisfied so as to hold that the penalty imposed on the petitioner is shockingly disproportionate. The contention regarding the disciplinary authority having not considered the reply of the petitioner also cannot be upheld once it is found in the order that the authority has categorically stated that the reply was considered. It is settled position in law that where the disciplinary authority accepts the findings recorded by the inquiry officer and concurs with the same, the authority need not repeat the same findings, the only caveat being that the order in question reflected such a position and application of mind. In the present case, the order of the disciplinary authority meets with the said requirement. Apart from this, it is apparent that the order of the disciplinary authority has merged with the order of the appellate authority and no grievance is made that the appellate authority has not heard or considered the petitioner. During course of hearing the learned advocate for the respondent-Corporation had also submitted that the ground regarding disciplinary authority not having considered the reply had never been raised before the appellate authority and this submission was not shown to be incorrect by the learned advocate for the petitioner. 7. In so far as the submission that because instruction No. 19 permits the employer-Corporation to recover the amount from the next pay bill of the employee it should be held that no default was committed by the petitioner does not merit acceptance The said provision is an enabling provision and from the same it cannot be contended, and if contended, cannot be accepted that the obligation of the employee to refund the amount of unutilized advance disappears. In fact, Clause (vii) of Instruction No. 19 only provides a mode of recovery and does not substitute the obligation cast upon the employee who had availed of the facility of advance. 8. Regulation 39(1) reads as under: Penalties: 39. (1) Without prejudice to the provisions of other regulations, [any one or more of] the following penalties for good and sufficient reasons, and as hereinafter provided, be imposed [by the disciplinary authority specified in Schedule I] on an employee who commits a breach of regulations of the Corporation, or who displays negligence, inefficiency or indolence or who knowingly does anything detrimental to the interest of the Corporation, or conflicting with the instructions or who commits a breach of discipline, or is guilty of any other act prejudicial to good conduct: a. censure; b. withholding of one or more increments either permanently or for a specified period; c. recovery from pay or such other amount as may be due to him of the whole or part of any pecuniary loss caused to the Corporation by negligence or breach of orders; d. reduction to a lower service, or post, or to a lower time-scale, or to a lower stage in a time-scale; e. compulsory retirement; f. removal from service which shall not be a disqualification for future employment; g. dismissal. Seven different kind of penalties are provided for an employee who commits a breach of regulations of the Corporation, or who displays negligence, inefficiency or indolence or who knowingly does anything detrimental to the interest of the Corporation, or conflicting with the instructions or who commits a breach of discipline, or is guilty of any other act prejudicial to good conduct. Therefore, without entering into any further discussion, in as much as there is no dispute that the action of the petitioner was in conflict with the instructions, as to what should be the quantum of punishment cannot be scope of this petition. The contention that the reduction could be only by one stage in timescale does not merit acceptance. The use of the word Sa preceding the phrase Slower stage does not mean that the penalty has to be restricted to only one lower stage. The word Sa also carries the meaning Sany, and considering the context in which the said word is used in Clause (b) it is apparent that it denotes the term Sany. The said clause permits reduction to a lower service, or post, or to a lower timescale, or to a lower stage in a timescale. Therefore, it could be reduction to any lower service or post, or to any lower timescale, or to any lower stage in a timescale. As rightly contended on behalf of the respondent-Corporation on plain reading of the provision the penalty by way of reduction could be to any lower stage in a timescale viz. second, third or fourth stage in a timescale. 9. There being no dispute on facts that out of the six occasions when LTC advance was availed off by the petitioner at list on three occasions the amount so refunded was beyond the period of seven days, even if the contention on the basis of Clause (vii) of Instruction No. 19 is taken into consideration, the petitioner has failed to fulfill his part of the obligation and thus commited a default which would amount to conflicting with the instructions. 10. In the circumstances, the petition does not merit acceptance and is, accordingly, rejected. Rule discharged. Interim relief stands vacated. There shall be no order as to costs.

Author: D Mehta

M.P. Thakrar vs Senior Divisional Manager And ... on 7 July, 2006

Gujarat High Court

Gujarat High Court Case Information System Print SCR.A/1532/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 1532 of 2010 ========================================================= KAMLESH P MANKODI - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MR IH SYED for Applicant(s) : 1, MR JK SHAH, APP for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 20/08/2010 ORAL ORDER Notice returnable on 9.9.2010. Learned APP Mr. Shah waives service of notice for respondent State. (Akil Kureshi,J.) (raghu)     Top

Author: Akil Kureshi,&Nbsp;

Kamlesh vs State on 20 August, 2010

Gujarat High Court

In the High Court of Judicature at Madras Dated: 22/11/2004 Coram The Honourable Mr.Justice V.KANAGARAJ Crl.R.C.No.505 of 2004 and Crl.M.P.Nos.3226 and 3227 of 2004 1. L.Narayanasamy 2. S.Rangasami 3. A.RAfiq Ahamed Shakir ... Petitioners -Vs- STATE :: rep.by: The Inspector of Police C.C.I.W. - CID Chennai City Unit Chennai 600 002 Respondent Prayer: Revision is filed under Section 397 and 401 of Code of Criminal Procedure for the relief stated therein. For petitioner : Mr.C.Venkatesalu For respondent : Mr.V.Jayaprakash Narayanan Government Advocate Crl. Side :O R D E R Petitioners as accused Nos.2 to 4 in C.C.No.7582 of 2002 has filed the above criminal revision case against the order dated 10.02.2004 passed in Crl.M.P.No.237 of 2003 in C.C.No.7582 of 2002 by the Court of XI Metropolitan Magistrate, Saidapet, Chennai. 2. The petitioner has filed the Crl.M.P.No.237 of 2001 under 239 of Code of Criminal Procedure seeking to discharge the petitioners/A2 to A4 to prevent them from harassment by the arduous trial. 3. The case of the petitioners in brief is that on the basis of the complaint lodged by the Deputy Registrar of Co-operative Societies (Credit), Adyar, Chennai, in respect of the enquiry under Section 81 of the Co-operative Societies Act, 1983, relating to the misappropriation of a sum of Rs.7,82,425/-, the respondent police have registered a case in Crime No.4 of 1999 and filed a complaint against the petitioners along with seven others in C.C.No.7582 of 2002 on the file of the Court of XI Metropolitan Magistrate, Saidapet, Chennai; that the petitioners filed discharge petition in Crl.M.P.No.237of 2003 before the trial Court for seeking to discharge them on the ground that no prima facie case has been made out against these petitioners; that the very same Deputy Registrar, who had conducted the surcharge proceedings under Section 87 of the Tamil Nadu Co-operative Societies Act is not a competent person to lodge Criminal complainant based on the enquiry report under Section 81 of the Tamil Nadu Co-operative Societies Act, 1983; that even in the charge sheet, no specific charges have been made against the petitioners herein but it was simply and generally stated against these petitioners along with seven others that they have committed offences under Section 120-B r/w 408r/w 34,467, 471 r/w 467 and 477-A IPC in the very first charge; that in respect of other general charges, the averments in the charge sheet do not attract offences under Sections 408 r/w 34 IPC asagainst A3 and A$ and under Section 408 r/w 34,477-A IPC as against A2; that in this case previous sanction as per the provisions of Tamil Nadu Co-operative Societies Act, 1983 and on such averments, they pray for the prayer extracted supra. 4. Heard both. 5. Learned counsel appearing on behalf of the petitioners citing Section 164 of the Tamil Nadu Co-operative Societies Act, 1983 would argue to the effect that no case shall be entertained by any Court without the sanction being accorded by the Registrar for any act done under the said Act. 6. Learned Government Advocate on the criminal side appearing on behalf of the respondent would counter the arguments to the effect that Section 164 is only a case registered under Tamil Nadu Cooperative Societies Act, 1983 but the case registered under the Indian Penal Code and only when a case is registered under the provisions of the Tamil Nadu Co-operative Societies Act, 1983, the condition imposed under Section 164 of the Tamil Nadu Co-operative Socities Act is relevant and not otherwise and therefore, Section 164 of the Tamil Nadu Cooperative Societies Act, 1983 has absolutely no bearing on the case registered against the petitioners herein and therefore, would seek to dismiss the above criminal revision case. 7. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both, for the reasons assigned above, this Court is of the view that the application filed before the lower Court under Section 239Cr.PC seeking to discharge the petitioners on such grounds alleged on the part of the petitioner has been rightly dealt with by the Court of XI Metropolitan Magistrate, Saidapet, Chennai in the manner that is required under law so as to arrive at the right conclusion to dismiss the discharge application filed by these petitioners and this Court does not see any valid or tangible reasons insisting to cause its interference and hence the following Order:- In result, i) the above criminal revision case does not merit acceptance and becomes liable to be dismissed and is dismissed accordingly; ii) the order dated 10.02.2004 passed in Crl.M.P.No.237 of 2003 in C.C.No.7582 25 of 2002 by the Court of XI Metropolitan Magistrate, Saidapet, Chennai is confirmed; Consequently, connected Crl.M.P.Nos.3226 and 3227 of 2004 are dismissed. 22.11.2004 Index: Yes Internet Yes kvsg To 1) The XI Metropolitan Magistrate, Saidapet, Chennai 2) The Inspector of Police,C.C.I.W. - CID, Chennai City Unit,Chennai 600 002 3) The Public Prosecutor, High Court, Madras 600 104. 

L.Narayanasamy vs State :: Rep.By: on 22 November, 2004

Madras High Court

Court No. - 32 Case :- WRIT - A No. - 36290 of 2010 Petitioner :- Const. 591 Cp Suresh Prasad And Others Respondent :- State Of U.P. And Others Petitioner Counsel :- Lalmani Bind Respondent Counsel :- C.S.C. Hon'ble Ran Vijai Singh,J. While assailing the impugned transfer order dated 19.3.2010 passed by respondent No.3, learned counsel for the petitioners contends that the aforesaid transfer order has been passed without there being prior approval of the Police Establishment Board. In the submissions of the learned counsel for the petitioners this transfer order is in teeth of the judgment of the Apex Court in the case of Prakash Singh & Ors. Vs. Union of India & Ors., reported in (2006) 8 SCC 1. This fact could not be disputed at this stage by the learned Standing Counsel. In view of that learned Standing Counsel, who has accepted notices on behalf of the respondents is directed to file counter affidavit within four weeks. Rejoinder affidavit, if any, may be filed by the petitioners within two weeks thereafter. As an interim measure, without prejudice to the right and contention of the parties, it is provided that if the petitioners have not joined pursuant to the impugned orders, they will not be insisted to join at their transferred place till the next date of listing. Order Date :- 22.6.2010 Mustaqeem.

Const. 591 Cp Suresh Prasad And ... vs State Of U.P. And Others on 22 June, 2010

Allahabad High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM MACA.No. 2308 of 2007() 1. FINU FAVAS K.K., S/O. RAFEEQUE, ... Petitioner Vs 1. K. ABDUL MAJEED, S/O. ABOOBACKER, ... Respondent 2. MADHUSOODHANAN, S/O. VASU NAIR, 3. THE NEW INDIA INSURANCE CO. LTD., For Petitioner :SRI.K.M.FIROZ For Respondent :SRI.P.JAYASANKAR The Hon'ble MR. Justice M.N.KRISHNAN Dated :01/12/2008 O R D E R M.N. KRISHNAN, J ----------------------- M.A.C.A.No. 2308 OF 2007 --------------------------------- Dated this the 1st day of December, 2008 JUDGMENT This appeal is preferred against the award of the Principal Motor Accident Claims Tribunal, Kozhikode in O.P.(MV) No.27/2000. The claimant, a young boy, sustained injuries in a road accident and the tribunal awarded a compensation of Rs. 18,500/-. It is against that decision the claimant has come up in appeal for enhancement. 2. Heard the learned counsel for the appellant as well as the Insurance Company. The learned counsel for the Insurance Company had made available before me for perusal, the wound certificate issued by the Medical College Hospital, Kozhikode. It would reveal that the boy had sustained fracture on the left femour, loss of four incisors and an incised wound of 2 cms. He was treated as inpatient from 17.8.99 to 24.8.99 and plaster cast was applied. The tribunal itself has stated in the award that the boy had a shortening of limb by 3 cms. But unfortunately he had produced disability certificate of 1%. Even if it is 1% and notional income is fixed Rs. 15,000/- per annum which when multiplied by an appropriate multiplier of 15 would come to Rs. 2,250/- under the  M.A.C.A. No. 2308/2007 -2- head of permanent disability. Similarly sustainment of a serious fracture on the femur which had resulted in shortening of leg by 3 cms., would have deprived the boy from playing at that age and he may also have minimum deformity. Therefore I feel it is a fit case an additional amount of Rs. 6,000/- has to be awarded for loss of amenities. The boy had sustained loss of four incisors and such injury would have forced him to take liquid nutritious food for recovery. It is true that milk teeth may go and new teeth would come. But taking into consideration all the aspects I award a sum of Rs. 1,750/- for loss of teeth and for nutritious food. Thereby making an additional compensation of Rs. 10,000/-. In the result, the M.A.C.A is partly allowed and the claimant is awarded an additional compensation of Rs. 10,000/- with 6% interest on the said sum from the date of petition till realisation. The 3rd respondent Insurance Company is directed to deposit the same within 60 days from the date of receipt of copy of the judgment. M.N. KRISHNAN,JUDGE vkm 

Finu Favas K.K. vs K. Abdul Majeed on 1 December, 2008

Kerala High Court

[Section 28] [Complete Act]

