Datasets:

Ayansk11

/

Chatkanoon

like 0

Court No. - 27 Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 861 of 2010 Petitioner :- Jitendra Kumar And Another Respondent :- Additional District Judge/ F.T.C. / Motor Accident Claims Petitioner Counsel :- S.K.Singh Hon'ble Devi Prasad Singh,J. Hon'ble S.C. Chaurasia J. (On C.M.Application No. 69667 of 2010) Issue notice returnable at an early date. Order Date :- 30.7.2010 AKS

Jitendra Kumar And Another vs Additional District Judge/ ... on 30 July, 2010

Allahabad High Court

JUDGMENT Arun Mishra, J. 1. In this appeal insurer calls in question the award dated 22.7.1997 passed by Third Additional Motor Accidents Claims Tribunal, Chhindwara in Claim Case No. 30 of 1995. 2. The deceased Manglu was going on a cycle from Chhindwara to Boria. He was dashed by Tata 407-MP 22-B 5119 driven by Shamim Khan owned by Sitaram and insured with United India Insurance Co. Ltd. Deceased was a postman, was going to distribute post at 12 noon from Boria to Pindrai. He was dashed from behind by Tata 407 truck. Report of the accident was lodged at Police Station, Chand, an offence under Section 304A, Indian Penal Code was registered against the driver. Age of the deceased was 44 years. He was earning a sum of Rs. 1,500 per month in the government employment. Compensation of Rs. 5,00,000 was claimed. 3. The owner and driver in the written statement did not dispute the factum of accident, however, contended that driver was not negligent, all of a sudden Manglu turned without giving hand, that was the cause of accident. Vehicle was insured. Liability, if any, was that of the insurer. Driver was holding a valid and effective driving licence at the time of accident. 4. The insurer in the written statement in addition took the plea that the driver was not holding valid and effective driving licence, thus, insurer was not liable. Claims Tribunal has found that the accident was outcome of rash and negligent driving of Shamim. Deceased was not negligent. Liability has been saddled on driver, owner and insurer. Compensation in the sum of Rs. 1,05,000 has been awarded along with interest at the rate of 12 per cent per annum from the date of claim petition till realisation. 5. Mr. N.S. Ruprah, learned Counsel appearing on behalf of the insurer has submitted that the driver was driving Tata 407. There was no endorsement on the licence to drive the transport vehicle, though Tata 407 was light motor vehicle. In the absence of endorsement to drive the transport vehicle, driver was not competent to drive the vehicle in question, as such insurer cannot be held liable by the Claims Tribunal. He has relied upon a decision of the Apex Court in National Insurance Co. Ltd. v. Kusum Rai . 6. Ms. Godavari Devlani, learned Counsel appearing on behalf of the respondent Nos. 1 to 7 has relied upon the decision of the Supreme Court in Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd. , to contend that the driver was holding effective licence to drive the light motor vehicle. Even though the vehicle was goods carriage it remained light motor vehicle. She has submitted that Apex Court in Ashok Gangadhar Maratha's case (supra) has held that licence to drive a light motor vehicle issued in Form 6 was an effective and valid licence to drive such a vehicle. She has also relied upon the decision of the Supreme Court in National Insurance Co. Ltd. v. Swaran Singh , to submit that the Apex Court has laid down that if the driver is holding licence for one type of vehicle, but having found driving another type of vehicle, it has to be proved that it was main or contributory cause of accident. In the instant case, driver was authorised to drive light motor vehicle, Tata 407. Thus, she has submitted that in the absence of any such evidence the liability has been rightly fastened on the insurer also. She has also relied upon the three Division Bench decisions of this Court in United India Insurance Co. Ltd. v. Vimla Bai ; Savitri Devi v. Naresh Kumar Harikrishna Madhwani and United India Insurance Co. Ltd. v. Goverdhan , in which this Court has considered Sections 2(21), 2(47), 2(48) and other provisions of the Motor Vehicles Act, 1988 and held that since unladen weight was less than 7500 kg as prescribed for light motor vehicles, the vehicle driven was light motor vehicle, as such there was no necessity of obtaining further endorsement to drive transport vehicle as it was a light motor vehicle. Thus, the driver was holding valid and effective driving licence, hence, insurer has been rightly held liable by the Claims Tribunal. 7. The only question for consideration is whether the driver was holding licence to drive light motor vehicle, admittedly the vehicle was 5300 kg and unladen weight prescribed under Section 2(21) for light motor vehicle, i.e., a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kg. Definition of 'light motor vehicle' is quoted below: 2(21) 'light motor vehicle' means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kilograms; Following is the definition of 'transport vehicle' in Section 2(47): 2(47) 'transport vehicle' means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle; 8. It is also not in dispute that the vehicle in dispute was light motor vehicle and driver was holding the licence to drive 9 light motor vehicle. In Ashok Gangadhar Maratha 's case 2000 ACJ 319 (SC), a Swaraj Mazda truck, a light motor vehicle was driven, its weight was 6000 kg, vehicle met with an accident on 26.11.1991, the driver was holding a licence to drive light motor vehicle. Contention of the insurer was that the vehicle was goods carriage and thus a transport vehicle. There was no endorsement on his driving licence authorising him to drive light transport vehicle. The Supreme Court held thus: (6) Naga Saheb Jadhav, the driver was having the driving licence to drive a light motor vehicle. On the day of the accident, the vehicle was not carrying any goods. Contention of the insurer has been that vehicle was a goods carriage and thus a transport vehicle. Rule 16 of the Central Motor Vehicles Rules, 1989, prescribes the form under which a driving licence is to be issued. It is Form No. 6. Jadhav was having a driving licence in Form 6 which was for driving a light motor vehicle. There was no endorsement on his driving licence authorising him to drive a transport vehicle. For a vehicle to be a transport vehicle, it must be a goods carriage which in turn means any motor vehicle constructed or adapted for use solely for the carriage of goods or when not so constructed or adapted used for the carriage of goods. We have the definitions of 'heavy goods vehicle' and 'medium goods vehicle'. There is no definition of 'light goods vehicle'. Instead the definition is of 'light motor vehicle'. If we apply the definition of a 'light motor vehicle' as given in Clause (21) of Section 2 of the Act to mean a 'transport vehicle' which in turn means a 'goods carriage' then we have nowhere the definition of a 'light motor vehicle' without it being a 'goods carriage'. Section 2 of the Act begins with the words 'unless in this Act the context otherwise requires'. We have, therefore, to give a meaningful interpretation to 'light motor vehicle' as given in Clause (21). Clause (e) of Rule 2 of the Central Motor Vehicles Rules, 1989 defines 'non-transport vehicle' to mean a motor vehicle which is not a transport vehicle [Clause (e)] renumbered as Clause (h) by the 1993 amendment to the Rules. This definition would, therefore, take out of the definition of 'transport vehicle' as given in Clause (21) light motor vehicles which are not goods carriages. XXX XXX XXX (9) There is no evidence on record and no claim has either been made by the insurer that the vehicle in question was having a permit for goods carriage. If we accept the contention of the insurer, there can never be any light motor vehicle and there can never by any driving licence for driving a light motor vehicle. We cannot put such a construction on Clause (21) of Section 2 of the Act so as to exclude a light motor vehicle from the Act altogether. Light motor vehicle is a motor vehicle to drive for which Jadhav possessed effective driving licence. His driving licence was valid on the date of accident. In allowing the claim of the appellant the State Commission held that 'the driver who drove the vehicle at the time of accident, had as a matter of fact, a valid driving licence for driving a light motor vehicle and there is no material on record to show that he was disqualified from holding or obtaining such a licence at the time of accident. In view of these facts and in the circumstances of the case, we are satisfied that policy does not insist on the driver having a licence to drive, to obtain a specific endorsement to drive a transport vehicle'. We, however, do not subscribe to such a view. (10) Definition of 'light motor vehicle' as given in Clause (21) of Section 2 of the Act can apply only to a 'light goods vehicle' or a 'light transport vehicle'. A 'light motor vehicle' otherwise has to be covered by the definition of 'motor vehicle' or 'vehicle' as given in Clause (28) of Section 2 of the Act. A light motor vehicle cannot always mean a light goods carriage. Light motor vehicle can be non-transport vehicle as well. (11) To reiterate, since a vehicle cannot be used as transport vehicle on a public road unless there is a permit issued by the Regional Transport Authority for that purpose and since in the instant case there is neither a pleading to that effect by any party nor is there any permit on record, the vehicle in question would remain a light motor vehicle. The respondent also does not say that any permit was granted to the appellant for plying the vehicle as a transport vehicle under Section 66 of the Act. Moreover, on the date of accident, the vehicle was not carrying any goods and though if could be said to have been designed to be used as a transport vehicle or goods carrier, it cannot be so held on account of the statutory prohibition contained in Section 66 of the Act. (12) It was pointed out by the appellant that the legal representatives of Jadhav, the driver, had filed a petition for compensation under the Act. Insurer had resisted the claim taking the stand that the driver of the vehicle did not possess a valid driving licence to drive the vehicle. The plea of the insurer was rejected by the Clams Tribunal and petition for compensation was allowed and compensation paid to the legal representatives of the driver. No appeal was preferred by the insurer in that case. (13) In the present case, the insurer alleged that the appellant had committed breach of the terms of the insurance policy and had violated the provisions of the Act by entrusting a 'transport vehicle' to a person who did not hold a valid licence and the insurer was, thus, not liable to indemnify the appellant. Under the policy, firstly, light motor vehicle meant the gross weight of which did not exceed 6000 kg and, secondly, against the column 'driver', the policy stated: Drivers clause.-Persons or classes of persons entitled to drive-any person including the insured: Provided that a person driving is holding an effective driving licence at the time of accident and is not disqualified from holding or obtaining such a licence: Provided also that if a person holding an effective learner's licence may also drive the vehicle when not used for the transport of goods at the time of the accident and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989. (14) Now the vehicle in the present case weighed 5920 kg and the driver had the driving licence to drive a light motor vehicle. It is not that, therefore, the insurance policy covered a transport vehicle which meant a goods carriage. The whole case of the insurer has been built on a wrong premise. It is itself the case of the insurer that in the case of a light motor vehicle which is a non-transport vehicle, there was no statutory requirement to have specific authorisation on the licence of the driver under Form 6 under the Rules, It had, therefore, to be held that Jadhav was holding effective valid licence on the date of accident to drive light motor vehicle bearing registration No. KA 28-567. The Apex Court held that the insurer was liable to make payment of compensation. 9. The Apex Court in National Insurance Co. Ltd. v. Swaran Singh , has held that in each case the decision has to be taken whether the factum of the driver possessing licence for one type of vehicle, but found driving another type of vehicle was the main or contributory cause of the accident. The Supreme Court has considered that the cases may also arise where a holder of driving licence for 'light motor vehicle' is found to be driving a 'maxicab', 'motorcab' or 'omnibus' for which he has no licence in such cases it has to be decided on the evidence what was the main or contributory cause of accident. (82) Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licence for various categories of vehicles mentioned in Sub-section (2) of the said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are: (a) motor cycle without gear; (b) motor cycle with gear; (c) invalid carriage; (d) light motor vehicle; (e) transport vehicle; (f) road-roller; and (g) motor vehicle of other specified description. The definition clause in Section 2 of the Act defines various categories of vehicles which are covered in broad types mentioned in Sub-section (2) of Section 10. They are 'goods carriage', 'heavy goods vehicle', 'heavy passenger motor vehicle', 'invalid carriage', 'light motor vehicle', 'maxicab', 'medium goods vehicle', 'medium passenger motor vehicle', 'motorcab', 'motor cycle', 'omnibus', 'private service vehicle', 'semi-trailer', 'tourist vehicle', 'tractor', 'trailer' and 'transport vehicle'. In claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribunal. A person possessing a driving licence for 'motor cycle without gear' [sic may be driving a vehicle], for which he has no licence. Cases may also arise where a holder of driving licence for 'light motor vehicle' is found to be driving a 'maxicab', 'motorcab' or 'omnibus' for which he has no licence. In each case, on evidence led before the Claims Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and/or similar other causes having no nexus with driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence. In the instant case, the driver was holding licence to drive light motor vehicle which he was driving, it was not in dispute that it was light motor vehicle, as unladen weight of the vehicle was below 7500 kg. In the absence of any evidence adduced by the insurer to show that mere absence of an endorsement on licence to drive transport vehicle, if at all required driver was driving the kind of vehicle for which he was authorised as per the licence. It is not shown that the absence of endorsement is contributory factor to the accident. Thus, in the light of the Apex Court decision in Swaran Singh's case and Ashok Gangadhar Maratha 's case , insurer cannot escape the liability. 10. In National Insurance Co. Ltd. v. Kusum Rai , relied upon by Mr. N.S. Ruprah, learned Counsel appearing on behalf of the insurer, the Apex Court has relied upon the decision in Swaran Singh's case , on facts it was held that the vehicle was used as a commercial vehicle and such a defence could have been raised by the insurer, the Apex Court gave liberty to the insurer to recover the amount from owner. Facts in the instant case are different and indicate that there was no inconsistent user of the vehicle. In the instant case there was no inconsistent user of the vehicle. On specific query made to Mr. Ruprah, he is unable to point out that the vehicle was used for a purpose inconsistent with the purpose for which it was insured. 11. The Division Bench of this Court in Savitri Devi v. Naresh Kumar Harikrishna Madhwani , has opined thus: (6) Contention of Mr. Ruprah, learned Counsel for Oriental Insurance Co. Ltd. that the vehicle was transport vehicle and there should have been endorsement on the licence to drive the transport vehicle cannot be accepted. Light motor vehicle has been defined to mean a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which does not exceed 7500 kilograms. Transport vehicle has been defined in Section 2(47) to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. Transport vehicle is included in the category of light motor vehicle. Matador vehicle is included in light motor vehicle. Therefore, Gujarat High Court decision in Manohar Jamatmal Sindhi v. Ranguba , does not apply in the present case. The relevant decision applicable would be of Apex Court in Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd. , on which reliance is placed by learned Counsel for the claimants. Another decision is of this Court in Mohd. Karim Khan v. Shamsher Khan, . 12. In United India Insurance Co. Ltd. v. Vimla Bai , same view has been taken. In United India Insurance Co. Ltd. v. Goverdhan , it was held as under: (8) From the definition of 'transport vehicle' extracted hereinabove it is apparent that goods carriage is included in the transport vehicle and such transport vehicle if its unladen weight is below 7500 kg, shall be a light motor vehicle as defined in Section 2, Sub-section (21) of Motor Vehicles Act, 1988. Unladen weight of Matador in question undisputedly was less than 7500 kg. Thus, in spite of it being goods vehicle, it was a light motor vehicle and the driver was possessing the licence Exh. D1 for driving light motor vehicle. Thus, the driver was having a valid driving licence to drive the vehicle. 13. In view of the aforesaid discussion, it is clear that the insurer has been rightly held liable. I find no merit in the only submission made by Mr. Ruprah. Appeal is dismissed. Parties to bear their own costs.

Author: A Mishra

United India Insurance Co. Ltd. vs Budhiya Bai And Ors. on 13 December, 2006

Madhya Pradesh High Court

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.2.2009 Coram The Hon'ble Mr. Justice R.SUDHAKAR Civil Miscellaneous Appeal No.308 of 2009 and M.P.No.1 of 2009 The Managing Director, Tamil Nadu State Transport Corporation, Salem Division-I. ... Appellant/Respondent vs. Minor R.Hariharan, represented by next friend guardian Father D.Rajendran. ... Respondent/Petitioner Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988 against the award and decree dated 8.8.2008 passed in M.C.O.P.No.79 of 2006 on the file of the Motor Accidents Claims Tribunal (Sub Court), Attur. For appellant : Mrs.B.Vijayalakshmi ----- JUDGMENT 12.2.2009 Index : No Internet : Yes ts To The Subordinate Judge, (Motor Accidents Claims Tribunal), Attur. R.SUDHAKAR,J. ts Judgment in C.M.A.No.308 of 2009 12.2.2009 The Tamil Nadu State Transport Corporation is on appeal challenging the award dated 8.8.2008 passed in M.C.O.P.No.79 of 2006 on the file of the Motor Accidents Claims Tribunal (Sub Court), Attur. 2. It is a case of injury. The brief facts of the case are as follows:- The accident in this case happened on 9.4.2006. The minor claimant R.Hariharan, aged 4 years, at the time of accident, was hit by the appellant transport corporation bus. In that accident, the said Hariharan suffered fracture of the left shoulder and was treated at Salem Government Hospital from 12.4.2006 to 19.4.2006. The father of the injured claimant filed a claim for compensation in a sum of Rs.3 lakhs for the injury suffered by his minor child. 3. In support of the claim, the father of the injured claimant, was examined as P.W.1. Dr.Rajamanickam, was examined as P.W.2. Exs.A-1 to A-7 were marked, the details of which are as follows:- Ex.A-1 is the copy of F.I.R., dated 9.4.2006, Ex.A-2 is the certified copy of Motor Vehicle Inspector's Inspection Report dated 10.4.2006, Ex.A-3 is the certified copy of charge sheet dated 22.5.2006, Ex.A-4 is the certified copy of wound certificate dated 9.4.2006, Ex.A-5 is the discharge summary dated 19.4.2006, Ex.A-6 is the X-Ray and Ex.A-7 is the disability certificate dated 18.3.2006. On behalf of the appellant transport corporation, the respondent before the Tribunal, the conductor of the bus was examined as R.W.1. No document was marked on behalf of the appellant. 4. Based on the oral and documentary evidence, the Tribunal came to conclusion that the driver of the appellant transport corporation bus was rash and negligent in driving the bus and was responsible for the accident and the liability was fixed on the appellant transport corporation. Such finding of the Tribunal is not seriously disputed by the counsel for the appellant and the same is confirmed. The only contention raised by the counsel for the appellant is with regard to quantum of compensation. 5. As far as quantum of compensation is concerned, the Tribunal based on Ex.A-4 wound certificate, Ex.A-7 discharge certificate, assessing the disability at 20% and also considering the nature of injury, granted the following amounts as compensation with interest at 7.5% per annum:- Sl.No. Head Amount granted by the Tribunal 1 Two simple injuries Rs. 7,000/- Transport expenses Rs. 1,000/- Medical expenses Rs. 5,000/- Pain and sufferings Rs.15,000/- Extra nourishment Rs.12,000/- Disability assessed at 20% Rs.20,000/- Total Rs.60,000/- 6. In appeal, the learned counsel for the appellant pleaded that a sum of Rs.7,000/- granted for two simple injuries is not justified and a sum of Rs.5,000/- granted towards medical expenses is not support by document. Therefore, the quantum of compensation is to be reduced. 7. On perusing the award of the Tribunal, this Court is not inclined to interfere with the quantum of compensation on the above said contention for the following reasons:- (i) The accident in this case happened on 9.4.2006. The injured minor claimant, aged 4 years, suffered fracture of left shoulder. The child was treated in hospital from 12.4.2006 to 19.4.2006. The child will need further time to recover from the shoulder injuries. (ii) The injured child may require physiotherapy to use the left shoulder as before. Therefore, considerable amount would have been spent for physiotherapy and for transportation. Whereas the amount granted towards transportation by the Tribunal is very meagre. No amount was granted towards physiotherapy. (iii) No amount has been granted for attender charges. As the child will have to be taken care of by the mother and the father as well, thereby they would have lost their income during the period of treatment of their minor child. (iv) The sum of Rs.7,000/- granted towards two simple injuries and the sum of Rs.5,000/- granted towards medical expenses can be justified towards the lesser amount granted towards transport charges and on the other heads, as stated above for which no amount has been granted. (v) Considering all these aspects, the excess amount, if any, as contended by the appellant's counsel, can be adjusted on one or other heads as above. There is no serious infirmity warranting interference by this Court as also the interest granted at 7.5% as the accident in this case happened in the year 2006 and the award was passed in the year 2008. 8. Finding no merit, this Civil Miscellaneous Appeal is dismissed at the admission stage. Counsel for the appellant seeks for eight weeks' time to deposit the award amount and is granted and on such deposit, the same shall be invested as ordered by the Tribunal. Consequently, connected miscellaneous petition is closed.

The Managing Director vs Minor R.Hariharan on 12 February, 2009

Madras High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.187 of 2010 ORIENTAL INSURANCE COMPANEY LTD. Versus SITA RAM YADAV & ORS. ----------- 03. 28.06.2010. Issue notice in limitation matter to the respondents. The appellants shall take steps for show cause notice in limitation matter in ordinary process within 2 weeks. Sanjeev/- (Mungeshwar Sahoo, J.)

Oriental Insurance Companey Ltd. vs Sita Ram Yadav &Amp; Ors. on 28 June, 2010

Patna High Court - Orders

[Section 24] [Complete Act]

Central Government Act

Gujarat High Court Case Information System Print CA/14770/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR FIXING DATE OF HEARING No. 14770 of 2010 In SPECIAL CIVIL APPLICATION No. 7160 of 2010 ========================================================= BHAVNAGAR MUNICIPAL CORPORATION - Petitioner(s) Versus BHURABHAI PRAVINBHAI PARMAR - Respondent(s) ========================================================= Appearance : MR HS MUNSHAW for Petitioner(s) : 1, MR YV SHAH for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 21/12/2010 ORAL ORDER Considering the averments made in Civil Application office is directed to place Special Civil Application No.7160 of 2010 for final hearing in the 1st week of February, 2011. With this direction, this Civil Application is accordingly disposed off. (K. A. PUJ, J.) kks     Top

Author: K.A.Puj,&Nbsp;

Bhavnagar vs Bhurabhai on 21 December, 2010

Gujarat High Court

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.231 of 2008 Date of decision: 26th November, 2009 Pawan Kumar and another ... Petitioners Versus Union of India and others ... Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Mandeep S. Sachdev, Advocate for Mr. Nakul Sharma, Advocate for the petitioners. Mr. Mehtab Singh, Advocate for Mr. M.K. Dogra, Advocate for respondent No.2. Mr. D.K. Singal, Advocate for respondent No.4. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Counsel for the petitioner prays that he be permitted to withdraw the present petition with liberty to approach the appellate authority to seek review of the observation made "it is not disputed that the land in question is classified as B-3 owned by the Cantonment Board". Learned counsel further submits that in the grounds of appeal, he had taken following specific stand: A perusal of the order passed by the appellate authority shows that this argument was never raised. Counsel for the petitioner prays that on this score also, he be permitted to file review application. Counsel may file review application before the appellate authority. Counsel for the respondents submits that in case review application is filed within 15 days after receipt of certified copy of this order, they will not oppose the condonation of delay in filing review application. As prayed, dismissed as withdrawn, with liberty aforesaid. [KANWALJIT SINGH AHLUWALIA] JUDGE November 26, 2009 rps

Pawan Kumar And Another vs Union Of India And Others on 26 November, 2009

Punjab-Haryana High Court

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 7504 of 2009 Date of Decision: 05.09.2008 Smt. S. Poonnammal ....Petitioner Versus Union of India & others ...Respondents CORAM : Hon'ble Mr. Justice Ashutosh Mohunta Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. A.K. Behera, Advocate with Mr. Dharminder Singh, Advocate for the petitioner. Mr. P.S. Guliani, Advocate for respondents No.1 to 3. Mr. Puneet Bali, Advocate for respondent No.5. NIRMALJIT KAUR, J. For orders, see CWP No.6728 of 2007, titled as Union of India & Ors. vs. Vijender Kumar, JE (Civil) & Ors., decided on 05-09-2009. (NIRMALJIT KAUR) JUDGE (ASHUTOSH MOHUNTA) September 05, 2009 JUDGE gurpreet

Smt. S. Poonnammal vs Union Of India & Others on 5 September, 2009

Punjab-Haryana High Court

ORDER D.G. DESHPANDE, J. 1. Heard Mr. B.R. Patil for the petitioner and Mr. Damle for the respondent. The petitioner is the tenant of Survey No. 425/B-2 situated at village Lonand, Taluka Khandala District Satara. He was the tenant since before 1-4-1957 and it is his case that he became a deemed purchaser under section 32 of the Bombay Tenancy and Agricultural Lands Act 1948 on or from 1-4-1957. He, therefore, applied to the Additional Tahsildar and A.L.T. Phaltan-Khandala and an order under section 32-G of the B.T. & A.L. Act came to be passed after due notice to the landlord on 30-12-1982. It appears from the record that the landlord thereafter filed an appeal before the Sub Divisional Officer raising objection on the ground that the landlord was minor and attained majority on 1-2-1973 and as such the petitioner tenant should have given notice to the landlord to purchase the land under section 32-F(1)(a), but since the tenant has failed to give any such notice, the order of the Additional Tahsildar was liable to be set aside. 2. The appeal of the landlord was allowed and when the tenant - petitioner filed a revision before Maharashtra Revenue Tribunal, Pune, the same was also dismissed. It is, therefore, clear that both the Sub Divisional Officer Phaltan and Maharashtra Revenue Tribunal, Pune have accepted the contention of the landlord that it was obligatory on the tenant - petitioner to give a notice under section 32-F(1)(a) of the Tenancy Act within two years of the landlord attains majority. 3. It has also been held by the Sub Divisional Officer and Maharashtra Revenue Tribunal that the order of the Additional Tahsildar dated 30-12-1982 was illegal and improper because the landlord was minor at that time and the right of the tenant to purchase the land was postponed till the landlord attains majority. 4. It was contended by the Counsel for the petitioner who challenged the orders of the Sub Divisional Officer and Maharashtra Revenue Tribunal that the interpretation of section 32-F(1)(a) of the Tenancy Act put forth by these courts is totally wrong because as per the record and admitted facts the tenant was cultivating and in possession of the suit land since before 1-4-1957 and on that day i.e. the tiller's day the land was owned by Smt. Dwarkabai Dhundiraj Deo and Moreshwar Dhundiraj Deo jointly. He pointed out that both the landlords executed a gift deed in favour of the present respondent on 18-12-1958 and if at all the respondent became an owner of the suit land it was by virtue of the gift deed dated 18-12-1958 and since on the tiller's day i.e. on 1-4-1957 the land was not owned by the present respondent and the original landlords Smt. Dwarkabai Deo and Moreshwar Deo were alive, section 32-F(1)(a) could not be pressed into service for denying the claim of the tenant. 5. I find considerable force in this submission made by the Counsel for the petitioner, because by virtue of section 32 of the Tenancy Act every tenant who was tenant on 1-4-1957 had become a deemed purchaser. Admittedly, on 1-4-1957 both the original landlords were alive and they were the landlords on record. The present respondent was not the landlord on 1-4-1957 and he became landlord subsequently on 18th December 1958. The gift deed of the landlord does not, therefore, affect the right of the deemed tenant. 6. The Additional Tahsildar has rightly considered the rights of the petitioner - tenant and the respondent as on 1-4-1957 and allowed the application of the petitioner - tenant under section 32-G of the Tenancy Act. Any transfer of land subsequent to 1-4-1957 by the original landlord can not be and would not affect the right of the tenant vis-a-vis the original landlord i.e. the landlord as on 1-4-1957. The reasoning, therefore, given by the Sub Divisional Officer, Phaltan and Maharashtra Revenue Tribunal, Pune, are not at all justified and they are contrary to the Tenancy Act. Consequently, both the orders are liable to be set aside. Hence I pass the following order:- ORDER 7. The petition is allowed. 8. Rule made absolute. 9. The order of the Sub Divisional Officer, Phaltan dated 1-8-1984 and the order of the Maharashtra Revenue Tribunal, Pune dated 16-4-1985 are quashed and order of Additional Tahsildar and A.L.T., Phaltan dated 30-12-1982 under section 32-G of the Bombay Tenancy and Agricultural Lands Act, 1948 in favour of the petitioner - tenant is maintained. 10. No order as to costs. 11. Petition allowed.