Central Government Act

JUDGMENT K.S. Garewal, J. 1. Representation of parties before a Labour Court is what concerns us. However, before entering the arena of controversy, it would be necessary to revisit the adjudication process of industrial disputes by Labour Courts. 2. The Industrial Disputes Act, 1947 provides the machinery and procedure for the investigation and settlement of industrial disputes, which are disputes or differences between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour. 3. In terms of Section 10 of the Act, where the appropriate Government is of the view that any industrial dispute exists or is apprehended, it may at any time, by order in writing refer the dispute either to the Board for promoting the settlement thereof or to a Court of Inquiry or the Labour Court or to a Tribunal for adjudication. 4. Now coming to the question of representation of parties before Labour Courts we may go straight to the relevant provisions regarding representation of the employer. Section 36(2)(a)(b)&(c) gives the categories of persons who can represent the employer. Section 36(3) categorically lays down that no party to a dispute shall be entitled to be represented by a legal practitioner in any proceeding before a Court. Nevertheless, in proceedings before a Labour Court, a party can still be represented by a legal practitioner but always with the consent of the other party and with the leave of the Court. These two conditions appear to be necessary pre-requisites. 5. The present reference to the Full Bench was necessitated when the Division Bench was faced with a conflict of opinion between two different lines of judicial thought, described in detail in the reference order. 6. Some factual background would be necessary as a prologue to our decision. According to Indrasan Parsad, the industrial dispute was referred to the Labour Court and registered as reference No. 272 of 1998.The dispute was against M/s Skytone Electrical (India) Ltd. An application was filed by Indrasan Parsad under Section 36 to debar S.S.Saini and N.S.Rajput from appearing on behalf of the employer since they were advocates (legal practitioners). 7. The application was resisted by the employer who pleaded that Saini and Rajput were office bearers of an Employers Association of which Skytone was a member. It was further stated that Saini and Rajput were representing the management right from the beginning, whereas the objection had been raised at a belated stage. 8. According to the workman, he came to know about Saini and Rajput being office bearers of the Association only when the reply was filed. This fact had not been disclosed by the management whose duty was to disclose the identity of the representatives so that the question whether they could or could not appear, was decided on the first day. 9. Indrasan Parsad's application was dismissed by the Labour Court, Faridabad, on April 16, 2004 and that order has been impugned through C.W.P. No. 15425 of 2004. 10. Provisions of Section 36 with regard to representation by legal practitioners are contained in Sub sections (3) and (4). The former sub section lays down an absolute bar but the latter permits representation by legal practitioners with the consent of the other party and leave of the Court. Before going to the stage of deciding this reference, it would be useful to record some of the first principles of representation of a party before a Labour Court or for that matter any Court. 11. Every suit, complaint or dispute commences with the filing of a complaint, an application or a petition pleading the essential facts and raising the claim or dispute under the relevant provision of law. When the dispute goes for adjudication before a Labour Court, on a reference under Section 10, as in the present case, and the workman who has raised the dispute is present and represented by any of the persons mentioned in Section 36(1) of the Act, the representation of the workman before the Labour Court would be complete. 12. Thereafter, notice for appearance would be issued to the opposite party, if that party is yet to appear. However, it is possible that the employer may also be present before the Labour Court. Anyhow the representation of the respondent/employer would have to be in the manner provided under Section 36(2), before the parties can be said to be properly represented. The reference can then proceed to stage of exchange of pleadings and adjudication or trial where necessary. 13. Section 36(3) provides that no party shall be represented by a legal practitioner but Section 36(4) lays down that a party to the dispute may be represented by a legal practitioner with consent and leave. Therefore, if a party before the Labour Court opts to appear through a legal practitioner and no objection is taken by the opposite party, can it be said that the representation of the party by a legal practitioner is complete because consent has been given by implication. 14. In the present case the management was always represented by Saini and Rajput. The question is whether the workman can object to their representation after the adjudication process had commenced. 15. In every dispute there are or ought to be set procedures for appearance of the parties, and for representation of the parties before the concerned court. After the preliminaries are over, the stage is set for proceeding further to the settlement of issues, recording of evidence and pronouncement of judgment. It is a step by step approach and not an open- ended one. Once one stage is crossed, the next stage arrives. It is almost akien to travelling to a given destination. 16. In the present case Saini and Rajput appeared for the management on the first date of hearing, July 31, 1998. Thereafter various steps in the proceedings took place like filing of written statement, rejoinder etc. Issues were framed on October 13, 1998. The case then moved to the stage of recording evidence. An application was filed for interim relief on October 13, 1998 to which a reply was filed, the application was dismissed. On March 12, 1999 an application was filed for striking out the defence of the management, reply thereto was filed. Case was fixed for evidence of the management and witnesses were summoned. During all these proceedings Saini and Rajput had been appearing but no objection was raised by the workman. It was for the first time on September 2, 1999 that an application was moved to object against the appearance of Saini and Rajput on the ground that they were legal practitioners. This was the first objection against the appearance of Saini and Rajput, but this is not the application on which the impugned order was passed. A second was application filed on August 2, 2001. This application was rather cryptic and stated that a legal practitioner cannot appear under Section 36, because for this purpose it was necessary to obtain the consent of the opposite party. If the opposite party did not consent, legal practitioner cannot appear. Saini and Rajput were practising advocates and the applicant had objected to their appearance. Therefore, practising advocates should be prohibited from putting their appearance. 17. The management replied pleading that various proceedings had taken place, Saini and Rajput had been representing the management from the very beginning. They were office bearers of M/s Progressive Employers & Traders Association, Faridabad of which the respondent-management had been a member since 1991. Saini and Rajput had the legal right to represent its members. In the impugned order, reference was made to an earlier order of the Labour Court dated May 16, 2001 to see if Saini and Rajput had been debarred from representing the respondent. According to the learned Labour Court there was no reference in this order barring Saini and Rajput because reference was only to one P.P.Chhabra. 18. The learned Labour Court referred to case law on both sides and after discussing the pros and cons of the case, came to the conclusion that the workman was fully acquainted with the proceedings and must be imputed knowledge that Saini and Rajput were legal practitioners. Various acts were performed by them, like accepting a copy of the claim petition, filing written statement without any objection or prohibition. Therefore, leave of the court having been impliedly granted coupled with implied consent of the workman, could not be subsequently withdrawn. 19. In industrial disputes before Labour Courts the general rule appears to be that legal practitioners cannot represent the parties. Parties are represented by certain categories of persons described in Section 36(1) and (2). Nevertheless, a provision has been made for representation by legal practitioners but only with consent and leave of the opposite party and the Presiding Officer, respectively. 20. At this point we may consider the judicial opinion in favour of consent of party and leave of court and whether consent and leave must be explicit or may be implicit or implied by circumstances. 21. The foremost judgment on the subject is Paradip Port Trust v. Their Workmen 1976 (II) Labour Law Journal page 52 (equivalent to ). In this case the dispute was raised by the workers Union with regard to termination of the services of Nityananda Behera, a temporary teacher in the Paradip Port Trust High School. The dispute was referred to the Industrial Tribunal under Section 10(1)(d) of the Industrial Disputes Act, 1947. 22. The Union appeared before the Tribunal through its Adviser and General Secretary while the Port Trust appeared through an Advocate, who was a legal consultant of the Port Trust. The Trust filed the authority in favour of the consultant and subsequently also filed a power of attorney in his favour, executed by the Chairman of the Board Trust. The legal consultant was a practicing Advocate of the High Court. An objection was taken by the Union to the representation of the Advocate, the union also refused to give consent to his representation. The Union's objection was upheld by the Tribunal by holding that the relationship between the Trust and the lawyer was one of a client and his lawyer. The lawyer could not be said to be an officer of the Trust. The execution of power of attorney could not circumvent the restriction attached to legal practitioners under Sub section 4 of the Act. The Trust filed an appeal before the Supreme Court to challenge the decision of the Tribunal. After hearing weighty arguments on both sides, Honble Mr. Justice P.K. Goswami in an erudite judgment decided against the Trust and in favour of the Union. The most material observation of the Supreme Court which is germane to the issue before us is reproduced as under: Consent of the opposite party is not an idle alternative but a ruling factor in Section 36(4). A lawyer, simpliciter, cannot appear before an industrial Tribunal without the consent of the opposite party and leave of the Tribunal. 23. Our understanding of the opinion expressed in Paradip Port Trust's case is that where the employer relies upon implied consent or implied leave, it necessarily means that he is referring to the provisions of consent and leave in Section 36(4) of the Act. Therefore, consent of the party is the ruling factor and without consent (and leave) a lawyer cannot appear before a Labour Court. Both consent and leave must be explicit and cannot be taken for granted by implication. 24. The other ruling against implied consent and implied leave is A.P.Power Diploma Engineers Association v. A.P.State Electricity Board and Anr. 1996(73) F.L.R. 997 (Full Bench of A.P.High Court). There was an industrial dispute between the Engineers Association and Andhra Pradesh State Electricity Board relating to the rate of allowance payable to workmen for shift duty. The dispute was referred to the Industrial Tribunal. An Advocate filed vakalatnama alongwith an application for being permitted to appear on behalf of the Board. The application was rejected as the Union did not consent to his appearance. Thereafter the same Advocate filed an appearance for the Board styling himself as Joint Honorary Secretary of the Federation of the Andhra Pradesh Chambers of Commerce and Industry. This was also objected by the Union and the Advocate was not permitted to appear. The Union challenged this order through a writ petition which was disposed of by remanding the matter to the Tribunal with a direction to ascertain the status of the Association of Employers and the nature of the office held by the Advocate. After remand the Tribunal come to the conclusion that the Association was not the Association of Employers and the Advocate was not its office bearer. 25. The Full Bench held as follows: Drawing up of such a panel of advocates and designating them as Honorary Secretaries is nothing but an attempt to overcome the provisions of Section 36(4) of the Act and the relationship simpliciter of a lawyer and a client, otherwise barred from being taken advantage of unless consented to by the workmen, is sought to be white-washed to make it appear as one authorized under another provision of the statute. The attempt is directly over-reaching the dictum of the apex court which in Paradip Port Trusts case laid down, while explaining the concept of officer, that so far as lawyers are concerned their representation must be made only in the manner contemplated under Section 36(4) though, however, they can appear for workmen as office-bearer of registered trade union. 26. A Single Bench of the Rajasthan High Court in Bhawani Art Handicrafts v. Gulab Singh and Ors. 1999 (82) F.L.R. 781 also relied upon Paradip Port Trusts case to hold that an Advocate is not entitled to appear before the Industrial Tribunal as an officer bearer of the employer. In Bhawani Art Handicrafts case services of 10 workmen had been terminated and reference was made to the Labour Court whether the appearance of an Advocate as representative of the employer was objected to by the workman on the ground that he was a practicing Advocate who was not entitled to appear on behalf of the employer. The Court held that merely branding an advocate as a member of an Executive Committee of an Employers Association would not entitle him to appear before the Labour Court to represent the employer. 27. Similarly a Single Bench of the Gujarat High Court in J.B.Transport and Ors. v. Shankarlal @ Mavaram Mathuji Patel 2000 (84) F.L.R. 353 held that representation of a legal practitioner as an office bearer of the employers association would defeat the object of Section 36(2) of the Act. In J.B.Transport case the workman was a driver with the Transport Company whose services were terminated. High Court also felt that the Court rightly refused permission to appear on behalf of the employers association. 28. Reference was also made to judgment of the Delhi High Court in Hindustan Motors Limited v. Presiding Officer 2004(1) Recent Services Judgment 712. This was the judgment on the basis of which the present reference was made to larger Bench. In this case the workman had appeared through an Advocate but he had later objected to the appearance of an Advocate on behalf of the management. At the time when he raised this objection, the workman was not represented by any lawyer. The Court held that the mere fact that the workman had not objected earlier to the representation by the company through an advocate cannot be a ground to deny him the benefit under Section 36 to raise the objection at a later stage. 29. In Parsar Bharathi Broadcasting Corporation of India v. Suraj Pal Sharma and Anr. 1999 ILLJ 1306 Delhi High Court made some pertinent observations as follows: Sub-Section (4) of Section 36 enables a legal practitioner to represent a party to a dispute in a proceeding before the Labour Court or Tribunal with the consent of other parties to the proceeding and with the leave of the Court or Tribunal which is mandatory prerequisite. In this case the workman has not given his consent for the representation of the management by a legal practitioner. To consider the failure or inaction of a party in raising the objection at an early stage of the proceeding as implied consent and to deny him the right to object to the representation of the other party by a legal practitioner, will be against the spirit and content of the provisions of Section 36 of the Act. The concept of implied consent cannot be imported to the provision in Section 36(4) of the Act. 30. We may refer to the contrary view which is that once an Advocate had put in appearance on behalf of a party and no objection is taken, it must be taken as implied consent of the opposite party and that leave of the court was given by implication. Therefore, there was consent of the opposite party and leave of the court. 31. The first judgment is Calicut Co-operative Milk Supply Union v. Calicut Co-operative Milk Supply Workers Union 1986(II) L.L.J. 422. In this case the Co-operative Society appeared through an Advocate and the Workers Union also appeared through an Advocate. After a few years the Union prayed that it be allowed to conduct the case without the consent of a lawyer and simultaneously objected to the Co-operative Society from being represented by its lawyer. This request was not allowed. The Kerala High Court came to the following conclusion: This Section does not prescribe that the consent must be given in a particular manner or in a particular form. If that be so, the consent of a party which is the basis for the grant of leave to the other party for being represented by a lawyer in a proceeding under the I.D. Act, can be inferred from the surrounding circumstances as also the conduct of the consenting party. 32. Consent can be implied. The Section does not insist upon a written consent. Consent once given cannot be revoked at a later stage because there is no provision in the I.D. Act enabling such withdrawal or revocation. To put it pithily the consent once given by a party, entitling the other party to be representing in the proceeding, by a lawyer would ensure to his benefit till the proceeding is finally disposed of. I am fortified in this view by a decision of the Calcutta High Court in Reckit and Colman v. Jitendra Nath . The High Court went on to hold that once consent had been granted to allow an Advocate to appear for a party, that consent cannot be subsequently revoked. 33. A Division Bench of the Bombay High Court in A.D. Shastri v. S.D. Patil and Anr. 1975(I) I.L.J. 458 had held that an office bearer of a trade union who happens to be an Advocate had an absolute right to represent the union, clearly making no distinction between a legal practitioner simpliciter and legal practitioner who was an office bearer of the Union. A legal practitioner who was an office bearer would not be subject to restrictions imposed under Section 36(4) of the Act. 34. A Division Bench of Calcutta High Court in Infar India Ltd.Vs. Madan Mohan Ghosh and others 2001(88) FLR 1019 held as follows: It is evident that any office-bearer of a trade union though he is a legal practitioner can represent workmen likewise a legal practitioner if he is an officer of an association of the employers can also appear before the Tribunal. The Apex Court has interpreted the provisions of Section 36(1) and 36(2) and has taken the view that irrespective of fact that incumbent is a legal practitioner will not affect his position if the qualifications specified in Sections 36(1) and 36(2) are fulfilled. 35. Likewise a Single Bench of the Bombay High Court in Associated Cement Companies Ltd. v. Associated Cement Staff Union and Anr. 2002 (92) FLR 148 also took a similar view. In this case the company was represented by the workmens Union. One of those persons was not even a legal practitioner, therefore, he was permitted to appear but the other legal practitioner also claimed to be a member of the Employer Federation of which the company was member. His representation was not permitted. 36. Interestingly Division Bench of this Court in Radhey Sham v. Presiding Officer, Labour Court (2003-3) Punjab Law Reporter Volume CXXXV Page 827 held that there was no scope for conducting an enquiry into motive for appointment of legal practitioners as office bearers of the employers' assoication. In Radhey Sharm's case the workman had attacked the appointment of very same Saini and Rajput as officers of M/s Progressive Employers & Traders Association and pleaded that the two of them were Advocates and were precluded from representing the management without the consent and leave. 37. In the present case the impugned order was passed on the basis of workman's application dated August 2, 2001 Annexure P-1 wherein he had not stated that Saini and Rajput were office bearers of any employer's assoication but he has attacked the representation of the management by Saini and Rajput on the ground that they are practising Advocates. Therefore, objection taken by the workman was on the basis of Section 36(3) and (4) and not Section 36(2). Consequently there is a distinctive feature in this case which distinguishes it from Radhey Sham's case. The impugned order dated April 16, 2004 also proceeded on the basis that the workman had given implied consent and the court had given implied leave since Saini and Rajput had appeared on several dates and had performed several acts in the proceedings. Radhey Sham's case is clearly distinguishable from the controversy before us. Therefore, the dictum of Paradip Port Trust's case in respect of matters covered by Section 36(2) would not apply to a case such as the present case where the matter is under Section 36(3) and (4) and depends upon whether implied leave and implied leave is valid or not. We had in the earlier part of the judgment noted that legal proceedings proceed along a set path. The Presiding Officer adopts a step by step approach and no legal proceeding is an open ended afffair. Embarking on a suit is like starting on a long journey. We feel that controversy regarding the representation of a party through a legal practitioner, be he simply a lawyer or an office bearer of the employers association, should be decided and concluded at the very earliest. The large body of judicial opinion of Section 36 of the Industrial Disputes Act indicates that employer's and workmen concentrate too much over whether a lawyer can represent one or the other rather than the real industrial dispute which is before the Labour Court for adjudication. This is indeed scathing indictment of a system which seeks to promote speedy industrial justice. Therefore, disputes over representation should be decided right at the outset if the parties are to prevent long litigation over the interpretation of Section 36 and applicability of these provisions to a given case. 38. We are therefore, of the considered opinion that there is no scope for holding that a representation by a legal practitioner, concealing his persona by adopting the status of office bearer of an association, can be deemed to be granted consent of the workman by implication or implied leave of the Court. To hold otherwise would permit legal practitioners to masquerade as office bearers to circumvent the provisions of Section 36(4) of the Act. 39. We, therefore, hold that consent of the party must be specific and after consent had been granted leave by the court must also be specifically given under Section 36(4) if a legal practitioner is to appear for any of the parties. Furthermore, such grant of specific consent and specific leave should be at the beginning of the proceedings so that there remains no ambiguity in the status of the legal practitioner who appears after due consent and leave. Implied consent of the party or implied leave of the court are alien to the provisions of Section 36(4) of the Act. 40. This reference is answered in the above terms.