Author: D Deshpande

Vishnu Krishna Kshirsagar vs Shrikant Rajaram Kale on 14 June, 1999

Bombay High Court

JUDGMENT Surya Kant, J. 1. This Revision petition is directed against the orders dated 9.11.1981 and August 19, 1983 (Annexures P-3 and P-4) passed by respondent Nos. 1 and 2 respectively. 2. Vide order, Annexure P-3, the Authority under the Payment of Wages Act, 1936 (for short, 'the Act') at Ludhiana partly allowed the petition under Section 15(2) of the Act, filed by Respondent No. 3 (Husan Lal) and directed the Petitioners to pay a sum of Rs. 3916.20 Ps to him. Vide order, Annexure P-4, learned Additional District Judge- cum-Appellate Authority, Ludhiana, dismissed the appeal filed by the Petitioners herein against the afore-mentioned order, Annexure P-3. Aggrieved of these orders, the petitioners have approached this Court. Facts: Respondent No. 3 moved an application dated July 19, 1979 (Annexure P-l) under Section 15(2) of the Act, inter-alia, on the ground that he was employed in the factory M/s Supreme Woollen Mills (Petitioner No. 2) and that he was not paid the wages and other dues, the details of which were mentioned in para 3(1) of the application. It was further averred that the petitioner No. 1 (Prem Nath Gupta) who is a partner in petitioner No. 2 is the person responsible for making these payments. The petitioners contested the aforesaid application vide their reply, copy appended as Annexure P-2. The Authority under the Act, however, on appreciation of evidence led by the parties and their respective pleadings, partly accepted the claim of Respondent No. 3 and held him entitled to a sum of Rs. 3916.20 Ps to be payable by the petitioners. 3. While accepting the afore-mentioned claim, the Authority under the Act, held that Respondent No. 3 owned Rs. 850/- to the Petitioners which he had taken as advance; Respondent No. 3 was entitled to Rs. 420.80 Ps as wages for the period from 1.10.1978 to 24.10.1978 at the rate of Rs. 625/- per month; he was also entitled to Rs. 555.90 Ps against leave with wages, apart from the retrenchment compensation to the tune of Rs. 2187.50 Ps, as well as Rs. 625/- in lieu of one month's notice which was required to be given to him under Section 25F of the Industrial Disputes Act, 1947. In addition, Respondent No. 3 was also found entitled to Rs. 977/- as bonus. 4. This petition came up for hearing before this Court on November 23, 1983 when while issuing notice of motion, it was directed that the wages be paid to the workman (Respondent No. 3) on his furnishing security to the satisfaction of the Authority after notice to the petitioners. Respondent No. 3, however, did not appear despite service. Hence, the petition was admitted on January 4, 1984. 5. No one has turned up on behalf of Respondent No. 3 even at the time of the final hearing. 6. Heard Shri V.G.Dogra, learned counsel for the petitioners and perused the pleadings. 7. The main trust of arguments raised on behalf of the petitioners is that the impugned orders are totally beyond the scope of jurisdiction to grant payments in respect of claims under Section 15(2) of the Act and the same have been passed in ignorance of the proviso to sub-section (3) of Section 15 of the Act, which provides that no direction for the payment of compensation shall be made in the case of delayed wages if the Authority is satisfied that the delay was caused due to bona fide error or bona fide dispute as to the amount payable to the employed person. 8. I, however, do not find any substance in the afore-mentioned submissions. It could not be disputed that no retrenchment compensation and/or one month's wages in lieu of notice period was paid to Respondent No. 3 under Section 25F of Industrial Disputes Act, 1947, though a case of voluntary abandonment of employment by Respondent No. 3 was sought to be made out. In my view, the issue as to whether Respondent No. 3 was retrenched or he himself abandoned the employment, is a question of fact and the Authorities under the Act having returned a concurrent finding of fact in favour of Respondent No. 3, no interference is called for by this Court in the exercise of its revisional jurisdiction. Similarly, reliance by the Petitioners upon Proviso to sub-section (3) of Section 15 is also misplaced inasmuch as the said Proviso could be pressed into service only to avoid liability to pay compensation which the Prescribed Authority is competent to grant under sub-section (3) to an employed person. Needless to say, such compensation is awarded over and above the payment of delayed wages/dues. In the case in hand, no compensation under sub-section (3) has been awarded to Respondent No. 3 and what has been awarded to him is only the actual wages and/or dues which the Petitioners had illegally withheld. 9. For the reasons afore-mentioned, I find no merit in this Revision Petition which is accordingly dismissed, however, with no order as to costs.

Author: S Kant

Prem Nath Gupta And Ors. vs The Appropriate Authority And ... on 27 October, 2004

Punjab-Haryana High Court

Gujarat High Court Case Information System Print CR.MA/1852/2011 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 1852 of 2011 In CRIMINAL APPEAL No. 1292 of 2004 ========================================================= JAHID YUNISH MOHMEED SHAFI MUSLIMAN - Applicant(s) Versus THE STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR. ASIM PANDYA, for HL PATEL ADVOCATES for Applicant(s) : 1, MR. DABHI, APP, for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 11/02/2011 ORAL ORDER(Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) 1. Rule. Mr. Dabhi, learned APP, appears and waives service of rule on behalf of the respondent State of Gujarat. 2. Having regard to the facts of the case, the application is taken up for hearing today. 3. By filing instant application under Section 389 of the Code of Criminal Procedure, the applicant-convict prisoner, who, by judgement and order dated 30.9.2003 rendered in Sessions Case No. 34 of 2002 by learned 2nd Additional Sessions Judge, Banaskantha at Deesa, has been convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life, has prayed for suspension of sentence and to enlarge him on bail during the pendency and final hearing of the above numbered Criminal Appeal. 4. At the time of hearing of this application, Mr. Asim Pandya, learned advocate for H.L. Patel, Advocates for the applicant states that in view of the latest information received by him, on the date of the incident the applicant was juvenile. Therefore, he wants to file separate application seeking prayer to determine juvenility of the applicant. He, therefore, does not press this application and seeks leave to withdraw the same. 5. Mr. Dabhi, learned APP, has no objection if leave as prayed for is granted. 6. Hence leave to withdraw the application is granted. The application stands rejected as withdrawn reserving liberty to file fresh application as stated by Mr. Asim Pandya, learned advocate for the applicant. 7. Rule is discharged. (A.M. KAPADIA, J) (BANKIM N. MEHTA, J) (pkn)     Top

Author: A.M.Kapadia,&Nbsp;Honourable Mr.Justice Bankim.N.Mehta,&Nbsp;

Jahid vs The on 11 February, 2011

Gujarat High Court

Gujarat High Court Case Information System Print FA/618/1981 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 618 of 1981 ============================================================== BANASKANTHA DIST.CO.OP.MILK PRODUCERS UNION LTD. - Appellant(s) Versus PRAJAPATI JAYANTIBHAI BABABHAI & 2 - Defendant(s) ============================================================== Appearance : MR SK JHAVERI for Appellant(s) : 1, MR NS DESAI for Defendant(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4,1.2.5 NOTICE SERVED for Defendant(s) : 2, MR PV NANAVATI for Defendant(s) : 3, ===================================================================== CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 13/02/2006 ORAL ORDER None present for the appellant and learned counsel Mr.Jhaveri has filed sick-note. Hence, S.O.to 15.02.2006 in the interest of justice. Sd/- ( D.H.WAGHELA, J.) (KMG Thilake)     Top

Author: D.H.Waghela,

Banaskantha vs Prajapati on 5 September, 2011

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA FA No.538 of 1977 SMT.SITABATI DEVI Versus SMT. ISHO DEVI & ORS ----------- S.S. (Mungeshwar Sahoo,J.) 81. 02.08.2010 Notice on respondent No.6 is accepted as valid service of notice. So far the respondent Nos. 11 to 14 and 23 to 25 are concerned, the appellant shall file an affidavit within one week.

Smt.Sitabati Devi vs Smt. Isho Devi &Amp; Ors on 2 August, 2010

Patna High Court - Orders

Gujarat High Court Case Information System Print ST/16522/2007 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD STAMP NUMBER (SPL.C.A.) No. 16522 of 2007 ========================================== DAHYABHAI HATHIBHAI PATEL Versus STATE OF GUJARAT AND OTHERS ========================================== Appearance : MS KP HATHI for MR PV HATHI for the Petitioner ========================================== CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 04/10/2007 ORAL ORDER At the request made on behalf of the learned advocate for the petitioner, one week's time is granted to remove the office objections, failing which the matter shall stand dismissed for non-prosecution without reference to the Court. (RAVI R.TRIPATHI, J.) *Shitole     Top

Author: Ravi R.Tripathi,&Nbsp;

State vs Unknown on 21 March, 2011

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.35021 of 2010 Gyanchand Pathak @ Deep Narain Pathak Versus State Of Bihar & Anr ---------------------------------- Vikash ( Mandhata Singh, J.) 06. 25.10.2011 List this case under the heading for admission.

Gyanchand Pathak @ Deep Narain ... vs State Of Bihar & Anr on 25 October, 2011

Patna High Court - Orders

JUDGMENT Mukundakam Sharma, J. 1. The prayer which is made in this petition is for issuance of a direction to the respondents to grant pension to the petitioner from the date of his discharge from military service with interest. 2. The petitioner was enrolled in the Regiment of Artillery on October 15, 1963. During his service career spanning over 10 years and 258 days, the petitioner had earned more than four red-ink entries. As he had incurred more than four red-ink entries h was held to be a habitual offender and a show cause notice was issued to him directing him to show cause why he should not be discharged from service. The petitioner submitted his reply to the show cause notice. After receipt of the aforesaid reply, t e same was considered and the petitioner was interviewed by the Commandant, School of Artillery. Thereafter, an order was passed by the respondent discharging the petitioner from service being unsuitable for military service in terms of the provisions of Army Rule 13-III(v) with effect from June 29, 1974. After the aforesaid discharge, the petitioner was also paid his terminal dues including service and death-cum-retirement gratuity. The petitioner was satisfied with the aforesaid payment and did not also claim for payment of any pension for long 25 years after the date of his discharge from service. After expiry of about 25 years, the petitioner raked up an issue that he is entitled to payment of pension which should be full pension or in any c se, on pro-rata basis. In the rejoinder-affidavit the contention raised is that the discharge of the petitioner is illegal as the provisions of the Army Order and Army Rules 13, 17 and 22 was not properly and validly complied with at the time of issue once of order of discharge and, therefore, the aforesaid discharge is illegal. However, no such prayer is made in the writ petition nor the petition was amended. The writ petition has been filed only with the prayer for grant of pension to the petitioner. 3. As there is no prayer in the writ petition challenging the legality and validity of the order of discharge which was passed more than 25 years ago we are not inclined to enter into that controversy at all more so, at this highly belated stage. The only issue which is being considered and was argued at length in this petition is whether despite the aforesaid order of discharge the petitioner is entitled to grant of any pension in the light of his service rendered for 10 years and 258 days. Accordingly, we take notice of the said submission while disposing of this writ petition. 4. It was contended by the counsel appearing for the respondents that even the aforesaid prayer cannot be considered in this case due to inordinate delay and laches on the part of the petitioner in claiming such a relief. Being faced with the aforesaid position, counsel for the petitioner submitted that although there is delay and laches, the cause of action is a recurring one and if it is held that the petitioner is entitled to the aforesaid benefit, he could even now be paid his pension and that the foresaid claim would survive at least for a period of three years prior to the filing of the writ petition which cannot be rejected on the ground of delay and laches. In support of the same, the counsel relied upon a decision of this court in Ex-Signaman Shri Bhagwan v. Union of India and Ors. reported in 103 (2003) Delhi Law Times 269 (DB). 5. We have considered the aforesaid submissions of the counsel for the parties. We are of the considered opinion that there was definitely unexplained delay and laches on the part of the petitioner in approaching the court for grant of payment of such pe sion immediately after the order of discharge was passed. There was long delay of more than 25 years in the process during which the petitioner kept complete silence over the issue. However, following the ratio of the decision of this Court in Shri B agwan's case (supra) we hold that if the petitioner is held to be entitled to get a pension of the nature as claimed in the petition then he would be entitled to such payment for a period of three years preceding the date of the filing of the writ petition in this court. We respectfully agree with the aforesaid principles of law laid down by the Division Bench of this Court and we follow the same for the purpose of this case also. Therefore, the claim of the petitioner for grant of pension would be examined by us and if he is found eligible for such payment in that event order shall be made in accordance with law laid down in Shri Bhagwan's case (supra). 6. It is contended by the counsel appearing for the petitioner that even if an employee renders service for less than 10 years he is entitled to a retirement benefit like pension at least on pro-rata basis. In support of the said contention, the counsel appearing for the petitioner relied upon the circular issued by the respondents, i.e., the Ministry of defense, letter dated February 9, 1987, and also the circular issued on April 29, 1997. Counsel appearing for the respondents, however, refuted the aforesaid submissions and submitted that the petitioner is not entitled to grant of any pension from the date of his discharge as he had only 10 years and a few days of military service to his credit. In the light of the aforesaid submissions of the counsel appearing for the parties we may proceed to decide the issues that have been raised before us. 7. The petitioner had completed 10 years and 258 days of service in the Army. Regulation 132 of the Pension Regulations for the Army clearly provides that the minimum qualifying colour service for earning service pension would be 15 years unless otherwise provided. Therefore, going by the said provision the petitioner having rendered only 10 years and 258 days of service would not be entitled for service pension in terms of the aforesaid regulation. The petitioner also made a claim in the writ petition and the counsel appearing for the petitioner reiterated the same position during the course of his arguments that even if the petitioner is not entitled to grant of full pension he would at least be entitled to the grant of pro-rata pension in terms of the extent provisions. 8. We have gone through the Pension Regulations for the Army. In the said regulation we could not find any provision which provides for grant of pro-rata pension. Since the petitioner is governed by the Pension Regulation for the Army and not by the CS (Pension) Rules, reliance of the petitioner on the CCS (Pension) Rules in support of his contention is misplaced. Reliance of the petitioner on the Ministry of defense letter dated February 9, 1987 for grant of pro-rata pension is also misconceived s the said letter deals with grant of pro-rata pensioner benefits to the commissioned officers of the defense services on permanent absorption in public sector enterprises. The petitioner, who was enrolled as a Espy in the Army, was not a commission d officer in the Army nor he could be considered as permanently absorbed in a public sector undertaking. Therefore, the said circular is of no assistance to the petitioner. Reliance of the petitioner on the circular of the Ministry of defense dated Apeil 29, 1997 is again misplaced and misconceived as the said circular deals with grant of pro-rata pension to ex-airmen who were absorbed in public sector undertakings before completing 10 years of service in Government of India. In the said circular it s clearly mentioned that there is no provision in the Air Force Pension Regulation for grant of pro-rata pensionary benefits to ex-airmen on their permanent absorption in the public sector undertakings in case of persons who had not completed the minimum qualifying service of 15 years required to earn military pension. 9. Counsel appearing for the petitioner, however, drew our attention to the order of this Court in CWP No. 4942/1994, titled R.D. Sharma and Ors. v. Union of India, dated December 9, 1994. It is an admitted position that in view of the directions in t e said decision the government had granted pro-rata pension to the said petitioners. It is, however, pointed out and is shown to us that the aforesaid grant of pro-rata pension to the petitioners of the said writ petition is by way of special case in view of the observations made in the said decision. It is also disclosed from the records that the respondents had filed an appeal in all the aforesaid cases which was registered as L.P.A. No. 342/2000. In the order passed by the Division Bench in the aid appeal on November 29, 2001 this court had observed that the airmen who completed 10 years of service were given benefit of pro-rata pension as a special case pursuant to the orders of the writ court and the qualifying service under Regulation 121 would remain to be 15 years. The order of the learned single judge was set aside by the Division Bench by its order dated November 29, 2001. 10. The aforesaid discussion makes it crystal clear that in cases involving the Army service one has to complete minimum qualifying service as laid down in Regulation for earning army service pension. In the present case, the petitioner being a person el below officer rank could earn pension only after completing 15 years of minimum qualifying service as provided for in Regulation 132 of the Pension Regulations for the Army. There is also no provision in the Army Pension Regulations for grant of pro rata pension for personnel below officer rank. In this connection we may appropriately refer to a decision of this court in A.K. Das v. Union of India and Ors. being CWP No. 2861/1999, dated December 20, 2001 wherein also it was held that in order o earn pension in the Indian Air Force by the airmen, he has to render 15 years of qualifying service under Regulation 122 which governs the case of airmen. Reference can also be made to the decision in Mahinder Singh (Ex.Sep.) v. Union of India and Ors. reported in 2001 VI AD (Delhi) 774. In the said case it was held that the Pension Regulations applicable to the army personnel require that the minimum service that qualifies for service pension would be 15 years in the case of army personnel. 11. The present petitioner is governed by the said provision of para 132 of the Pension Regulations for the Army as was also the position in Mahinder Singh's case (supra) and, therefore, the law laid down in Mahinder Singh's case is fully and squarel applicable to the facts of the present case. In the said case it was held that there was no provision in the Pension regulations for the Army for making payment of any pro rata pension for the army personnel. 12. Counsel appearing for the petitioner placed very strong reliance on the Single Bench decision of this Court in CWP No. 3894/1997 dated December 16, 1999, wherein reference was made to another Single Bench decision of the case in M.C. Dhingra v. Union of India and Ors., Civil Appeal No. 3371/1996, dated February 5, 1996 and it was held that the petitioners would be granted the benefit of pro-rata pension after considering that the petitioners have put in 10 years of service which would entity e them to grant of such pro-rata pension. However, in view of the aforesaid discussions we hold that whatever is stated in the said decision does not lay down the correct law and the decision rendered therein would be applicable only to the facts of t e said case. We also hold that since the qualifying service of the petitioner falls short of the minimum requisite of 15 years, the petitioner would not be entitled to grant of any pension. 13. In the light of the aforesaid discussion, we find no merit in this petition and the same is dismissed.

Author: M Sharma

Ram Singh Yadav vs Union Of India (Uoi) And Anr. on 15 December, 2004

Delhi High Court

Gujarat High Court Case Information System Print LPA/176/2010 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 176 of 2010 In SPECIAL CIVIL APPLICATION No. 11304 of 2009 ========================================================= JAY VIJAY MAHILA MANDAL - Appellant(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance : MR HARNISH V DARJI for Appellant MS KRINA CALLA AGP for Respondent(s) : 1 - 3. MR MASUD I PATEL for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA and HONOURABLE MR.JUSTICE AKIL KURESHI 21st January 2011 ORAL ORDER (Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA) The petitioner, who was registered as Self Help Group, applied for allotment of a Consumer Store under the Pandit Din Dayal Consumer Stores Scheme. Though, his name was included in serial no.1 of the select list and granted Consumer Store for village-Bhathan, Taluka-Limbdi, District Surendranagar, however, at the instance of the 4th respondent, the matter was taken up by the respondent-State authorities which cancelled the said allotment and granted it in favour of the 4th respondent on the ground that the Self Help Group is no more recognized under the new Swarnjayanti Gram Swarozgar Yojana [SGSY] Scheme. The appellate authority rejected the appeal, which having been affirmed by the learned Single Judge, the present Appeal under Clause 15 of the Letters Patent has been preferred. Learned counsel appearing on behalf of the appellant referred to second part of paragraph 3.7 of Swarnjayanti Gram Swarozgar Yojana guidelines issued by the Government of India to suggest that a large number of Self Help Groups under the different scheme, including DWCRA groups, NABARD and other Banks, etc., have also been recognized under the new S.W.S.Y Scheme guidelines. In that view of the matter, learned counsel appearing on behalf of the State sought for and is allowed time to obtain instructions to state as why the Self Help Group under DWCRA group Scheme is not declared to have been recognized under the new S.W.S.Y Scheme and appellant be not given relief as was sought for in the writ petition. Appeal may be disposed of on the next date of hearing. Post the matter on 11th February 2011. {S.J Mukhopadhaya, CJ.} {Akil Kureshi, J.} Prakash*     Top

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

Jay vs State on 21 January, 2011

Gujarat High Court

ORDER R. Gururajan, J. 1. Petitioner-the Mysore Chest Care and Pain Therapy Centre (Private) Limited, has presented this petition seeking for a direction directing Karnataka State Industrial Investment and Development Corporation (for short the 'Corporation') to forbear from proceeding with the sale of the assets of the petitioner in terms of the notification Annexure-M, dated 25-2-2000. 2. Facts of the case in brief are as under. 3. Petitioner 1 is a Company having its office at Mysore. Petitioner 2-Dr. Raj G. Pal is the Managing Director of the petitioner 1-Company. Petitioner 1 borrowed certain sums of money from the Corporation for purchase of medical laser equipment. Petitioner 2 has also borrowed certain sum in his individual capacity for purchase of certain other medical equipments. Equipments were purchased and put to use by the petitioners. Petitioner states that in spite of request to the Corporation, it did not grant any additional loan for purchase of additional equipments. For want of equipments and for want of funds, petitioner-Company became sick and could not pay its debts. Corporation exercising its power under Section 29 seized the equipments from the petitioner. 4. Petitioner states that respondent 2 filed a miscellaneous petition on the file of the Second Additional City Civil Judge, Bangalore, under Section 31 of the Act. The said proceedings are pending and an interim order of attachment was granted under Section 32 of the Act in the said petition. The interim orders of attachment were granted by the said Court in the said petition. In the meanwhile the Corporation also issued an advertisement with regard to sale of assets of the petitioner 1 as per Annexure-E. The petitioner 1 filed a petition under Section 151 of the Civil Procedure Code in the pending Miscellaneous Case No. 599 of 1997 initiated under Section 31 of the Act seeking an order to stay the sale of assets. The Trial Judge rejected the application by an order dated 6-7-1999. A civil revision petition in C.R.P. No. 2174 of 1999 came to be filed before this Court by the petitioners. This Court by its order dated 24-8-1999 dismissed the civil revision petition by holding that an application under Section 151 of the Civil Procedure Code is not maintainable in those proceedings. The Court however, ruled that it is open to the petitioners to challenge and question the legality and propriety of the Corporation's action initiated under Section 29 of the Act by any other independent action if they are so advised. After disposal of the civil revision petition the petitioners have now moved this Court under Article 226 of the Constitution of India, seeking an order to restrain the Corporation from enforcing the sale in terms of Section 29 of the Act. This Court has granted an interim stay of sale pursuant to Annexure-H. This Court later refused to vacate the stay and ordered the matter to be heard earlier. It is in these circumstances the matter is listed for final hearing. 5. I have heard the learned Counsel for the petitioner. The respondents have filed a detailed counter in the case on hand. They justify their action. Matter is heard for final disposal today. Elaborate arguments were advanced by either parties. 6. The learned Counsel Sri Aditya appearing for Sri Uday Holla for the petitioners took me through the pleadings and contended that the Corporation has already taken recourse to recovery of the outstanding in a proceeding initiated under Section 31 of the Act in Miscellaneous Case No. 599 of 1997. He contends that the Supreme Court in the case of Andhra Pradesh State Financial. Corporation v M/s. GAR Re-Rolling Mills and Another, has ruled in unmistakable terms that the Corporation cannot invoke its power under Section 29 after invoking its power under Section 31 of the Act. Counsel contends that the Corporation has to elect the remedies under the Act. According to him two simultaneous proceedings in terms of the provision of Sections 31 and 29 of the Act cannot be maintained, He strongly relies on the ruling of the Supreme Court (in para 13) in the said judgment. He also relies on the judgment of this Court in Branch Manager, Karnataka State Financial Corporation, Belgaum v Rafiq and Another. Counsel relies on two other judgments in Uttar Pradesh Financial Corporation v Goodman Drug House (Private) Limited and in Ambika Prasad Mishra v State of Uttar Pradesh and Others and Ballabhdas Mathuradas Lakhani and Others v Municipal Committee, Malkapur. He further relies on a judgment of Bombay High Court in Krishna Madhaorao Ghatate and Another v Union of India and Others . 7. Per contra Mr. Joshi, learned Counsel for the respondent with equal vehemence invites my attention to a judgment of the Supreme Court in the case of Maharashtra State Financial Corporation v Jaycee Drugs and Pharmaceuticals Private Limited and Others. He contends that proceedings under Section 31(1)(aa) initiated against sureties cannot be a bar for invoking proceedings under Section 29 against the Company and the Counsel also says that if facts are properly considered, the judgment of the Supreme Court cannot be made applicable to the facts in this case. Counsel refutes the allegations of the petitioners with regard to its bar under the Act. 8. After giving my careful consideration to the rival pleas of the parties, I pass the following order: 9. The State Financial Corporation Act (for short the 'Act') is an Act to provide for establishment of State Financial Corporation. Chapter III provides for powers and duties of the Board, and essentially it provides for finance in the business sector. Section 25(A) provides for acquiring rights and Section 27 provides for imposing condition for accommodation. Section 28 provides for prohibited business. Section 29, the crucial section provides for rights of financial corporations in case of default. It is useful to quote this very section for the purpose of proper understanding of the case between the parties. Section 29 reads as under: "(1) Where any industrial concern, which is under a liability to the Financial Corporation under an agreement, makes any default in repayment of any loan or advance or any instalment thereof or in meeting its obligations in relation to any guarantee given by the Corporation or otherwise fails to comply with the terms of its agreement with the Financial Corporation, the Financial Corporation shall have the right to take over the management or possession or both of the industrial concern, as well as the right to transfer by way of lease or sale and realise the property pledged, mortgaged, hypothecated or assigned to the Financial Corporation. (2) Any transfer of property made by the Financial Corporation, in exercise of its powers under sub-section (1), shall vest in the transferee all rights in or to the property transferred as if the transfer had been made by the owner of the property. (3) The Financial Corporation shall have the same rights and powers with respect to goods manufactured or produced wholly or partly from goods forming part of the security held by it as it had with respect to the original goods. (4) Where any action has been taken against an industrial concern under the provisions of sub-section (1), all costs, charges and expenses which in the opinion of the Financial Corporation have been properly incurred by it as incidental thereto shall be recoverable from the industrial concern and the money which is received by it shall, in the absence of any contract to the contrary, be held by it in trust to be applied firstly, in payment of such costs, charges and expenses and, secondly, in discharge of the debt due to the Financial Corporation, and the residue of the money so received shall be paid to the person entitled thereto. (5) Where the Financial Corporation has taken any action against an industrial concern under the provisions of sub-section (1), the Financial Corporation shall be deemed to be the owner of such concern, for the purposes of suits by or against the concern, and shall sue and be sued in the name of the concern". 10. Section 30 provides for power to call for repayment before the agreed period. Section 31 is a special provision providing for enforcement of claims by Financial Corporation. It is necessary to quote that section also which reads as under: "(1) Where an industrial concern, in breach of any agreement, makes any default in repayment of any loan or advance or any instalment thereof or in meeting its obligations in relation to any guarantee given by the Corporation or otherwise fails to comply with the terms of its agreement with the Financial Corporation or where the Financial Corporation requires an industrial concern to make immediate repayment of any loan or advance under Section 30 and the industrial concern fails to make such repayment then, without prejudice to the provisions of Section 29 of this Act and of Section 69 of the Transfer of Property Act, 1882 (4 of 1882), any officer of the Financial Corporation, generally or specially authorised by the Board in this behalf, may apply to the District Judge within the limits of whose jurisdiction the industrial concern carries on the whole or a substantial part of its business for one or more of the following reliefs, namely: (a) for an order for the sale of property pledged, mortgaged, hypothecated or assigned to the Financial Corporation as security for the loan or advance; or (aa) for enforcing the liability of any surety; or (b) for transferring the management of the industrial concern to the Financial Corporation; or (c) for an ad interim injunction restraining the industrial concern from transferring or removing its machinery or plant or equipment from the premises of the industrial concern without the permission of the Board, where such removal is apprehended. (2) An application under sub-section (1) shall state the nature and extent of the liability of the industrial concern to the Financial Corporation, the ground on which it is made and such other particulars as may be prescribed". Section 32 provides for a procedure in respect of applications under Section 31. 11. In the light of these provisions I see that this Act provides for a right to take over the management or possession or both of the industrial concern as well as the right to transfer by way of lease or sale and right to take over the management or possession or both of industrial concern as well as right to transfer as well as right by way of lease or sale and realise the property pledged, mortgaged, hypothecated or assigned to the Corporation under Section 29 of the Act. Sub-section (4), provides for recovery of all costs, charges and expenses which the Corporation incurred in this regard. It further provides for discharge of the debt due to the Corporation in terms of this provision. The residue is payable to person entitled thereto. In addition to Section 29, Section 31 has been incorporated as a special provision for enforcement of claims by the Corporation. It provides for an application to District Judge for an order for the aale of property pledged, mortgaged, hypothecated or assigned to the Corporation as security for the loan or advance or for enforcing the liability of any surety or for transferring the management of industrial concern to the Financial Corporation or for ad interim injunction restraining industrial concern from transferring or removing its machinery or equipment from the premises. 12. These two provisions provide for two types of recovery of the dues to the Corporation. 13. The Supreme Court in the case of Andhra Pradesh State Financial Corporation, supra, considered both the provisions of Sections 29 and 31 and ruled that on conjoint reading of Sections 29 and 31 of the Act it appears to us that in case of a default in repayment of loan or any instalment or any advance or breach of agreement, the Corporation has two remedies available to it against defaulting industrial concern, one under Section 29 and another under Section 31 of the Act, the choice for availing the remedy under Section 29 or 31 of the Act is that of the Financial Corporation alone and the defaulting concern has no say whatsoever in the matter by the Corporation against it for effecting the recovery". Again the Supreme Court has ruled in para 13 as under: "13. It left the choice to the Corporation to act in the first instance under Section 31 of the Act and save its rights and remedies under Section 29 of the Act to be availed at later stage, with the sole object of enabling the Corporation to recover its dues. It is not, however, obligatory on the part of the Financial Corporation to invoke the special provisions of Section 31 of the Act, it can even without taking recourse to the provisions of the said section invoke the procedure prescribed under Section 29 of the Act for realisation of its dues. Where the Corporation takes recourse to the provisions of Section 31 of the Act and obtains an order from the Court, it shall ordinarily and invariably seek its enforcement in the manner provided by Section 32 of the Act, which provisions are aimed to act in aid of the orders obtained under Section 31 of the Act and it cannot simultaneously initiate and take recourse to the remedy available to it under Section 29 of the Act unless it gives up, abandons or withdraws the proceedings under Section 31 of the Act, at whatever stage those proceedings may be. The Corporation cannot simultaneously pursue two remedies at the same time. The reach and scope of the two remedies is essentially different even if somewhat similar result flows by taking recourse to either of the two provisions in certain respects". (emphasis supplied) 14. A reading of the provisions of the Act in the light of the clear pronouncement of law on the subject by the Apex Court it is clear to me that an option is given to the Corporation with regard to its remedy and the Company has no choice in the matter. It is also clear to me that the Corporation cannot simultaneously pursue both the remedies (at the same time). It is further clear to me that a remedy under Section 29 is available even after invocation of a remedy under Section 31 but those proceedings are to be abandoned or withdrawn, The Supreme Court is categorical in para 13 in this regard, 10. In the case on hand admittedly the Corporation has invoked its remedy under Section 31 in the pending application before the learned District Judge and after invocation and without abandoning the said proceedings has initiated simultaneously proceedings under Section 29 which in my opinion as rightly contended by the Counsel for the petitioner cannot be permitted to be done in the light of the clear pronouncement of law by the Supreme Court. 16. Mr. Joshi, however, has tried to distinguish the said judgment by contending firstly that the said case does not deal with a proceeding under Section 31(1)(aa) of the Act in a case of a proceeding against sureties. His argument cannot be accepted for the simple reason that any proceeding under Section 31(1)(aa) is part of proceeding under Section 31. The Supreme Court in Andhra Pradesh State Financial Corporation's case, supra, in various places has noticed the power both under Section 29 and under Section 31 of the Act, The Supreme Court has noticed both the provisions including Section 31(1)(aa) in the judgment and after noticing these two provisions the Supreme Court in para 8 -says that a perusal of the aforesaid provisions of the Act shows that they deal with the rights and procedures to be followed to enable the Corporation in the event of breach of agreement or default for payment of loan or advance or an instalment thereof by the loanee to recover the same. The Court held that: "The Corporation does not require the assistance of the Court to enforce its rights while invoking the provisions of Section 29 of the Act to recover its dues from defaulting concern". In paras 10 and 11 the Court notices Sections 30 and 31. It is thereafter in para 13 Supreme Court holds that the creditor viz., the Corporation has to chose one remedy and there cannot be two remedies running simultaneously in the light of the scheme of the Act. In the light of the reading of judgment as a whole and particularly this paragraph, I am unable to accept the argument of Mr. Joshi that this judgment is not applicable to the case on hand on account of a proceeding initiated by Corporation under Section 31(1)(aa) of the Act. Argument of Mr. Joshi in the circumstances require rejection and I reject the same. 17. Mr. Joshi, however, strongly relies on a judgment in Maharashtra State Financial Corporation's case, supra. It is no doubt true that the said judgment provides for proceedings being initiated against a surety. Section 31(1)(aa) provides for a proceeding against surety. There cannot be any quarrel over this proposition with regard to maintaining a proceeding against a surety under Section 31(1)(aa) in the light of the provision under the Act and in the light of the law laid down by the Supreme Court. However, the argument of Mr. Joshi, that a valid proceeding initiated under Section 31(1)(aa) cannot be construed to be "not a proceeding under Section 31 is not acceptable to me in the light of my discussion in the earlier paragraph in the light of Supreme Court judgment (Andhra Pradesh State Financial Corporation's case, supra), 18. Both the Counsels invite my attention to the proceedings before the learned District Judge, Bangalore, in Miscellaneous Case No. 599 of 1997. Petitioner's Counsel contends that in the said proceedings the petitioner is arrayed as defendant 1 and the petitioner 2 is respondent 2. Per contra Mr. Joshi, contends that reading of the petition would show that the claim is only against sureties. In the light of the rival claims I have gone through Annexure-C. It is no doubt true that directions are sought against (sureties) respondents 2 and 3 in the matter of recovery. I may make it clear at this juncture that I am not deciding the validity or legality of that petition in this petition. All that I am concerned is as to whether this proceeding is a bar for invoking power under Section 29. Admittedly this petition is filed under Section 31(1)(aa) and this is also recovery proceedings in terms of the Act. Therefore, in the light of the pronouncement of law by the Apex Court in the case of Andhra Pradesh State Financial Corporation, supra, it cannot be said that it is not a proceeding under Section 31 of the Act. Therefore, I am clear in my view that the proceedings in Miscellaneous Case No. 599 of 1997 is a bar in any further proceedings under Section 29 of the Act against petitioners. 19. Counsel for the petitioner relies on a judgment of the Allahabad High Court in Uttar Pradesh Financial Corporation's case, supra, on a similar plea. I do not want to deal with this judgment in the light of the judgment of the Supreme Court in Andhra Pradesh State Financial Corporation's case, supra. 20. Counsel for the petitioner invites my attention to a judgment of the Supreme Court in Ambika Prasad Mishra's case, supra, to contend that reconsideration of a binding proceeding is not permissible in the light of Article 141 of the Constitution of India. In the case on hand I am bound by the judgment of Supreme Court in Andhra Pradesh State Financial Corporation's case, supra. If the argument of the Corporation is accepted it would result in my violation of the constitutional compulsion in not following a binding judgment of the Apex Court in terms of Article 141 of the Constitution. In fact in this judgment the Supreme Court has cautioned with regard to binding proceedings in the following words: "Every new discovery or argumentative novelty cannot undo or compel reconsideration of a binding precedent. In this view, other submissions sparkling with creative ingenuity and presented with high pressure advocacy, cannot persuade us to reopen what was laid down for the guidance of the nation as a solemn proposition by the epic fundamental rights case". 21. The Bombay High Court has noticed the duty of a High Court with regard to a binding precedent of the Supreme Court in the judgment of Krishna Madhaorao Ghatate, supra, in the following words: "It is not open to the High Court to little down the import of the Supreme Court decision by drawing fine and subtle distinctions. If in substance the provisions of law considered by the Supreme Court are the same, as the one under consideration of this Court, then the Supreme Court decision must be applied. Even obiter dicta of the Supreme Court are binding upon the subordinate Courts. If the Supreme Court had no occasion to consider the true scope of Article 359(1) of the Constitution, then the observations on that point would naturally bind the High Court even on the assumption that they were obiter in nature. It will not be open to the High Court to ignore the same by showing that these observations are per incuriam, nor it could be ignored because somebody feels that relevant provisions were not brought to the notice of the Court or the occasion to consider the true scope of Article 359 was the Presidential order which was a conditional one". If the argument of the Corporation is accepted I will be failing in my duty in not following the precedent under the Constitution. 22. In the case on hand as I mentioned earlier that the Corporation having invoked its power under Section 31 cannot be now permitted to invoke its power under Section 29 of the Act. Any invocation of its power under Section 29 is contrary to law as declared by the Supreme Court. Therefore, I have no hesitation in allowing this petition by granting the prayer as sought for by the petitioner. 23. Petition stands allowed. A direction is issued to the respondent not to implement or enforce the impugned notice against the petitioners during the pendency of the proceedings under Section 31 of the Act before the learned District Judge, Mysore. 24. In the result writ petition is allowed. On the peculiar facts of this case the parties are directed to bear their own costs.

Author: R Gururajan

Mysore Chest Care And Pain Therapy ... vs State Of Karnataka And Another on 8 June, 2001

Karnataka High Court

ORDER 1. The prayer in the writ petition is as follows:-- "For the reasons stated in the accompanying affidavit the petitioners herein pray that this Honourable Court may be pleased to issue a writ, order or direction specifically in the nature of a writ of mandamus, directing the respondents and their subordinates to forbear from dispossessing or evicting the petitioners from their respective shops situated at Chinnaswamy Naidu Street, Sankodi-puram Street and Telephone Exchange Street, around Rajagopal Gounder Park and opposite to Municipal Bus Stand, Dharma-puri without following due process of law and natural justice." 2. The 16 writ petitioners have been running small business in shops measuring about 8' x 6' situate at Chinnaswamy Naidu Street, Senkodipuram Street and Telephone Exchange Street near Rajagopal Gounder Park in Dharmapun Town, opposite to the Dharmapuri Bus stand for the last 15 years and the petitioners are running various types of businesses, namely tea shop, banian shop, Beeda stall, garment shop etc. It is alleged that the entire strip of vacant land is a Poramboke land belonging to Dharmapuri Municipality. It is stated that the petitioners have been running their petty trades in the small tiled sheds, constructed by themselves in the said Poramboke land, and none of these shops is causing any obstruction to the public or traffic. It is alleged that the first respondent-municipality also recognised these encroachments and has been levying encroachment fees all these years and most of the shops have been (given) electricity connection. It is also alleged that superstructure tax also has been levied and collected by the Municipality. While so, on 23-2-1991 at about 4.00 p.m. about 100 people consisting of municipal workers and policemen came to the shops of the petitioners and without giving the petitioner any opportunity began violently demolishing the tiled sheds in which the petitioners have been running their shops. It is also stated that the goods stored in the shops were damaged, and the petitioners immediately sent telegrams and petitions to the Authorities and they also went on hunger strike for three days and there was no reaction from the authorities. The petitioners are also threatening (sic) that they will be thrown away forcibly from the place unless they vacate the place within 15 days. It is stated that the entire operation has been carried out in gross abuse of power. It is alleged that the action of the respondents in demolishing their sheds, damaging their goods and threatening to evict them is illegal and arbitrary. It is also stated that no notice under Land Encroachment Act has been given to the petitioners. It is stated that the action of the respondents in not following any procedure prescribed by law offends Art. 21 of the Constitution of India. With these allegations the petitioners came up before this Court. 3. Notice of motion has been ordered by me on 11-3-1991. Mr. P. Arivudainambi, learned Government Advocate takes notice on behalf of the respondents and undertakes that the petitioners will not be dispossessed and an order of status quo was ordered on 14-3-1991, 4. A counter affidavit has been filed by the first respondent. In paras 5 and 6 of the counter affidavit it is stated that the first respondent municipal council has passed a resolution on 11-1-1984 to levy fees for the temporary occupation of lands within the new bus stand for putting up bunk shops, and the Council has also resolved to collect the encroachment fees as per the old rate i.e., for the first 10 sq. metrs or part thereof Rs. 100/-p.m. and for every additional occupation of 1 sq. mtr. or part thereof Rs 15- p.m. as per S. 183(2) of the Act. It is stated that a notification to that effect was issued by the Dharmapuri Municipality and in pursuance of the resolution encroachment fees has been collected from the temporary occupiers and they were allowed to continue till 30th March of every subsequent year. It is stated that lot of persons have not paid the encroachment fees and in September 1989 orders have been issued for taking up various projects under Municipal Urban Development fund at an outlay of Rs. 43.18 crores in the Corporations of Madras and Coimbatore and 26 Municipalities, and among the 26 Municipalities the first respondent municipality has also been covered under the projects. In view of this, the first respondent municipality had taken a stand not to collect encroachment fees for the period beyond 31-3-1990. It is stated that the first respondent refused to accept the encroachment fees beyond 31-3-1990 in order to commence the work. It is stated that since all the petitioners have occupied the road and blocked the main road, the width of the road has become vary narrow and thereby the public at large and motorists were put to hardship. It is stated that the first respondent took steps to remove all the temporary shops as per sub-sec. (6) of S. 183 of the Tamil Nadu District Municipalities Act, 1920, hereinafter referred to as the Act. It is stated that as long as the first respondent had not permitted the petitioners to run the shops in the said place beyond 31-3-1990 they have no right to run the business. The counter affidavit defends the action taken under sub-sec. (6) of S. 183 of the Act. It is stated that the temporary occupiers has been removed on 23-2-91 from the respective places only to execute the project works. 5. Mr. P. K. Rajagopal, learned counsel for the petitioners contends that no notice has been given to the petitioners and sub-sec. (6) of S. 183 of the Act will not apply to the facts of this case, and therefore the entire action-taken by the first respondent is illegal and if this Court comes to the conclusion that the action of the first respondent in removing the petitioners from the places in question is arbitrary in nature, it is open to this Court to put back the petitioners in possession in the same place from where they were dispossessed. Per contra Mr. P. Arivudainambi, learned Government Advocate for the first respondent contends that the power is exercis-able under sub-sec. (2) of S. 183 and as such if there is no licence existing in favour of the petitioners, they can be thrown out. S. 183 of the Act is to the following effect :-- 1. "183(1) The Council may grant a licence, subject to such conditions and restrictions as it may think fit, to the owner or occupier of any premises to put up verandas, balconies, sun-shades, weather frames and the like, to project over a street, or in streets in which the construction of arcades has been sanctioned by the council, to put up an arcade or to construct any step or drain-covering necessary for access to the premises. (2) The executive authority may grant a licence, subject to such conditions and restrictions as he may think fit for the temporary erection of pandals and other structures in a public street vested in the council or in any other public place the control of which is vested in the council. (3) The council shall have power to lease road sides and street margins vested in it for occupation on such terms and conditions and for such period as the council may fix. (4) But neither a licence under sub-sec. (1) nor a lease under sub-sec. (3) shall be granted if the projection, construction or occupation is likely to be injurious to health or cause public inconvenience or otherwise materially interfere with the use of the road as such. (5) The State Government may, by notification restrict and place under such control as they may think fit, the exercise by municipal councils in general or by any municipal council in particular of the powers under sub-sees. (1) and (3). (6) The expiry of any period for which a licence has been granted under this section, the executive authority may, without notice, cause any projection or construction put up under sub-sec. (1) or (2) to be removed, and the cost of so doing shall be recoverable in the manner provided in S. 344 from the person to whom the licence was granted." Sub-sec. (3) of S. 183 enables the council to lease the road sides and street margins vested in it for occupation on such terms and conditions and for such period as the council may fix. There is power to the council to lease the road side margin. Sub-sec. (2) enables the executive authority to grant a licence, subject to such conditions and restrictions for the temporary erection of pandals and other structures in a public street vested in the council or in any other public place the control of which is vested in the council. Sub-sec. (6) enables the executive authority without notice to remove any construction put up under sub-sec. (2) of the Act. In the decision in Olga Tellis v. Bombay Municipal Corporation the Supreme Court considered Ss.312, 313 and 314 of the Bombay Municipal Corporation Act 1988, and upheld the validity of the procedure u/S. 313 of the Bombay Municipal Corporation Act for removal of encroachments from pavements and public streets. However, at page 199 the Supreme Court observed thus: "44. The challenge of the petitioners to the validity of the relevant provisions of the Bombay Municipal Corporation Act is directed principally at the procedure prescribed by S. 314 of that Act, which provides by clause (a) that the Commissioner may, without notice, take steps for the removal of encroachments in or upon any street, channel, drain, etc. By reason of S. 3(w) 'street' includes a causeway, footway or passage. In order to decide whether the procedure prescribed by S.314 is fair and reasonable, we must first determine the true meaning of that section because, the meaning of the law determines its legality. If a law is found to direct the doing of an act which is forbidden by the Constitution or to compel, in the performance of an act, the adoption of a procedure which is impermissible under the Constitution, it would have to be struck down. Considered in its proper perspective, S. 314 is in the nature of an enabling provision and not of a compulsive character. It enables the Commissioner, in appropriate cases, to dispense with previous notice to persons who are likely to be affected by the proposed action. It does not require and cannot be read to mean that, in total disregard of the relevant circumstances pertaining to a given situation, the Commissioner must cause the removal of an encroachment without issuing previous notice. The primary rule of construction is that the language of the law must receive its plain and natural meaning. What S.314 provides is that the Commissioner may, without notice, cause an enroachment to be removed. It does not command that the Commissioner shall, without notice, cause an encroachment to be removed. Putting it differently, S.314 confers on the Commissioner the discretion to cause an encroachment to be removed with or without notice. That discretion has to be exercised in a reasonable manner so as to comply with the constitutional mandate that the procedure accompanying the performance of a public act must be fair and reasonable. We must lean in favour of this interpretation because it helps sustain the validity of the law. Reading S. 314 as containing a command not to issue notice before the removal of an encroachment will make the law invalid. Para 45. "It must further be presumed that, while vesting in the Commissioner the power to act without notice, the Legislature intended that the power should be exercised sparingly and in cases of urgency which brook no delay. In all other cases, no departure from the audi alteram partem rule (hear the other side) could be presumed to have been intended. S.314 is so designed as to exclude the principles of natural justice by way of exception and not as a general rule. There are situations which demand the exclusion of the rules of natural justice by reason of diverse factors like time, place, the apprehended danger and so on. The ordinary rule which regulates all procedure is that persons who are likely to be affected by the proposed action must be afforded an opportunity of being heard as to why that action should not be taken. The hearing may be given individually or collectively, depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only in circumstances which warrant it. Such circumstances must be shown to exist. When so required, the burden being upon those who affirm their existence." 6-8. In Wazir Chand v. The State of Himachal Pradesh the Supreme Court has held that whenever there is infringement of fundamental right of a citizen, writ can issue to deliver possession of the goods seized in that case illegally. The principles laid down in the above decision applies equally in all fours to the facts of the present case. In my view, taking possession of shops arbitrarily amounts to infringement of fundamental right under Art. 14 of the Constitution and the relief could be granted to the petitioners to put back in possession of their sites. 9. Though ordinarily this court could not decide the question of title of the property under Art. 226 of the Constitution, however, in this case I find that the first respondent-Municipality acted arbitrarily and unlawfully in interfering with the possession of the petitioners. It is but proper that the first respondent Municipality should be directed to put back the petitioners in possession of the sites, so that they can construct temporary structures and continue their trade in the said places. In similar circumstances, the Supreme Court held so in Mohammed Hanif v. State of Assam . 10. The learned counsel for the first respondent contends that the first respondent took steps to remove all temporary shops as per sub-sec. (6) of S. 183 of the Act and the Government had issued orders for taking up various projects under Municipal Urban Development Fund. From the counter affidavit filed by the first respondent I am not able to see that any progress has been made in such projects. The observations of the Supreme Court in the abovesaid decisions extracted supra will squarely apply to the facts of this case and as such, even if the petitioners are dispossessed as stated in the counter affidavit, a direction has to be issued to the first respondent to put them back in the same place from where they are dispossessed. It is open to the first respondent to take action against the petitioners according to law after giving notice to the petitioners, if they are encro-achers. It is well settled that even assuming that a. person is an encroacher, procedure known to law has to be followed before removing him from his place. It has not been done so in this case by a Public Authority. 10A. In view of the decisions of the Supreme Court cited supra, it my view, a direction has to be issued to the first respondent to put back the petitioners in possession of their places as on 23-2- 1991 within one month. The writ petition will stand allowed. No costs. 11. Petition allowed.

P.V. Vijaykumar And Others vs The Commissioner, Dharmapuri ... on 11 June, 1991

Madras High Court

In the High Court of Judicature at Madras Dated: 23.10.2008 Coram: The Honourable Mr.Justice S.J.Mukhopadhaya and The Honourable Mr.Justice V.Dhanapalan Writ Appeal No.740 of 2006 & M.P.No.1 of 2006 1. The Joint Director of School Education, (Higher Secondary) College Road, Nungambakkam, Chennai. 2. The Chief Educational Officer, Namakkal District. 3. The District Educational Officer, Namakkal District. .. Appellants vs. 1. K.Rajalakshmi 2. Sankar Higher Secondary School, Sankari West, Namakkal District. .. Respondents Writ Appeal against the order dated 22.2.2006 passed by the single Judge of this Court, in Writ Petition No.29256 of 2005. For appellants : Mr.G.Masilamani, Advocate General, assisted by Mr.S.Rajasekar, Addl.G.P For respondent-1 : Mr.M.Santhananarayanan For respondent-2 : No appearance Judgment (The Judgment of the Court was delivered by S.J.Mukhopadhaya,J) This Writ Appeal has been preferred by the Joint Director of School Education (Higher Secondary), Chennai [first appellant], the Chief Educational Officer, Namakkal District (second appellant) and the District Educational Officer, Namakkal District (third appellant), against the order dated 22.2.2006 passed by the learned single Judge in writ petition No. 29256 of 2005, in and by which, the learned single Judge, while treating first respondent-writ petitioner (K.Rajalakshmi) as a qualified Teacher of the second respondent-Sankar Higher Secondary School, Sankari West, Namakkal District, also set aside the order dated 9.2.2005 passed by the first appellant-Joint Director of School Education and further directed the first appellant-Joint Director of School Education, to promote the first respondent-writ petitioner as a Post-Graduate Assistant for Commerce in the existing post, within six weeks from the date of receipt of a copy of the order. 2. The main plea taken by the appellants-state is that the post of Vocational Instructor is not the feeder category (post) for promotion to the post of P.G. Assistant [Teacher] and the first respondent-writ petitioner, who was a Vocational Instructor, being not eligible, her case was rightly rejected by the authorities of the appellants-State. 3. It appears that the first respondent-writ petitioner was appointed on 1.7.1987 in the second respondent-Sankar Higher Secondary School, Sarkari West, Namakkal District], which is a Government aided Private School, as a Part-time Vocational Instructor in the fixed monthly pay of Rs.700/-, which was approved by the Chief Education Officer, Salem, by order dated 8.8.1987. 4. According to the first respondent-writ petitioner, after creation of 1387 posts of Vocational Instructors in the regular time scale of pay of Rs.1400-2600 for various Government and Aided Private Schools, the first respondent-writ petitioner was made a Full Time Vocational Instructor, vide proceedings in Rc.No.31463/D3/94, dated 4.1.1996 passed by the Chief Education Officer, Salem. 5. It is the further case of the first respondent-writ petitioner that the post of P.G. Teacher for Commerce in the second respondent-school, fell vacant on 13.9.1999, because of death of a teacher, when the second respondent-School made a request to the second and third appellants herein, to allow the second respondent-School authorities to fill up the vacancies from amongst the existing Full Time Vocational Teachers, by way of promotion, the second and third appellants rejected the said request of the second respondent-School, stating that the Vocational Instructors cannot be promoted as a regular Teacher without regularising their services. 6. At that stage, the first respondent-writ petitioner filed Writ Petition No.33887 of 2003, wherein this court, by order dated 2.9.2004, directed the writ petitioner-K.Rajalakshmi, to file a detailed representation to the first appellant herein, with a further direction to the first appellant herein to decide the said representation after hearing the writ petitioner, in accordance with law. Thereafter, the first appellant-Joint Director of School Education (Higher Secondary Education), vide proceedings in K.DiS.No.58418/WII/W6/2004, dated on 9.2.2005 (signed on 22.2.2005), while rejecting the claim of the writ petitioner for promotion, observed that she is however eligible to be appointed in the post of P.G. Assistant as a fresh appointee, English Translation of which is shown hereunder : " ...... On perusal it is learnt that Tmt.K.Rajalakshmi, the vocational Instructor is the senior most among the qualified teachers and the Secretary of the school agreed to surrender the post of vocational Instructor if she is promoted. In aided school there is no condition that the services of he teachers should be regularized for purpose of promotion and the Appellant {Tmt.K.Rajalakshmi} is considered as probationer from 23.09.96, since she has been brought to regular service as per G.O.Ms.No.834 dated 23.9.94. But the abovementioned teacher has not got the feeder category for the commerce Post Graduate Assistant. Since, there is no qualified teacher in the feeder category for the post of commerce Post Graduate Assistant in Sankar Higher Secondary School, and as per Rule 15(4)(ii) of Tamilnadu Recognized Private Schools {Regulation} Rules 1974, Tmt.K.Rajalakshmi is only a qualified teacher for the post of commerce Post Graduate Assistant, it is considered that she is eligible for appointment. Such appointment cannot be considered as promotion. She cannot get the benefit of promotion. Therefore Tmt.K.Rajalakshmi is eligible to be appointed in the post of commerce P.G.Assistant considering that is a new appointment." 7. Against the aforesaid order of the first appellant-Joint Director of School Education, dated 9.2.2005, the first respondent-writ petitioner, preferred an appeal, which having been sustained by the appellate authority-Director of School Education, Chennai, vide proceedings dated 10.8.2005, the writ petition in question, i.e. Writ Petition No.29256 of 2005 was preferred. 8. Learned Advocate General, assisted by learned Additional Government Pleader, appearing for the appellants-State, while referring to Rule 15(4) of the Tamil Nadu Recognised Private Schools {Regulation} Rules, 1974, also submitted that since the post of Vocational Instructor is not a feeder category, the case of the first respondent-writ petitioner would not have been considered for promotion to the post of P.G. Assistant {Teacher}. 9. On the other hand, according to learned counsel appearing for the first respondent-writ petitioner, the Vocational Instructors are also Teachers and thereby, they are also eligible for promotion to the higher post of P.G. Assistant {Teacher}. Learned counsel appearing for the first respondent-writ petitioner relied on a decision of this Court in the case of P.Krishnaveni vs. The Director of School Education {Higher Secondary} and 3 others in Writ Petition No.4785 of 2008, which was filed for a direction to the respondents therein to appoint the petitioner-P.Krishnaveni as a P.G. Assistant in Economics by promotion in the existing vacancy of the School (fourth respondent therein), with effect from 31.05.2007 and learned single Judge of this Court disposed of Writ Petition No.4785 of 2008 on 31.3.2008, relevant portion of which is extracted hereunder:- "3. The Learned Counsel for the petitioner submitted that as per Rule 15(4) of the Tamil Nadu Private School (Government aided) Regulation Act, 1974 promotions are to be made in aided schools, firstly from among the qualified candidates working in the school and if no teacher working in that school is found suitable then only direct recruitment could be resorted to. Nowhere in the Tamil Nadu Private School (Government aided) Regulation Act, the feeder category for the post of Post Graduate Assistant is prescribed. Admittedly, the petitioner is working as a Teacher namely Vocational Instructor from 01.06.1989. According to the petitioner she is qualified for being promoted as Post Graduate Assistant Economics. 4. In the light of the statutory provisions namely Rule 15(4) of the Tamil Nadu Private School (Government aided) Regulation Rules, 1974 which is the only rule applicable for promotion to various posts in private aided schools, the petitioners claim is bound to be considered, before the fourth respondent is seeking permission to fill up the post by direct recruitment. On the basis of the above statutory provisions the impugned order is set aside with a direction to the fourth respondent to consider the claim of the petitioner seeking promotion as Post Graduate Assistant Economics and after considering her claim, if the petitioner is found not suitable then only the direct recruitment procedures could be contemplated. 5. Hence, the writ petition is partly allowed, with the above direction. No costs. Consequently, connected Miscellaneous Petition is closed." Learned counsel appearing for the first respondent-writ petitioner relied on the Rules, which came into effect from 23.9.1994, which were framed by the Government in exercise of the powers conferred under proviso to Article 309 of the Constitution of India, as evident from G.O.Ms.No.6, School Education (VE) Department, dated 4.1.2000. The General and Special Rules applicable to the holders of permanent posts in Tamil Nadu School Education Subordinate Service, shall apply to the holders of the temporary posts of Vocational Instructors sanctioned from time to time in the Higher Secondary Schools for Home Science, for Commerce and Business, Agriculture, Engineering and Technology, Health and Photography and Music, subject to the modification specified in the Rules specified in the said G.O.Ms.No.6, dated 4.1.2000. Learned counsel appearing for the first respondent-writ petitioner also submitted that as per the abovesaid G.O.Ms.No.6, dated 4.1.2000, the Vocational Instructors are also guided by the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, and thereby, they are also entitled for consideration of their case for promotion to the post of a Teacher. 10. Learned Advocate General, assisted by learned Additional Government Pleader, appearing for the appellants-State, submitted that 1,387 posts of Vocational Instructors were created in Higher Secondary Schools, vide G.O.Ms.No.834, dated 23.9.1994 issued from the Education, Science and Technology (HS.II) Department. According to the learned Advocate General, those posts were created for the Government Schools or where the posts are sanctioned by the State government and those who are holding the posts in the Schools aided by the State Government, they are only entitled to receive the regular scale of pay. So far as the Rules framed under proviso to Article 309 of the constitution of India, vide G.O.Ms.No.6, School Education (VE) Department, dated 4.1.2000, are concerned, it is submitted by the learned Advocate General that the said Rules have been framed for temporary posts of Vocational Instructors sanctioned from time to time under the State Government. It is further submitted by the learned Advocate General that though the said Rules framed by the Government, as seen from the said G.O.Ms.No.6, dated 4.1.2000, are not directly applicable, the guidelines laid down under the same are followed for the posts of Vocational Instructors in Private Aided Government Schools also, where the said post of Vocational Instructors are also sanctioned by the State Government. 11. We have heard the learned counsel appearing for the parties and noticed their rival contentions. 12. It will be evident that the Tamil Nadu Recognised Private Schools {Regulation} Rules, 1974 {for short, the Rules} were framed by the Government, in exercise of the powers conferred by section 56 of the Tamil Nadu Recognised Private Schools {Regulation} Act , 1973 [Tamil Nadu Act 29 of 1974] and the said Rules came into force on 1.12.1974 [vide G.O.Ms.No.1966, Education Department, dated 29.11.1974]. At that time, the post of Vocational Instructor was not in existence. The Teacher has been defined under Rule 2{c} of the Rules to include only the post of Headmaster. The post of Teacher does not include any other teaching posts, such as Demonstrator, Vocational Instructor, Lecturer, Professor, etc. 13. Admittedly, the post of Part Time Vocational Instructor was created for the first time, on 14.9.1978 and provided with regular scale of pay, on 23.9.1994 {vide G.O.Ms.No.834, Education, Science and Technology (HS.II) Department} and therefore, it cannot be presumed that the post of Teacher as defined under Rule 2{c} of the Rules, includes the post of Vocational Instructor also, which post was created subsequently. 14. While Rule 15 the Rules stipulates "Qualifications, Conditions of service of Teachers and other persons", Clause{4} to Rule 15 stipulates the manner in which the promotion and appointments be made, including the methods of appointments to various categories of Teachers, as quoted hereunder: 15. Qualifications, conditions of service of teachers and other persons:- .... {4} {i} Promotion shall be made on grounds of merit and ability, seniority being considered only when merit and ability are approximately equal. {ii} Appointments to the various categories of teachers shall be made by the following methods:- (i) Promotion from among the qualified teachers in that school. (ii) If no qualified and suitable candidate is available by method (i) above,-- (a) Appointment of other persons employed in that school, provided they are fully qualified to hold the post of teachers; (b) Appointment of teachers from any other school; (c) Direct recruitment. In the case of appointment from any other school or by direct recruitment, the school committee shall obtain the prior permission of the District Educational Officer in respect of Pre-primary, Primary and Middle School and that of the Chief Educational Officer in respect of High Schools and Higher Secondary Schools, Teachers Training Institutions setting out the reason for such appointment. In respect of corporate body running more than one school, the schools under that body shall be treated as one unit for purpose of this rule. ..... " 15. From a bare reading of Rule 15(4)(ii) of the Rules, it would be evident that the promotion to various categories of Teachers, shall be made from among the qualified Teachers in that School, if available. That means, the promotion shall be made from those who are actually working against the post of Teacher as defined under Rule 2(c) of the Rules and not to any other post, such as Vocational Instructor. For other persons employed in that School and otherwise qualified to hold the post of Teachers, there is a specific provision made under Rule 15(4)(ii)(ii)(a),(b) & (c) of the Rules as quoted above. If no qualified and suitable candidate is available by the method stipulated under Rule 15(4)(i) (supra) for promotion to the category of Teachers, it is always open for the School authorities to appoint such other person{s} employed in that School, including the post of Vocational Instructor" to the higher teaching post, provided they are fully qualified to hold the post of "Teachers". 16. From the order dated 31.3.2008 passed in writ Petition No.4785 of 2008, it would be evident that the Court presumed that the Vocational Instructor is a "Teacher" and thereby this Court gave certain directions. On a similar presumption, the learned single Judge in the Writ Petition in question, i.e. Writ Petition No.29256 of 2005 appears to have passed the impugned order dated 22.2.2006. 17. As we are of the opinion that the post of Teacher as defined under Rule 2{c} of the Rules, does not include the post of Vocational Instructor, which post has been created only in 1978 [vide G.O.Ms.No.1719, issued from the Education Department, dated 14.9.1978] and no other amendment to that effect having been made in the Rules, 1974, we hold that the first respondent-writ petitioner, who is a Vocational Instructor, is not eligible for promotion to the post of a P. G. Assistant, though in the absence of an eligible Teacher, the first respondent-writ petitioner and others may be qualified and eligible for fresh appointment to the post of P. G. Assistant under Rule 15(4)(ii)(ii)(a) of the Rules, if they are otherwise eligible. 18. In view of our findings as recorded above, we set aside the impugned order dated 22.2.2006 passed by he learned single Judge in writ petition No.29256 of 2005. We give liberty to the second respondent-Sankar Higher Secondary School, to fill up the post of P.G. Assistant in accordance with law and in the absence of eligible and qualified Teacher{s} for promotion, it will be open for the appellants-State and the second respondent-Sankar Higher Secondary School, to fill up the post of Teacher-P.G. Assistant by appointment from other eligible and qualified persons under Rule 15(4)(ii)(ii)(a) of the Rules. 19. The writ Appeal stands allowed with the aforesaid observations/directions. No costs. M.P.No.1 of 2006 is closed. cs To 1. The Joint Director of School Education, (Higher Secondary) College Road, Nungambakkam, Chennai. 2. The Chief Educational Officer, Namakkal District. 3. The District Educational Officer, Namakkal District. 4. Sankar Higher Secondary School, Sankari West, Namakkal District

The Joint Director Of School ... vs K.Rajalakshmi on 23 October, 2008

Madras High Court

Security Code Check for Accessing Judgment/Order Document   eLegalix - Allahabad High Court Judgment Information System Welcome to eLegalix, Judgment Information System for Allahabad High Court and Its Bench at Lucknow. Disclaimer Please enter the 4-digit numerical security code below to download Judgment/Order Document   Security Code:    GO   Visit http://elegalix.allahabadhighcourt.in/elegalix/StartWebSearch.do for more Judgments/Orders delivered at Allahabad High Court and Its Bench at Lucknow. Disclaimer   System designed and developed at Computer Centre, High Court, Allahabad.