Author: K Garewal

Indrasan Parsad vs Presiding Officer And Anr. on 16 November, 2007

Punjab-Haryana High Court

CENTRAL INFORMATION COMMISSION Club Building (Near Post Office) Old JNU Campus, New Delhi - 110067 Tel: +91-11-26161796 Decision No. CIC/SG/A/2010/000521/7433 Appeal No. CIC/SG/A/2010/000521 Relevant FactsRTI application filed on : 09/11/2009 PIO replied : 11/12/2009 First appeal filed on : 07/01/2010 First Appellate Authority order : No order Second Appeal received on : 26/02/2010 Date of Notice of Hearing : 12/03/2010 Hearing Held on : 09/04/2010 Sl. Information Sought Reply of the PIO 1. The RTI application was sought with regard to Yes emerging from the Appeal Appellant : Mr. Hari Ram Gupta, B- 21, Madhuban, Delhi - 110092 Respondent : Public Information Officer Municipal Corporation of Delhi. Assessment & Collection City Zone, Asaf Ali Road, Delhi. house tax of property 6112 known as Ram Dev Market, Gali Batashan Khari Baoli Delhi-6. 2. Ld PIO has given wrong information and The excess payment of Rs 16540 will be played with figures wherein he had shown the adjusted in the coming years. This was refund amount to be nil through his replies sent informed by the office reply dated 30/07/2009 on 30/07/2009 and 10/09/2009. and 10/09/2009. The money would not be refunded but adjusted. Thus, there was no difference of figures. 3. Whether it was correct that the demand till Yes 1998-99 against the property was Rs 723272 as per the order passed on 25/05/2009 and the fact the Appellant had also made a payment of Rs 708000. 4. Whether the net payment (enclosed) made by Yes the Appellant was tallying with the records of the department. 5. Whether the demand and payment (chart Refund will not be allowed. The excess enclosed) was tallying with the records of the payment of Rs 16540 will be adjusted in the department. coming years. 6. Whether the Appellant was entitled to a refund Refundable amount indicated by the of Rs 19055 as on 31/03/1999. Appellant is wrong. The excess payment of Rs 16540 will be adjusted in the coming Whether there was a difference in calculation. years. Grounds for the First Appeal: Unsatisfactory, incomplete and wrong information provided by the PIO. Order of the First Appellate Authority (FAA): No order passed by the FAA. Grounds for the Second Appeal: Unsatisfactory information provided by the PIO and no order passed by the FAA. Relevant Facts emerging during Hearing: Both the parties were given an opportunity for hearing. However, neither party appeared. From a perusal of the papers it appears that the PIO has provided the information as per the records. The appellant is claiming that he is entitled to a certain rebate as per a circular of MCD dated 20/03/1999. The Appellant is trying to make the RTI application as a means for claiming this rebate. On the basis of his claim for rebate he contends that the information being provided by the PIO is wrong. The PIO's information will reflect the position as per the records maintained by the public authority. The Appellant should pursue his claim for rebate separately. Decision: The Appeal is dismissed. The information has been provided. This decision is announced in open chamber. Notice of this decision be given free of cost to the parties. Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act. Shailesh Gandhi Information Commissioner 9 April 2010 (In any correspondence on this decision, mention the complete decision number.) (RR)

Mr. Hari Ram Gupta vs Municipal Corporation Of Delhi on 9 April, 2010

Central Information Commission

CASE NO.: Appeal (civil) 1014 of 2005 PETITIONER: Secy. Deptt. of Home Secy.A.P. & Ors. RESPONDENT: B. Chinnam Naidu DATE OF JUDGMENT: 09/02/2005 BENCH: ARIJIT PASAYAT & S.H. KAPADIA JUDGMENT: J U D G M E N T (Arising out of S.L.P. (C) No. 2269 of 2004 ARIJIT PASAYAT, J. Leave granted. Challenge in this appeal is to legality of the judgment of a Division Bench of the Andhra Pradesh High Court setting aside the order passed by the Andhra Pradesh Administrative Tribunal (in short the 'Tribunal') and holding that authorities were not justified in denying appointment to the respondent. A brief reference to the factual aspects would suffice: The respondent appeared for the recruitment test conducted for the selection of Stipendiary Cadet Trainee Police Constable (Civil) in Visakhapatnam. He was successful in the test and thereafter he was subjected to medical test. After the two tests were over, he was required to undergo training. But he was not sent for training on the ground that the Superintendent of Police, Visakhapatnam by order dated 5.5.2003 had directed that he was not to be sent for training. Questioning legality of such order, the respondent filed an Original Application before the Tribunal. The Tribunal noted that the examination for selection was conducted on 16.3.2003. Subsequently, he underwent the physical test and was successful. By order dated 28.4.2003 the Superintendent of Police, Visakhapatnam informed the respondent about his selection and directed him to report at the District Police Office at Visakhapatnam for further medical test. He was also directed to carry with him uniforms and other items necessary for training which was organized at Central Police Lines, Amberpet. Though, the respondent was subjected to medical examination he was not allowed to join the training programme. He was informed that since he had been arrested in crime No. 28/2000 on the file of Police Station, Kukatpally, registered under various provisions of the Indian Penal Code, 1860 (in short the 'IPC') and Andhra Pradesh Public Examination Prevention of Malpractice and Unfair Means Act, 1997 he was not eligible to be appointed. Before the Tribunal the respondent took the stand that since he had not been charged and had not been convicted and since he had no connection with the crime, the order of the Superintendent of Police was not tenable. His further stand was that the case was registered in respect of the earlier recruitment test in the year 2000 and there was no reason to debar him since there was no conviction, and, therefore, the action of the authority is not proper. The present appellants filed counter-affidavit stating that before final verification the respondent was permitted to appear in the examination and the tests. Subsequently, it was noticed that the respondent herein was arrested on 16.1.2000 and was sent to judicial custody in the case referred to above. That case was under investigation and Forensic Science Laboratory report was awaited. The applicant while submitting Attestation Form after completion of written examination did not mention about his arrest and the pending case which he was required to do. Since he had suppressed the truth in terms of the instructions laid down in Declaration at Cl. No. 3, the respondent had incurred disqualification and he was not a fit person for employment under the Government. The Tribunal noted that against Col. No. 12 of the Attestation Form, the respondent had not mentioned about the pending case and had not even indicated about his arrest. This amounted to suppression of truth in the Attestation Form and Declaration at column No.3. Therefore, in terms of the instructions he had incurred disqualification and was unfit for employment under the Government. The Tribunal held that the respondent was not a person of good conduct and character since he had suppressed material information while filling up the Attestation Form. He did not deserve any relief. Accordingly the Original Application was dismissed. The matter was challenged before the Andhra Pradesh High Court and by the impugned judgment it was held that there was no requirement under Column No. 12 to mention about any pending case or arrest and, therefore, the action of the authorities, in not permitting the respondent to join the training, cannot be sustained. In support of the appeal the learned counsel appearing on behalf of the appellants submitted that the Tribunal had correctly held that the respondent was guilty of suppression of material facts and taking into consideration the conduct and character the Tribunal had rightly held that he was not entitled to any relief, and High Court should not have interfered with the order. Reference was made to some cases where this Court has held that giving of incorrect reply and suppressing material facts while filling up the Application Form or Attestation Form or Declaration disentitles the candidate for any relief. Particular reference was made to the case of Kendriya Vidyalaya Sangathan & Ors. Vs. Ram Ratan Yadav [2003 (3) SCC 437]. In response, the learned counsel for the respondent submitted that there was no requirement to mention about the arrest or the pending case, therefore, High Court's order is perfectly justified. In Kendriya Vidyalaya Sangathan's case (supra) the factual position can be ascertained from paragraphs 8 and 9 which read as follows: "8.- The Attestation Form dated 26.6.1998 duly filled in by the respondent and attestation show that the respondent has taken BA degree from St. Aloysius College, JBP and Bed and Med degrees from R. Durgavati Vishwavidyalaya, JBP. Columns 12 and 13 as filled up read thus: "12.- Have you ever been prosecuted/kept under detention or bound down/fined, convicted by a court of law of any offence? - No." "13.- Is any case pending against you in any court of law at the time of filling up this Attestation Form?- No." "9.- The respondent has also certified the information given in the said Attestation Form as under: "I certify that the foregoing information is correct and complete to the best of my knowledge and belief. I am not aware of any circumstances which might impair my fitness for employment under Government." As is noted in Kendriya Vidyalaya Sangathan's case (supra) the object of requiring information in various columns like Column No. 12 of the Attestation Form and declaration thereafter by the candidate is to ascertain and verify the character and antecedents to judge his suitability to enter into or continue in service. When a candidate suppresses material information and/or gives false information he cannot claim any right for appointment or continuance in service. There can be no dispute to this position in law. But on the facts of the case it cannot be said that the respondent had made false declaration or had suppressed material information. In order to appreciate the rival submissions it is necessary to take note of Column No. 12 of the Attestation Form and Column No.3 of the declaration. The relevant portions are quoted below: "Column No.12- Have you ever been convicted by a court of law or detained under any State/Central preventive detention laws for any offence whether such conviction sustained in court of appeal or set aside by the appellate court if appealed against." "Column No.3- I am fully aware that furnishing of false information or suppression of any actual information in the Attestation Form would be a disqualification and is likely to render me unfit for employment under the Government." A bare perusal of the extracted portions show that the candidate is required to indicate as to whether he has ever been convicted by a court of law or detained under any State/Central preventive detention laws for any offences whether such conviction is sustained or set aside by the appellate court, if appealed against. The candidate is not required to indicate as to whether he had been arrested in any case or as to whether any case was pending. Conviction by a court or detention under any State/Central Preventive Detention Laws is different from arrest in any case or pendency of a case. By answering that the respondent had not been convicted or detained under Preventive Detention Laws it cannot be said that he had suppressed any material fact or had furnished any false information or suppressed any information in the Attestation Form to incur disqualification. The State Government and the Tribunal appeared to have proceeded on the basis that the respondent ought to have indicated the fact of arrest or pendency of the case, though column No. 12 of the Attestation Form did not require such information being furnished. The learned counsel for the appellants submitted that such a requirement has to be read into an Attestation Form. We find no reason to accept such contention. There was no specific requirement to mention as to whether any case is pending or whether the applicant had been arrested. In view of the specific language so far as Column No. 12 is concerned the respondent cannot be found guilty of any suppression. In Kendriya Vidyalaya Sangathan's case (supra), the position was the reverse. There the candidate took the stand that as there was no conviction, his negative answers to columns 12 to 13 were not wrong. This Court did not accept the stand that requirement was conviction and not prosecution in view of the information required under columns 12 and 13 as quoted above. The requirement was "prosecution" and not "conviction". The logic has application here. The requirement in the present case is "conviction" and not "prosecution". The question whether he was a desirable person to be appointed in Government service was not the subject matter of adjudication and the Tribunal was not justified in recording any finding in that regard. Whether a person is fit to be appointed or not is a matter within the special domain of the Government. For denying somebody appointment after he is selected, though he has no right to be appointed, has to be governed by some statutory provisions. That was not the issue which was to be adjudicated in the present case. The only issue related to suppression of facts or mis-declaration. In view of the aforesaid, we find no merit in this appeal which is accordingly dismissed with no order as to costs.