Naseem vs State Of U.P. on 20 August, 2010

Allahabad High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM OP.No. 28375 of 2001(C) 1. BABU M.S. ... Petitioner Vs 1. STATE OF KERALA ... Respondent For Petitioner :SRI.S.P.ARAVINDAKSHAN PILLAY For Respondent :SRI.ALEXANDER THOMAS,SC,KPSC The Hon'ble MR. Justice S.SIRI JAGAN Dated :09/01/2009 O R D E R S.SIRI JAGAN, J. ================== O.P.No. 28375 of 2001 ================== Dated this the 9th day of January, 2009 J U D G M E N T sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge  S.SIRI JAGAN, J. ================ O.P.No. 28375 of 2001-C ================ J U D G M E N T 9th January, 2009  The petitioner and the 5th respondent have the same name, same initial and same address. They are cousins. The petitioner submitted application pursuant to the notification issued by the PSC for selection to the post of Overseer Grade III (Civil) in the Public Works Department. The petitioner did not get advice and appointment. Subsequently, the petitioner went abroad in search of employment. When he came back, he came to know that the 5th respondent got appointment in the said selection. According to the petitioner, that appointment was by impersonating the petitioner. In the above circumstances, the petitioner has filed this original petition seeking the following relief: 2. The petitioner would contend that the entire process of appointment of the 5th respondent is very suspicious. He relies mainly on Ext.P6(a) series which are identification certificates of the 5th respondent issued by the Kerala Public Service Commission in several  o.p.28375/01 2 selections. The petitioner points out that Ext.P6(a) is the identification certificate for the selection, which is in question in this original petition. According to the petitioner, the signature of the 5th respondent in Ext.P6(a) drastically differs from that in Exts.P6(b) and P6(c). In Ext.P6(c) the 5th respondent signed on the photograph extending the signature to the certificate also, whereas in Ext.P6(a) the signature is confined to the photograph alone, which is not the normal procedure for putting the signature in the photograph in an identification certificate so as to obviate the possibility of substituting the photograph. The petitioner further points out that there is difference between Ext.P5 and Ext.R5(f) which are communications issued by the PSC, printed in the Government press in the same series. The petitioner points out that both are issued for the same selection and both contained the same endorsement from the Government Press. But the arrangement of signatures in both differs, although the matter is the same. The petitioner points out that in Ext.P5, below the signature of the signatory of the communication, there is initial of the Section Clerk on the left hand side, whereas in Ext.R5(f), the initial is just below the signature of the author. According to the petitioner, these are circumstances sufficient to come to the conclusion that there is some manipulation in the matter of selection of the 5th respondent for appointment warranting a detailed enquiry by an appropriate  o.p.28375/01 3 authority. 3. Counter affidavits and additional affidavits have been filed by the 5th respondent. He would categorically deny every allegation raised by the petitioner. According to him, signature appearing in Ext.P6(a) was his signature in the year 1988 whereas the signatures obtaining in Exts.R5(b) and R5(c) were put on 5.8.2003 and 6.12.2005. According to him, in 1988 he was fresh out of the school and he had not yet decided on a permanent signature as such. To prove this, he has also produced Ext.R5(g) which is the extract from his SSLC book, wherein the signature of the 5th respondent is the same as in Ext.P6(a). According to the 5th respondent, subsequently, when, pursuant to the selection, he joined, the Section Clerk warned him that signature to be put by him would be final and he cannot thereafter change it and, therefore, he decided to have a stylish signature adding his initial also, which resulted in the changed signatures in Exts.P6(b) and P6(c). He would point out that the petitioner has filed the complaint eight years after the 5th respondent's appointment, which itself is sufficient to dismiss the original petition. According to the 5th respondent, there is no reason to suspect any manipulation in the 5th respondent's selection. 4. I have considered the rival contentions in detail. 5. I note that the 3rd respondent, as per the direction of this  o.p.28375/01 4 Court, conducted an enquiry and filed a statement, wherein they have stated that there is no manipulation in the selection process. It is also pointed out that the 5th respondent's is more qualified than the petitioner. The petitioner is only an SSLC holder with 210 marks and ITI certificate, whereas the 5th respondent passed Junior Technical School Leaving Certificate course with 70.7 per cent marks. He has also passed Diploma in Civil Engineering. It is pointed out that subsequently he has studied privately and passed Civil Engineering B.Tech. in December, 2000. 6. The learned Government Pleader has obtained a report from the Government Press in this regard in the wake of the dispute raised by the petitioner regarding the discrepancy between Ext.R5(f) and Ext.P5. According to the learned Government Pleader, the report filed discloses that the discrepancy may have occurred because of printing in two batches simultaneously because of the large number of forms required to be printed. 7. The PSC would submit that apart from the rank list and advice memo, they are not in possession of any other records relating to the selection in question in view of passage of time. As such, it is impossible to conclusively decide the dispute raised in this matter. As is clearly stated by the 3rd respondent in his statement to the effect that although the PSC was addressed for forwarding those documents,  o.p.28375/01 5 only rank list and advice memo were made available. I am unable to indict a person on the basis of such totally inconclusive materials. The petitioner may have at the most succeeded in showing a vague suspicion with the materials which he has relied upon. The explanation submitted by the 5th respondent in respect of those materials, does not appear to be unconvincing. In the above circumstances, I am not prepared to interfere with the selection of the 5th respondent on such totally inconclusive materials. Therefore, I do not find any merit in this original petition and accordingly, the same is dismissed. Sd/-

Babu M.S vs State Of Kerala on 9 January, 2009

Kerala High Court

Court No. - 43 Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 4552 of 2010 Petitioner :- Anil Respondent :- State Of U.P. Petitioner Counsel :- Vikas Sharma,Mamta Singh Respondent Counsel :- Govt. Advocate Hon'ble Ravindra Singh,J. Heard the learned counsel for the appellant and the learned A.G.A. This is correction application no. 224114 of 2010. After perusing the record, the learned counsel for the appellant is permitted to correct the memo of bail application by adding S.T.No. 431 of 2009. The order dated 15.7.2010 is hereby corrected by adding S.T. No. 431 of 2009 in the second line of the third paragraph of the order. Accordingly the correction application is allowed. Order Date :- 6.8.2010 N.A.

Anil vs State Of U.P. on 6 August, 2010

Allahabad High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl..No. 3164 of 2009() 1. A.N.HARIKUMAR, S/O.NAGENDRAN, ... Petitioner Vs 1. STATE OF KERALA, ... Respondent For Petitioner :SRI.SUMAN CHAKRAVARTHY For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice K.T.SANKARAN Dated :12/06/2009 O R D E R K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 3164 OF 2009 ------------------------------------------------------ Dated this the 12th June, 2009 O R D E R This is an application for bail under Section 439 of the Code of Criminal Procedure. The petitioner is accused No.3 in Crime No.126 of 2009 of the Medical College Police Station. 2. The offence alleged against the petitioner is under Sections 120(B), 436, 212 and 307 read with Section 34 of the Indian Penal Code and Section 3 of the Explosive Substances Act. 3. The de facto complainant is the Assistant Commissioner of Police who was involved in the investigation of a scam, which is popularly known as "Total for you scam". The prosecution case is that due to enmity of the accused towards the de facto complainant, on 25.2.2009 at 2.15 AM, the accused persons trespassed into the residence of the de facto complainant and hurled petrol bombs and damaged a Santro car belonging to him and caused loss to a tune of Rs.7 lakhs. B.A. NO. 3164 OF 2009 :: 2 :: 4. The petitioner surrendered before Court on 13.4.2009. He moved B.A.No.2682 of 2009, which was dismissed by this Court as per the order dated 22.5.2009. 5. It is submitted that B.A.No.2891 of 2009 filed by the fifth accused was allowed by this Court on 3.6.2009, as per Annexure C order. 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.50,000/- with two solvent sureties for the like amount to the satisfaction of the Additional Chief Judicial Magistrate, Thiruvananthapuram, subject to the following conditions: B.A. NO. 3164 OF 2009 :: 3 :: b) The petitioner shall appear before the investigating officer for interrogation as and when required; 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 ahz/ 

A.N.Harikumar vs State Of Kerala on 12 June, 2009

Kerala High Court

Court No. - 47 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4924 of 2008 Petitioner :- Ram Vir Respondent :- State Of U.P.Petitioner Counsel :- Anil Kumar Tiwari Respondent Counsel :- Govt. Advocate Hon'ble Amar Saran J. There is illness slip of Sri Anil Kumar Tiwari, learned counsel for the applicant. List peremptorily in the next cause list. Order Date :- 4.2.2010 HSM

Ram Vir vs State Of U.P. on 4 February, 2010

Allahabad High Court

ORDER P.K. Desai, Member (J) 1. All these appeals have a common question involved and hence with consent from both the sides, they are heard together, and are disposed of by this common order. 2. Appeal No 565/88 is directed against the Order-in-Appeal No 1071S 88 BCH dt. 24-2-1988, where the articles of which clearance is not permitted under OGL are (i) Pneumatic sealer and (ii) Pneumatic Tensioner. Appeal No. 697/88 is directed against the Order-in-Original No. S/10-113/88 ACCII-A dt. 15-1-1988 where items are (i) pneumatic sealer and (ii) pneumatic combination tool. Appeal Nos. 885/88, 886/88, 887/88,888/88 and 889/88 are directed against the common Order-in-Appeal No 2755/88 BCH dt. 18-7-1988 where is the Appeal Nos. 885/88 and 886/88 the items involved are pneumatic tensioner, in Appeal No. 887/88 aned 889/88, the item involved is pneumatic tool and in appeal 889/88, the item involved is pneumatic sealer. 3. The appellants here on various dates, but during the policy period 1985-88, imported amonst others, the aforesaid items and sought clearance as items falling within OGL, by virtue of Entry No. 549 (10) of List 8 of Appendix 6, of the Policy 1985-88 AM. The clearance was initially objected to and ultimately refused, vide orders referred to above, on the ground that they were not the "Hand Tools", but were the "Machines" not falling within the OGL category, and were not importable without valid licences in that regard. 4. It does not appear necessary to go in details as to the history of adjudication proceedings, in this regard, suffice it to mention that both the adjudicating authority and the appellate authority have taken the view that the items being "pneumatic" and not "Hand Tools" are not importable under OGL. 5. Shri D.J. Dalai, the learned advocate, appearing for all the appellants, submitted that the items imported are merely tools and referring to the circular No. 80/85 dt. 18-8-1987 of the Dy. Controller of Import and Export, submitted that all the tools, falling within Entry No. 549 (10) List 8 of Appx. 6 of the Policy, were importable under OGL. He further submitted that as per the said entry, all the tools, except those enlisted in Appendix 3 Part A of the Policy would stand covered under the said entry 549 (10), and pleaded that the items imported are not enlisted in Entry No. 590 of Part A of Appx. 3. He also pleaded that pneumatic nature of the tools, does not basically change the nature and make the tool as machine, as the dictionary meaning of the "pneumatic" conveys use of wind or air as pressuring device, in place of manual pressure required to be given to "non pneumatic" tools of the same type. He also submitted that even Collector (Appeals) has classified the items in question as falling within TI8467, which deals with tools and not the machine. In his submission, therefore, the findings arrived at by authorities below should be set aside and import may be allowed under OGL. 6. Heard Shri K.M. Mondal, the learned SDR, who supported the findings of the authorities below. 7. Reading the Order-in-appeal, passed by the Collector of Customs (Appeals) he has classified the items under consideration, as pneumatically operated hand tools, falling under Heading 8467.19 of the Customs Tariff Act, and has also held that the classification under Heading 8422.10 given by the Department, was not correct. The Department has not challenged this aspect. Heading 8467.19, reads thus "Tools for working in the hand, pneumatic or with self contained non electric motor". It has to be noted that the same pertains to "tool" and not the "machine". Now that the department has not challenged that finding, either by way of filing any appeal or cross objection, it has to be presumed that the department has accepted the said classification. When the items imported have, thus, been treated as "tools" and not the machines, non clearance thereof on the ground that they are machines, obviously cannot be sustained. On the contrary, one fails to understand as to how the Collector of Customs (Appeals) having held as mentioned above, in the earlier part of his order, has subsequently drawn the conclusion that the items are "machines". The findings arrived at by the Collector of Customs (Appeals) under the circumstances, cannot be sustained. 8. The Collector of Customs, Air Cargo Complex, Bombay, has, though not drawn the conclusion as aforesaid, refused clearance, relying upon explanation to the Heading 84.22. It is not clear as to which explanation he is referring to and that the same is applicable. 9. In any case, when the items are not classifiable as "machines" and are held as "tools" the only question that remains to be examined is whether their import under OGL is permissible vide Entry No. 549 (10) of List 8 of Appendix 6 of Policy AM 1985-88. Reading the same entry it is clear that all the Hand Tools, which include pneumatically operated tools, classifiable under T.I. 8467.19 are importable under OGL unless they are specifically listed in Appendix 3 Part A Entry No. 590 in Appendix 3 Part A deals with tools. In 27 items listed therein, the items imported by the appellants are not included. When there is no specific inclusion the inference that can be drawn is that they are importable under OGL vide entry 549 (10) of list 8 of Appendix 6. 10. Under the circumstances, the items imported are nothing but the tools, which instead of manual force, are operated on pneumatic force and they are not excluded from Entry 549 (10) of list 8 of Appendix 6 of Policy AM 1985-88 and import thereof is permissible without any specific licence. 11. The appeals are therefore allowed, and all the orders appended against are set aside. The import of the items are allowed under OGL. Consequential relief to follow.

Sanmukh Singh Sethi vs Collector Of Customs on 5 April, 1990

Customs, Excise and Gold Tribunal - Mumbai

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH TA No. 94 of 2008 Decided on : 20-02-2009 Harleen Kaur ....Applicant VERSUS Sukhjinder Pal Singh ....RespondentCORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. Vinod Kataria, Advocate for the applicant Mr. Hemant Saini, Advocate for the respondent MAHESH GROVER, J This is an application under Section 24 CPC for transfer of petition titled as 'Sukhjinder Pal Singh versus Harleen Kaur' filed under Section 13 of the Hindu Marriage Act 1955, pending in the Court of Additional District Judge, Ropar to a Court of competent jurisdiction at Ludhiana. After having heard learned counsel for the parties and also keeping in view the observations of Hon'ble Apex Court in case titled as 'Sumita Singh versus Kumar Sanjay and another' AIR 2002 SC 396, I am of the considered opinion that the present application deserves to succeed. Accordingly, the proceedings in the case titled as 'Sukhjinder Pal Singh versus Harleen Kaur' pending in the Court of Additional District Judge, Ropar are transferred to a Court of competent jurisdiction at Ludhiana The Court at Ludhiana shall issue notice to the parties for appearance after receipt of the case on transfer February 20, 2009 (Mahesh Grover) rekha Judge

Harleen Kaur vs Sukhjinder Pal Singh on 20 February, 2009

Punjab-Haryana High Court

IN 'EH11; HIGH comm' or KARNATAKA A1' 5ANGA1&e§§1{jg:«' ; ;: j 'V _ DATED THIS THE 10*" DAY or ;u:.,y 206:; % [IQ = BEFORE; A A 1' THEHONZBLE MRJUb'TICE;§'_._V}£LfDl§Lv~J§giZ.I§1E'_?§ 1 MISCELLANEOUSFIRST4PPEflL.;Q§_Q;y?/26$ Between: A. Raja Hegde, . _ -. Aged about 55 years}, 1', SEO A.C. Duggappa.HE;gde;::fi-: 'V , BK. Compound, MeIi:ig3..1§ai'égan;,A"'~.,.. -- ' Ma.ngal0rew575~OjO2. ,. é Appellant. (By Sn' 1. "'I.fti21éra:s.2a.ti1aPt3oj_.fii'3"", Adv.) I %%s&iii&fiéann7§° V Aged 45 years, _ Sf<5"Hamad,'v{3hokkabettu, ' Surathkai; Mangalore. *" S#h6anu, " about 35 years, 5;:/0 Koragappa, %% " Kallugundi, Renjilady village, Puitur Taiuim 3 United India Insurance Co. Ltd., Bridge Road, Baimata Road, Mangalore, Reptd. 13y its Branch Manager. (By Sri Y'.P. Venkaiapathi, Adv.R3) a. This Miseeiianeouéi "Appeal is-fiieii under Sec.173(3) of the Motor Vehicles AVf'§$.'¢,"V1V'}83,'.'v the and award dated 5.3.2005 nz[a%naMVC"n1s;o;499/2000 an the fiie of the Principal Civil Judge (Sr.D11..)'ené'~ «1_\&'gCT~IV', Mangalore, etc. Appeal coming on for Admission {he ('1(i';a:*t't'm_l_ivet'ed the following: JUDGMENII' in MVC No.499f2000 eased 11.2005 on the t iiediffi1e Pfincipal Civil Judge (Sr.Dn.) & MACT, Mangalore, has VT appeal contending that the compensation awarded by the u,,, A . " Tfibunal is inadequate and seeking its enhanceqnetrt. " %. 'ax -\z_ av; 2. There is no dispute as to the 0GCu!T€§i1é'é 't)i"£1;é«.;ac(:ic3£ffii--iiV3 " question and the Iiability of the third tr'espc:;dent-§§z.sug%an¢et' V company to pay the compensation amoufitt. » 3. Learned Counsel tbr §§¢§::;§'*emuend that having regard to the nat;;fe__ot' claimant on account 1 Tribunai was not justified in Wang tmuy}; '§§R$L.15,oooz. towards pain and slttferingt tltat the Tribunal has not granted medical find incidental expenses, loss" treatment period and compensation for méiiicaiv-..':exp§§1ses. It is fizrther contendeti that the Tribunal Atcthave . awarded reasonable amount towards loss of "V az11¢z;iij_eS; u Counsel for the respondents sought to justify the Atfiirnpugted jsdgmerzt and award. 4 5. aw; in his evidence has stated that he has spe11t...()'l'§'_&.*Vrl: Rs.40,000:'~ towards his treatment. He has produced ll H certificates in support ofthe said claim. It isihisv ease: has paid a sum of Rs.4,OO{)1'- towards >pr_of'eseieg1elte"his V' V' Doctor. He underwent surgery for his fiedi:1¥*e»in the The l)octor"was been claimant was treated as an inpatient 113.12. 1999 and he underslkent fieeiuee in the right humerus. The Tribtmal has avéazfgledv "elfi_"..'eRls.2l,I50f-- towards medical e4xpenses.V.» li1ile£i"t0_§_V_n§*?Jd a sum of R.s.4,000!-- towards pfeijessienal by the claimant to the Doctor. It is also ¢vide:§w,i:§az't1l¢; has only awarded a sum of Rs.l5,(}{}0/-- V7._ tewaVrds palris Having regard to the injury sustain' ed 'file I am ofthe View that the Tribunal ouglt to have etleast a sum 0fRs.25,OO0f- towards pain and suffering. . - Alliellffflbunai has only awarded Rs.6,,900f- towards less of income treetmeni 11:11" 69 days. Having regard to the evidence on SHWTO. Fz;xticuIat*s Towards pain and suffering . , »R3.30,0i)0;:GG" N.) Towards Medical and i11cidenta.l_Vé§;pcns€§mf ' LR Towards loss of income Towards ioss of fiiture--earnmg c3,--_ --- A_ 'T Rs. 5,000.00 Rs.12,960.00 Towards less of atnenities ' T " 2 Rs.10.,0O0.00 Towards fi1tt1rcAmcdica1.e:'spc:nse.;; L Rs.10,000.00 --30'\t.ru-&'h Tawards (;{¥1'}V§}y3IiC€l Rs. 5,060.00 expenses H ._ _ _ _ ._ . 1 A Rs.5?,960.00 The a:;;¢;n::&;$~fi:;;;x¢ed?_o:°fto £2;g;:60,gé00/~. 7. InVV'the'1'ss1V1!t-, foliowmg: V. ., A is £V1Ili:si7észiVci in part. The ciaimantfappellant is 'ftar::$§'éé:1A1.rr'i434"g:%:'v1_{,s.6O,OOOf~ towards compensatien in addition ' " to awarded by the Tribunal. The said amount carry vifierest at 6% per atmum fiom the date of the claim ihe date at' deposit. The respondent-insurance company H to deposit the aforesaid sum within a period of eight ' A" %eeks from the date ofreceipt ofa copy ofthis order. The Tribunal is directed to release the said a1noun'_t_...in__ 12-:1\é'_oi1i"" appellantlclaimant. No costs. BMW972009 A'

Author: S.Abdul Nazeer

A Raja Hegde vs M G Hussain on 10 July, 2009

Karnataka High Court

Criminal Misc. No.M-30426 of 2008 -1- *** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.M-30426 of 2008 Date of decision : 11.11.2009 Makhan Singh ....Petitioner Versus State of Punjab and others ....Respondent **** CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. S.K.Laddi, Advocate for the petitioner. Mr. B.B.S.Teji, Assistant Advocate General, Punjab Mr. R.V.S.Chugh, Advocate for respondents No.7 to 11. S. D. ANAND, J. November 11, 2009 (S. D. ANAND) Pka JUDGE The respondents/accused No.7 to 11 are facing trial in the Court of learned Trial Magistrate, Sardulgarh in case FIR No.140 dated 24.12.2003 under Sections 447/427 IPC. In the course of the trial, the complainant (petitioner herein) filed a plea under Section 319 Cr.P.C. for the summoning of Hari Ram, Bhagwan Dass alias Harbhagwan Dass, Charan Dass, Ashok Kumar, Murari Lal (respondents no.2 to 6), as accused. The plea did not find favour with the learned Trial Magistrate (who declined it vide order Annexure P-5). In revision too, the petitioner- complainant did not get a favourable order. The order granted by the learned Additional Sessions Judge, Mansa in the relevant behalf is Annexure P-7. The petitioner-complainant is in revision before this Court. The learned counsel for the complainant states that the Criminal Misc. No.M-30426 of 2008 -2- *** learned Trial Court, and also Revisional Court committed a grave error of law by declining the plea under Section 319 Cr.P.C. in view of the fact that the challan filed by the Police (prosecuting agency) did not, at all, contain a word that respondents no.2 to 6 had been found innocent. In that view of things, the argument proceeds, that it was incumbent upon the learned Trial Magistrate to issue a process to secure the presence of those respondents/accused to stand trial. None entered appearance on behalf of respondents no.2 to 11 inspite of service for an earlier date of hearing. It is apparent from the record that the plea under Section 319 Cr.P.C. came to be filed when the statement of petitioner Makhan Singh had not been concluded. His cross-examination had been deferred on a particular date and the plea under Section 319 Cr.P.C. came into filed thereafter and before the cross-examination of that witness was concluded. There was, thus, no substantive evidence on record on the basis whereof a plea for summoning of the respondents/accused under Section 319 Cr.P.C. could be validly filed. It is presently common ground that in the absence of a stay order, the evidence of parties has already been concluded and the matter is fixed for final arguments. In the circumstances of the case, I do not find any merit in the petition which shall stand rejected. Disposed of accordingly.

Makhan Singh vs State Of Punjab And Others on 11 November, 2009

Punjab-Haryana High Court

JUDGMENT Norman Macleod, Kt., C.J. 1. Some forty years ago four brothers, sons of one Joti, who were at that time joint, partitioned their family property. One item in the family property had been mortgaged with possession, and, therefore, was not divided. Maruti was the surviving brother of the four, and he died about 1911-12 leaving a widow Kasa. The plaintiffs claiming as heirs of Maruti have filed this suit to redeem the mortgage. In their plaint they stated that Maruti separated during his father's life-time after taking his share of the family property, and his widow Kasa had, therefore, no interest in the suit property. It has been proved that the plaintiff deposited Rs. 340 with the 1st defendant mortgagee, but as he insisted upon Kasa being a party to the redemption, the negotiations fell through, and the plaintiffs recovered their Rs. 340. 2. Then defendant No. 1 allowed Kasa to redeem the property, which no doubt was most reprehensible, considering the attitude he had taken up when the plaintiffs wanted to redeem. That was on the 21st May 1915. The plaintiffs filed this suit on the 11th August 1915, and, on the 4th September 1915, defendant No. 2 sold the property to defendant No. 3 who admitted that he knew that the plaintiffs had deposited the mortgage money with the 1st defendant. In this curious state of affairs the trial Court dismissed the suit. But in appeal this decree was set aside, and it was held that the plaintiffs were the owners of the plaint property; that they were already in possession of the plaint house; and that they should recover possession of the plaint land without paying anything to any of the defendants for the mortgage debt in Exhibit 34, which was the deed of mortgage. 3. The learned Judge was of opinion that the sons of Joti remained joint with regard to this mortgaged property. He thought he was following the ruling in Gaurishankar Parabhuram v. Atmaram Rajaram (1893) I.L.R. 18 Bom. 611. In that case the plaintiffs sued to recover their half share of the produce of a certain field which they alleged was left undivided at the time of partition. It was held that the suit could not lie to recover a portion of the produce, as the suit was not for partition of the field. But the learned Judge relies upon the dictum of Sir Charles Sargent, which does not appear to be supported by any authority, and was also, with all due respect, obiter in the case before him. The learned Chief Justice said; The circumstance that there bad been a partition in 1876-77 would not, in the absence of any special agreement between the parties, alter their rights as to the property still undivided, as to which they would continue to stand to one another in the relation of members of an undivided Hindu family, and no such agreement amounting to a partition of the fields in question in alleged by the plaintiffs. 4. But it does not appear whether the learned Judges considered how the title to the property would be affected by a death amongst members of the family before partition; and whether the members of the family after the partition held the property II, in that suit as tenants-in-common or as joint tenants, it would equally be the case that one of them could not sue for half the produce of the property, but could only sue for partition. 5. But the real principle seems to be as laid down in Anandibai v. Hari Suba Pai (1911) L.R. 35 Bom. 293 : 13 Bom. L.R. 287, that if it is proved that there has been a breach in the state of union amongst the members of a Hindu joint family, the law presumes that there has been a complete partition both as to parties and property. The presumption in question continues until it is rebutted by proof of an agreement, and the case of Balabux Lajhuram v. Rukhmabai (1903) L.R. 30 I.A. 130 : 5 Bom. L.R. 469 was referred to where it was held by the Privy Council that there was no presumption, when one coparcener separated from the others that the latter remained united, but that the agreement to remain united or to reunite " must be proved like any other fact". Although that dictum only refers to the disunion of members of a joint family, it applies equally well to the partition of joint family property which will result from such disunion. So that when once anything has occurred which effects a separation of the members of a joint family, they are to be considered as holding the joint family property as tenants in-common; and if it is sought to show that any portion of the joint family property is to be held by the members of the family as joint tenants and not as tenants-in-common, that must be proved like any other fact. 6. Therefore it would have to be proved in this case that when the partition took place forty years ago, the members of the family agreed that they should be joint with regard to this mortgaged property. There is no evidence whatever of that fact. Therefore the only presumption is that the members of the family at that time held this mortgaged property as tenants-in-common. The result would be that Kasa on Maruti's death had a widow's interest in her husband's share, and she would be entitled to redeem the whole mortgage, and then have a lien on the property to the extent of three-fourth of the mortgage money appertaining to the shares of the other members; and when the 3rd defendant purchased the 2nd defendant's interest after Tukaram the suit commenced, he could only purchase what the 2nd, defendant possessed at that time. Therefore he is not entitled to consider himself as owner of the freehold free of all claims of the other members of the family to redeem with regard to their shares. I think, therefore, that the learned Judge was wrong in directing that the plaintiff's should recover possession of the plaint land without paying anything to any of the defendants. The defendant No. 3, however reprehensible his conduct may be, is entitled to stand in the shoes of the 2nd defendant, and to recover Rs. 340 which admittedly was paid to redeem the mortgage. Therefore we alter the decree of the lower Court by directing that the plaintiffs should recover possession of the plaint land on paying Rs. 340 to the 3rd defendant within six months from the time the proceedings reach the lower Court and the plaintiffs are informed thereof. Each party to pay his own costs up to this Court and the appellant to get his costs of the appeal from the plaintiff's.

Author: K Norman Macleod

Ramchandra Avadhutrao Patil vs Tukaram Babaji Chaugula on 28 September, 1920

Bombay High Court

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL MISC. APPEAL No. 01465 of 2007 SMT.SUKHI DEVI & ORS. V/S JASWANT SINGH & ORS. None present for the appellant / petitioner Date of Order : 15.4.2009 HON'BLE SHRI N P GUPTA,J. ORDER ----- Nobody appears for the appellant even in second round. The appeal is, therefore dismissed in default. ( N P GUPTA ),J. /praveen/

None Present For The vs Unknown on 15 April, 2009

Rajasthan High Court - Jodhpur

_ MG Rm-:1 iii' mm mm: mum or KARKATAKA AT " % fiatcd this the: 20*?" day Qf.M3ICh,_' PRE$ENT;"'; 'L A THE Hm'nLE li!R$»¢;*i:I $?I5ICiA§§. ii. THE HGDFBLE mt. . g .... ':{.¢ lo}... M1 :3, Paia§':::m:§:§..V_1'1'1s1:1fl'z;~t:z£.1x:V>t:<w Regional €3:ffi::+v3~.._V _ ' * ~* 5i,i}.I.i}.éii'4':l.i1.i"vCA{;>1Ll}J}t:§£!(' V " ' V5.5-*":*.ga}}3':'fi »~«?}i3f;{§ 1 Rfififfi'-"*3? " ladnainjfstratiw: C}flV-3:11' ...Appe}1ani A M Vtznkatcsh, Advocaiifi} ;%.1ji1113.'-i¥F%?e,':sfia'f3;* S/£1» late Chan-draahcka1* Reciciy Eflgcd 26 years V C Bhavazm Rwdy D,' 0 Eats C':ha;x>.é1*asi1t:'ka1* Raddy figcd. abimt 25 yt-23.33 a 3;'/,,.\... amaunt and the amount in dcpeszii in pursllance :35-.f§t1&_ cz1;if§jé§f order is mattlred, 2, n is axzgwatl. smug mdeposit the amount for a pexiéiifiéfif 3:5): dVi:x;12éWear}ier= Qniierizd acsordingiy, % Sd/' Sd/~ Judge

Author: N.Kumar And A.S.Pachhapure

National Insurance Company ... vs C Arjuna Reddy on 20 March, 2009

Karnataka High Court

Gujarat High Court Case Information System Print SCA/457/2011 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 457 of 2011 With SPECIAL CIVIL APPLICATION No. 1154 of 2011 To SPECIAL CIVIL APPLICATION No. 1156 of 2011 ====================================== JESARAM BHURARAM CHAUDHRY - Petitioner Versus STATE OF GUJARAT & 2 - Respondents ====================================== Appearance : MR MUKESH A PATEL for the Petitioner. MS JIRGHA JHAVERI, AGP for the Respondents. ====================================== CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 03/03/2011 ORAL ORDER1. In response to the earlier order dated 28/02/2011 passed by this Court, the Collector, Rajkot is personally present in the Court to assist this Court. He has pointed out number of difficulties. According to him, parcel of some of the land, though adjacent to the Ghudkhad Sanctuary are not surveyed and measured and, therefore, survey numbers are not given and, therefore, as and when application is received by Revenue Department and/or office of the Collector, to grant permission to lease the said land for manufacture of salt or any other purpose, opinion of the particular office i.e. Forest Department is sought and at that time such difficulty is faced because some Villages are not surveyed and, therefore, he has submitted that as such, for the same, permanent solution is required. It is requested by him that if "Additional Chief Secretary, Forests and Environment Department, State of Gujarat" and "Principal Chief Conservator of Forest (Wild Life), State of Gujarat" are joined as party-respondents, it will be appropriate and appropriate permanent solution can be found out. Hence, Leave to join "Additional Chief Secretary, Forests and Environment Department, State of Gujarat" and "Principal Chief Conservator of Forest (Wild Life), State of Gujarat" as party respondent Nos.4 & 5. 2. Notice to the newly added party respondent Nos. 4 & 5, returnable on 14th March,2011. Ms.Jirgha Jhaveri, learned Assistant Government Pleader also to get necessary instructions from the aforesaid newly added respondents without even waiting for service of Notice upon newly added respondents. In the meantime, the Collector, Rajkot to file additional affidavit-in-reply pointing out difficulties faced by the Revenue Department and his office on or before the next date, with an advance copy to the newly added respondents. 3. Direct service is permitted so far as newly added respondent Nos. 4 & 5 are concerned. [M.R.SHAH,J] *dipti     Top

Author: M.R. Shah,&Nbsp;

Jesaram vs State on 3 March, 2011

Gujarat High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 20215 of 2008(F) 1. KIZHEKKE CHALIYATHADATHIL SHAJI ... Petitioner Vs 1. PARADA PRAMOD KUMAR ... Respondent 2. MAYAPPURATH RAMAKRISHNAN 3. MELECHALIL SANKARAN, AGED 38 For Petitioner :SRI.MANJERI SUNDERRAJ For Respondent : No Appearance The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR Dated :04/07/2008 O R D E R M.SASIDHARAN NAMBIAR, J. ........................................... WP(C).No. 20215 OF 2008 ............................................ DATED THIS THE 4th DAY OF JULY, 2008 JUDGMENT For realisation of the decree debt in O.S.153 of 2001, property of second respondent/judgment debtor was sold in E.P.26 of 2003. Petitioner, along with third respondent, filed E.A.319 of 2006 to set aside the sale. That was dismissed. Petitioner filed A.S.62 of 2006 before Sub Court, Koyilandy, challenging that order. Meanwhile, sale was confirmed on 30.1.2007. E.P.257 of 2007 is filed by first respondent, being the auction purchaser/decree holder to take delivery of the property covered under the sale certificate. Petitioner filed E.A.219 of 2008 to set aside the sale, contending that he is prepared to pay the auction price or any other amount directed by the court. This petition is filed under Article 227 of Constitution of India for a direction to the Munsiff to receive the full decree debt in cash from the petitioner and to set aside the sale. 2. Learned counsel appearing for petitioner was heard. Learned counsel submitted that petitioner is prepared to pay the entire decree debt, interest and cost and in such circumstances, executing court may be directed to receive the entire amount  WP(C) 20215 OF 2008 2 and set aside the sale. 3. After confirmation of sale, petitioner is not entitled to file a petition to set aside the sale, expressing willingness to pay the entire decree debt. After confirmation of sale, sale cannot be set aside without the consent of the auction purchaser on deposit of the decree debt. As the case of petitioner is that he is prepared to pay the entire decree debt and E.A.219 of 2008 is filed before executing court, learned Munsiff is directed to pass appropriate order in accordance with law, in E.A.219 of 2008 before directing delivery of the property. M.SASIDHARAN NAMBIAR, JUDGE lgk/-

Kizhekke Chaliyathadathil Shaji vs Parada Pramod Kumar on 4 July, 2008

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 37531 of 2009(J) 1. JAYASREE, D/O.NASON, ... Petitioner Vs 1. THE DEPUTY SUPERINTENDENT OF POLICE, ... Respondent 2. THE CIRCLE INSPECTOR OF POLICE, 3. THE SUB INSPECTOR OF POLICE, 4. CHANDRA, S/O.SATHYANESAN NADAR, 5. SATHEESH KUMAR, S/O.SATHYANESAN NADAR, 6. BABY, W/O.SATHYANESAN NADAR, 7. SATHYANESAN NADAR, -DO- -DO- For Petitioner :SRI.R.GOPAN For Respondent :SRI.G.SUDHEER The Hon'ble MR. Justice K.M.JOSEPH The Hon'ble MR. Justice M.L.JOSEPH FRANCIS Dated :01/07/2010 O R D E R K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C).No. 37531 of 2009 J - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of July, 2010 JUDGMENT Joseph Francis, J. This Writ Petition under Article 226 of the Constitution of India is filed with the following prayers: W.P.(C).No. 37531 of 2009 2 2. The case of the petitioner briefly is as follows. The marriage between the petitioner and 4th respondent was solemnised on 10.4.2008 at Attukal Devi Temple, Thiruvananthapuram according to their rites and ceremonies. After the marriage, they lived together as husband and wife. While so, respondents 4 and 5 induced the petitioner for illegal relationship with others. The petitioner was not willing, which caused enmity in the minds of respondents 4 and 5. They brutally manhandled the petitioner, removed her clothes, dragged through the road and kept her there. 3. Crime No. 148 of 2009 of Neyyar Dam Police Station was registered for offences punishable under Sections 294B, 323 and 324 I.P.C. against respondents 4 and 5. The petitioner filed C.M.P. 2388 of 2009 before the Judicial First Class Magistrate Court, Kattakada under Section 12 of Protection of Women from Domestic Violence Act. The learned Magistrate, after hearing the parties, passed an interim order against the respondents from restraining the petitioner  W.P.(C).No. 37531 of 2009 3 from entering the house and committing domestic violence upon her. The Station House Officer, Neyyar Dam Police Station was directed to give protection to the petitioner for implementation of the order. 4. On 23.11.2009, the 6th respondent trespassed into the house of the petitioner and taken away a gold chain weighing 3 sovereign and a ring and assaulted her. She was hospitalised. She filed complaint before respondents 2 and 3 against the 6th respondent and requested the police to give protection to her. Respondents 1 to 3 have not taken any action pursuant to Exts.P7 and P8 complaint. Hence she filed this Writ Petition. 5. Respondents 5 to 7 filed counter affidavit jointly and the 4th respondent filed a separate counter. 6. Heard learned counsel for the petitioner, learned counsel for the party respondents as also the learned Government Pleader. 7. The learned Government Pleader, on instructions, submits that the petitioner is not residing in the house in question. Respondents 4  W.P.(C).No. 37531 of 2009 4 and 5 are the sons of respondents 6 and 7. They disputed the marriage between the petitioner and the 4th respondent. The petitioner herein has filed C.M.P. 2388 of 2009 before the J.F.C.M., Kattaklkada under Section 12 of the Protection of Women from Domestic Violence Act and she has obtained an order dt. 26.6.2009 and the respondents therein are restrained from restraining the petitioner from staying in the disputed house. 8. In the counter filed by the 4th respondent it is stated that the petitioner came to his house as a Home Nurse for looking after his bedridden mother. The 6th respondent has filed O.S.No. 720 of 2009 before the Munsiff Court, Neyyattinkara against the petitioner and the 4th respondent herein to restrain them from making any obstruction to the peaceful possession and enjoyment and for taking income from the property. She obtained an interim order also. 9. Since the petitioner has filed a petition under Section 12 of the Protection of Women from Domestic Violence Act and availed  W.P.(C).No. 37531 of 2009 5 equally efficacious remedy, we are of the view that this is not a fit case to invoke the discretionary jurisdiction under Article 226 of the Constitution. More over, proceedings under Article 226 of the Constitution are of summary nature and disputed questions of facts should not normally be agitated before this Court and this Court should not proceed to determine such questions. This Writ Petition is, therefore, dismissed as it is without any merit. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm 

Jayasree vs The Deputy Superintendent Of ... on 1 July, 2010

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl No. 5528 of 2007() 1. ABDUL NAZAR K.K., S/O.ABDUL RAHIMAN, ... Petitioner 2. SHAMSUDHEEN K.K., S/O.ABDUL RAHIMAN, 3. ABDUL RAHEEM.K.K, S/O.ABDUL RAHIMAN, Vs 1. STATE OF KERALA REPRESENTED BY ... Respondent For Petitioner :SRI.K.A.SALIL NARAYANAN For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice R.BASANT Dated :19/09/2007 O R D E R R.BASANT, J ------------------------------------ B.A.No.5528 of 2007 ------------------------------------- Dated this the 19th day of September, 2007 ORDER Application for anticipatory bail. The petitioners are accused 2, 3 & 5. They face allegations, inter alia, under Section 308, 323 and 324 r/w 149 I.P.C. The alleged incident took place on 27.08.07. There allegedly was a dispute between some travellers in a sumo van and the accused. The defacto complainant allegedly reached the scene and attempted to intervene. He was then assaulted by the accused persons. The defacto complainant's father also tried to intervene and he has suffered a fracture. 2. The learned counsel for the petitioners submits that the petitioners are absolutely innocent. At any rate, it cannot be assumed or inferred that they have any malice against the defacto complainant and his father. Even allegedly the occurrence took place when the defacto complainant and the victim intervened in a prior dispute between two other groups. The allegation under Section 308 I.P.C is totally unjustified. It is, in these circumstances, prayed that directions under Section 438 Cr.P.C in favour of the petitioners. 3. After discussions at the Bar, the learned Public Prosecutor accepts that the B.A filed by the petitioners can be considered as if  B.A.No.5528 of 2007 2 there is no allegation under Section 308 I.P.C. But the learned Public Prosecutor submits that even then this is not a fit case where directions under Section 438 Cr.P.C can or ought to be issued in favour of the petitioners. The petitioners must follow the normal and ordinary course of appearing before the Investigating Officer or the learned Magistrate having jurisdiction and then seek regular bail. 4. I am satisfied that there is merit in the opposition by the learned Public Prosecutor. I agree that there can be a direction to the learned Magistrate to consider the application for bail as if the allegation under Section 308 I.P.C is not there at all. The learned Magistrate can consider the application for regular bail on the other allegations including the allegation that the victim has suffered a fracture. Consequently an offence under Section 326 I.P.C is also alleged. 5. This application is, in these circumstances, dismissed, but I may hasten to observe that if the petitioner surrenders before the Investigating Officer or the learned Magistrate and applies for bail after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass appropriate orders on merits and expeditiously. Such application shall be considered reckoning that there is no allegation under Section 308 I.P.C. (R.BASANT, JUDGE) rtr/- B.A.No.5528 of 2007 3

Abdul Nazar K.K. vs State Of Kerala Represented By on 19 September, 2007

Kerala High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.11713 of 2011 MANTU KUMAR Versus THE STATE OF BIHAR ----------- AKV/- ( Hemant Kumar Srivastava,J.) 3 20.06.2011 Heard learned counsel for the petitioner as well as learned counsel appearing for the informant to some extent but in course of hearing, learned counsel for the informant seeks two days' adjournment for seeking instruction from his client. Let this matter be listed on 23.06.2011 under the same heading retaining its position.

Mantu Kumar vs The State Of Bihar on 20 June, 2011

Patna High Court - Orders

JUDGMENT Chandrashekaraiah, J. 1. This appeal is against the order passed by the E.I. Court on the application filed by the appellant under Section 75 of the Employees' State Insurance Act, 1948 (for short 'Act'). 2. The contention of the learned Counsel for the appellant is that the appellant is a firm engaged in imparting training to the members and students and is run on 'no profit no loss basis' in horse riding and it collects fees for that service and therefore, it is not shop so as to apply the provisions of the Act. 3. From the evidence adduced before the E.I. Court, it is seen that the appellant is engaged in the business of horse riding. If that is so, the question that arises for consideration is: "whether the appellant's firm is a shop or not?" The State Government by virtue of the power conferred on it under Section 1(5) of the Act has issued a notification extending the application of the Act even to the shops, road transport establishments, cinema including newspaper establishments employing more than 20 persons with effect from July 21, 1985. The word 'shop' is not defined under the Act. The notification also is silent in this regard. If that is so, it is just and necessary to depend upon the meaning given in the dictionary and also the definition of the word 'shop' under the provisions of the Karnataka Shops and Commercial Establishments Act, 1961. The dictionary meaning of the word 'shop' means "a house or building where goods are made or prepared for sale and sold". It also means a "place of business". The word 'shop' has been defined under Section 2(u) of the Karnataka Shops and Commercial Establishments Act, 1961 as follows: 'shop' means any premises where any trade or business is carried on or where services are rendered to the customers, and includes offices, store rooms or ware houses, whether in the same premises or otherwise, used in connection with such trade or business, but docs not include a commercial shop or a shop attached to a factory where the persons employed in the shop fall within the scope of Factories Act, 1948. 4. From the evidence it is seen that the appellant establishment is engaged in the business of horse riding. The number of employees are more than the specified number under the ESI Act. Therefore, as per the definition of the word 'shop' referred to above and the dictionary meaning, it has to be held that the appellant's establishment is a 'shop'. Hence, I hold that the provisions of the ESI Act are applicable to the appellants' establishment. Therefore, I am of the considered view that the order passed by the E.I. Court is justified and it does not call for any interference by this Court 5. In the result, I pass the following order: i) Appeal is rejected; ii) No costs.

Author: Chandrashekaraiah

Bangalore Amateur Riders' ... vs Regional Director, E.S.I. ... on 12 March, 2001

Karnataka High Court

ORDER K.S. Kumaran, J. (Chairman) 1. Corporation Bank (hereinbefore referred to as 'the 1st respondent-Bank') filed Suit No. 2731/1993 before the Hon'ble High Court of Delhi against (1) M/s. United Data Base (India) Pvt. Ltd. (hereinafter referred to as 'the UDP'); (2) M/s. United India Periodicals Ltd. (hereinafter referred to as 'the UIP')"; (3) T.P. Ahmed Ali; (4) M/s. Sterling Computers Ltd. (hereinafter referred to as 'the appellant-Sterling Computers); (5) Mahanagar Telephone Nigam Ltd. (hereinafter referred to as 'the MTNL'); (6) Central Bank of India; (7) Bank of Baroda; and (8) Bank of India. The suit was filed for the recovery of Rs. 7,53,09,020.83 with interest @ 21% per annum, out of which the liability of the appellant-Sterling Computers was limited to Rs. 4,09,76,270/- with interest as mentioned above. After the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as 'the Act') came into force, the suit was transferred to Debts Recovery Tribunal-1, Delhi (hereinafter referred to as 'the DRT') and was taken on file as O.A. 399/95. The learned Presiding Officer of the DRT, accordingly, passed the final order with costs in favour of the 1st respondent-Bank by his order dated 11.3.2002. 2. Aggrieved, the appellant-Sterling Computers has filed the appeal, and also this application under Section 21 of the Act for waiver of the pre-deposit. The 1st respondent-Bank has filed a common reply to the appeal as well as to the application opposing the same. The 7th respondent-Bank of Baroda has also filed a reply. The 4th respondent remains ex parts while the other respondents 2, 3, 5, 6 and 8 have not filed any reply. 3. I have heard the Counsels for both the sides, and perused the records. 4. On 14.3.87, UIP entered into a contract with MTNL for printing and publishing Telephone Directories with Yellow Pages for the cities of Delhi and Bombay. With the consent of MTNL, UIP assigned the work, and the benefits of the contract to the UDI. UDI is a subsidiary company of the UIP. For the purpose of executing the work, UDI borrowed moneys and availed credit facilities from the 1st respondent-Bank and Bank of India. But, the printing and publishing of Telephone Directories were not carried out in time, and in terms Of the contract. Therefore, the 1st respondent-Bank filed Company Petitions 152and 153/90 while Bank of India filed Company Petitions 118 and 119/90 for winding-up UIP and UDI. 5. UIP and UDI approached the appellant-Sterling Computers for undertaking the work of printing and publishing of the Telephone Directories, and also sought the permission of MTNL in this regard. Appellant-Sterling Computers, UIP and UDI entered into certain Memoranda/agreements in this behalf. On 26.9.91, MTNL, UDI, UIP and appellant-Sterling Computers entered into an agreement, by and under which, appellant-Sterling Computers was appointed as principal Directory supplier for the purpose of printing and publishing the Directories. 6. The appellant-Sterling Computers, UIP, UDI and the 1st respondent-Bank entered into an agreement dated 31.3.1992 wherein we find reference to the above mentioned details. By and under this agreement, they had agreed that appellant-Sterling Computers was entitled to acquire the equity shares in UDI and also to appoint its nominees on the Board of Directors of UDI. But, MTNL stipulated that the 1st respondent-Bank and Bank of India who had lien over the revenue earnings in respect of the Directories should release the same in favour of MTNL. The appellant-Sterling Computers has undertaken to pay the 1 st respondent-Bank a sum of Rs. 3.75 crores in full and final settlement of the amount due to the 1 st respondent-Corporation Bank from or on behalf of UDI. On the date of the agreement i.e. 31.3.1992, appellant-Sterling Computers paid a sum of Rs. 1 crore to the 1st respondent-Bank by way of cheque, but of the balance, appellant-Sterling Computers agreed to pay Rs. 1 crore to the 1st respondent -Bank on or before 31.3.1993 for which appellant-Sterling Computers had also issued a post-dated cheque. The appellant-Sterling Computers also agreed to pay the balance of Rs. 1.75 crores on or before 30.9.1993, and had similarly given a post-dated cheque for that amount in favour of the 1st respondent-Bank. 7. It is on the basis of the agreement dated 31.3.1992, that the 1st respondent-Bank claimed the suit amount from appellant-Sterling Computers, though the claim against the other defendants in the Original Application is on the basis of other documents also. 8. But the above-said agreement dated 26.9.1991 between UPI, UDP, MTNL and the appellant-Sterling Computers was challenged by M/s. M. & N. Publications Ltd., and others in Writ Petition 1872 of 1992 before the Hon'ble High Court of Delhi. This Writ Petition was allowed by order dated 30.9.1992 quashing the agreement dated 26.9.1991. The appeals filed by appellant-Sterling Computers, UIP and UDP against the said order were dismissed by the Hon'ble Supreme Court of India by order dated 12.1.1993. 9. According to appellant-Sterling Computers, when the agreement dated 26.9.1991 has been quashed by the Court and has, therefore, become impossible of performance, the agreement dated 31.3.1992, which is based upon the agreement dated 26.9.1991 has also become non est and frustrated. 10. The learned Counsel for the appellant-Sterling Computers contends that the appellant is neither a borrower nor a customer nor aguarantor, and in the circumstances where the agreement dated 31.3.1992 under which only the liability is sought to be fastened upon the appellant-Sterling Computers, has become non est and frustrated the appellant-Sterling Computers is not bound to pay any amount to the 1 st respondent-Bank under the agreement dated 31.3.1992, whereas, the appellant-Sterling Computers is entitled to receive back a sum of Rs. 1 crore paid by it to the 1st respondent-Bank. But the learned Counsel for the 1st respondent-Bank, on the other hand contends that the agreement dated 31.3.1992, is an independent agreement and does not depend upon the agreement dated 26.9.1991. According to him the 1 st respondent-Bank is not a party either to the agreement dated 26.9.1991 or the previous agreements between appellant-Sterling Computers, UDI, UIP and MTNL. The learned Counsel for the 1st respondent-Bank contends that the agreement dated 31.3.1992 contains an unconditional undertaking by the appellant-Sterling Computers to pay the money referred to therein and, therefore, the agreementdated 31.3.1992 is capable of being enforced without reference either to agreement dated 26.9.1991, or the other earlier agreements to which the 1st respondent-Bank is not even a party. The learned Counsel for the Ist-Bank contends that it had lien over the revenue earnings realised from the advertisements, etc., contained in the Telephone Directories, but by virtue of this agreement dated 31.3.1992, the 1st respondent-Bank has given up this lien in favour of M.T.N.L., appellant-Sterling Computers, UDI and UIP. He also contends that the 1st respondent-Bank has even agreed under this agreement dated 31.3.1992, that appellant-Sterling Computers shall be entitled to acquire from UIP, the entire share holdings and also to nominate its persons on the Board of Directors of UDI. But the learned Counsel for the appellant-Sterling Computers, on the other hand contends that since the agreement dated 26.9.1991 was quashed, the appellant-Sterling Computers never acquired the share holdings or nominated its own persons in the Board of Directors of UDI. But the learned Counsel for the 1st respondent-Bank refers to paragraph 1 of the agreement portion of the Deed dated 31.3.1992, wherein, it has been specifically provided that notwithstanding the various amounts due to the 1st respondent-Bank in the account of or on behalf of UDI, appellant-Sterling Computers shall pay in full and final settlement of all dues, claims, etc., a sum of Rs. 3.75 crores in the manner set out therein to the 1st respondent-Bank. He also refers to the provision contained therein that out of the sum of Rs. 3.75 crores, Rs. 1 crore was paid on the date of the agreement i.e. 31.3.1992, and that the balance was to be paid in two instalments of Rs. 1 crore and Rs. 1.75 crores on or before 31.3.1993 and 30.9.1993 respectively. He further points out that post-dated cheques were given for these two amounts and the appellant-Sterling Computers has specifically undertaken unconditionally and without demur that the above said cheques shall be encashed upon presentation in the manner mentioned in the agreement. The learned Counsel for the 1st respondent-Bank, therefore, contends that the agreement dated 31.3.1992, is independent under which the appellant-Sterling Computers has unconditionally agreed to pay the amounts mentioned above, and in case of default, with interest. 11. The learned Counsel for the 1st respondent-Bank contends that when the operative part of the agreement dated 31.3.1992 is clear and unambiguous, the earlier recital found in that deed cannot control the operative part. In this connection, he relies upon the text of Edger's "Construction of Deeds and Statutes (5th Edition) at pages 150 and 151". 12. But as pointed out already, the case of the appellant-Sterling Computers is that, it is neither a borrower nor a guarantor nor even a customer of the 1st respondent-Bank, but had come into picture only by way of the agreement dated 26.9.1991, and once that agreement goes, there can be no liability under the agreement dated 31.3.1992. Therefore, in my view, the questions, whether the agreement dated 31.3.1992, is independent of the agreement dated 26.9.1991 and the earlier agreements or not, and whether in spite of the Hon'ble High Court of Delhi quashing the agreement dated 26 9.1991 (as confirmed by the Hon'ble Supreme Court of India), the appellant-Sterling Computers is still liable to pay the amount as per the agreement dated 31.3.1992 have to be gone into and decided in the main appeal. Further, while the appellant-Sterling Computers claims to have spent Rs. 30 crores for the publication of the Directories, it has to be seen whether the appellant-Sterling Computers has received any money from the advertisements. These are also matters which have to be considered in the appeal. 13. The learned Counsel for the appellant-Sterling Computers contends that as soon as M/s. M & N Publication and others filed the Writ Petition in May, 1992, challenging the agreement dated 26.9.1991, appellant-Sterling Computers gave a notice dated 27.7.1992 to the 1st respondent-Bank stating that the agreement dated 26.9.1991 is the basis for the agreement dated 31.3.1992, and if the agreement dated 26.9.1991 is quashed then appellant-Sterling Computers will be under no obligation to perform the agreement dated 31.3.92 and will have no liabilities under the same. The learned Counsel for the appellant-Sterling Computers also points out from that letter that the 1st respondent-Bank was informed that, if it so desired, it may withdraw from the agreement dated 31.3.1992. 14. By referring to this letter, the learned Counsel for the appellant-Sterling Computers contends that the 1st respondent-Bank still did not withdraw from the agreement dated 31.3.92, and, therefore, cannot claim any amount from the appellant-Sterling Computers. But, question is whether this contention of the appellant-Sterling Computers can be accepted for the reason that the appellant-Sterling Computers itself did not want to give up or withdraw from the agreement dated 31.3.1992. Because it had filed an appeal to the Hon'ble Supreme Court challenging the order of the Hon'ble Delhi High Court quashing the agreement dated 26.9.1991. This aspect has also to be considered in the main appeal. 15. The learned Counsel for the appellant-Sterling Computers points out that even in O.A. there is an alternative prayer that if it is held that the appellant (4th defendant) is not liable to pay the plaintiff any amount, and that the plaintiff is liable to refund. Rs. 1 crore to the appellant, then a decree may be passed against defendants 1 to 3 for Rs. 9,02,09,182.83. 16. Pointing out this alternative prayer made by the 1st respondent-Bank, the learned Counsel for the appellant-Sterling Computers contends that the 1st respondent-Bank itself was not sure of its case against the appellant-Sterling Computers. But, we find that the DRT has passed the final order against the appellant-Sterling Computers also. Even otherwise, the question whether the alternative prayer made by the 1st respondent-Bank could be a ground for rejecting its claim against the appellant-Sterling Computers has also to be and can be considered and decided in the appeal. 17. In these circumstances, in my view, the appellant-Sterling Computers has made out a prima facie case for entertaining the appeal. 18. Therefore, the next question is whether the waiver of pre-deposit has to be granted as prayed for by the appellant-Sterling Computers. In view of what I have pointed out, the respective rival contentions put forward by both the sides have to be considered in the main appeal. It has also to be seen as to how much money, if any, has been realised by the appellant-Sterling Computers from the advertisements made in the Directories, by virtue of the agreement dated 26.9.1991, before the said agreement was quashed by the Hon'ble High Court of Delhi. 19. In paragraph 10 of this application, the appellant-Sterling Computers has stated that it had been running in loss till recently, but has now recovered substantially and is doing good business. It has also stated that it is a healthy company, but if the pre-deposit has to be made, irreparable loss and harm would be caused to the appellant-Stearling Computers and it will have no option but to wind up the business. But the appellant-Sterling Computers has not placed on record any material to show its financial status like the copy of the balance sheets or income tax returns. Therefore, on the basis of this mere averment, the appellant-Sterling Computers cannot be granted waiver of pre-deposit of the 75% of the amount found due by the DRT. In the circumstances of this case, I am of the view that the appellant-Sterling Computers shall deposit 50% of the amount determined as due from it to the 1st respondent-Bank as per the order of the DRT. 20. Accordingly, this application is allowed in part. Applicant/appellant-Sterling Computers is directed to deposit 50% of the amount determined by the DRT as due and payable by appellant-Sterling Computers to the 1st respondent-Bank, for the purpose of entertaining the appeal. This amount shall be deposited on or before 9.7,2003 into the 1st respondent-Bank. The said amount shall be kept by the 1st respondent-Bank in a separate interest bearing account. 21. Waiver as prayed for by the applicant/appellant-Sterling Computers is granted in respect of the remaining amount only. List the appeal for further proceedings on 16.7.2003. Copy of this order be served upon the appellant-Sterling Computers and the respondents.