Author: A Pasayat

Secy. Deptt. Of Home Secy.A.P. & ... vs B. Chinnam Naidu on 9 February, 2005

Supreme Court of India

ORDER C.K. Prasad, J. 1. Respondent Madhya Pradesh Electricity Board invited tender for purchase of scrap materials, Lot No. 70 contained 65 M.T. of Pulverizer M.S. Pipe and Bent scrap, Lot No. 76 contained 160 M.T. of Boiler Tube Steel Scrap and Lot No. 117 (1) contained 200 M.T. of Economizer Tube Coil Steel scrap. Petitioner as also respondent No. 3 submitted its tender for Lot No. 117 (1). Petitioner had also submitted tender for Lots No. 70 and 76. Tender of respondent No. 3 has been accepted by telegram dated 7-2-2000. Aggrieved by the same, petitioner has preferred this writ petition under Articles 226 and 227 of the Constitution of India and prays for quashing of the sale order in favour of respondent No. 3 in respect of Lots No. 70, 76 and 117 (1). 2. It is the assertion of the petitioner that along with its tender petitioner has not deposited 5% of its offered value towards earnest money. In reply to the aforesaid allegation of the petitioner, respondents No. 1 and 2 have stated in Paragraph 6 of the return as follows :-- "6. True it is that as per Clause 2 (amended) 5% of the value offered by a tenderer was to be deposited as Earnest Money. A total value offered by respondent No. 3 in respect of lot No. 70, 76 and 117(1) was Rs. 34,73,465/-. Five per cent (5%) of the total sum above referred comes to Rs. 1,73,673/- which amount was to be deposited by respondent No. 3 by way of Earnest Money. The respondent No. 3 submitted demand drafts for Rs. 1,67,000/-. The balance amount of Rs. 6,673/- was requested to be adjusted from the amount already available with the Board as refundable security deposit to the tune of Rs. 1,92,500/- vide letter dated 16-11-1999 which formed part of the tender submitted by respondent No. 3. Copy of the complete tender submitted by respondent No. 3 is filed herewith and marked as Annexure R-11. Under the circumstances, it cannot be said that the respondent No. 3 has not deposited the entire Earnest Money. The amount already available with the Board is adjusted, hence the condition of depositing Earnest Money stands fully satisfied." From the statement of respondents No. 1 and 2 referred to above, it is evident that respondent No. 3 has not deposited the entire earnest money by demand draft and a sum of Rs. 6,673/- was adjusted by respondents No. 1 and 2 which amount was available with the Board as refundable security deposit of respondent No. 3. 3. Mr. Kishore Shrivastava, appearing on behalf of the petitioner submits that according to the terms and conditions of the tender notice, a tenderer was required to deposit 5% of his offered value towards earnest money either in cash or by bank draft and admittedly respondent No. 3 having not deposited the total earnest money, its tender ought to have been rejected. Mr. Vivekanand Awasthy however, appearing on behalf of respondents No. 1 and 2 and Ms. Singhai appearing on behalf of respondent No. 3 submit that adjustment of the balance amount of Rs. 6,673/- from the amount of respondent No. 3 available with the Board as refundable security deposit; in sum and substance amounts to deposit of part of earnest money by way of cash and hence, it cannot be said that respondent No. 3 has not deposited the full earnest money. 4. In order to appreciate the rival submissions , it is apt to reproduce Clause 2.O of the terms and conditions of tender notice which read as follows :-- "2.O Earnest Money :-- The tenderer shall have to deposit 10% (later on reduced to 5%) of his offered value towards Earnest Money deposit for the bid. 2.1 The Earnest Money can be deposited in one of the following forms only : a) In cash to be deposited with the Regional Accounts Officer (CAU), M.P.E.B., Jabalpur. b) By bank draft to be drawn in favour of the Regional Accounts Officer (CAU), M.P.E.B., Jabalpur. 2.2 No offer will be accepted with "EAR NEST MONEY DEPOSIT". If on opening of tender, it is revealed that BMB amount is inadequate any other discrepancy is noted, the tender shall be rejected and returned to the tenderer. 2.3 It may be noted carefully that Earnest Money in the forms other than what is prescribed in Clause 2.1 above will not be accepted. 2.4 There is no exemption to any bidder from furnishing of required Earnest Money. 2.5 Bank Draft towards Earnest Money must be submitted in a separate envelope subscribing D.D. towards 'Earnest Money' against tender specification No. and due date. The amount of EMD should not be indicated on the cover of the envelope." A plain reading of the aforesaid provisions of the tender notice clearly contemplates deposit of earnest money either in cash or by bank draft. Clause 2.2 of the tender notice has specifically provided that offers shall not be accepted without earnest money and in case of opening of the tender it is found that earnest money deposit is inadequate, the tender shall be rejected. Here in the present case, according to the respondents' own showing, the balance amount of earnest money which respondent No. 3 was required to deposit was adjusted from its refundable security, deposit. In that view of the matter, I am not inclined to accept the submission of the respondents that adjustment of this amount towards earnest money shall be deemed to be a cash deposit. I reject this submission of the respondents. According to respondents Nos. 1 and 2, refundable security deposit of Rs. 1,92,500/- of respondent No. 3 was lying, hence it could have submitted its tender without depositing a single farthing. This mode does not seem to be permissible in law. 5. Mr. Vivekanand Awasthy then submits that condition of deposit of earnest money in cash or by way of bank draft is not an essential condition of eligibility and respondents Nos. 1 and 2 are not bound to give effect to every terms mentioned in the tender notice in meticulous detail and is entitled to waive technical irregularity of little or no significance. His plea is that adjustment from the security deposit of respondent No. 3 towards the earnest money is an irregularity of no significance and respondents Nos. 1 and 2 being satisfied and having considered the tender of respondent No. 3, same is not fit to be interfered by this Court in exercise of its writ jurisdiction. In support of his submission, he has placed reliance on a Judgment of the Supreme Court in the case of Poddar Steel Corporation v. Ganesh Engineering Works, AIR 1991 SC 1579. My attention has been drawn to Paragraph 6 of the Judgment, which read as follows at page 1580 :-- "6. It is true that in submitting its tender accompanied by a cheque of the Union Bank of India and not of the State Bank clause No. 6 of the tender notice was not obeyed literally, but the question is as to whether the said non-compliance deprived the Diesel Locomotive Works of the authority to accept the bid. As a matter of general proposition it cannot be held that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or no significance. The requirements in a tender notice can be classified into two categories -- those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases." 6. True it is that the theory of substantial compliance can be invoked in relation to essential condition of tender notice but the question is as to whether adjustment of amount towards the earnest money can be said to be substantial compliance of the essential condition of the tender notice. It is relevant here to state that it is not the stand of the respondents that deposit of earnest money is not an essential condition of the tender notice but their stand is that respondent No. 3 has substantially complied with the same. 7. Having heard learned counsels for the parties, I am of the opinion that adjustment of amount from the refundable security deposit towards the earnest money deposit cannot be said to be substantial compliance of the essential condition of the tender notice. Terms and conditions in relation to the earnest money has clearly stated that in case the earnest money deposit is inadequate, the tender shall be rejected. Respondent No. 3 has submitted its demand draft for Rs. 1,67,000/- which was short by Rs. 6,673/-. According to the respondents, refundable security deposit to the tune of Rs. 1,92,500/- of respondent No. 3 was outstanding against the Board and in ca'se the argument of respondents is accepted, then respondent No. 3 could have submitted its tender without depositing a single farthing. I am of the opinion that non-deposit of the entire earnest money and adjustment of balance earnest money from the security deposit of respondent No. 3 are not irregularity of technical nature or of no significance. That being the position, I am of the opinion that respondents Nos. 1 and 2 erred in considering tender of respondent No. 3. 8. In the case of M/s. Poddar Steel Corporation (supra) relied on by Sri Awasthy, one of the tenderer deposited the earnest money by way of certified cheque of the Union Bank of India drawn on its branch but according to the terms of the tender notice, it was required to be deposited either in cash or demand draft drawn on the State Bank of India. In the facts of the said case, the Supreme Court found that the authority had the right to waive the technical-literal compliance of the tender notice. Here in this case, I have found the irregularity not to be of technical nature or insignificant, hence the decision relied on is clearly distinguishable. 9. Mr. Awasthy, then, contends that Board being satisfied with the requirement of earnest money deposit, it is a matter between the Board and respondent No. 3 and petitioner has no locus-standi to challenge the same. I do not have the slightest hesitation in rejecting this submission of Sri Awasthy. True it is that statutory authority like any other person, can enter into contract with any person of its choice but this principle has its own inherent limitations and that is, its action cannot be arbitrary. I have found that the condition of deposit of earnest money is an essential condition and respondent No. 3 has not substantially complied the same. Hence consideration of the tender of respondent No. 3 is illegal and petitioner who is one of the tenderers has locus standi to challenge the award of tender in its favour in this writ petition. 10. Mr. Awasthy as also Ms. Singhai appeals to me for dismissal of the writ petition on the ground that respondent No. 3 having "invested huge amount for enabling it to perform the work and has almost at the verge of completing of performance," relief sought for deserves to be declined. 11. Plea of respondent No. 3 in this regard is absolutely vague. Respondent No. 3 in its return has not specifically stated the date and amount which it has deposited. The work order is for sale of scrap materials and respondents ought to have stated the quantity of scrap material lifted and amount deposited by respondent No. 3. This has not been done. Further it is relevant here to state that tender of respondent No. 3 was accepted by communication dated 7th February, 2000. Even before the work order was placed, petitioner has filed the writ petition on 16-2-2000. It is only after the filing of the writ petition that respondents Nos. 1 and 2 have issued the work order. Earlier the writ petition was taken up on 12-5-2000, 6th July. 2000, 12th July, 2000 and 24th July, 2000, when the case was adjourned at the request of counsel for respondents Nos. 1 and 2. Respondents Nos. 1 and 2 have taken the chance to issue the work order during the pendency of the writ petition and respondent No. 3 the risk of investment. I had the occasion to consider this aspect of the matter in somewhat detail in the case of M.K.S. Engineering Pvt. Ltd. v. State of M.P., 2000 (1) JLJ 44, wherein, I have held as follows :-- "24. Here in the present case, as stated earlier, the petitioner rushed with the writ petition immediately after the Empowered Committee decided to award the contract to respondent No. 5. Delay in disposal of the case cannot be attributed in the hands of the petitioner. It is a systematic delay. Where a case stands over for argument on account of multiplicity of the business in the Court, the party ought not be prejudiced by that delay. "Actus Curlae Neminem Gravabit" i.e. "the act of the Court shall prejudice no man" is the maxim which guides our discretion. Hence I am not inclined to decline the relief of the petitioner on this ground." In circumstances like this, I am not inclined to decline the relief to the petitioner on the alleged ground of near completion of the work. 12. In the result, writ petition is allowed. Order of sale of scrap materials of Lots No. 70, 76 and 117(1) in favour of respondent No. 3 is quashed. In the facts and circumstances of the case, there shall be no order as to cost.

Author: C Prasad

Omprakash Satyapal vs M.P. Electricity Board And Ors. on 1 August, 2000

Madhya Pradesh High Court

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. G.T.A. No.4 of 2001 Date of decision: 17.12.2008 Commissioner of Gift-tax (Central), Ludhiana. -----Appellant Vs. Sh. Brij Mohan Lal Munjal. -----Respondent CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE L.N. MITTAL Present:- Mr. Krishan Mehta, Sr. Standing Counsel for the appellant. Mr. Akshay Bhan, Advocate for the respondent. ----- ORDER: ( ADARSH KUMAR GOEL ) JUDGE December 17, 2008 ( L. N. MITTAL ) ashwani JUDGE This appeal has been preferred by the revenue under the Gift-tax Act, 1958 (for short, "the Act") read with Section 27A of the Wealth Tax Act, 1957 against the order of Income Tax Appellate Tribunal, Chandigarh Bench, Chandigarh passed in GTA No.8/Chandi/99 on 22.3.2000 for the assessment year 1989-90, proposing to raise following questions of law:- G.T.A. No.4 of 2001 2 We have dispose of connected G.T.A. No.2 of 2001 (Commissioner of Gift-tax (Central), Ludhiana v. Sh. Om Parkash Munjal) today. Therein, it has been held that value of bonus shares was liable to be taxed to gift tax even after gift of equity shares is revoked. In the present case, the only question is whether the provision of interest will be attracted. The Tribunal set aside the levy of interest on the ground that tax itself was not levied. The said finding has since been reversed by us in the order passed in the abovesaid connected matter, as a consequence, the finding of the Tribunal and levy of interest are also set aside. The appeal is accordingly allowed. The order of the Tribunal is set aside and that of the Assessing Officer is restored.

Commissioner Of Gift-Tax ... vs Sh. Brij Mohan Lal Munjal on 17 December, 2008

Punjab-Haryana High Court

Gujarat High Court Case Information System Print MCA/1370/2010 3/ 3 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD MISC.CIVIL APPLICATION - FOR REVIEW No. 1370 of 2010 In SPECIAL CIVIL APPLICATION No. 11592 of 2009 ====================================== TELECOM DISTRICT MANAGER AND OTHERS Versus PARVATIBEN BHULANPRASAD AND OTHERS ====================================== Appearance : MR YC CONTRACTOR for Applicants. None for Opponents. ====================================== CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA and HONOURABLE MR.JUSTICE MD SHAH Date : 15/06/2010 ORAL ORDER(Per : HONOURABLE MR.JUSTICE D.H.WAGHELA) 1. After arguing at some length on the maintainability of the original Special Civil Application as well as present Misc. Civil Application, learned counsel went into tamper tantrums and loudly submitted that he does not propose to withdraw the application nor propose to obtain any order on merits; but he only wanted the case to be transferred to another Court. Earlier to that he submitted that a review petition was maintainable when there was mistake apparent on the face of record and the Court has to have concern for justice. He further submitted that if learned counsel were to find out judgments in favour of his client after hearing was over and a judicial decision was rendered then review was required to be entertained and point of view of learned counsel was required to be appreciated. He also submitted that ignorance of a counsel at a particular time would be sufficient cause for reviewing a judicial order in order to ensure that parties do not suffer on account of ignorance of their counsel. Learned counsel was then invited to cite any judgment or precedent in support of his submissions and again he repeatedly argued that he had twelve judgments of various High Courts and Supreme Court in his favour and he had prepared detailed notes thereof. When he was requested to cite the judgment, learned counsel relied upon Constitution Bench decision of the Supreme Court in Krishna Swami v. Union of India and others [AIR 1993 SC 1407]. When learned counsel was requested to point out the observations and read them to support his submissions, he got excited and submitted that he does not have a copy of the judgment but he was arguing on the basis of his notes, and if any observations were to be read from any judgment, he would require further time and that a counsel was entitled to grant of time on such counts. He also submitted that in his long career as a counsel he has always enjoyed such facility and the Court ought not to refuse such indulgence. 2. Having gone through the previous order dated 30th April 2010, which is sought to be reviewed, and in view of further loss of public time of the Court, without any worthwhile submission being made or substantiated, present proceeding also appears to be an extension of abuse of process of the Court. Even otherwise learned counsel has openly and in clear terms refused to argue on merits with an unseemly attitude not befitting an advocate of the standing of decades of legal practice. Under the circumstances, we have no alternative but to dismiss the application with cost quantified at Rs.3,000/-, over and above the cost already imposed by previous order dated 30th April 2010 in Special Civil Application No.11592 of 2009. The applicants are permitted to deposit total amount of Rs.8,000/- by way of cost to State Legal Services Authority at Ahmedabad latest by 21st June 2010. In case the amount, as aforesaid, is not paid by that time and evidence thereof is not produced in the registry of the High Court, the orders of this Court shall be placed before the Bench taking up Contempt of Court matters for appropriate further proceedings. (D.H.Waghela, J.) (M.D.Shah, J.) *malek     Top

Author: D.H.Waghela,&Nbsp;Honourable Mr.Justice Shah,&Nbsp;

Parvatiben vs Unknown on 15 June, 2010

Gujarat High Court

Gujarat High Court Case Information System Print FA/2624/2004 5/ 5 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2624 of 2004 ========================================================= UNITED INDIA INSURANCE CO. LTD - Appellant(s) Versus PRITESH NARENDRASINH BHATI & 2 - Defendant(s) ========================================================= Appearance : MS AVANI S MEHTA for Appellant(s) : 1, MR SP MAJMUDAR for Defendant(s) : 1, RULE UNSERVED for Defendant(s) : 2, MR MAHENDRA K PATEL for Defendant(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 13/07/2007 ORAL ORDERUpon hearing Ms. Mehta, learned Counsel for the appellant and Mr. Majmudar, learned Counsel for the original claimant, it appears that the contention raised in the appeal as such covered the decision of this Court dated 30.03.2007 passed in First Appeal No. 1768 of 2007. Therefore in view of the same similar direction deserves to be issued. In the said decision this Court observed as under: ?SIt may be recorded that essential purpose of fixing the payment under Section 140 of the Motor Vehicles Act is to provide immediate compensation by way of an interim measure to the injured or the victim of the accident or the dependents, as the case may be. The detailed examination of the contention may be at the time when final award is passed and such an interim order is subject to the final award. It may be that in very very rare case, this Court may examine the question of jurisdiction, if it touches to the root of the matter. However, normally the defence of the Insurance Company can better be examined at the final award. If such an approach is not taken and the exercise of power under Section 140 is read to leave room for a full fledge detailed inquiry, it may frustrate the very purpose of the interim measure to be provided to the claimant. Suffice it to say that the Tribunal has to exercise the judicial discretion at the prima facie stage after considering the material prima facie. As such, the exercise is undertaken by the concerned Tribunal in the impugned order hence, I find that the present case is not such, which may fall in the exceptional category for interference qua ordering for interim payment by way of an interim measure. However, the grievance on the part of the Insurance Company against the claimant for refund of the amount in the event it succeeds in the claim petition, consequently resulting into a situation of no liability on the part of the Insurance Company, can be sufficiently taken care of if the claimant at the time of withdrawal of the amount furnishes the security or surety to the satisfaction of the Tribunal and even otherwise also, the payment is subject to the final award. Even on the aspects of abandonment of the claim by the claimant after having withdrawn the amount or after having received the interim payment, may not be permissible and therefore, the grievance raised on behalf of the appellant to the extent of putting condition upon the claimant to file an undertaking appears to be reasonable. It appears that the above referred decisions of different Benches of this Court, in certain cases, withdrawal of the payment is permitted to the extent of 50%, whereas in certain case, the amount is ordered to be deposited in the Fixed Deposit Receipt and the interest is made payable. In the impugned orders, the Tribunal has permitted withdrawal to the extent of 30%, so far as First Appeal No. 1768/07 is concerned and so far as First Appeal No. 1769/07 is concerned, the Tribunal has permitted 50% of withdrawal and the remaining amount in both the cases are even otherwise ordered to be invested to the Tribunal. Under the above circumstances, I find that if the withdrawal as ordered by the Tribunal is permitted on furnishing of solvent surety/security to the satisfaction of the Tribunal, the same would not prejudice the rights of the claimant. Similarly, if the undertaking is ordered to be filed by the claimant as per the decision, the same also would not be prejudicial to the rights of the claimants since in any case, the claimant is to proceed with the claim petition for further compensation.?? Hence, directions given in the said decision deserves to be granted in the present appeal. Hence, the impugned order of the Tribunal is not required to be interfered with at this stage. However, the order of the Tribunal shall continue with the further following directions: 5. Subject to the aforesaid observations and directions, the appeal is dismissed. The amount deposited by the Insurance Company of Rs.12,500/- shall be transmitted forthwith to the Tribunal. Liberty to the claimants to apply if aggrieved by the observations and directions but before actual withdrawal. (JAYANT PATEL, J.) Suresh*     Top