Sterling Computers Limited vs Corporation Bank And Ors. on 16 April, 2003

Debt Recovery Appellate Tribunal - Delhi

(i) Whether the petitioner Corporation is entitled to claim the amount from the 2nd respondent ? (ii) To what relief ? JUDGMENT A. Ramamurthi, J. 1. This petition has been filed under Section 31(aa) of State Finance Corporation Act, 1951 to direct the 2nd respondent to pay a sum of Rs. 32,43,243.00 with interest at the rate of 16% per annum. 2. The case in brief is as follows : 3. The petitioner company has been formed for the purpose of extending financial support to entrepreneurs in the State of Tamil Nadu and Pondicherry. The first respondent applied for financial assistance to the Corporation. Originally, it was a proprietary concern and the 2nd respondent was the proprietor. It ventured to purchase Paracetamol. They required financial assistance for purchase of machinery, lab equipments, generator and construction of building. The Corporation sanctioned Rs. 6.35 lakhs on 12.11.1982, Rs. 76,000.00 on 26.9.1983 and Rs. 26.000.00 on 26.3.1989 under term loan. The 1st respondent executed a Deed of' Hypothecation on 11.12.1983, 7.10.1983 and 30.3.1989 respectively thereby hypothecated the machineries purchased with the financial aid. The 2nd respondent executed a Deed of Guarantee on 11.5.1983 and on 30.3.1984 whereby agreed to repay the loan. One Kunjithapatham, father of the 2nd respondent, executed a Deed of Guarantee on 11.5.1983 for the first term loan and on 7.10.1983 for the 2nd term loan. Later, the 1st respondent company was converted into a partnership firm and all the partners have executed a Deed of Confirmation on 9.10.1986 in respect of the three term loans. The said Kunjithapatham is no more and the 2nd respondent is his son. The 1st respondent did not repay the loan as agreed upon and in spite of reminders and warning the payment was not made. The loan was ctosed on 11.10.1988 and possession of unit was also taken over on 21.3.1989. The unit was also sold in public auction after due publicity on 12.7.1993 for a sum of Rs. 4.01 lakhs and it was also given credit to the loan amount. Legal notice was also sent on 8.7.1997. Now, the present petition is filed to enforce the guarantee and indemnity. 4. The 2nd respondent filed a detailed counter and denied all the averments. The present petition is legally not maintainable. He ceased to have any interest in the partnership firm as he had retired long ago and duly intimated the same to the Corporation and was accepted by them. He is not a competent person and the claim against this respondent is barred by limitation. As a sole proprietor of the 1st respondent, he availed the term loan from the Corporation. A simple mortgage was executed and registered on 11.2.1983, both in the capacity as a sole proprietor and in his personal capacity for a sum of Rs. 1 lakh and not for the entire loan of Rs. 5,35 lakhs. The hypothecated documents are legally invalid. On or before 21.3.1985, the proprietary concern was converted as a partnership concern and two partners namely Rajanmni John Chellaiah and Ajit Rajamani Abraham Chellaiah, were inducted on 29.3.1985 he duly intimated the Corporation about the change of constitution of the business and also the induction of two partners, In fact, a copy of the partnership deed was also sent to the Corporation and they were well aware about the change. The petitioner is also aware of the name and address of the two newly inducted partners, but, they have not been impleaded as parties to this petition. The newly inducted partners are Foreign National of Indian Origin and sanction from RBI was obtained on 29.4.1986. 5. The business was running at a very great toss and, as such, this respondent could not keep up the repayment schedule and decision was taken to convert the business as a partnership firm and two solvent partners were also inducted. All these had taken place to the knowledge of the petitioner Corporation. All the outstanding arrears to the tune of Rs. 3 lakhs were made by cheque payment in 1985 and 1986 only by the newly inducted partners and it was also received by the Corporation. The petitioner also sent a letter dated 20.9.1986 to the Indian Bank in this regard. Even in the certificate issued by the Registrar of Firms, the change of address has been noted. Nothing has been stated in the petition as to why and how they had exonerated the other two partners, who are equally liable and chose to single out this respondent. Being a public Corporation, they cannot be allowed to act indiscriminately and arbitrarily. This respondent came out of the partnership vide Deed of Dissolution dated 20.4.1985 and it was duly communicated to the Registrar of Firms. He ceased to have any right or interest with the first respondent firm from 20.4.1985 and the entire business was taken over by the other two partners with the concurrence of the officials of the petitioner. There was no protest on the part of the petitioner at any point of time. Notice was issued on 18.10.1988 addressed to the first respondent as well as the three partners. Paper publication was made in "Daily Thanthi" on 16.9.1988 for which these respondents also sent a publication pointing out the true state of affairs that he is no longer acquainted with the company. The petitioner Corporation had completely suppressed the character of the firm as partnership firm and also duly avoided to mention the two partners. No communication was sent to this respondent. They have not sent any communication about the sale proceeds and other matters. He was kept in total darkness about the subsequent development and last communication was received only on 8.9.1992. The said Kunjithapatham died as early as 18.5.1984. The deceased had not left any property and he is not in possession of any property of the deceased. After a tong lapse of nearly 10 years, the present petition has been filed on 27.11.1997. The petitioner have now exonerated the two continuing partners and are estopped from proceeding only against the 2nd respondent. The present claim under Section 31(aa) of State Finance Corporation Act is not maintainable and is liable to be dismissed. 6. Heard the learned Counsels for the parties. 7. The points that arise for consideration are : 8. The 1st respondent firm was originally a proprietary concern and the 2nd respondent was the proprietor. The firm was converted into a partnership firm since 21.3.1985. The 1st respondent firm has availed term loan under three categories and the 1st respondent had executed a deed of hypothecation. The 2nd respondent executed a deed of guarantee for due repayment of the loan and similarly his father, Mr. Kunjithapatham had also executed a deed of guarantee on 11.5.1983 and on 7.10.1983, subsequently he died in the year 1981. The 1st respondent did not repay the loan in spite of repeated requests and warning. As the amount was not paid, the unit was taken over on 21.3.1989. The said unit was sold in public auction after due publicity on 12.7.1993 for a sum of Rs. 4.01 lakhs and the sale proceeds were given credit to the loan account. Now, the petitioner Corporation has filed the claim to direct the 2nd respondent to pay the claim and to enforce the letter of guarantee executed by him. 9. Mr. Gunaseelan, officer working in the Finance Section of the petitioner Corporation was examined as a witness. He narrated the averments in the petitioner. Ex. PI is the sanction order. Ex. P2-P4 are the hypothecated documents, Exs. P5 and P6 are the Deed of Guarantee executed by 2nd respondent. The partners have also executed a deed of confirmation on 9.5.1986. Ex. P7 is the confirmation document, Ex. P8 is the document to show the foreclosure of the loan. Ex. P9 is the document showing the auction of the property. On 26.11.1997, notice was sent under Ex. P10 calling upon the 2nd respondent to pay the amount. Ex. P11 is the, statement of the account maintained by the petitioner Corporation. 10. No oral evidence has been let in on the side of 2nd respondent. There is no dispute that the 1st respondent firm was a property concern and the 2nd respondent was the sole proprietor. In March, 1985, it appears that the 1st respondent firm was converted as a partnership business and apart from 2nd respondent, there were two partners inducted and the document filed on the side of the Corporation establish that they are Srilankan Nationals. The learned Counsel for the petitioner mainly contended that the loan has not been repaid properly and as they have committed default, the loan was foreclosed and the units were sold in public auction and the sale price was given credit to the loan account. It is stated that 2nd respondent had executed a Deed of Guarantee and to enforce the same only, the present application is filed. However, the learned Counsel for the 2nd respondent contended that after the foreclosure of the loan and after selling the machineries, the Corporation is not entitled to invoke Section 31 of State Fiance Corporation Act. Furthermore, the 2nd respondent at one point of time was the principal debtor and he cannot be a guarantor. In short, it is stated that the 2nd respondent cannot have a dual role as a debtor and as a guarantor. There is no record to show that any notice was given to the 2nd respondent either at the time of foreclosure of the loan or subsequently at the time of the seizure of the assets and bringing it for sale in public auction. No opportunity was given to the 2nd respondent prior to conducting public auction of the properties. The burden is only upon the petitioner to show that the guarantee executed by 2nd respondent will be valid under law even though he was a debtor. 11. The learned Counsel relied on Janwatraj v. Jethmal, , wherein it is observed that a contract of guarantee presupposes three parties, the creditor, the principal debtor and the surety. First of all there is a contract between the principal debtor and the guarantor. It may be said to be the base of the entire transaction. Then, there must be a contract between the surety and the creditor by which the former guarantees the debt to the latter. The same view has been reiterated in Brahmayya and Co. Official Liquidator v. K. Srinivasan Thangirayar and Ors. ; Punjab National Bank Ltd. v. Sri Bikram Cotton Mills Ltd. and Anr. ; Nagpur Nagrik Sahakari Bank Ltd. and Anr. v. Union of India and Another, ; and H. Mohamed Khan and Ors. v. Andhra Bank Ltd. and Ors. . There is no dispute about these propositions enunciated in the aforesaid decisions. 12. The learned Counsel for the respondent also relied on Smt. Hiranyaprava Samantray v. Orissa State Financial Corporation and Ors. I (1995) BC 376=AIR 1995 Orissa page 1, wherein it was observed that the liability of a guarantee is co-extensive with that of the borrower. Though Section 29 of the Act does not provide for issuance of any notice, the principles of natural justice and fair play arc not excluded. Where on default of the borrower in paying in statements of loan, the State Finance Corporation recalled the loan, seized the truck and it was put to public auction. It was necessary for the Corporation to issue notice to the guarantor regarding the intended auction under Section 29 by the Corporation. On failure of such notice to the borrower, the Corporation cannot put to auction the property mortgaged by the guarantor by way of collateral security with the Corporation for realising the shortfall. This decision is also applicable to the case on hand. Reliance is also placed upon Orissa State Financial Corporation v. Sk. Rasul Baksh, II (2000) Banking Cases 297, which also supports the case of the respondent. 13. It is, therefore, clear from the aforesaid decisions that 2nd respondent cannot have a double role as that of a debtor as well as guarantor. Moreover, even at the earliest point of time the 2nd respondent had communicated to the petitioner Corporation about the death of his father as well as the re-constitution of the 1st respondent firm with the induction of two partners, etc. There is nothing on record to show that any action was taken against the two partners. In view of the legal decisions, I am of the view that the 2nd respondent cannot be a debtor as well as a guarantor for the loan transactions. Furthermore, the Corporation has not filed any records to show that 2nd respondent was put on notice about the foreclosure of the loan, repossessing the assets and also putting the properties in public auction. After a tong lapse of so many years, now the Corporation has proceeded against the 2nd respondent only leaving the other partners. In fact, 2nd respondent had positively established that he had retired from the partnership tong back and the Corporation has not taken any action so far as the new directors inducted with the 1st respondent firm. Considering the view that a debtor also cannot function as a guarantor and, as such, it can be safely concluded that the petitioner Corporation is not entitled to enforce the alleged guarantee said to have been executed by the 2nd respondent. The present petition application has been filed only in year 1997 and as such it is hopelessly barred by limitation. Hence these points arc answered accordingly. For the reasons stated above, the petition application fails and is dismissed.

Author: A Ramamurthi

Tamil Nadu Industrial Investment ... vs Tvl Vikranth Chemical And Anr. on 27 November, 2000

Madras High Court

ORDER A.C.C. Unni, Member (J) 1. Briefly stated the facts of the case are that on 28-7-1995, Preventive Officers of the Customs searched the business premises of the appellant and seized wrist watches of foreign origin valued at Rs. 25,100/- (CIF) and Rs. 75,350/- market value in India. In his statement given on the date of seizure the appellant admitted that he had no documentary evidence to prove the licit acquisition and possession of the imported goods. Later at the stage of adjudication, the appellant took a plea that the watches of foreign origin were purchased from passengers who had cleared them on payment of duty and the watches fixed with foreign origin movements were assembled in India. The appellant repeated the plea before the Commissioner (Appeals) also. The authorities below did not accept the contention of the appellant and the Commissioner (Appeals) in the impugned order observed that both wrist watches and watch movements are notified items under Section 11 of the Customs Act and they are also covered under Section 123 of the Customs Act. Therefore, the onus was on the appellant to prove the licit importation of such goods. As regards the baggage receipt pertaining to Shri Bhajan Singh Kapoor dated 8-3-1994 produced by the appellants as proof of legal import of the watches, the Commissioner (Appeals) declined to give any credence to the said documents by observing that if the watches were cleared in 1994, nothing prohibited the appellants to keep a record of the same and inform the Seizing Officer at the relevant time. As regards the watches assembled in India, Commissioner (Appeals) held that the appellants had not produced satisfactory evidence from the manufacturer about the sale of the said watches to the appellants. 2. As a result, the Commissioner (Appeals) confirmed the order-in-original directing absolute confiscation of all the 275 wrist watches and imposition of personal penalty of Rs. 10,000/- on the appellant. 3. Ld. Advocate for the appellant Shri S.C. Puri contended that though the appellant had initially stated that he had no bills or other documents to show the licit import of the watches/watch movements, he had subsequently submitted to the authorities and invoice dated 24-7-1995 issued by M/s. Rajesh Enterprises, H-236, Naraina Vihar, New Delhi and a receipt No. 156286, dated 8-3-1994 issued by the Collector of Customs, Sahara International Airport Bombay and a cash memo dated 7-6-1991 issued by the Customs and Excise Retail Shop to M/s. Rodenise (India), 6/9 Kirti Nagar Industrial Area, New Delhi as proof of licit import of watch movements as well as watches. The adjudicating authority as well as the first Appellate Authority had not taken into account the said documents and had not given any finding as to why the said documents should not be relied upon except the observations made by the Commissioner (Appeals) stating that the appellants should have kept the record of the documents and produced them before the Seizing Officer. Ld. Counsel had also drawn and relied upon the Tribunal's decision in Standard Watch Company v. Collector of Customs reported in 1990 (47) E.L.T. 571 in which Tribunal had observed that merely because movements of watches were of foreign origin, watches assembled in India with movements of watches of foreign origin cannot be considered to be the wrist watches of foreign origin. The confiscation of watches of this basis had been set aside by the Tribunal in the said case. Ld. Counsel submitted that the initial onus of producing evidence of licit import of the goods had been discharged by the appellant by producing the three documents relating to the import of watches/watch movements. It was for the Department to investigate the said matter further and to establish that the documents produced ware fake or they do not relate to the seized goods. Ld. Counsel contended that the impugned order should not be sustained since the appellant has discharged the onus of proving the licit import of the goods with production of the three documents produced before the adjudicating authority. 4. Ld. JDR defending the impugned order submitted that the appellants had not been able to produce any satisfactory evidence about the licit import of the goods. Appellant had himself admitted in his statement on the date of seizure that the goods were of smuggled nature of foreign origin and he was not in a position to produce any bill/invoice or other documents relating to legal import. As regards the three documents subsequently produced before the lower authorities ld. JDR contended that appellant himself had stated that he will not be in a position to produce any satisfactory evidence and he had also stated that the persons who supplied the goods did not provide any bills or other documents or about their import nor does he know their name and address. He further draw attention to the fact that the cash memo issued by the Central Excise Retail Shop produced by the appellants as proof of import of watch movements by pointing out the said cash memo is dated 7-6-1991 wheras the seizure had taken place on 28-7-1995. As regards the case law relied on by the appellant, ld. JDR submitted that there was no dispute in the present case as to whether the watches assembled in India with foreign watch movements were to be considered as watches of foreign origin. The issue here was that both the watches and watch movements were prohibited items under Section 11 of the Customs Act items whose import is regulated under Section 123 of the Customs Act. It was incumbent on any person possessing goods covered by the said Section to prove the licit import, possession of such goods. 5. I have considered the submissions of both the sides. It is not in dispute that the goods under dispute are covered by Sections 11 and 123 of the Customs Act and that any person who is in possession or is dealing with these items are required to prove through documents or otherwise licit import of the said goods into India. The appellant though he initially coula not produce such documentary proof, had during the proceedings before the authorities below produced certain documents which correspond to the seized items, namely, watches as well as watch movements. The documents relied on by the appellants show the name and address of the original person to whom the said goods were sold by the authorities. It was for the Department to investigate further and to rebut the said evidence by showing that the documents were fake or that the goods covered by these documents do not relate to the seized goods. The department has not done so and the authorities below have brushed aside the said evidence without giving any satisfactory reason for doing so. The finding of the Commissioner (Appeals) that it was for the appellant to keep a record of sale/purchase of the said goods and show it to the Seizing Officer does not take into account the fact that appellant is actually only a Shopkeeper who is basically concerned only with sale of his goods across the counter. Taking into account the nature of the business engaged in by the appellant, I find that the authorities below have not given any legally satisfactory reason for rejecting the evidence produced by the appellant. In these circumstances, the appellant is entitled to the benefit of doubt. Accordingly, I set aside the impugned order. I direct the authorities below to allow redemption of the watches on payment of appropriate redemption fine calculated on the basis of relevant rules and procedure. In the circumstances of the case, I also feel that the penalty imposed is uncalled for. The same is also set aside. The appeal is disposed of in the above terms. At this stage, ld. Counsel brings to my notice that the appellant had deposited Rs. 5,000/- at the stage of First Appellate proceedings. This will also be taken into account while adjudicating the redemption fine. The appeal is allowed in above terms.

Mohd. Aslam vs Commissioner Of Customs on 22 April, 1999

Customs, Excise and Gold Tribunal - Delhi

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 24858 of 2009(B) 1. K.KARUNANIDHI, ... Petitioner Vs 1. THE STATE INFORMATION COMMISSIONER, ... Respondent 2. THE ADDITIONAL LAND REVENUE COMMISSIONER 3. THE ASSISTANT COMMISSIONER AND For Petitioner :SRI.P.CHANDRASEKHAR For Respondent :SRI.M.AJAY, SC, STATE INFORMATION COMMN The Hon'ble MR. Justice P.N.RAVINDRAN Dated :15/09/2009 O R D E R P.N.RAVINDRAN,J. ---------------------------------------- W.P.(C) No. 24858/2009 - B ---------------------------------------- Dated 15th September, 2009 Judgment Heard Sri.P.Chandrasekhar, the learned counsel appearing for the petitioner, Sri.M.Ajay, the learned standing counsel appearing for the first respondent and Sri.P.Narayanan, the learned Government Pleader appearing for respondents 2 and 3. 2. The petitioner had on 26.7.2008 submitted the original of Ext.P1 application to the third respondent seeking information under the Right to Information Act, 2005 (hereinafter referred to as 'the Act' for short). According to the petitioner, since the information sought for was in relation to the service particulars of the Assistant Commissioner of Land Revenue, the third respondent herein, the said application was destroyed. The petitioner thereupon sent another application through courier. The third respondent refused to accept the said application. Thereupon, the petitioner filed Ext.P3 appeal before the first appellate authority, namely, the second respondent. According to the petitioner, though the appeal was heard on 28.11.2008, orders were not passed thereon. Aggrieved thereby, he filed Ext.P5 second appeal before the State Information  W.P.(C) No.24858/2009 2 Commission. On receipt of Ext.P5, the State Information Commission registered it as a complaint and sought the remarks of the second respondent. The second respondent accordingly furnished Ext.P6 reply. A copy thereof was forwarded by the State Information Commission to the petitioner along with the original of Ext.P8 letter dated 3.2.2009. The petitioner was also called upon to furnish his remarks in the matter. According to the petitioner, he had on receipt of Ext.P8 letter and a copy of Ext.P6 reply, submitted Ext.P9 reply to the first respondent. The first respondent, however, rejected Ext.P5 complaint on the short ground that the petitioner did not reply to Ext.P8 letter. In this writ petition, the petitioner challenges Ext.P11 and seeks a writ in the nature of mandamus commanding the first respondent to reconsider Ext.P5 appeal and pass orders thereon in accordance with law. 3. Sri.M.Ajay, the learned counsel appearing for the first respondent submits, on instructions, that the original of Ext.P9 was not received in the office of the State Commission though the petitioner claims that it was sent through courier. He however submits that the State Information Commission will reconsider Ext.P5 appeal which has been registered as a complaint (Complaint Petition No.1355(2)/2008/SIC) having regard to the statements in  W.P.(C) No.24858/2009 3 Ext.P9 and take a decision thereon after affording the petitioner and respondents 2 and 3 a reasonable opportunity of being heard. In the light of the said submission, the petitioner cannot, in my opinion, have any surviving grievance. I accordingly dispose of this writ petition with a direction to the State Information Commission to re-consider Ext.P5 petition (Complaint Petition No.1355(2)/2008/SIC) and pass revised orders thereon after affording the petitioner and respondents 2 and 3, a reasonable opportunity of being heard. It will be open to the petitioner to file a written submission incorporating all his contentions. Final orders in the matter shall be passed within three months from the date on which the petitioner produces a certified copy of this judgment before the Secretary of the State Information Commission. P.N.RAVINDRAN Judge vaa 

K.Karunanidhi vs The State Information ... on 15 September, 2009

Kerala High Court

WP N0.6048Z».2/ZOIO IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 19TH DAY OF EEBRUARE, 20": BEFORE; THE HONBLE MR.JUSTICTE34ASUBH'AéHE WRIT PETITION No.6V_(')4$2/é0v.1T£:) :3 V BETWEEN: T' V 1. SRLLAXMAPPA ._ S /0 TIRKAPPA CHAVATANNAK/A_RCC"-- AGE 50 YEARS, ' OCC:AGR1C-ULTURE R /Q SI.RI~N_AI;jIALLI TQ:MUNI:§ARg3"I' _DI.ST:C:ADAG V ' 2. SR1. D0.1;>I3AT;»;NING'APPA s/0 TIRKAPPA ' AGE 48 YEARSAVOCAQAQRICULTURE R /0 S'IRINAHA'LLI=.TQ;_M'{.INDARGI DIS'1":GADACv._ ' * " 3. SRI.FAf{mAPPA SfO'TIRKAPPA CHAVATANNAVAR .. AGE '46 YEAi'3SV._Q..QC:AGRICULTURE " ~~R/0 VSIRJNAHALLI TQ:MUNDARGI ' * A. p1sT:GADAQ. ...PETITIONERS {Bi*.'$R:'§I§ANU:§IANT REDDY SAHUKAR, ADV) V A AND? . 4' ' «.SRII.RAMAPPA VS/Q HANAMAPPA KALAKERI _ AGE 65 YEARS OCC:AGRIL, R /?O KOMBALI TQ:IwIUW/INAHADAGALI C " 'D'IsT:BELLARY. ...RESPONDENTSWP No.60482/2010 1 3 : is produced to show that it is the true copy of the original and the said copy cannot be taken as secondary evidence. 4. Sri.Sahukar, learned counsel for the petitioner Vsdbirniptted that Xerox copy by itself becomes secondary it can be marked. 5. I am not inclined to accept the said 'sjub,rr1issi.on--..V 63 permits for production of the copyief the'.«ioriiginaliijifiitheup accuracy is proved. In this case'e'eeyen thei"docurf1ent:a11eged to be agreement is not Itis document afleged to have been signediibyi'V'théi Further, the xerox copy ca'1i?notabe a.c.ce_pted _* as authenticated or accurate copy of iithe" porigina1}'-- aspect of the matter is also considered the'A.pex.i'Co.urt in the case of S1nt.J .Yashoda VS. 'i A' "'smt.é€;shebee Rani (2607 SAR (Civil) 492}. Hence, in View of do'=.no.t find any error in the order of the trial court. Petition is dismissed. Sd,/e JUDGE

Author: Subhash B.Adi

Sri.Flaxmappa vs Sri.Ramappa on 19 February, 2010

Karnataka High Court

Sd/- Sd/- Jailor Central Jail, Aguada-Goa (Nazario Dias) Dated : 5th May, 1992" JUDGMENT A.V. Savant, J. 1. The petitioner Smt. Ana Maria Pereira is the mother of the detenu Nazario Sobastiao Dias who has been detained under sub-section (1) of section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, "the COFEPOSA Act") under the impugned order dated 5th March, 1992. The petition seeks to challenge the said order dated 5th March, 1992. The relevant facts may be, briefly, stated as under :- 2. It appears that reliable information was received in the Office of the Enforcement Directorate, Bombay, that one Sobastiao R. Pereira, a resident of 202, Nirman Apartment, Andheri (E), Bombay, was indulging in receiving and making hawala payments on behalf of persons resident outside India without the permission of the Reserve Bank of India. In view of the said information, the premises of the said Sebastiao Pereira were searched by the officers of the Enforcement Directorate under section 37 of the Foreign Exchange Regulation Act, 1973 (for short, "the FERA") on 10th September, 1991 and as a result of the searched documents and Indian currency of Rs. 75,000/- were recovered and seized as per the details given in the Panchanama dated 10th September 1991. During the course of the said search, a person named Ramesh Kumar Jain entered the said premises and on his search Indian currency of Rs. 11,70,000/- was recovered and seized as per the Panchanama dated 10th September, 1991. The statement of the said Sebastiao Pereira was recorded which disclosed that the said Pereira was introduced to one J. Rodrigues of United Kingdom by one Armando Pereira of Azossim, Ilhas, Goa, who is the Godfather of the daughter of Sebastiao Pereira. Sebastiao Pereira's statement further disclosed that for making payments in India he received Rs. 11,70,000/- from Armando Pereira from 1st February 1991 and that Sebastiao Pereira also used to receive money from Michael Fornandos, Ramesh, Madhu and other un-known persons under the instructions of J. Rodrigues of U.K. 3. In the statements of the said Ramesh Kumar Jain which were recorded on 10th, 11th, 12th and 13th September 1991, it transpired that on the instructions of one Rajendra Choraria of London, some persons had given him the said money, view. Rs. 11,70,000/- and he had gone to the residence of Sebastiao Pereira with the said amount of Rs. 11.70 lakhs for delivering the same to Sebastiao Pereira. The statement of one Surendra Kumar Choraria, resident of Bombay, was also recorded under section 40 of the FERA, wherein he stated that he had a brother named Rajendra Kumar Choraria who is a N.R.I. and was staying in London, Michael Fornandos whose name was disclosed in the statements of both Sebastiao Pereira and Ramesh Kumar Jain was also interrogated and in the statement recorded under section 40 of the FERA on 10th, 11th, 12th and 13th September 1991 a note-book and some slips containing certain writings were recovered. It transpired the Michael Fornandos had received certain payments from two persons viz. on Tikur and another Mitha as per the slip marked 'A' seized from the residence of Michael Fornandos. As per the writings on page 2 of the Diary marked 'A' is was shown that he had paid Rs. 22,10,000/- to Sebastiao Pereira as per the instructions of the said J. Rodrigues of U.K. from June to August, 1991. On further inquiries being made in Goa in respect of Armando Pereira, it transpired that Armando Pereira was not available at his house but the detenu was residing at Armando Pereira's house at Azossim, Ilhas, Goa and that the detenu was indulging in making hawala payments and, as such, the detenu's residence was searched under section 37 of the FERA on 13th September, 1991. As a result of the said search certain documents were recovered as per the details given in the Panchanama dated 13th September, 1991. A cupboard in the said residence of the detenu was also searched on 1st October, 1991. The statement of Molton Pereira, the son of said Armando Pereira was recorded from which it transpired that the detenu was the Godfather of Newton, the younger brother of Molten and that the detenu used to go to Bombay to meet the said Sebastiao Pereira and bring to Goa the amounts of the order of Rs. 2, 3, 4 lakhs and so on and distribute it to various persons in Goa whose relations were working abroad. It further transpired that on the 11th September, 1991 the detenu had left Goa for Bombay to bring the amounts from Sebastiao Pereira to be distributed in Goa. Accordingly, the detenu came back Goa from Bombay on 13th September, 1991 and brought with him Rs. 1,69,500/- which was received by the detenu through Sebastiao Pereira as per the instructions of J. Rodrigues of U.K. to be delivered to various persons in Goa whose names and addresses were received by the detenu. The statement of the detenu was recorded on 14th September 1991 under section 40 of the FERA. It transpired that the detenu was working as a receptionist at Hotel Missel in Goa and that he was staying in the house of Armando Pereira. It further transpired from the statement of the detenu that Armando Pereira had come to Goa in December, 1990 and had told the detenu that he had a contact in U.K. viz. J. Rodrigues on 86, St. Mary Street, Southampton, U.K. which was found recorded in the handwriting of the detenu on the reverse of page 17 in the diary seized from the detenu. It further transpired that under the instructions of J. Rodrigues of U.K., Armando used to make payments to the wives of Seamen working abroad and that Armando used to get funds from parties in Bombay to make payments in Goa. 4. Another diary 'B' was seized from the detenu on 13th September 1991 which showed from page 9 that the detenu had transacted an amount of Rs. 18,75,000/- collected for payments to be made in Goa between December, 1990 and January, 1991. During this period, he had actually paid Rs. 16 lakhs out of Rs. 18,75,000/-; Rs. 6,900/- was adjusted as commission charges payable to the detenu and Rs. 700/- as bus charges. The balance of Rs. 2,67,400/- was also paid to the parties in Goa subsequently. Page 10 of Diary 'B' showed that the detenu had further transactions of Rs. 6,99,660/-. Page 11-A of Diary 'B' showed that various amounts were brought by the detenu from Bombay to Goa in the month of December 1990, January and February, 1991 and that the said amounts were paid to the parties in Goa under the instructions of J. Rodrigues of U.K. 5. As a result of the investigation carried out by the Enforcement Directorate it transpired that the detenu had indulged in receiving and making compensatory hawala payments in India under the instructions of and on behalf of persons residing outside India. As such, it was concluded that the activities of the detenu were in violation of the provisions of the FERA. The Joint Secretary to the Government of India was, therefore, satisfied that the unauthorised transactions in which the detenu had indulged had affected the foreign exchange resources of the country adversely. The said Joint Secretary was further satisfied that in view of the facts disclosed, the detenu was likely to continue his prejudicial activities in future. It was, therefore, felt necessary to detain the detenu under the COFEPOSA Act with the view to preventing him in future from indulging in activities prejudicial to the augmentation of the country's foreign exchange resources. The order of detention was, therefore, passed on 5th March, 1992 as stated above and the detenu was informed that he had a right to make a representation to the Central Government, the detaining authority and the Advisory Board and he was told the authority to whom the representation should be addressed. 6. There is no controversy before us in respect of certain dates which have a bearing in the contentions advanced before us by the rival counsel. The said dated are as under : The detenu was first produced before the Enforcement Directorate on 14th September, 1991. He was then produced before the Magistrate and released on bail on 15th September, 1991. He was summoned before the Enforcement Directorate on 1st October, 1991. His statements were recorded on 18th, 25th and 27th September, 1991. The detenu addressed a letter on 1st October, 1991 to the Enforcement Directorate. In the meanwhile, it appears that on 17th September, 1991 the detenu purported to retract the statements made by him earlier. However, on 1st October, 1991 the detenu retracted his statement of retraction dated 17th September, 1991. In the meanwhile, it appears that Sebastiao Pereira against whom also proceedings were initiated under the FERA has retracted his statement on 14th September, 1991 and the Enforcement Directorate dealt with Sebastiao Pereira's retraction dated 14th September, 1991 on 12th December, 1991. The proposal received from the Directorate of Enforcement, New Delhi, for detention of the detenu was placed before the Central Screening Committee which met on 12th February 1992. After considering the material on record the Committee was of the view that it was a fit case for detention under the COFEPOSA. Having considered the relevant material on record, the impugned order of detention was issued on 5th March, 1992. The first respondent came to the conclusion that with a view to preventing the detenu from acting in any manner prejudicial to augmentation of country's foreign exchange resources in future, it was necessary to detain him in exercise of the powers conferred by section 3(1) of the COFEPOSA Act. 7. It appears that the order was executed on 31st March 1992 when the detenu was served with the order. By letter dated 30th April, 1992 the detenu was informed that his case would be taken up by the Advisory Board for consideration at about 2.00 p.m. on 22nd May, 1992 in the Committee Room of the Delhi High Court, Delhi. On 5th May, 1992 the detenu made a declaration before the Jailor of the Aguada Jail, Goa that he had been informed about to the effect that the hearing in his detention case was to take place on 22nd May, 1992 at 2.00 p.m. in the Committee Room, Delhi High Court, Delhi. The detenu, however, declared that he did not desire to be heard in person on the date, place and time. He further declared that he could not afford to engage the services of a counsel or a friend since he was a poor person. The Superintendent, Central Jail, Aguada, Goa, informed the Deputy Registrar (COFEPOSA), High Court of Delhi, New Delhi, on 7th May 1992 that the detenu was not willing to be heard in person before the Advisory Board. The declaration made by the detenu on 5th May 1992 was, therefore, forwarded to the Advisory Board on 7th May, 1992. 8. However, on 9th May 1992 the detenu did make a representation which was apparently addressed to the Chairman, Central Advisory Board, High Court of Delhi, New Delhi. This representation dated 9th May 1992 was received by the Central Government on 13th May 1992 at New Delhi. We have the two Affidavits on record on the question of the consideration of the representation both by the Advisory Board as also by the Detaining Authority. The Affidavit of Shri Mahendra Prasad, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, discloses that the representation made to the Advisory Board was considered by the Advisory Board at the time of hearing on 22nd May, 1992. The said representation was again considered by the Central Government at the time of confirmation of the detention order, which confirmation was made on 29th June, 1992. Though the pleadings in petition were not precise, since some controversy was raised at the Bar we have perused the original papers made available to us by Shri Khandeparkar. It transpires that the Advisory Board which met in Delhi, considered the case of the detenu and the said Sebastiao Pereira on 22nd May, 1992. It considered the representation made by the detenu which is dated 9th May 1992. The Advisory Board came to the conclusion that there was sufficient cause for the detention of the detenu. The opinion of the Advisory Board and other papers were then forwarded by the Advisory Board to the detaining authority which received the same on 3rd June, 1992. The Affidavit of Shri Roop Chand, Under Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi and the original papers produced before us show that immediately on receipt of the papers on 3rd June, 1992 from the Advisory Board, the case was processed and was submitted to the Joint Secretary (COFEPOSA) on 4th June, 1992. He considered the same on 5th June, 1992 and forwarded the papers to the Director General (EIB). The Director General (EIB) considered the case on 10th June, 1992. It must be mentioned here that 6th and 7th June, 1992 were holidays being Saturday and Sunday. The papers were than submitted to the Minister of State for Revenue. However, the said Minister was on tour from 11th June to 16th June, 1992. June 20th and 21st, 1992 were again holidays being Saturday and Sunday. The Minister of State considered the matter on 25th June which was a Thursday. The Finance Minister himself considered the matter of Friday, the 26th June, 1992. Since 27th and 28th June being Saturday and Sunday were holidays, the file was returned to the Department on 29th June 1992 which was a Monday and the order of confirmation under section 8(f) of the COFEPOSA Act has been issued immediately on the same day i.e. on 29th June, 1992. The order of confirmation specifically states in the third para that the Central Government had fully considered the report of the Advisory Board and the material on record. 9. Shri Roop Chand in his Affidavit also says that along with the papers returned by the Advisory Board with its opinion the representation addressed to the Advisory Board was also forwarded to the detaining authority. Admittedly, there is no separate representation made by the detenu to the detaining authority. Nonetheless, the detaining authority has considered the representation which is apparently addressed only to the Advisory Board. The entire material along with the report of the Advisory Board, including the representation made to the Advisory Board, was placed for consideration of the detaining authority. This is clear to us in view of the averments made in the Affidavits of Shri Mahendra Prasad, the concerned Joint Secretary and Shri Roop Chand, the concerned Under Secretary. Our perusal of the original papers also substantiates the statements made by the two Secretaries. It is true that in the last sentence of para 9 of his Affidavit Shri Mahendra Prasad has referred to the consideration of the representation dated 16th April 1992 made by the detenu who was informed by Memorandum dated 21st May 1992. The perusal of the papers shows that the representation dated 16th April 1992 was made by Sebastiao Pereira and admittedly the detenu in the present case has made no representation, save and except the representation dated 9th May 1992. It needs to be stated, however, that the affidavits of Shri Mahendra Prasad and Shri Roop Chand make it clear that the representation dated 9th May, 1992 made by the present detenu, though apparently addressed to the Advisory Board, was considered not only by the Advisory Board while submitting its reports, but also by the detaining authority before confirming the order of detention under clause (f) of section 8 of the COFEPOSA Act on 29th June, 1992. This order of confirmation has been served upon the detenu on 2nd July, 1992. 10. In the above facts, we have heard the learned counsel at some length since the matter involved the liberty of a citizen. Both the learned counsel, Shri Pereira for the petitioner viz. the mother of the detenu and Shri Khandeparkar for the respondents have taken us through the pleadings and invited our attention to a number of decisions of the Supreme Court and some decision of the our High Court. Before coming to the contentions raised by both the learned Counsel in details, we would like to mention that in the case of Rajendrakumar Natvarlal Shah v. State of Gujarat, , corresponding to , the Supreme Court has pointed out that in the enforcement of a law relating to preventive detention, like the COFEPOSA Act, there is apt to be some delay between the prejudicial activities complained of and the making of an order of detention. When a person is detected for a foreign exchange racketeering, the directorate of enforcement has to make a thorough investigation into all the facts with a view of determine the identity of the persons engaged in these operations which have a deleterious effect on the national economy. Quite often, these activities are carried on by persons forming a syndicate or having a wide network and, therefore, this includes recording of statements of persons involved, examination of their books of accounts and other related documents. Viewed from this perspective, the Supreme Court sounded a note of caution for the guidance of the High Court that a distinction must be drawn between the delay in making of an order of detention under a law relating to preventive detention, like the COFEPOSA Act, and the delay in complying with the procedural safeguards of Article 22(5) of the Constitution. The Supreme Court has held in a series of decisions that the rule as to unexplained delay in taking action is not inflexible. The observations to this effect are made in Paras 9 and 10 of the Judgment in Rajendrakumar's case at pages 161 & 162 (of (1988) 3 SCC) : (at p. 1781 of 1988 Cri LJ) of the Report, with which we will deal in details at a later stage. 11. We may further point out that recently a Constitution Bench of the Supreme Court thought it necessary to review the law on some of the aspects of detention under the COFEPOSA Act and in the case of K. M. Abdulla Kunhi and B. L. Abdul Khader v. Union of India, State of Karnataka, , the Constitution Bench has declared the earlier view in some of the cases to be no longer good law and overruled the same. The Supreme Court further observed that while it was necessary in dealing with the liberty of a citizen that the court should stand guard over the facts and requirement of law, the court could not draw presumption against any authority without any material. It must also be borne in mind that the confirmation of detention does not preclude the Government from revoking the order of detention upon considering the representation. In the scheme of the provisions of Section 8 of the COFEPOSA Act, it is clear that where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the appropriate Government may confirm the detention order, but in every case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of the reason concerned, the appropriate Government has to revoke the order of detention and cause the person to be released forthwith. 12. In another case, the Supreme Court has also expressed its disapproval of the view taken by the High Court and observed that where the detention order in fully justified and absolutely necessary for the protection of the Society there was no particular virtue in quashing an order of detention. This has been observed by the Supreme Court in the case of State of U.P. v. Hari Singh Thakur, reported in 1987 (Supp) SCC 190, at page 191 : (1987 Cri LJ 1923) of the Report. We must also bear in mind that there is no hard and fast rule that merely because there is a certain time lag of a few months between the offending act and the date of the order of detention the causal link must be taken to be broken and the satisfaction claimed to have been arrived at by the detaining authority must be regarded as sham or unreal. The prejudicial acts of a detenu in a given case may be of such a character as to suggest, particularly in a case under the COFEPOSA Act that it is a part of an organised operation of a complex of agencies collaborating to clandestinely and secretly carry on such activities to the detriment of the society at large. This was observed by Bhagwati, J. (as he then was) in the case of Gora v. State of West Bengal, . Bearing in mind this approach of the Supreme Court, particularly while dealing with a detention under section 3 of the COFEPOSA Act we propose to deal with the contentions raised by the learned counsel. 13. The first and foremost contention of Shri Pereira, the learned Counsel appearing on behalf of the detenu is that the order of detention dated 5th March, 1992 is bad in law since there is an unexplained delay of over five months between the date of release of the detenu on bail on 15th September, 1991 and the issuance of the order of detention on 5th March, 1992. According to the learned counsel, the detaining authority has to be satisfied that it is with a view to preventing the detenu from acting in any manner prejudicial to the augmentation of the country's foreign exchange resources that it is necessary to detain him. The learned counsel contends that the lapse of five months from the date of his release on 15th September 1991 would, ipso facto, snap the link between the offending act and the purported object of passing an order of detention. Shri Pereira, therefore, contends that there was no live link subsisting on the date of the petitioner's order of detention. He contends that the delay between these two date viz. 15th September, 1991 - the date on which the detenu was released on bail and 5th March, 1992 viz. the date on which the order of detention had been issued has not been satisfactorily explained. In support of his contention Shri Pereira has invited our attention to certain decision of the Supreme Court, to which we will make a brief reference :- (i) In the case of Pradeep Nilkanth Paturkar v. Shri S. Ramamurthi, , the Supreme Court has observed that where there was long and unexplained delay, the order of detention passed after five months and eight days from the date of registration of the last case could not be sustained. This was a case of a detention under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act of 1981. Certain criminal cases were registered against the detenu, the proposal for detention was submitted on 4th April 1991 and the order of detention was issued on 6th August 1991. On the facts of the case, the learned Judges held that there was no explanation of the long delay between the registration of the last case against the detenu and order of detention. (ii) In the case of Mohamed Yusuf Haji Mohamed Khasim v. L. Hmingliana, Secretary, Preventive Detention , it was found that thought the alleged incident of illicit traffic in narcotic drugs had taken place on 18th April 1990, the proposal to pass the order of detention was made only on 29th December, 1990. The detenu was released on bail sometime in the month of August, 1990. The order of detention was issued on 30th March, 1991. In the facts of the case, the Division Bench of this Court held that the inordinate delay was not at all explained and hence, the order of detention was vitiated. 14. The second contention of Shri Pereira is to the effect that the delay between the issuance of the order of detention dated 5th March, 1992 and its executions viz. service of the detenu on 31st March, 1992 has not been properly explained. He has invited our attention to the decision of the Supreme Court in the case of T. A. Abdul Rahman v. State of Kerala, . It appears from the facts in Abdul Rahman's case that the order was issued on 7th October 1987 and was served on the detenu as late as on 18th January, 1988. The service was, therefore, effected more than three months after the date of the passing of the order of detention. The Supreme Court came to the conclusion that though the detaining authority attempted to explain the laxity that had occasioned in the matter, it had miserably failed to explain the delay of three months in securing the arrest of the detenu from the date of the passing of the order. 15. Shri Pereira' third contention is that he had no opportunity of appearing before the Advisory Board and hence, the order is bad in law. In support of the contention, Shri Pereira has invited our attention to the decision of the Supreme Court in the case of State of Punjab v. Sukhpal Singh, . This was a case where the Advisory Board was to meet on 12th November, 1988. The detenu applied for adjournment on 8th November, 1988 on the ground of his ill-health. On 11th November, 1988 the detenu was informed that his plea for adjournment was granted and that he would be informed of the next date of hearing fixed by the Advisory Board. However, without intimating any further date of hearing, the Advisory Board concluded its proceedings on 17th November, 1988 since it was running short of time. It was on these facts that the Supreme Court observed that though the detenu had desired to be heard by the Advisory Board and though the earlier date was postponed and the detenu was informed that he would be communicated the next date of hearing, the detenu was not so informed of the next date of hearing and in fact no hearing was given to him. These facts are clear from paragraphs 26 and 27 of the Judgment of the Supreme Court appearing at page 111 (of JT (SC)) : (Paras 21 & 22, at p. 597 of Cri LJ) of the Report. Relying upon these observations, however, Shri Pereira contends that in the present case despite the detenu having informed the Advisory Board that he did not desire to be heard in person, there is a failure on the part of the Advisory Board to give an opportunity to the detenu of being represented which violates the guarantee enshrined under Article 22(5) of the Constitution of India. 16. Shri Pereira's fourth contention is that there is non-application of mind on the part of the Government as far as the representation dated 9th May, 1992 is concerned. Relying heavily on the affidavits of Shri Mahendra Prasad and Shri Roop Chand, the learned counsel contends that independent of the consideration of the representation by the Advisory Board, there is no consideration of the representation by the detaining authority. There can be no controversy that independent of the consideration of the representation by the Advisory Board, there is an obligation cast upon the detaining authority to consider the representation made by the detenu. It may be that in a given case, like the present case, there may be no separate representation addressed to the detaining authority. There may be only one representation as in the present case, addressed to the Advisory Board. What is further contended by the learned counsel is that not only has there to be independent consideration of the representation by the detaining authority, but there has to be a distinct communication by the detaining authority of the result of such consideration by the detaining authority. Shri Pereira further went to contend that independently of the confirmation of the order of detention under clause (f) of Section 8 of the COFEPOSA Act, there has to be a separate and distinct communication addressed by the detaining authority specifying the result of the consideration of the representation by the detaining authority. He concedes that the order of confirmation issued on 29th June, 1992 under clause (f) of Section 8 of the COFEPOSA Act, does say that the Central Government had fully considered the report of the Advisory Board and the material on record. But Shri Pereira contends that this is not sufficient to indicate independent consideration of the representation by the detaining authority. In support of this contention, Shri Pereira has invited our attention to the following decisions :- (i) In the case of Smt. Gracy v. State of Kerala, . The Supreme Court held that the nature of duty imposed on the detaining authority under Article 22(5) in the context of extraordinary power of proventive detention was sufficient to indicate that strict compliance was necessary to justify the interference with personal liberty. It was more so since the liberty involved was of a person in detention and not of a free agent. The obligation of the detaining authority to consider the representation is different from, independent of and in addition to the obligation of the Board to consider it at the time of hearing the reference before giving its opinion to the Government. There can be no doubt about this proposition of law. However, what was argued before the Supreme Court in the case of Smt. Gracy was that since the detenu's representation was addressed to the Advisory Board to which it was submitted during the pendency of the reference before the Advisory Board, there was no obligation on the Central Government to consider the same independently since the representation was not addressed to the Central Government. This is clear from the observations in Para 4 of the Judgment at page 4 (of SCC); (at p. 1092 of AIR) of the Report, which read as under :- "Whether there has been any infraction of the guarantee under Article 22(5) of the Constitution as a result of Central Government's omission to consider the detenu's representation independent of its consideration by the Advisory Board ? The Central Government's stand is that the detenu's representation being addressed to the Advisory Board to which it was submitted during pendency of the reference before the Advisory Board, there was no obligation on the Central Government also to consider the same independently since the representation was not addressed to the Central Government." It must be stated at this juncture that there is no such contention advanced in the present case. It is not the case of Shri Khandeparkar that the detaining authority was not obliged to consider the representation since it was addressed not to the detaining authority, but to the Advisory Board. The ratio of the decision in the case of Smt. Gracy can have, therefore, no application to the facts of the present case. (ii) In the case of Smt. Santosh Anand v. Union of India, it has been observed that under Article 22(5), as also under section 11 of the COFEPOSA Act a representation should be considered by the detaining authority, who on a consideration thereof can revoke the detention order and if the representation is rejected by the detaining authority, it is open to the detenu to approach the State Government for revocation of the order and failing that it is open to him to approach of Central Government to get the detention order revoked. There can be no controversy about this. 17. Finally, Shri Pereira contended that there is a delay in considering the representation made by the petitioner and in issuing the order of confirmation under clause (f) of section 8 of the COFEPOSA Act. Relying upon the statements in the Affidavits of Shri Mahendra Prasad and Shri Roop Chand, Shri Pereira contended that the delay between 13th May 1992, the date of receipt of the representation made by the petitioner, and 29th June 1992, the date of confirmation of the order under clause (f) of section 8 of the COFEPOSA Act has not been satisfactorily explained. Shri Pereira, therefore, contends that there is a violation of the mandate of clause (5) of Article 22 of the Constitution. 18. As against this, Shri Khandeparkar appearing on behalf of the respondents has contended that, in the first place, there is no delay on the part of the detaining authority at any stage of the proceedings. Relying upon the Affidavits of Shri Mahendra Prasad and Shri Roop Chand, Shri Khandeparkar contends that the detaining authority has acted as expeditiously as possible. He further contends that in the matter of detention particularly under the COFEPOSA Act, it may not be permissible to adopt a mechanical test of a lapse of a few days or a few months. In reply to the first contention of Shri Pereira that there is a delay of 5 months between the date of release of detenu on bail on 15th September 1991 and the issuance of the order of detention on 5th March, 1992, Shri Khandoparkar has invited our attention to a decision of the Supreme Court in the case of Gora v. State of West Bengal, (supra). This was a case of a dacoity on the night between 25th & 26th June, 1973 and the order of detention was issued as late as on December 29, 1973 under sub-section (1) read with sub-section (2) of Section 3 of the Maintenance of Internal Security Act, 1971. Argument on behalf of the detenu was that as a result of the lapse of more than 6 months between the date of the incident in June, 1973 and the date of the order of detention, the link had snapped. Rejecting this contention, the Supreme Court observed that there was no hard and fast rule that merely because there was a time lag of about six months between the offending act and the date of the order of detention, the causal link must be taken to be broken and the satisfaction claimed to have been arrived at by the District Magistrate must be regarded as sham or unreal. The test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending act and the order of detention. It was merely a subsidiary test evolved by the Court for the purpose of determining the main question whether the past activities of the detenu were such that from them a reasonable prognosis can be made as to the future conduct of the detenu. Shri Khandeparkar relied heavily upon the observations in para 2 at page 17 (of SCC) : (at pp. 431-32 of Cri LJ) of the Report, which read as under :- "There is, therefore, no hard and fast rule that merely because there is a time lag of, about six months between the 'offending acts' and the date of the order of detention, the causal link must be taken to be broken and the satisfaction claimed to have been arrived at by the District Magistrate must be regarded as sham or unreal. Whether the acts of the detenu forming the basis for arriving at a subjective satisfaction are too remote in point of time to induce any reasonable person to reach such subjective satisfaction must depend on the facts and circumstances of each case. The test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the 'offending acts' and the order of detention. It is a subsidiary test evolved by the Court for the purpose of determining the main question whether the past activities of the detenu is such that from it a reasonable prognosis can be made as to the future conduct of the detenu and its utility, therefore, lies only in so far as it subserves that purpose and it cannot be allowed to dominate or drawn it. The prejudicial act of the detenu may in a given case be of such a character as to suggest that it is a part of an organised operation of a complex of agencies collaborating to clandestinely and secretly carry on such activities and in such a case the detaining authority may reasonably feel satisfied that the prejudicial act of the detenu which has come to light cannot be a solitary or isolated act, but must be part of a course of conduct of such or similar activities clandestinely or secretly carried on by the detenu and it is, therefore, necessary to detain him with a view to preventing him from indulging in such activities in the future". 19. The second decision on which Shri Khandeparkar placed reliance in reply to the first contention of Shri Periera is the decision of the Supreme Court in the case of Ashok Narain v. Union of India, . This was a case of detention under the COFEPOSA Act preceded by arrest under the Foreign Exchange Regulation Act some 8 months earlier. The detenu was apprehended on the 23rd February, 1981 and some foreign currency was seized from him. The order of detention came to be issued as late as on October 14, 1981 under the COFEPOSA Act. The delay in passing the order of detention was not occasioned by any laxity, but was due to a full and detailed consideration of the fact and circumstances of the case by the various authorities involved, as in the present case. The Supreme Court hold that the passage of time from the date of initial arrest of the detenu of February 23, 1981 and the making of the order of detention of October 14, 1981 was not occasioned due to any laxity on the part of the different agencies concerned, but was the result of full and detailed consideration of the facts and circumstances of the case by the various departments involved. The Supreme Court applied its mind to the material on record to satisfy itself that there was no undue and unnecessary delay in making the order of detention. The Supreme Court sent for the original files and perused the same. We have also, on the basis of this decision, perused the original files in the light of the Affidavits filed by the respondents. Shri Khandeparkar contends that in view of the explanation given by the two Secretaries which is consistent with the original record, there is no laxity or delay on the part of the authorities concerned in either issuing the order of detention in the first instance or in considering the representation made by the detenu and subsequently issuing the order of confirmation. 20. Shri Khandeparkar then invited our attention to the Supreme Court decision in the case of Rajendrakumar Natvarlal Shah v. State of Gujarat, . He invited our attention to the observations in para 9 of the judgment at page 161 (of SCC) : (at p. 1780 of Cri LJ) of the report where the Supreme Court observed that in the enforcement of the law relating to preventive detention like the COFEPOSA Act there is apt to be some delay between the prejudicial activity complained of under S. 3(1) of the Act and the making of the order of detention. The learned Judges in para 10 sounded a caution to the High Court in the following words : "Viewed from this perspective, we wish to emphasise and making it clear for the guidance of the different High Courts that a distinction must be drawn between the delay in making of an order of detention under a law relating to preventive detention like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and the delay in complying with the procedural safeguards of Article 22(5) of the Constitution. It has been laid down by this Court in a series of decisions that the rule as to unexplained delay in taking action is not inflexible. Quite obviously, in cases of more delay in making of an order of detention under a law like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence have been posing a serious threat to the economy and thereby to the security of the nation, the Courts should not merely on account of delay in making of an order of detention assume that such delay, if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. Taking of such a view would not be warranted unless the Court finds that the grounds are 'stale' or illusory or that there is no real nexus between the grounds and the impugned order of detention." It may be stated that in Rajendrakumar's case, (1988 Cri LJ 1775) (SC), the offending act detected on 19th December, 1986; the detenu was arrested on 2nd February, 1987 and the order of detention was made on 28th May, 1987. In para 12 of the Judgment at page 164 (of SCC) : (at p. 1781 of Cri LJ) of the Report, the Supreme Court observed that even though there was no explanation for the delay between 2nd February and 28th May, 1987, it could not give rise to a legitimate inference that the subjective satisfaction arrived at by the District Magistrate was not genuine or that the grounds were stale or illusory or that there was no rational connection between the grounds and the impugned order of detention. At the end of para 12 the Supreme Court observed on a review of the relevant cases that the test of proximity was not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending acts and the order of detention. 21. Shri Kahandeparkar has then invited our attention to a Division Bench decision of this Court in the case of M. P. Mustafa v. Secretary (Preventive Detention) to the Govt. of Maharashtra, . He has particularly relied upon the observations in para 16 of the Judgment at page 624 of the Report. In the light of the Supreme Court decision in the above referred case of Rajendrakumar (1988 Cri LJ 1775) (SC), the Division Bench considered the question of delay in passing the order of detention under S. 3 of the COFEPOSA Act. In para 22 of the Judgment at page 627 of the Report, the Division Bench observed that in considering the question of delay in passing the order of detention what has to be borne in mind is that the cause for detention of the detenu is his prejudicial activity which adversely affects the economy of the country. The question which has, therefore, to be considered is whether the live link with regard to the above prejudicial activity can be said to be snapped merely because of delay in passing of the order of detention in a given case. The Division Bench was dealing with a case where the delay was of nearly 15 months in passing the order of detention from 16th January, 1988 on the day on which the contraband gold was detected in the said case. Despite the above, however, the Division Bench came to the conclusion that the explanation given by the authority was satisfactory and was not enough to vitiate the order of detention made on 7th April, 1989. 22. On the second contention raised by Shri Periera viz. the delay between the date of the order of detention and the execution thereof, that is to say the delay between 5th March and 31st March, 1992, Shri Khandeparkar contends that, in the first place, in the light of the decisions cited by him above on Point No. 1, there can neither be any hard and fast rule of a particular number of days nor should the Court mechanically or blindly apply the test of delay of a few days. Shri Khandeparkar reminded us of the observation of the Supreme Court in para 9 of the decision in Rajendrakumar's case and, indeed, reminded us of the caution sounded by the Supreme Court in para 10 of its Judgment in Rajendrakumar's case, . He further invited our attention to a recent decision of the Supreme Court in the case of M. Mohammed Sulthan v. The Joint Secretary to Govt. of India, Finance Deptt.. This was a case of an arrest made on 30th September, 1989 leading to the order of detention being passed on 12th December 1989 which was served on 12th January, 1990. Nevertheless, the Supreme Court upheld the order of detention which was made under the COFEPOSA Act as in the present case. Shri Khandeparkar reminded us that the detenu was working as a receptionist in a Hotel in Goa and was travelling between Goa and Bombay for collecting the amounts in Bombay for being distributed in Goa. Admittedly, he was no bail from 15th September, 1991. 23. On the 3rd contention of Shri Pereira regarding the detenu not having been given an opportunity to be represented before the Advisory Board, Shri Khandeparkar has invited our attention to the declaration made by the detenu on the 5th of May, 1992. The said declaration reads as under :- "DECLARATION Date : 5-5-1992 I hereby declare that I have been informed by the Jail Authorities that my hearing is going to take place on 22nd May, 1992 at 2.00 p.m. in committee Room, Delhi High Court, New Delhi. Further I declare that I do not desire to be heard in person on the above date, place and time. Moreover I declare that I cannot afford to engage the service of a counsel or friend, being a poor man. Before me : Shri Khandeparkar contended that the detenu is not an illiterate person, but was a receptionist in a Hotel in Goa and was indulging in Foreign Exchange transactions involving lakhs of rupees. He invited our attention to the provisions of clause (c) of S. 8 of the COFEPOSA Act. Clause (c) contemplates that while dealing with the reference the Advisory Board has to consider the material placed before it and, if in any particular case it considers it essential so to do, or if the person concerned desires to be heard in person, after hearing him in person, prepare its Report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned. Shri Khandeparkar, therefore, contends that in view of categoric declaration made by the detenu that he did not desire to be heard in person, there is no violation of the provisions of clause (c) of S. 8 of the COFEPOSA Act. He further contends that the right to make a representation guaranteed by clause (5) of Article 22 of the Constitution does not necessarily contemplated the right to an oral hearing. An oral hearing is not a necessary component of a right to make a representation in every case. Even the right to be represented by a legal practitioner cannot be claimed by the detenu in so far as his appearance before the Advisory Board is concerned. In support of this contention, Shri Khandeparkar has invited our attention to a decision of the Constitution Bench of the Supreme Court in Haradhan Saha's case, . This was a case where the validity of some of the provisions of the Maintenance of Internal Security Act, 1971, was challenged on the ground that they were violative of the provisions of Article 14, 19 and 22(5) of the Constitution. The Constitution Bench on a consideration of the relevant decisions observed that the opinion of the Advisory Board as well as the order of the Government rejecting the representation of the detenu must be after proper consideration. However, there need not be a speaking order. There was also no failure of justice if the order was not a speaking order. All that was necessary is that there should be a real and proper consideration by the Government and the Advisory Board. This has been so stated in para 26 of the Judgment at page 207 (of SCC) : (at p. 1484 of Cri LJ) of the Report. Further, in Para 28 of the Judgment, the Constitution Bench observed that an opportunity of making a representation cannot be equated with an opportunity of oral hearing or hearing before a Court and the procedure of a judicial trial. The duty to consider the representation does not mean a duty to accord personal hearing or disclosure of reasons in support of one's conclusion. The Constitution Bench further observed in Para 30 that elaborate rules of natural justice were excluded, either expressly or by necessary implication, where procedural provisions are made in the statute or where disclosure of relevant information to an interested party would be contrary to the public interest. Relying heavily upon this decision. Shri Khandeparkar contends that there is no obligation on the detaining authority to independently communicate the result of the consideration of the representation by the detaining authority. Undoubtedly, there is an order of confirmation passed under clause (f) of S. 8 of the COFEPOSA Act, which states that the Central Government had fully considered the report of the Advisory Board and the material on record. The learned counsel, therefore, contends that there is no warrant for contending that there has to be an independent communication of the result of the consideration of the representation by the detaining authority. 24. On the fourth contention of Shri Pereira regarding the non-application of mind on the part of the detaining authority to the representation dated 9-5-1992, Shri Khandeparkar has invited our attention to another recent Constitution Bench decision of the Supreme Court in the case of K. M. Abdulla Kunhi and B. L. Abdul Khader v. Union of India, . As stated earlier, the Supreme Court has in this decision reviewed the earlier case law and has in fact declared that the view expressed in three earlier decisions of the Supreme Court viz. (i) in the case of V. J. Jain , (ii) in Om Prakash Bahl's case, being Writ Petn. No. 845 of 1979, decided on October 15, 1979 (unreported) and (iii) in Khairul Haque's case, being Writ Petn. No. 246 of 1969, decided on September 10, 1969 (since reported in (1969) 2 SCWR 529) (un-reported) was no longer good law. In Para 20 of the Judgment, at page 489 (of (1991) 1 SCC) : (at P. 798 of 1991 Cri LJ) of the Report, the Constitution Bench has specifically declared that these three decisions were overruled. It is true that question of unexplained delay was not argued in this case before the Constitution Bench, but the Judgment is eloquent on the question of requirement of consideration of the representation and the time involved in the process of consideration. The Constitution Bench while approving of the observations in the case of Frances Coralie Mullin v. W. C. Khamba, , observed that the time imperative for consideration of a representation can never be absolute or absessive. In the very scheme of the provisions of the COFEPOSA Act where it is permissible for the Government to revoke the order of detention even after the same is confirmed, the Constitution Bench observed that it was only proper that the government should consider the representation only after the receipt of the report of the Board in certain situations mentioned in Para 16 of the Judgment. It was not even obligatory to consider the representation before confirming the order of detention. If in a given case the representation is received after the confirmation of the order of detention, the government is still bound to consider such a representation and can on such consideration revoke the order of detention even after it had been confirmed. The Constitution Bench, therefore, concluded in para 20 of its Judgment at Page 489 (of (1991) 1 SCC) : (at p. 798 of 1991 Cri LJ of the Report that so long as the representation was independently considered by the government and so long as there was no delay in considering the representation, the fact that the representation was considered even after the confirmation of the order of detention makes no difference to the validity of the detention or confirmation of the order of detention. It was in this behalf that the Constitution Bench overruled its earlier three decisions. Shri Khandeparkar has placed heavy reliance on this decision of the Supreme Court. It may be incidentally mentioned that the Constitution Bench in K. M. Abdulla Kunhi's case has in para 19 of the judgment, at page 488 (of of the Report, approved of its earlier view viz. the view of the Constitution Bench in Haradhan Saha's case, . 25. Shri Khandeparkar preferred to rely upon the decisions of the two Constitution Benches mentioned above and contended that it is clear from the material on record that the detaining authority has considered the representation made by the detenu. We have perused the record ourselves in the light of the Affidavits made by Shri Mahendra Prasad and Shri Roop Chand. We are satisfied that independently of the consideration by the Advisory Board, the detaining authority has considered the representation of the detenu. It is clear to us that there was only one representation made by the detenu viz. the representation dated 9th May, 1992 and the same was considered without any loss of delay and even before the confirmation of the order of detention on the 29th June, 1992. 26. On the last point raised by Shri Pereira viz. the delay in consideration of the representation, that is to say the delay between the date of the receipt of the representation viz. 13th May, 1992, and the date of the issuance of the order of confirmation viz. 29th June, 1992, Shri Khandeparkar contends that there is in the facts and circumstances of the case no delay whatsoever. He invited our attention to the elaborate Affidavit of Shri Roop Chand who has given a date-wise development from the receipt of the representation till its disposal and till the passing of the order of confirmation on the 29th June, 1992. He has catalogued the process of consideration of the representation and the movement of the file from one authority to the other up to the Finance Minister, who considered the case on the 26th June, 1992 pursuant to which the order of confirmation was issued under clause (f) of S. 8 of the COFEPOSA Act on the 29th June, 1992. In between this period, there were a number of holidays, including Saturday & Sunday, and the Minister of State was on tour between the 11th and 16th June 1992. He, therefore, contends that though it was not obligatory on the government in every cast to consider the representation before the confirmation of the order of detention, as observed by the Constitution Bench in K. M. Abdulla Kunhi's case, (1991 Cri LJ 790) (SC), in fact, in the present case the representation of the detenu was considered as soon as possible and even before the confirmation of the order of detention on the 29th June, 1992. Shri Khandeparkar, therefore, contends that there is no delay whatsoever in consideration of the representation and the lapse of period between 13th May, 1992 and 29th June, 1992 has been satisfactorily explained. 27. On the submissions of the rival counsel, therefore, the following 5 contentions need to be considered :- (i) Whether there was un-explained delay between the date of the release of the detenu on bail on 15th September, 1991 and the issuance of the order of detention on 5th March, 1992 ? (ii) Whether the time leg between the date of the order and the execution thereof, that is to say the time lag between 5th March and 31st March, 1992 is fatal to the order of detention ? (iii) Whether the detenu was denied the opportunity of being before the Advisory Board ? (iv) Whether there is non-application of mind on the part of the detaining authority to the representation dt. 9th May 1992 made by the detenu ? (v) Whether there was un-explained delay in consideration of the representation, that is to say whether the time lag between 13th May, 1992 - the date of the receipt of the representation and 29th June, 1992 - the date of the issuance of the order of confirmation has been properly explained. In the light of the submissions made before us, we have ourselves perused the original papers that were made available to us by Shri Khandeparkar and our answers to these 5 contentions are as under :- 28. The first two contentions can be disposed of together viz. the question of delay between 15th September, 1991 and 5th March 1992 and secondly, the delay between the date of the order of detention and its service viz. the delay between 5th March and 31st March, 1992. We must at once mention that as early as in Gora's case , the Supreme Court made it clear that there was no hard and fast rule regarding the time lag of a few days or a few months. The Supreme Court pointed out the difficulty in investigating into such acts which necessitated detention under different laws. Gora's case was the case of a dacoity on the night between 25th and 26th June, 1973 and the order of detention was made as late as on December 29, 1973. The Supreme Court rejected the mechanical and blind approach of the test of proximity by merely calculating the number of days and months and observed that what the Court has to determine is whether the past activities of the detenu are such that from them a reasonable prognosis can be made as to the future conduct of the detenu. If this subjective satisfaction was arrived at by the detaining authority, the more lapse of a few days or months was not, according to the Supreme Court, fatal to the conclusion necessary for passing of an order of detention. 29. Again, in case of Ashok Narain v. Union of India, , the Supreme Court rejected the application of the mechanical test of delay of a few days or months. Ashok Narain's case was dealing with the arrest of the detenu on 23rd February, 1981 and his detention under the COFEPOSA as late as on October, 14, 1981 viz. a gap of nearly 9 months. The Supreme Court observed that the time lag in such cases may be the result of full and detailed consideration of the facts and circumstances of the case by the various departments involved and, therefore, the mere passage of time from the date of arrest till the date of detention would not necessarily vitiate the order of detention. 30. Similarly, in the case of Smt. Hemlata Kantilal Shah v. State of Maharashtra, , the Supreme Court observed at page 13 (of AIR) : (at p. 155 of Cri LJ) of the Report in Para 6 of the Judgment that the delay ipso facto in passing an order of detention after the offending act was not fatal to the detention of the person, for such a delay in some cases may be unavoidable and may be reasonable. What is required by law is that the delay must be satisfactorily explained by the detaining authority. The Supreme Court further observed in Para 7 that the detaining authority was not under a legal obligation to tell or satisfy the detenu as to the causes of delay. It has, however, to satisfy the Court as to the causes of delay that there was no infraction as to the constitutional provision laid down under clause (5) of Article 22 of the Constitution. 31. Finally, in Rajendrakumar's case, , the Supreme Court was dealing with a case where the offending act was detected on 29th December, 1986, the detenu was arrested on 2nd February 1987 and the order of detention was passed on 28th May, 1987. In Para 12 of the Judgment, at page 164 (of SCC) : (at p. 1781 of Cri LJ) of the Report, the Supreme Court reviewed its earlier decision, including the decision in Gora's case, (1975 Cri LJ 429) (SC) referred by us earlier, and the Supreme Court concluded that the test the proximity was not a rigid or mechanical test to be blindly applied by merely calculating the number of days or months between the offending act and the order of detention. If the authority comes to the conclusion that the link had not snapped and the delay is attributable to the usual difficulties in investigating such a foreign exchange racket, as in the present case, it would not be permissible to strike down the order of detention merely on the ground of delay. 32. A Division Bench of this Court took the same view in M. P. Mustafa's case, . M. P. Mustafa's case dealt with a situation where the offending act was detected on 16th January, 1988, the arrest was made on the 11th March, 1988, the accused was released on bail on 17th May, 1988 and the order, of detention was passed on 7th April, 1989, viz. nearly 15 months later. Nevertheless, the order of detention was upheld rejecting the contention of delay. In view of these decisions, particularly the three decisions of the Supreme Court mentioned above, we do not think that the ratio of the decision in Paturkar's case, (1992 (2) JT (SC) 261), on which Shri Pereira has placed reliance, can have any application to the facts of the present case. That was a case where there was unexplained delay of more than 5 months from the date of the registration of the last case and the order of detention. Similarly, there was more than 4 month's delay from the submission of the proposal for detention till the passing of the order of detention. It was in these peculiar facts in Paturkar's case that the Supreme Court was disturbed by the fact of unexplained delay which had vitiated the order of detention. 33. Similarly the ratio of the decision of this Court in Mohd. Yusuf's case, can have no application to the facts of the present case. In Mohd. Yusuf's case, the offending act had taken place on 18th April, 1990 and the order of detention was passed on 30th March, 1991. A Division Bench of this Court took the view that the delay was unexplained, which has vitiated the order of detention. 34. Such are not the facts of the present case before us. In the light of the Supreme Court decisions in Gora's case, (1975 Cri LJ 429) in Ashok Narain's case, (1982 Cri LJ 1729) and Rajendrakumar's case (1988 Cri LJ 1775), we are of the view that the detaining authority has acted as soon as possible and there is no unexplained delay between the offending act and the passing of the order of detention. In our view, therefore, the mere time lag between 15th September 1991 and 5th March, 1992 does not vitiate the order of detention in the facts and circumstances of this case. Once it is held that the link had not snapped, it is clear to us in the light of the Supreme Court decisions that the mere gap on a few days or months is not by itself sufficient to vitiate the order of detention. The first contention is, therefore, rejected. 35. In view of the above, the second contention of Shri Pereira will also have to be rejected. Shri Khandeparkar is justified in placing reliance on the Supreme Court decision in M. Mohammod Sulthan's case. As stated earlier, this was a case where the order of detention was passed on 12th December, 1989 and though the service was effected on 12th January, 1990 viz. one month later, the order was upheld. 36. Shri Pereira's reliance upon the observations of the Supreme Court in the case of T. A. Abdul Rehman v. State of Kerala, (1990 Cri LJ 578), is misplaced in the facts of this case. In Abdul Rahman's case, the Supreme Court reiterated the fact that the test of proximity was not a rigid or mechanical test to be adopted by merely counting the number of days and months between the offending act and the order of detention. However, if there was unexplained delay and the authorities were guilty of laxity and had miserably failed in explaining the delay, it could be a ground relevant for considering the challenge to the order of detention. In a given case, it could be fatal. In Abdul Rahman's case, the Supreme Court was not satisfied with the explanation offered by the authority and concluded that there was laxity on the part of the authority in explaining the delay of three months in securing the arrest of the detenu. In view of the observations of the Supreme Court in the cases mentioned earlier viz. Gora's case, (1975 Cri LJ 429), Ashok Narain's case, (1982 Cri LJ 1729) and Rajendrakumar's case, (1988 Cri LJ 1775), and also in view of the latest decision in Mohammed Sulthan's case, (1990 Cri LJ 2473) (SC), we are of the view that the delay in service of the order of detention does not vitiate the order of detention in the facts of the present case. There is, thus, no merit in the second contentions raised by Shri Pereira. 37. The third contention of Shri Pereira is regarding the alleged failure to afford an opportunity to the detenu of being represented before the Advisory Board when it met at Delhi on the 22nd May, 1992. Shri Khandeparkar is justified in placing reliance upon the declaration made by the detenu on the 5th May, 1992, which we have reproduced above verbatim. The detenu was informed by the Deputy Registrar of the Delhi High Court (COFEPOSA Branch) by a letter dated 30th April, 1992 that the Advisory Board was to meet in the Committee Room of the Delhi High Court at 2.00 p.m. on the 22nd May, 1992. The detenu was permitted to engage a lawyer at the time of hearing before the Advisory Board. The detenu is an English knowing person who was working as a receptionist in a Hotel at Goa and is involved in a foreign exchange recket with connections at Bombay and in United Kingdom. He categorically states in the declaration that he did not desire to be heard in person at the date, place and time. There is no grievance made about the declaration dated 5th May, 1992 being not genuine or authentic. In view of this, it is difficult to accept the contention of Shri Pareira that the detenu was not given an opportunity of being heard by the Advisory Board. Shri Pereira's reliance on the Supreme Court decision in Sukhpal Singh's case, is wholly misplaced. As pointed out earlier, Sukhpal Singh's case was dealing with a situation where the Advisory Board was to meet at Indore on the 12th November, 1988 and the detenu applied for adjournment on the 8th November, 1988 on the ground that he was unwell. On the 11th November 1988 the detenu was informed by I.G. (Prisons) that his application for adjournment was granted and that he will be communicated the next date of hearing. The Advisory Board, therefore, did not meet on the 12th November, 1988. Unfortunately, however, since the Advisory Board was running short of time, which was to expire on the 19th November, 1988, it met on the 17th November, 1988 without affording any opportunity to the detenu. This was what was held to be impermissible by the Supreme Court in Sukhpal Singh's case, (1990 Cri LJ 584). This is clear from Paragraphs 26 and 27 of the Judgment appearing at page 111 (of JT (SC)) : (paras 21 and 22 at p. 597 of 1990 Cri LJ) of the Report. We do not think that there is any parallel between Sukhpal Singh's case and the present case. 38. Shri Khandeparkar is justified in his contention that in the scheme of the provision of S. 8 of the COFEPOSA Act read with clause (5) of Article 22 of the Constitution, there is no right to be represented by a legal practitioner before the Advisory Board. The detenu was given a chance of being represented. He declined to avail of the offer. Shri Khandeparkar is also justified in placing reliance upon the observations of the Division Bench of the Delhi High Court in the case of Sh. Om Prakash Sharma v. The Administrator, Delhi Administration, reported in 1983 Cri LJ 587, where a distinction has been made between appearance through a lawyer and assistance by a friend. The Delhi High Court observed in Para 7 of the judgment at page 589 of the Report that the situations in which a detenu should be represented by a lawyer of should be allowed to be assisted by a friend may be different. The circumstances justifying the assistance by a friend has to be pleaded and established and there can be no general law laid down that in every case where appearance of a legal practitioner is barred either explicitly or impliedly, assistance by a friend must be allowed. Shri Khandeparkar contends that clause (c) of Section 8 itself contemplates a desire being expressed by a person viz. the detenu that the wanted to be heard in person. Here, we have a situation where the detenu categorically says that he did not desire to be heard in person on the 22nd May, 1992 when the Advisory Board met at Delhi. He asked for no assistance either through a lawyer or a friend. 39. Finally, we may conclude on point No. 3 by placing reliance on the observations of the Constitution Bench in Haradhan Saha's case, (1974 Cri LJ 1479) (SC) where in para 28 it has been observed that the opportunity of making a representation contemplated by Article 22(5) cannot be equated with an opportunity of oral hearing before Court in accordance with the procedure of a judicial trial. The Constitution Bench has further observed in para 30 of the Judgment, at page 208 (of (1975) 3 SCC 1987) : (at p. 1484 of 1974 Cri LJ 1479) of the Report, that elaborate rules of natural justice were excluded, either expressly or by necessary implication, where procedural provisions are made in the statute or where disclosure of relevant information to the interested party would be contrary to public interests. These observations have been made by the Constitution Bench while upholding the validity of the Maintenance of Internal Security Act, 1971. However, suffice for our purpose to say that the detenu was afforded an opportunity of being heard but he declined to avail of it. The detenu made it clear that he did not desire to be heard in person. There is, thus, no merit in the third contention raised by Shri Pereira that the detenu had no opportunity of being represented before the Advisory Board when it met in Delhi on 22nd May, 1992. 40. The fourth contention of Shri Pereira is in respect of the alleged non-application of mind by the detaining authority at the time of confirmation of the order of detention. As indicated earlier, the Constitution Bench in K. M. Abdulla Kunhi's case, (1991 Cri LJ 790) (SC), has now made it clear that what is necessary is proper consideration by the detaining authority. Rejecting the earlier view in the cases of (i) V. J. Jain, (1979 Cri LJ 1131) (SC); (ii) Omprakash Behl; and (iii) Khairul Haque, (1969 (2) SCWR 529), the Supreme Court has now made it clear that so long as the representation was considered properly and in good time, it is not even obligatory to consider the representation before the confirmation of the order of detention. The Supreme Court has agreed with its earlier observations in Francis Coralie Mullin's case , which observations have been quoted in para 14 of the judgment in K. M. Abdulla Kunhi's case, at page 485 (of of the report. It would be useful to reproduce the same as under :- "We, however, hasten to add that the time imperative can never be absolute or obsessive. The Court's observations are not to be so understood. There has to be leeway, depending on the necessities (we refrain from using the word 'circumstances') of the case. One may well imagine a case where a detenu does not make a representation before the Board makes its report making it impossible for the detaining authority either to consider it or to forward, it to the Board in time or a case where a detenu makes a representation to the detaining authority so shortly before the Advisory Board takes up the reference that the detaining authority cannot consider the representation before them but may merely forward it to the Board without himself considering it. Several such situations may arise compelling departure from the time imperative. But no allowance can be made for lethargic indifference. No allowance can be made for needless procrastination. But, allowance must surely be made for necessary consultation where legal intricacies and factual ramifications are involved. The burden of explaining the necessity for the slightest departure from the time imperative is on the detaining authority."" After having said this and approved of the view expressed by the earlier Constitution Bench in Haradhan Saha's case, (1974) Cri LJ 1479) (SC), to the effect that the consideration of the representation by the Government is only to ascertain whether the detention order is in conformity with the power under the law and that there need not be a speaking order disposing of a representation, the Supreme Court concluded that all that was necessary was that there should be a real and proper consideration by the Government. Finally, in Para 20 of the Judgment the Supreme Court dealt with the government's power of revoking the order of detention even after the detention was confirmed. In a given case, therefore, if the representation was received by the government at a late stage just before the confirmation of the order or after the confirmation of the order, the government is obliged to consider the said representation even after the order of detention was confirmed. This is so because the order of detention can be revoked either suo motu or on a representation being made to the government. The sum and substance, therefore, is that there has to be a proper consideration by the detaining authority. In view of this dictum of the Constitution Bench, which has overruled some of the earlier decisions of the Supreme Court, it is not possible for us to accept the fourth contention of Shri Pereira. In fact, his contention is that there has to be a prior consideration by the detaining authority before issuing the order of confirmation and secondly, there has to be distinct communication of the result of consideration to the detenu. We find no warrant for any of those propositions, in the law laid down by the two Constitution Benches either in Haradhan Saha's case, (1974 Cri LJ 1479) (SC) or in K. M. Abdulla Kunhi's case, (1991 Cri LJ 790) (SC). 41. The 5th and the last contention raised by Shri Pereira is about the delay in consideration of the representation viz. the delay between 13th May, 1992 and 29th June, 1992. Having perused the original papers, we are satisfied that the explanation given by Shri Roop Chand in his affidavit is satisfactory. The representation dated 9th May, 1992 sent from Goa was received by the detaining authority in Delhi on the 13th May. The Advisory Board met on the 22nd May, 1992. The Advisory Board considered the entire material and was of the opinion that there was sufficient cause for the detention of the detenu. The Advisory Board returned the papers to the detaining authority on the 3rd June, 1992. The papers were processed and submitted to the Joint Secretary (COFEPOSA) on the 4th June, 1992. He considered the same on the 5th June, 1992 and forwarded the papers to the Director General (EIB). The Director General (EIB) considered the case on the 10th June. In between, 6th and 7th June were holidays, being Saturday and Sunday. The Director General forwarded the papers to the Minister of State for Revenue on the 10th June, 1992. The Minister of State was on tour from 11th to 16th June and 20th and 21st June were the holidays being Saturday and Sunday. The Minister of State considered the matter on the 25th June and forwarded the papers to the Finance Minister on the 26th June, 1992. The Finance Minister considered the case on the same day viz. 26th June, 1992; 27th and 28th were Saturday and Sunday and were holidays and the order of confirmation has been passed on Monday, the 29th June, 1992. We do not think that this is a case of any delay in consideration of the representation by the detaining authority or confirmation of the order of detention under clause (f) of S. 6 of the COFEPOSA Act. At any rate, in our view, there is no unexplained delay in consideration of the representation and the confirmation of the order issued on the 29th June, 1992 in the facts and circumstances of the present case. Shri Khandeparkar is justified in placing reliance on the decision of the Supreme Court in M. L. Jose's case . The Supreme Court observed in Jose's case that the representation was received in the COFEPOSA Unit on 4th March, 1991 and the same was considered on the 21st March, 1991. It was held in the facts of Jose's case that there was no delay in disposal of the representation. We have already indicated above the Supreme Court's approach in the matter of the consideration of the representation. The Constitution Bench in K. M. Abdulla Kunhi's case, (1991 Cri LJ 790) (SC), has now gone to the extent of saying that such consideration in every case need not necessarily be before the order of confirmation. So long as there is a proper consideration and the consideration is in good time, it is enough compliance with the mandate of clause (5) of Article 22 of the Constitution. The decisions to the contrary have been overruled by the Constitution Bench in K. M. Abdulla Kunhi's case. In the facts of the present case, therefore, having regard to the pleadings and having perused the original papers produced before us, we do not think that there was any delay in consideration of the representation and/or the time lag between 13th May and the confirmation of the detention on the 29th June, 1992 has been properly explained. Accordingly, there is no merit in the fifth and the last contention raised by Shri Pereira. 42. In view of the above, there is no merit in any of the contentions raised on behalf of the detenu. The Petition, thus fails, The rule is accordingly discharged. 43. Petition dismissed.