Author: Jayant Patel,&Nbsp;

United vs Pritesh on 13 October, 2010

Gujarat High Court

IN THE HIGH COURT 0}? KARNATAKA AT BANC;;?V*:I@ Tf§."E" DATED THIS THE sow my OI_?'.J{_}_NE 2'G"Qs1L %% BEFORE THE HON'BLI+3 MR. JUST2'¢E'~AJI'FAJ. WRIT PETITION N.Q.91'62u]2OG8'(S§Res) BETWEEN : C.R.Ashok, S/e.C.G.Rangapp.-5-L,' ' . Aged about 33 j¢ears~,_ ' . : Residing at " Navile Post,"'BaLg"ur?Hob1Ej,' _ _ Chammmyapama 'I':a1'2;z1'<",% .. ' ' Hassan District. - * _ ...PETI'I'IONER (By S1_fi.T. Mgiixatitéshg "}kd'v.) 1. Stat:5;.ofAI{é1rn'aLa1;;3, 2 L» Educatien 'fiiépaiiment, M.S.B1_1fldiI1g,j'.~' Dr.B.R.Ambcdkar Road, % ~ ~ .Banga1ore.__" 560 001 ' K?:2preLs¢:nted by its "'Secre£.n1y. .:' ibfiputy Director of A "Public Instructiens (Adam), " Davangere District, Davangcre. 3. The Deputy Commissioner, Hassan District, Hassan. {By Sri.S.Z.A.K11ureshi, AGA) . . .RESPONQA.§_;fi"Fe'4eI' This writ petitiozl is flied undeif of' Constitution of India with a, prayer "to quash'v the _V .2008, issued R2, vide Annexure 'E' pursuant'-i.to ah ._iefte:--' dated 10.6.2008 issued by the R3, vide .£L',iV*1.*v}'(i,"i}_,i.I'f3 L impugned endorsement dated 2'5.'€.i6 This writ petitiozi preliminary hearing, this day, the Court niagdefthe 5i:}oRpee;hihVJ The ;,:_ Annexure 'E'. Piirsuant {to a ~ respondents haverejected the" of the petitioner for that he does not satisfy the fequixfementivof themember ef the family. 2. 'Thev__ma,i:i:'ef arises in the following manner: eizteiit of 21 guntas in Sy.No.261/1 & 2 of V' 'V'llié.ge, which belongs to the grand father of the was submerged in the Hemavathi Left Bank «i.i,13r§jecz in the year 1988-89. The ease of the petitioner that himself, his father, mother, brother ' and his fl: ' mean the family -3- grand father are living together. An application .4 V. by the petitioner seeking an appointment on ' 1 that he is the Grand son of the dispia"ced.. A is entitled to be appointed in * respondent. 3. Mrlviahantesh, 'appearing for the petitioner submits under Ruie 9 of é (General Recruitment) other persons, which Wouid son aiso. 4. To appreciate contention, it is necessary to .2. of iiie"'Kamataka Civil Service (General Iéecruitinent) Ruies, 2000. The members of the to a project displaoed person of the project displaced person of such person and his or her spouse, sons, 2 daughters, brothers and sisters residing with 'V 4' and dependant on him for their livelihood. A iipemsal of the Definition of members of the famiiy does not include the grandson. Hence, the endorsemenTt'»s. issueé at Annexure 'E' cannot be faulted. 5. The contention of the petitioner acceiflted inasmuch as the A' it displaced person would dlisplaceéi} himself, his wife, brothe1fs,.. ';;'esi{li11g with him and dependant tivelihood. Indeed, it is not father is still alive. It is son, who can seek an The gandson certainly not' 'to. play. 6. fisving ts Rules, I am of the View entlomement cannot be faulted. petition. Petition rejected. £iut_ heivever, it is open for the petitioner to seek in any other category, if it is permissible law. fix _/ 7. Mz'.S.Z.A.Khuresh'1, learned AdditioI1.-;;1'..:':"'._V_ Government Advocate ap13€ar'n1g for the r6Spond613iS' ff. : .5: . permiited to file memo of appearance within f011i"':v£é:c=,i{S;~:: '- _

Author: Ajit J Gunjal

C R Ashok vs State Of Karnataka on 30 June, 2008

Karnataka High Court

1 IN THE HIGH comm" o:= KARNATAKA AT BANGA{.DRE "--..' DATED THIS THE 22"" DAY or ocToB5R...?.'0o3;j. % PRESERT ,-_»_., _ THE HON'BLE MR.3usTIcE J:-'C.'S{<;EEtDi5§AF_gt. fi THE Hor~:'BL2 MR.3USflCE__.C.R.'KU'M.ARA.$'§'JA§§¥ } mcoavzs TAX ApPEA:.V%TT4§:.2?o C»? 2968 1 THE COMMISSIONER oi 1;$icQr~?.;'=,_' TAX ' ' ;, .. CRBUILDING_*@_ QUEENS ROAD 1 BANGALQRE . ' 2 THE INCGMVE TAXIQFFICER mas) w:.mog:a(3;v.*T. . . c: R-au:'La1t~:Gs,..QtJEENs..Rc3A13 eAN<3.9.L<3RE ' " ...APPELLANTS (ET sm:'M \_i ADVOCATE) ..... *._THE' NEW ENDIA ASSURANCE COMPANY LIMITED T.m.Nf.:>;2_, BRIGADE PLAZA ANANDARAO "<:3RcLfE " BANGALORE 3-' Tsmoog ...RESPONE)ENT V {a§( ";;£2.1': $4 wAvAL1, ADVOCATE) * «..T:-us" 1NCOME TAX APPEAL IS ma: UNDER sscnow 260-A OF ' "£.T.ACT,"_« 1§61, ARISING OUT OF ORDER DATED 11.10.2006 AND ..{fC3RRI\'3ENDUM DATED 2G.11.2006 PASSEE) IN ITA NO.1492fBANG,/2005 f __ ""FG¥<; THE ASSESSMENT YEAR 20G3~2*304, PRAYENG TO FORMULATE THE T " ~.SE._J_3STANTIAL QUESTIONS OF LAW STATED THEREIN AND TC} ALLGW " THE APPEAL AND SET ASIDE THE ORDER PASSED BY THE INCOMEJAX .. 'APPELLATE TRIBUNAL, BANGALORE IN ITA NO.1492/BANG/2005, DATED 11.10.2006 AND CORRIGENDUM E333-"¥'EE) 20.11.2006 ANO CONFIRM THE ORDER OF THE APPELLATE COMMISSIONER, CONFIRMING THE ORDER PASSED BY THE INCOME TAX OFFICER (T93), WARD 16(3), BANGALORE. o£/ k:~e_ T 2 , THIS INCOME TAX APPEAL COMING ON FOR ORDERS TH51f'5;DAY, K. SREEDHAR RAG, 1., DELIVERED THE FOLLOWING: .1_!.LP_§_M_E_H.I Sri.M.V.JavaIi takes notice for tho resoono'séntv.: 'Q . x.A.2/zoos is aiiowed. The dé:ayn%§f2a3 days.;gnm% the Appeai ls condoned. The substantiai qti':esat;ion_«"of'V_IVa~#;£:._ i§vo.|ved'viVn this appeai is no more res-Jntagra decided in favour of the rsavganiée in and other batch 91' C3585; 5!? fiéfffls:%:6f» t%i§""3udoment rendered in the said case, this Apnea} is Q E' ..... Iud§5 Sd/-gm Iudge

Author: K.Sreedhar Rao C.R.Kumaraswamy

The Commissioner Of Income Tax vs The New India Assurance Co Ltd on 22 October, 2008

Karnataka High Court

[Section 2(B)] [Section 2] [Complete Act]

Central Government Act

ORDER C.Y. Somayajulu, J. 1. Respondent filed the suit for recovery of rent from July 1997 to February 1998 at the rate of Rs. 400/- per month from the revision petitioner, with interest at 24% per annum. Revision petitioner filed his written statement inter alia contending that when his father took the building on lease in 1968 on a monthly rent of Rs. 300/- he gave a deposit of Rs. 1,500/-, to be returned with interest at 12% p.a. at the time of vacation of the building, and the arrears of rent, if any, for a period of two months would carry interest at 12% per annum and that the rent was later enhanced to Rs. 400/- per month and that he paid the rent at Rs. 400/- p.m. till December 1997, and that the respondent did not issue receipts for that amount. When he asked for issuance of a receipt, respondent sought enhancement of rent to Rs. 1,500/- p.m. and admitted receipt of rent till December 1997 before the mediators. Since he refused to enhance the rent to Rs. 1,500/- p.m. before the mediators, he got issued a registered notice to the revision petitioner to name a bank to deposit the future rents and remitted the rent for the month of January 1998 by Money Order, which was evaded to be received by the respondent and so he filed a petition seeking permission to deposit the rents into Court and is depositing the rents regularly into Court before the Rent Controller and so the respondent filed a petition seeking his eviction from the demised premises on the ground of wilful default. Since he paid away the rent from July 1997 to December 1997 and since the rent from January to December 1998 was deposited in R.C.C. No. 5 of 1998 filed by him, respondent is not entitled to claim the amount that too with interest at the rate of 24% per annum. 2. In support of his case, respondent examined himself as P.W. I and marked Exs. A1 and A2 on his behalf. Revision petitioner examined his brother as D.W. 1 and another witness as D.W. 2 and marked Exs. B1 to B11 on his behalf. The trial Court after considering the rival contentions dismissed the suit. Questioning the same respondent preferred C.R.P. No. 1218 of 2001 to this Court. A learned Single Judge of this Court, by his order dated 12-12-2001 vide Grandhi Padmanabham v. Rajesh Gothi , allowed the C.R.P. and remanded the case to trial Court for fresh disposal, by giving an opportunity to the parties to establish their respective contentions. 3. After remand, the respondent examined one more witness as P.W. 2 and marked Exs. A3 to A5 on his behalf. In support of his case, the revision petitioner examined himself as D.W. 3 and marked Exs. B12 to B15. The trial Court, by the order under revision, decreed the suit for Rs. 2,632/-. Hence this revision by the defendant in the suit. 4. The main contention of Sri Vijay on behalf of the revision petitioner is that since the suit was remitted to the trial Court by making a specific observation that the evidence adduced by both the parties does not prove their respective contentions and since the point for consideration framed by the trial Court is not correct and since the respondent did not adduce evidence which is relevant for deciding the dispute in the suit, the trial Court was in error in decreeing the suit. It is his contention that the trial Court which rightly drew an inference against the respondent for non-production of the account books and income tax returns earlier overlooked the said fact in the judgment under revision, and had not properly appreciated the contentions raised by the revision petitioner and was in error in drawing an inference against the revision petitioner for his showing Rs. 3,600/- only as the rent paid by him in Ex. B 10 income tax return. It is his contention that since revision petitioner paid rent only upto December 1997 to the respondent, and deposited the subsequent rent from January 1998 to March 1998 into the Rent Control Court subsequent to 1-4-1998 in R.C.C. No. 5/98 that amount of Rs. 3,600/- shown in Ex. B 10 represents the actual rent paid for the account year 1997-98. It is his contention that the Court should have drawn an adverse inference against the respondent because he, as P.W. I, having admitted that his account books disclose the non-payment of rents for the relevant period failed to produce his account books into Court. The contention of Sri T.S. Anand, the learned Counsel for the respondent, is that since the trial Court gave cogent reasons for its conclusion, and since the burden of proof to establish that the rent for the relevant period was paid is on the revision petitioner, non-production of account books by the respondent is not of any consequence. It is his contention that since the revision petitioner did not produce his day books (Chittas) for the relevant period, but had only produced the ledger, in which the entries in the day book (Chittas) would be posted, it is but a secondary evidence and so it cannot be taken into consideration for deciding the point for consideration. 5. Since the suit is for recovery of arrears of rent, and since the contention of the revision petitioner/tenant is that he paid away the rent, for the period in dispute, he has to establish that he paid away the rent for the disputed period to the respondent and so the point for consideration in this revision is: Whether the revision petitioner paid away the rent from July 1997 to February 1998 to the respondent? 6. That the revision petitioner tenanted building is governed by the provisions of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (the Act) is an admitted fact. Revision petitioner admittedly filed R.C.C. No. 5 of 1998 under Section 8 of the Act seeking permission to deposit rents before the Rent Controller. Since the earlier part of Section 8 of the Act reads: Every tenant who makes a payment on account of rent or advance shall be entitled to obtain receipt for the amount paid by him signed by the landlord or his authorized agent. It is clear that obtaining of receipt for the rent paid by him to the landlord is a right conferred on the tenant by the Act. So if the tenant fails to obtain receipts for the amounts paid by him, he has to suffer the consequences for his default. He cannot, in the teeth of the first part of Section 8 of the Act, be heard to say that there is no practice of obtaining receipts from the landlord, since a practice, which is contrary to the provisions of a statute would not be recognized or approved by Courts of law. That apart the contention of the revision petitioner that respondent was not in the habit of issuing receipts stands belied by his admission in Ex. B 2 registered notice got issued by him to the respondent, which was returned unserved on the ground of non-availability of the respondent for a continuous period of seven days, where it is admitted that the respondent used to pass receipts till June 1997, and 'failed to pass receipts from July to December 1997'. Since revision petitioner, admittedly, obtained receipts till June 1997, if he paid rent for the period subsequent to July 1997 he should have insisted on the respondent issuing a receipt for the rent paid by him and if he refused to pass a receipt he should have sent it by Money Order or other mode, to have proof of his paying the rent. When he failed to do so he has to suffer the consequences therefor. 7. Revision petitioner in support of his contention that he paid rent from July to December 1997 to the respondent tried to draw support from the entries in Ex. B 7, ledger for the year 1997-98. Day book for 1997-98 is not produced by the revision petitioner. It is well-known that entries in the ledger would be made from the entries in the day book. So mere production of the ledger, without day book would not suffice. Law requires proof not only of account books generally, but proof of each of the entries therein also. Proof of entries in account books were considered by Sreeramulu, J., in Vijayalakshmi Tobacco Co. v. Kurmineni Koteswara Rao 1970-71 Lawyers Reference 2 (SN) : CRP No. 354 of 1970 dated 25-9-1970, where it was held: To show that the account books are kept under the regular course of business one has to prove that the balances are struck at the end of each day or at some regular intervals. The entries are first made in the day book. From there they are carried on to the Khata or ledger. Unless the writer of the accounts comes in the witness box and proves that the entries in the account books were written by him at the time when the business transactions took place and that the khata was based upon those entries in the day book and the books were written from day to day, it cannot be said that the person maintaining the account books has proved the accounts. If for any reason the writer of the accounts is not able to prove the entries in the account books some other person who is connected with the firm and who knows the writing of the accountant can prove the entries in the account books, saying that to his knowledge accounts or entries in the account books are made by his accountant. There is however no presumption attached to entries in account books. The law requires proof not only of account books generally but each of the items or entries have to proved. Since the person who wrote the entries in Ex. B 7 is not examined and since the day book for 1997-98 also is not produced, Ex. B 7 cannot be taken into consideration for deciding the point for consideration more so because as per Section 34 of Evidence Act entries in books of account maintained in the regular course of business are only relevant, but are not conclusive proof. So proof of the entries in the accounts is also essential for the Court to act upon the entries. In V. Seetharamaiah v. Sri Rama Motor Finance Corporation, Kakinada , also it is held: An entry in the ledger account of the plaintiff that a certain sum was paid by the plaintiff to the defendant when not supported by any receipt of payment or voucher is not by itself sufficient to establish that the sum was paid by the plaintiff to the defendant. 8. Ex. A 10 is the return of income tax filed by the revision petitioner for the accounting year 1997-98 in which he has shown that he had paid Rs. 3,600/- (wrongly noted as Rs. 3,680/- in the judgment of the trial Court) as rent. In my considered opinion, Ex. A 10 cannot be taken into consideration for deciding this case because it came into existence after filing of the suit. The suit was instituted on 28-3-1998 and the return of the income tax for the accounting year 1997-98 would have been filed only after 1-4-1998 if not in June 1998. There, admittedly, are disputes regarding payment of rents from July 1997 between the revision petitioner and the respondent. Even according to the revision petitioner he issued Ex. B 2 notice on 23-2-1998 and initiated proceedings under Section 8 of the Act on 12-3-1998 seeking permission to deposit the rent into Court, as disclosed in the written statement of the revision petitioner. So, the possibility of the revision petitioner creating Ex. B 2 in support of his contention cannot be ruled out. Therefore, Ex. B 2 is not of help to the revision petitioner to establish his contention. 9. Ex. B 1 is produced to show that rent sent by Money Order was refused by the respondent. Ex. B 1 is the bottom most portion on a Money Order sheet. Court can take judicial notice of the fact that if not now, by 1998, a Money Order form used to be in three portions. The bottom most portion thereof, which does not contain any space for postal seal is for the use of the sender for writing his messages etc. That bottom portion would be given to the payee of the Money Order. The middle portion thereof, containing the postal seal and acknowledgement of the payee, would be given to the sender of the Money Order. The top portion would be retained with the postal authorities. If a Money Order is returned to the sender due to its refusal or due to the non-availability of the payee, the sender would be given both the middle portion and bottom portions of the Money Order, but nor merely the bottom most portion. Revision petitioner did not produce into Court the receipt issued by the Postal Department in token of their receiving money from him for being delivered to the respondent. Had the revision petitioner produced the postal receipt along with Ex. B 1, at least the Court can presume that he had in fact sent the money mentioned therein to the addressee. Since Ex. B 1 does not contain the postal seal and since postal receipt evidencing money being sent by Money Order is not produced and since a document like Ex. B 1 can be brought into existence at any time, it (Ex. B 1) cannot be taken into consideration for deciding this case. 10. Ex. B 3, a ledger extract for the period 1/98 to 12/98 and Ex. B 4 ledger for 1992-93, Ex. B 5 the entry at page No. 25 of Ex. B 4 and Ex. B 6 entry at page 85 of Ex. B 4, Ex. B 11 income tax return dated 29-10-1999 relating to the assessment year 1999-2000 (accounting year 1998-99 i.e., from 1-4-1998 to 31-3-1999), Ex. B 12 ledger for the year 1993-94, Ex. B 13 entry in Ex. B 12, Ex. B 14 income tax assessment order for the assessment year 1999-2000 (i.e. the accounting year 1998-99) are irrelevant for deciding the point for consideration, because, they do not relate to the disputed period July 1997 to February 1998. Thus the documentary evidence adduced by the revision petitioner does not disclose that rents for the relevant period were paid to the respondent. 11. D.W. 1, the brother of the revision petitioner, who was examined prior to remand, stated that he paid the rents to the respondent. Since the written statement of the revision petitioner does not disclose that rents were paid through D.W. 1, the trial Court disbelieved his evidence. D.W. 2 is a mediator who is said to have been present when the respondent admitted receipt of rents from July 1997 to December 1997. His evidence is that the dispute was raised in the shop of the revision petitioner. During cross-examination, he stated that there is no document evidencing the settlement of dispute. He denied the suggestion that no dispute was raised and there is no demand for enhancement of rent by the respondent. The evidence of D.W. 2 cannot be believed because respondent, if he wanted to raise a dispute through elders, would not have gone to the shop or residence of the revision petitioner. He would have called the revision petitioner before the mediators either to the house of any mediator in whom both parties repose confidence or would have called the revision petitioner to his house. In fact there was no need for the respondent to raise a dispute before mediators. The need if any was for the revision petitioner. So it is for the revision petitioner to go to the respondent. For that reason and since there is no document to show that either the revision petitioner or the respondent sought a mediation, and since revision petitioner can bring any friend of his, and make him to say that there was a mediation. I do not wish to place any reliance on the evidence of D.W. 2. 13. D.W. 3, who was examined after remand, is the revision petitioner. Naturally he will speak in support of his case. So the oral evidence adduced by the revision petitioner also is not of much of help in deciding the point for consideration. 13. The contention that inasmuch as the respondent failed to produce his books of account and his income tax returns, an adverse inference has to be drawn against him, cannot be accepted, because respondent produced Ex. A 4 account book for the year 1997-98, Ex. A 3 certificate issued by the Chartered Accountant of the respondent shows that the respondent was not liable to pay income tax for the assessment year 1998-99, (accounting year 1997-98) in view of rebate under Section 88(b) of the Income Tax Act. If the revision petitioner felt that the respondent is suppressing his income tax assessment orders, he could have taken steps either for summoning them or could have obtained certified copies of the returns of income and the income tax assessment orders of the respondent, from the Income Tax Officer concerned. Having failed to do so, revision petitioner, on whom the burden of proof lay to show that he paid the rent for the period in dispute, having failed to produce his day book for 1997-98, cannot find fault with the respondent for not producing his income tax returns. 14. The other contention relates to the alleged failure of the trial Court to keep in view the observations made in the order of remand. When the case is remanded to the trial Court, for fresh disposal, the trial Court can appraise the evidence on record afresh and can come to a conclusion whether the evidence on record establishes the contentions raised by the parties or not. The view expressed in an order of remand in a revision petition under Section 25 of the Provincial Small Causes Courts Act cannot be construed as a finding of this Court, resulting in tying down the hands of the trial Court from reappraising the evidence, that too when no positive direction is given to the trial Court to decide the case only on a particular point. The learned Judge while setting aside the judgment of the trial Court remitted the case to the trial Court 'to enable the parties to further establish their respective contentions'. No point is foreclosed in the order of remand and the case was kept at large. 15. After the case was remanded both parties adduced evidence. The trial Court, by giving cogent reasons, held that the revision petitioner failed to establish that he paid the rents from July 1997 to February 1998 to the respondent. The trial Court held that inasmuch as respondent deposited the rent for January and February 1998 before the Rent Controller and since he failed to establish that he paid rent from July to December 1997 passed a decree for that amount with interest. For the above mentioned reasons, I find no grounds to interfere with the said finding. 16. For the above reasons I also hold that the revision petitioner failed to establish that he paid rents from July 1997 to February 1997. The point is answered. 17. In view of my finding on the point for consideration, the revision petition is dismissed with costs.

Author: C Somayajulu

Rajesh Gothi vs Grandhi Padmanabham on 28 September, 2006

Andhra High Court

JUDGMENT N.V. Balasubramanian, J. The Tribunal has stated a case at the instance of the revenue and referred the following question of law in relation to the assessment year 1986-87 of the assessee : "Whether, on the facts and in the circumstances of the case, the Appellate Tribunal is right in law in allowing depreciation on the capitalised amount payable in instalments, in respect of capitalised assets under the deferred payment scheme ?" 2. The assessee is a company and it has borrowed some loans under the deferred payment scheme. The assessee capitalised the future interest payable on loans availed of by the assessee and claimed depreciation on the capitalised value. The assessing officer in his assessment proceedings, did not allow the capitalisation of future interest payable in view of Explanation 8 to section 43(1) of the Income Tax Act (hereinafter referred to as "the Act"). The Commissioner (Appeals) on appeal allowed the appeal preferred by the assessee directing the assessing officer to allow depreciation on deferred payment guarantee interest capitalised. The Tribunal on appeal by the revenue also confirmed the view of the Commissioner (Appeals). Hence, the present reference. 2. The assessee is a company and it has borrowed some loans under the deferred payment scheme. The assessee capitalised the future interest payable on loans availed of by the assessee and claimed depreciation on the capitalised value. The assessing officer in his assessment proceedings, did not allow the capitalisation of future interest payable in view of Explanation 8 to section 43(1) of the Income Tax Act (hereinafter referred to as "the Act"). The Commissioner (Appeals) on appeal allowed the appeal preferred by the assessee directing the assessing officer to allow depreciation on deferred payment guarantee interest capitalised. The Tribunal on appeal by the revenue also confirmed the view of the Commissioner (Appeals). Hence, the present reference. 3. Heard Mrs. Pushya Sitharaman, learned senior standing counsel for the revenue, and Mr. Janardhana Raja, learned counsel for the assessee. Learned counsel for the assessee submits that on the facts of the case the seller has issued the bill which is for the entire amount and, therefore, no part of the amount is referable to the interest and the assessee is entitled to capitalise the entire interest. We are unable to accept the submission of learned counsel for the assessee. Admittedly, the assessee has availed of loan facility for the purpose of purchasing machinery and the future interest payable was payable on the loan was capitalised. Though the seller of the machinery might have issued a bill for the consolidated amount including the principal as well as interest, we hold that in view of Explanation 8 of section 43(1) of the Act any amount paid as interest in connection with the acquisition of asset shall not be included and shall never be deemed to have been included as part of the actual cost of the asset. The words of Explanation 8 to section 43(1) of the Act are fairly wide to include any amount paid as interest in connection with the acquisition of an asset. Therefore, even if the seller has issued a consolidated bill, if the amount paid by the assessee represents the interest payment, then it is not open to the assessee to capitalise the same and claim it as a part of the actual cost of the machinery for the purpose of depreciation on the said amount. This court in Coimbatore Pioneer Mills Ltd. v. CIT (1999) 236 ITR 69(Mad) and CIT v. India Pistons Ltd. (2000) 242 ITR 672 (Mad) has considered the scope of Explanation 8 to section 43(1) of the Act and held that the Explanation has been couched in the widest possible terms to avoid any further controversy in regard to the manner or mode of payment of interest or the time of payment for the interest. Following the said decisions of this court in the cases of Coimbatore Pioneer Mills Ltd. (supra) and India Pistons Ltd. (supra), we answer the question of law referred to us in the negative, in favour of the revenue and against the assessee. However, in the circumstances of the case, there will be no order as to costs. 3. Heard Mrs. Pushya Sitharaman, learned senior standing counsel for the revenue, and Mr. Janardhana Raja, learned counsel for the assessee. Learned counsel for the assessee submits that on the facts of the case the seller has issued the bill which is for the entire amount and, therefore, no part of the amount is referable to the interest and the assessee is entitled to capitalise the entire interest. We are unable to accept the submission of learned counsel for the assessee. Admittedly, the assessee has availed of loan facility for the purpose of purchasing machinery and the future interest payable was payable on the loan was capitalised. Though the seller of the machinery might have issued a bill for the consolidated amount including the principal as well as interest, we hold that in view of Explanation 8 of section 43(1) of the Act any amount paid as interest in connection with the acquisition of asset shall not be included and shall never be deemed to have been included as part of the actual cost of the asset. The words of Explanation 8 to section 43(1) of the Act are fairly wide to include any amount paid as interest in connection with the acquisition of an asset. Therefore, even if the seller has issued a consolidated bill, if the amount paid by the assessee represents the interest payment, then it is not open to the assessee to capitalise the same and claim it as a part of the actual cost of the machinery for the purpose of depreciation on the said amount. This court in Coimbatore Pioneer Mills Ltd. v. CIT (1999) 236 ITR 69(Mad) and CIT v. India Pistons Ltd. (2000) 242 ITR 672 (Mad) has considered the scope of Explanation 8 to section 43(1) of the Act and held that the Explanation has been couched in the widest possible terms to avoid any further controversy in regard to the manner or mode of payment of interest or the time of payment for the interest. Following the said decisions of this court in the cases of Coimbatore Pioneer Mills Ltd. (supra) and India Pistons Ltd. (supra), we answer the question of law referred to us in the negative, in favour of the revenue and against the assessee. However, in the circumstances of the case, there will be no order as to costs. OPEN

Author: N Balasubramanian

Cit vs Textool Co. Ltd. on 3 December, 2002

Madras High Court

JUDGMENT N.N. Mathur, J. 1. By way of this Special Civil Application under Article 226 of the Constitution of India, the petitioner-Company seeks direction to quash and set aside Resolution Nos. 4 and 5 dated 22-2-1996 passed by the Standing Committee of the Vadodara Municipal Corporation and Resolution No. 177 dated 6-3-1996 of the General Board. 2. The facts as culled out from the pleadings of the parties are that as per the advertisement published in various newspapers dated 5-6-1994, a part of the final plot No. 76 of T.P. Scheme No. I, admeasuring 10,599 sq. metres reserved for the purpose of neighbourhood centre (local shops, library, public hall, open space, electric Sub-station) was put to auction on 30-6-1994. The petitioner, a construction company offered the highest bid of Rs. 1,900/- per sq. metre. It appears from the auction proceedings that the petitioner submitted their altered/additional conditions mentioned as under: 1. Final plot No. 76 of T.P. Scheme No. I is reserved for "neighbourhood centre". It will be the responsibility of the Corporation to change the purpose and grant permission for residential, commercial and high-rise building. 2. After succeeding in the bid Municipal Corporation has to sign lease deed for 99 years in favour of the person as mentioned by the successful bidder. This may be for one or more parts of the land. 3. After the payment of 10% of premium amount, it will be the responsibility of Baroda Municipal Corporation to obtain permission from V.U.D.A., U.L.C., in respect of Corporation and title clearance certificate. 4. It will also be the responsibility of the Corporation to pass the lay-out of the land and building permission. After obtaining all the permissions, the successful bidder has to pay amount by three bi-monthly equal instalments. 5. After payment of 10% of premium amount the successful bidder can put sign-board mentioning their name on the land in question. 6. On the handing over of the bank guarantee the possession of the land will be handed over to the successful bidder and the possession letters as well as the agreement is to be signed by the Corporation. 7. After payment of 10% premium amount, the Banakhat of lease of the land in question is to be registered. 3. Out of the above conditions, conditions No. 1, 2, 5 and 6 were accepted by the Municipal Commissioner and condition No. 3 was partly accepted to the extent that N.A. charges would be borne by the buyer of the land, and accordingly, the auction proceedings were placed before the Standing Committee on 1-7-1994 for information. The Standing Committee, vide its resolution No. 156 dated 1-7-1994 recorded as "taken note of. The recommendations of the Standing Committee were accepted by Resolution of the General Board No. 108 dated 8-7-1994. It may be stated that as there was no elected body at the relevant time and as such the Administrator was exercising powers of the Standing Committee as well as the General Board. Thus, in fact, the Resolutions dated 1-7-1994 and 8-7-1994 are of the Administrator, Vadodara Municipal Corporation. 4. On 11-7-1994, the petitioner deposited 10% amount of the public auction which comes to Rs. 28,68,810/-. The total amount of the public auction was required to be paid in three instalments at a periodical stage of three months each. On 22-7-1994, a Banakhat (agreement) was executed between the petitioner and the Corporation. Resolution of the Administrator dated 1-7-1994 and the auction held on 30-6-1994 were challenged before this Court by one Abdulbhai Mohmadbhai Patel by way of filing a Special Civil Application, which was registered as S.C.A. No. 10675 of 1994. The auction and the resolution were challenged on the ground that in the advertisement it was shown that final plot No. 76 was reserved for the purpose of neighbourhood centre, and there was no mention in the advertisement that the Corporation will get the aforesaid reservation cancelled and make the plot utilisable for residential, commercial and high-rise building purpose. It was submitted that if the condition of auction altered during the auction proceedings would have appeared in the advertisement, he would have also participated in the auction proceedings. It was further submitted that not only the petitioner but many others would have taken part in the auction and would have offered higher considerations than the considerations offered by M/s. Shah & Patel Construction Company. There was disinclination to take the plot for utilising it only as a neighbourhood centre. this Court, by order dated 7-9-1994 granted ad-interim relief restraining the respondent-Corporation from giving the possession and from transferring plot No. 76. Mr. P.V. Mehta, Deputy Municipal Commissioner of the Corporation filed an affidavit on behalf of the Corporation. He stated that in response to the advertisement for auction of plot No. 76, three parties had shown interest and paid security deposit namely: (1) Ashok Construction Company, (2) Dilipbhai Chokshi and (3) M/s. Shah & Patel Construction Company-respondent No. 3 in the said petition. He also stated that the partner of Shah & Patel Construction Company had given a list of counter-conditions for obtaining the land in question. The said counter-conditions were also read before the parties present at the time of auction. The said respondent No. 3 had given the highest bid of Rs. 1,900/- per sq. metre. The proceedings of the auction were prepared and the same were put before the Standing Committee and the General Board for their perusal. He further stated that the auction and the proceedings were taken into consideration by the Standing Committee by Resolution No. 156 dated 1-7-1996 and by Resolution No. 108 dated 8-7-1994. He also stated that the petitioner in the said petition, i.e., Abdulbhai Mohamadbhai Patel requested the respondent-Corporation to allot plot No. 76 of T.P. Scheme No. I at the rate of Rs. 2,400/- per sq. metre in place of Rs. 1,900/- per sq. metre which was offered by M/s. Shah & Patel Construction Company. But since the auction had already been finalised, the said offer could not be considered. On the election of the Corporation, the elected body took over on 1-7-1995. The said petition was dismissed as withdrawn by the order of this Court dated 5-7-1995. Thus, the auctioned plot was not transferred as the interim relief continued till the election of the new body. After the Special Civil Application was dismissed as withdrawn and the interim relief was vacated, the petitioner approached the respondent-Corporation for taking necessary steps for implementation and execution of the public auction as per the terms and conditions entered between the petitioner and the respondent-Corporation. In spite of repeated requests, nothing was done by the Corporation, and therefore, the petitioner approached this Court by way of filing the present Special Civil Application on 20-11-1995, challenging the inaction on the part of the respondent-Corporation for not implementing and executing the terms and conditions of the public auction held on 30-6-1994. this Court, vide order dated 11-1-1996 directed the Commissioner, Vadodara Municipal Corporation to take a decision in the matter and pass a speaking order within a period of one week from the date of the order. Accordingly, the Commissioner passed a speaking order saying that at the time of auction M/s. Shah and Patel Construction Company had submitted their altered/additional conditions of which, condition No. 1 to 5 and 6 were accepted while condition No. 3 was partly accepted. The auction proceedings were placed before the Standing Committee and the General Board in the form of proposal for information. The Standing Committee and the General Board "took note of the said proposal. He further stated that as there was change in the conditions of auction, from the neighbourhood centre to residential, commercial and high-rise building and also to obtain N.A. permission, the Commissioner deemed it fit to resubmit the matter to the competent authority, i.e., the Standing Committee of the Municipal Corporation and through them to the General Board. It was necessary to resubmit, the same in view of the fact that the earlier Standing Committee and the General Board had only "taken note of of the proposal of the Municipal Commissioner dated 23-6-1994 which does not amount to according approval of the competent authority. It was thus stated that he was duty bound to resubmit the matter relating to the land in question to the competent authority, i.e., the Standing Committee, and through them to the General Board. After the decision on the auction in question, the matter was considered by the Standing Committee in its meeting held on 22-2-1996. In the view of the Standing Committee, the alteration of the condition of the auction by the Municipal Commissioner without prior approval was not within his competence. Even if the Commissioner felt that the alteration was necessary, he ought to have obtained prior approval of the General Board and further in the larger public interest after obtaining the approval of the General Board, a fresh advertisement for auction ought to have been issued. In the opinion of the Standing Committee, if the altered conditions were brought to the notice of the public by way of fresh advertisement, there were good possibilities of fetching higher price. The Standing Committee also considered that the decision with respect to change of purpose would have been taken only by the Vadodara Urban Development Authority (V.U.D.A.) and the State Government and it was not within the competence of the Municipal Commissioner. In view of this, the Standing Committee resolved to cancel the order of the Commissioner and to place the matter before the General Board. The decision of the Standing Committee was accepted by Resolution No. 177 of the General Board dated 6-3-1996. The General Board expressed that "having considered the submission of the Municipal Commissioner and the recommendation of the Standing Committee and having thoroughly discussed the matter, the auction held on 30-6-1994 be cancelled and the money received may be returned". The Resolution of the General Board as well as the Standing Committee has been challenged by way of amendment in this Special Civil Application. 5. Mr. K.G. Vakharia, Sr. Advocate appearing for the petitioner has contended that the impugned Resolution of the Standing Committee and also of the General Board are ex-facie illegal as the same have been passed in utter disregard to the principles of natural justice. It is also submitted that the Municipal Corporation has no authority to cancel the public auction having once accepted the earnest money and executed the Banakhat. The Corporation is estopped from cancelling the auction on the principle of promissory estoppel. It is further submitted that even if the Municipal Corporation has power to cancel the auction, it has proceeded on an erroneous assumption that there was no approval. On the other hand, Mr. S.N. Shelat, learned Addl. Advocate-General appearing with Mr. Pranav Desai for the respondent-Corporation has supported the impugned Resolution. It is submitted that the auction proceedings were illegal as the Commissioner could not have altered or changed the auction conditions on the spot. A decision in this regard could have been taken only by the General Board and in that event also it was necessary to give fresh advertisement incorporating the altered conditions. Mr. Shelat also stresses that the General Board has power to review or to recall its earlier decision. It is submitted that "neighbourhood centre" finds place in the Scheme prepared in the year 1974 under the Bombay Town Planning Act. It is also submitted that the purpose given under the Scheme, namely; the "neighbourhood centre" is a part of the Act and it has legislative meaning. With respect to the principles of natural justice, he submits that the act of the Standing Committee is an administrative act in which the principles of natural justice are not required to be followed. It is also submitted that the relief claimed in the present Special Civil Application is almost in the nature of specific performance, which cannot be granted in a petition under Article 226 of the Constitution of India. He also submits that the respondent-Corporation will be able to resist the suit for specific performance on the ground available under Section 33 that the instrument sought to be enforced is voidable or the agreement is void, for the reason that the Commissioner was not competent to alter the condition of auction. He also argued that the principles of equitable estoppel cannot be attracted in the facts of the case. 6. The first question which arises for consideration is whether the respondent-Corporation has power to review or recall its earlier decision. In order to answer this question, it will be necessary to have a brief survey of some of the relevant provisions of the Bombay Provincial Municipal Corporations Act, 1949 (for short, "the B.P.M.C. Act"). Section 73 empowers the Commissioner to execute contracts on behalf of the Corporation. Section 74 provides the mode of executing contract. Section 79 deals with disposal of the property of the Municipal Corporation. Clause (c) of Section 79 provides that the property belonging to the Corporation may be disposed of by way of lease, sale, letting out on hire or otherwise any movable or immovable property by the Commissioner with the sanction of the Standing Committee. Chapter II under the Schedule deals with the proceedings of the Corporation, Standing Committee, Transport Committee etc. Sub-clause (r) provides that no Resolution passed by the Corporation shall be modified or cancelled within a period of three months after the passing thereof, except by a Resolution supported by not less than one and half of the whole number of Councillors, or by such larger number of Councillors as may be required by this Act. Relevant Clause reads as follows: (r) no Resolution passed by the Corporation shall be modified or cancelled within three months after the passing thereof, except by a Resolution supported by not less than one-half of the whole number of Councillors or by such larger number of Councillors as may be required by this Act in any particular case and passed at a meeting whereof notice shall have been given fulfilling the requirements of Clause (h) and setting forth fully the Resolution which it is proposed to modify or cancel at such meeting and the motion or proposition for the modification or cancellation of such Resolution. 7. It is well settled that if a General Board or authority is competent to transact a business, it is competent to modify or cancel a decision taken by it earlier. Shackleton on the Law and Practice of Meetings by Shearman, a standard work on the organisation and the regulation of meetings on Rescission of a Resolution has said thus. Once a motion has been voted upon and has achieved the requisite majority, it becomes a resolution of the meeting. It can be rescinded only by a subsequent resolution of the same body, for which there will usually be an implied power. Frequently, however, the regulations of the body concerned will provide that no motion to rescind any resolution passed within, say, the previous six months, and no motion or amendment to the same affect as one which has been negatived during the same period, shall be proposed unless a stated minimum number of members shall raise the matter in writing. The same rule would be applied to the motion for rescission itself. Thus, from the reading of the provisions of the B.P.M.C. Act, referred to above, two things clearly emerge-firstly that the power of the Commissioner to lease or sale the immovable property of the Corporation is subject to sanction of the Standing Committee, in view of the provisions of Section 79(c). Secondly a Resolution of the Corporation can be modified or cancelled after gap of a period of three months by another Resolution in accordance with Sub-rule (r) of the Rules of proceedings. Thus, at the first instance, the plot in question could not be sold by the Commissioner on the altered conditions without the sanction of the Standing Committee in view of Section 79(c). The Commissioner placed the auction proceedings before the Standing Committee and the Administrator exercising the powers of the Standing Committee only said "Taken note of. Saying "taken note of does not amount to sanction of the proposals. The Administrator, again exercising the power of the General Board, by resolution dated 8-7-1994 said, "Recommendation accepted". Thus, what has been accepted is only "taken note of. There is no sanction for the sale or lease of the plot No. 76. The Standing Committee is competent to accept or not to accept the proposal for sale or lease. No right is vested in the petitioner only on the basis of agreement to sale executed prior to sanction. Alternatively, assuming that the Resolution dated 8-7-1994 has effect of sanction of lease or sale, then also the said Resolution has been cancelled by the resolution of the General Board dated 6-3-1996. 8. It is next contended by Mr. K.G. Vakharia, learned Sr. Counsel that before passing the impugned Resolution, neither the Standing Committee nor the General Board gave any opportunity of hearing to the petitioner. He has placed reliance on a decision of the Apex Court in the case of Dr. Rash Lal Yadav v. State of Gujarat . It is submitted that even in the case of administrative action having civil consequences, it is necessary to follow the principles of natural justice, failing which the decision will render illegal and void. In the aforesaid case, the petitioner challenged his removal from the office of Chairman, Bihar School Service Board constituted under the provisions of the Bihar Non-Government Secondary Schools (Taking-over of Management and Control) Act, 1981. The Division Bench of the Bihar High Court dismissed the petition. The Apex Court while considering the various earlier decisions, held that unless the law expressly or by necessary implication excludes the application of the rules of natural justice, Courts will read the said requirement in enactments and insist on its application even in cases of administrative action having civil consequences. The Apex Court ultimately upheld the judgment of the High Court considering the legislative intendment to exclude the rule of giving an opportunity to be heard before the exercise of power of removal. The Apex Court in the case of State of Gujarat v. Meghji Pethraj Shah held that termination of an arrangement is not a quasi-judicial act and hence by no stretch of imagination, it requires observance of principles of natural justice. In the instant case, the question of personal hearing to the petitioner does not arise for the reason that the petitioner has throughout been acquainted with the proceedings, inasmuch as before the impugned resolutions, the Commissioner gave reasons in detail for resubmitting the matter before the Standing Committee, in pursuance of the directions of this Court. The copy of the said speaking order was given to the petitioner. The reasons for resubmission given by the Commissioner are the foundation of the Resolution of the Standing Committee and the General Board. The reasons given for cancellation of the Resolution has been argued before this Court in great detail, which shall be dealt with hereinafter. Thus, in view of the fact that the impugned orders have been passed during the pendency of the petition and a full-fledged hearing has been given on the merit of the case, the impugned Resolution cannot be said to be bad on the ground that the petitioner was not given opportunity of hearing by the Standing Committee or the General Board of the respondent-Corporation. The Apex Court dealing with the natural justice in the case of Board of Mining Examination v. Ramjee has observed thus. Natural justice is no unruly horse, no lurking land mine, not a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. 9. The Standing Committee did not approve the auction and directed to cancel the same as in its opinion, at the first instance, the Commissioner had no power to amend the conditions of the auction and secondly, even if he had such power, he should have re-advertised with the amended conditions after obtaining permission from the Standing Committee. The view of the Standing Committee is absolutely legal and justified. It is not in dispute that Plot No. 76 is a part of the T.P. Scheme wherein the purpose given is "neighbourhood centre" at column No. 3. In the advertisement, the purpose is clearly mentioned as "neighbourhood centre (local shops, library, public hall, open space, electric Sub-station, guest house etc.)." Though the neighbourhood centre has not been defined, it is ordinarily understood as a centre or area of land consisting of local shops, library, public hall, electric sub-station, guest house etc. Thus, it clearly appears that reservation was made in the T.P. Scheme for the purpose of making the plot available to be utilised for public purpose such as library, public hall, electric Sub-station, guest house etc. and some shops to cater the needs of the people who may visit the said public premises. In view of this understanding, there could be obvious disinclination on the part of the people to purchase the land. If the intending purchaser had known the amended conditions that the Corporation will get/change the permission for residential, commercial land, high-rise building, they would have also participated in the auction. The possibility cannot be ruled out that in that event, the subject land would have fetched much higher price. It is wrong to say that the Commissioner had only clarified the existing auction condition and there was no change. Even a just reading of the condition as suggested by the petitioner and the partly accepted condition clearly indicates that there is not only just a change in condition but there is substantial change. Therefore, the view taken by the Standing Committee and as approved by the General Board is absolutely legal and justified. It is also established law that if there is a change in the condition of auction, it should be re-advertised. The view taken by the Standing Committee on this aspect is in consonance with the view expressed by the Apex Court in a number of cases. 10. Dealing with the allegations of mala fides that the elected body has taken a decision against the petitioner to cancel the auction for political reasons, I find nothing on record to indicate that any extraneous reason existed in taking the impugned decision either by the Commissioner or the Standing Committee or the General Board. On the contrary, it appears from the affidavit filed by the Commissioner that the Resolution dated 6-3-1996 was passed by the General Board of the respondent-Corporation unanimously and the said Resolution was moved by the Councillors belonging to the ruling party as well as the Congress party and an Independent. In view of this, the impugned auction cannot be termed as perverse or mala fide. 11. Before parting with, I may say a word with respect to the objectionable statement made by the petitioner in the memo of the petition against the elected members of the Corporation. In para 13E it is stated that the entire body without application of mind, being guided away by like sheep by the opinion of the Municipal Commissioner. The relevant portion is extracted as follows: 13B. It is a matter of shame in democracy that a group of people do not apply their mind at all and is simply are guided away by the report of the Municipal Commissioner. 13E. Entire body, without application of mind, being guided away like sheep by the opinion of the Municipal Commissioner. The pleadings is affirmed by Vinubhai K. Shah, one of the partners of Shah & Patel Construction Company. While disapproving this sort of pleadings in a writ petition, I may further say a Lawyer owes a duty to see that undesirable language is not used in the petition. A Lawyer cannot be simply a mouthpiece of his client. He is a member of the learned profession and his prime duty is to assist the Court in administration of justice with sobriety, modesty and restraint. 12. In view of the aforesaid, I find no merit in this Special Civil Application and the same is accordingly rejected. Rule discharged.

Author: N Mathur

Shah And Patel Construction Co. vs Baroda Municipal Corporation on 22 July, 1996

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.14179 of 2011 RANJEET PAL, son of Ram Narayan Pal, village Bhawanipur, PS Sakri, District Madhubani - Petitioner. Versus THE STATE OF BIHAR 1. haque ( Sheema Ali Khan, J.) 6.2011 Heard learned counsel for the petitioner and the State. 2 The petitioner is accused in a case under sections 365 and 366A/34 of the Penal Code. The victim girl was recovered and medically examined. Her age has been assessed as 18 years by the Radiologist. Although the victim states that she was forcibly taken by this petitioner, it appears that these two persons were in love and she went willingly with the boy. In any event as the petitioner is in custody since 25.1.2011, I direct that the petitioner should be released on bail on completing six months in custody in Pandaul PS Case No. 18/2011 on furnishing bail bond of rupees ten thousand with two sureties of the like amount each to the satisfaction of the C.J.M, Madhubani, subject to the conditions that one of the bailer should be his father/mother/brother. The bailors should given an undertaking in writing that the petitioner should appear in court on each and every date as and when required during the trial and if he absents for two consecutive dates without cause, the court will be at liberty to take action not only against the petitioner but also against the bailers.

Ranjeet Pal vs The State Of Bihar on 1 June, 2011

Patna High Court - Orders

Court No. - 48 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 5504 of 2009 Petitioner :- Mohan Baheliya Respondent :- State Of U.P. Petitioner Counsel :- N.K. Singh Respondent Counsel :- Govt. Advocate Hon'ble Surendra Singh,J. Counter affidavit has been filed today by the learned A.G.A. which is taken on record. Heard learned counsel for the applicant as well as learned A.G.A. appearing for the State and perused the material placed on record. Applicant-Mohan Baheliya seeks bail in Case Crime No. 437 of 1999, under Sections 323,302,307,504,506 I.P.C., Police Station Mohammadabad, District Farrukhabad. Submissions have been made on behalf of the applicant that four persons including the applicant are alleged to have opened fire upon the deceased but the deceased has received only one injury on his person due to which he succumbed on the spot. He has further contended that under the similar set of circumstances, co-accused Hulli and Naresh have been granted bail by this Court and the applicant could not be released on bail because of some criminal cases shown against him. He has further submitted that in the criminal cases shown against the applicant, he is either acquitted or has been released on bail. The bail is, however, opposed by the learned A.G.A. The points pertaining to nature of accusation, severity of punishment, reasonable apprehension of tampering the witnesses, prima facie, satisfaction regarding proposed evidence and genuineness of the prosecution case were dully considered. Considering the totality of circumstances of the case, I consider it a fit case to enlarge the applicant on bail. Taking note of the submissions made by the learned counsel for the applicant and without expressing any opinion on the merits of the case, let the applicant- Mohan Baheliya involved in aforesaid crime be released on bail on his furnishing a personal bond of Rs. 50,000/- and two sureties each in the like amount to the satisfaction of the court concerned and executing an undertaking in the following terms: Order Date :- 5.1.2010 Mt/

Mohan Baheliya vs State Of U.P. on 5 January, 2010

Allahabad High Court

[Section 80G(2)(iiih)] [Section 80G(2)] [Section 80G] [Complete Act]

Central Government Act

JUDGMENT Anjani Kumar, J. 1. This writ petition under Article 226 of the Constitution of India is directed against the order dated 5th November, 2004, passed by the appellate authority under the provisions of the U.P. Act No. XIII of 1972, (in short 'the Act') before whom the appeal under Section 22 of 'the Act' is pending, whereby the amendment application filed on behalf of the petitioner-tenant has been rejected by the appellate authority. 2. The brief facts of the present case are that the respondent-landlady Manju Agrawal filed an application under Section 21(1)(a) of the Act for the release of the accommodation in question against the petitioner-tenant as she bona fide requires the aforesaid accommodation in question. The prescribed authority vide its order dated 13th August, 2004, allowed the release application filed by the landlady and released the aforesaid accommodation in favour of the landlady-respondent. 3. Aggrieved by the order of the prescribed authority, the petitioner-tenant preferred an appeal before the appellate authority, which is pending, as stated above. During the pendency of the appeal, the petitioner-tenant filed an application, paper No. 17 Ka seeking amendment in the written statement. This application is opposed by the respondent-landlady on the ground, firstly that the aforesaid application has been filed just to delay the disposal of the appeal and secondly, at the appellate stage the petitioner-tenant wants to carve out a new case, which is not taken up before the prescribed authority and thirdly it has not been stated as to why the amendment which is now sought, could not be incorporated at the time when the written statement was filed, as these facts were very well in existence when the application was opposed by the tenant. The appellate authority considered the aforesaid application and the objection filed by the respondent-landlady and recorded a finding that all the amendments, which are sought to be brought on record by means of amendment application were either in the knowledge of the tenant when the written statement was filed, or are already on records in form of affidavit as the evidence and thus the appellate authority found that the application has been filed only to delay of the disposal of the appeal, therefore the amendment prayed, cannot be granted by means of the amendment in written statement. The application therefore was rejected by the appellate authority. Thus, this writ petition. 4. Learned counsel appearing on behalf of petitioner-tenant submitted before me that the appellate authority has committed error in denying the amendment sought by the tenant-petitioner and for that he relied upon the decision in Estralla Rubber v. Dass Estate (P) Ltd.. 2002 All CJ 168 (SC), wherein the Apex Court relying upon an earlier Apex Court's decision in B.K. Narayana Pillai v. Parameshwaran Pillai, . has ruled out, which is quoted below : "3. The purpose and object of Order VI, Rule 17, C.P.C. is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the Courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled-for multiplicity of litigation. 4. The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred : Weldon v. Neal, (1887) 19 QBD 394 : 59 LJ QB 621. But it is also well recognized that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation : See Charan Das v. Amir Khan, AIR 1921 PC 50 : ILR 48 Cal 110 and L.J. Leach and Co. Ltd. v. Jardine Skinner and Co., " 5. So far as the law laid down by the Apex Court, referred to above, I am in full agreement by the law laid down by the Apex Court but in the facts and circumstances of the present case, it cannot be said that any case is made out as laid down by the Apex Court for permitting the petitioner to amend its written statement and the view taken by the appellate authority is contrary to law laid down by the Apex Court. To me it appears that petitioner-tenant cannot get any assistance from the decision aforesaid. 6. Learned counsel appearing on behalf of the respondent-landlady relied upon a decision of Division Bench of this Court in Devendra Mohan and Ors. v. State of U.P. and Ors., 2004 (3) AWC 2162, wherein the Division Bench after considering the law laid down by the Apex Court has ruled : "...The amendment is not permissible if the very basic structure of the plaint is changed or the amendment itself is not bona fide. In case the facts were in the knowledge of the party at the time of presenting the pleadings, unless satisfactory explanation is furnished for not introducing those pleading at the initial stage, the amendment should not be allowed. Amendment should also not be permitted where it withdraws the admission of the party or the amendment sought is not necessary to determine the real controversy involved in the case." 7. In the present case, the. order passed by the appellate authority demonstrates that all the materials, which are sought to be introduced by way of amendment, were already on record and for which materials which were not on record, no explanation, much less satisfactory explanation was furnished by the petitioner-tenant as to why these facts, though were in existence and in his knowedge, were not brought at the initial stage. In this view of the matter, in view of the Division Bench decision in the case of Devendra Mohan (supra), I do not think that the appellate authority has committed any error, much less error apparent on the face of record, so as to warrant any interference by this Court in exercise of power under Article 226 of the Constitution of India. This writ petition, therefore, has no force and is accordingly dismissed. The interim order, if any, stands vacated. However, the parties shall bear their own costs.

Author: A Kumar

Ram Bharosey vs Smt. Manju Agrawal And Anr. on 18 February, 2005

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29/03/2006 C O R A M THE HON'BLE MR. JUSTICE P. SATHASIVAM AND THE HON'BLE MR. JUSTICE J.A.K.SAMPATH KUMAR H.C.P.NO.277 of 2006 A.Kannaiyan .. Petitioner -Vs- 1. State of Tamil Nadu rep.by its Secretary, Adi-Dravidar Welfare Department, Fort St.George, Chennai-600 009. 2. The Director General of Police, Mylapore, Chennai-600 004. 3. The District Collector, Perambalur & District. 4. The Superintendent of Police, Perambalur & District. 5. The Inspector of Police, Sendurai Police Station, Perambalur District. 6. The District Collector, Ernakulam District, Kerala State. 7. P.P.Shippu 8. Govindarajan .. Respondents Prayer:- Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Habeas Corpus to direct, ( a) the respondents to produce the body and person of the persons listed in the Annexure to the petition who are held as bonded labourers now under the illegal custody of respondents 7 and 8 and set them at liberty; (b) respondents 1 and 3 to take all necessary measures forthwith to provide rehabilitation to the persons listed in the Annexure to the petition who are held as bonded labourers in the light of the Bonded Labour Abolition Act, 1976 and the rules made thereunder and to pass such further orders. !For Petitioner : Mr.S.Sathia Chandran ^For Respondents : Mr.Abudukumar Rajarathinam Government Advocate (Crl. Side) for Respondents 1 to 5 :O R D E R (ORDER OF THE COURT WAS MADE BY P.SATHASIVAM, J.) The petitioner, by name, A.Kannaiyan has filed this petition seeking for a direction to the respondents to produce all the 18 persons mentioned in the Annexure to the said petition, who, according to him, are held as bonded labourers, now under the illegal custody of respondents 7 and 8 and set them at liberty. The petitioner has also sought for a further direction to respondents 1 and 3 to take all necessary measures forthwith to provide rehabilitation to the persons listed in the Annexure, who are held as bonded labourers, in the light of the Bonded Labour Abolition Act, 1976 and the rules made thereunder. 2. Pursuant to the direction of this Court, all the 18 persons listed in the Annexure, appeared before us. We enquired each one of them. Among the said 18 persons, three are minor and others are major. During the enquiry, they reported that they all belong to Nathakuzhi Colony, Manapattur Panchayat, Sendhurai Taluk, Perambalur District. According to them, on the advice of the eighth respondent, who is also the present before us, they went to Nedunallur Village of Ernakulam District, Kerala. They further informed this Court that each of them was promised to pay Rs.100/- per day. It is further seen from their statement that they went to the said place a month ago and they were getting an amount from respondents 7 and 8 every week for food. Except one Sivakumar, Son of Thambusamy, other 17 persons are not interested in continuing their job there and they want to come back to their native village. They also requested for settlement of their one month wages by respondents 7 and 8. They also prayed that the same may be directed to be paid to them. 3. Though the petitioner has filed this petition alleging that the persons mentioned in the Annexure were taken to Kerala as bonded labourers, our enquiry of all the 18 persons shows that due to unemployment in their village and on the assurance of the eighth respondent that they will be paid wages at the rate of Rs.100/- to Rs.120/- per day, they went to Kerala. They also informed us that all of them were paid Rs.250/- towards transport charges. On our enquiry of all the 18 persons as well as the eighth respondent and the statement of the learned Government Advocate, we are satisfied that all these persons were not taken as bonded labourers and were also not treated so. However, it is clear that due to unemployment in the area in which all of them are residing and in order to eke out their livelihood and on the assurance that they will be paid decent wages, they left their native place and went to the place of the seventh respondent. 4. In view of their willingness to go back to their native place at Perambalur District, they are permitted to go to their native place. Learned Government Advocate has assured that their journey from Chennai to their native place will be taken care of by the official respondents. Considering the grievance expressed by the 18 persons mentioned in the Annexure, it is made clear that if they make any representation to the District Collector, Perambalur District regarding their poverty, unemployment, etc. the Collector is directed to consider the same, and if suitable employment is available within his jurisdiction, the request of those persons may be considered sympathetically. The eighth respondent is directed to collect wages for the period of one month in respect of those 18 persons mentioned in the Annexure from the seventh respondent and pay the same to them within a period of one month from today. Further direction is also issued to respondents 3 and 5 to monitor and see that the arrears of wages being settled to all the 18 persons by respondents 7 and 8. 5. With the above observation/direction, the habeas corpus petition is disposed of. To 1. State of Tamil Nadu rep.by its Secretary, Adi-Dravidar Welfare Department, Fort St.George, Chennai-600 009. 2. The Director General of Police, Mylapore, Chennai-600 004. 3. The District Collector, Perambalur & District. 4. The Superintendent of Police, Perambalur & District. 5. The Inspector of Police, Sendurai Police Station, Perambalur District. 6. The District Collector, Ernakulam District, Kerala State. 

A.Kannaiyan vs State Of Tamil Nadu Rep.By Its on 29 March, 2006

Madras High Court

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Author: Subhash B.Adi

Naveen Kumar vs The State Of Karnataka on 8 September, 2009

Karnataka High Court