Author: A Savant

Mrs. Ana Maria Pereira vs Union Of India And Another on 13 November, 1992

Bombay High Court

Court No. - 10 Case :- CONTEMPT APPLICATION (CIVIL) No. - 1258 of 2006 Petitioner :- Smt. Shashi Kala Kushrestha Respondent :- Ram Chandra, Alld Director Officiating As Director & Another Petitioner Counsel :- Sudhir Kumar Respondent Counsel :- S.C. Hon'ble Vikram Nath,J. Perused the record. The writ petition filed by the applicant had been disposed of with the directions to decide the representation within a fixed time frame. The application was filed in the year 2006. It is presumed that the representation must have been decided by now. Accordingly, notices are discharged. The application is accordingly consigned to record. Order Date :- 6.8.2010 AKJ

Smt. Shashi Kala Kushrestha vs Ram Chandra, Alld Director ... on 6 August, 2010

Allahabad High Court

Court No. - 33 Case :- SALES/TRADE TAX REVISION No. - 1779 of 2006 Petitioner :- The Commissioner Trade Tax, U.P., Lucknow Respondent :- S/S K.K. Trading Co. Petitioner Counsel :- Standing Counsel Hon'ble Bharati Sapru,J. This revision has been filed by the State under Section 11(1) of the U.P. Trade Tax Act for the assessment year 1997-98 against the order of the Tribunal dated 28.6.2006. The question of law referred to is hereunder:- (i) Whether on the facts and in the circumstances of the case, the Trade Tax Tribunal was legally justified in reducing the tax taxable turnover and tax liability without assigning any reason and proper consideration and examination of the findings recorded by the assessing authority ? The Tribunal has accepted the taxable turnover of the assessee and has given reasons for doing so. In view of the reasons given by the Tribunal, no question of law arises. This revision is dismissed. Order Date :- 29.1.2010 S.P.

The Commissioner Trade Tax, U.P., ... vs S/S K.K. Trading Co. on 29 January, 2010

Allahabad High Court

"* * * * * It seems to me that when a wife claims maintenance and she has some children of her own to support and maintain, any interim maintenance that may be awarded to the wife would be meaningless if the same was not intended to provide for the maintenance of the children also. * * * * *" JUDGMENT Srinivasa Iyengar, J. 1. The learned single Judge has referred this revision Petition to a Division Bench on the ground that there is some conflict between the decision reported in the case of Parashuram Rao Anantha Rao Pise, v. Smt. Prathibha Parashuram Rao Pise, and the decision reported in the case of Mrs. Sudha v. B, Narasirnha Pai, ILR (1979) 1 Kant 382. 2. The petitioner has flied this revision petition against an order made by the Principal Civil Judge, Bangalore City under S. 24 of the Hindu Marriage Act, 1955 directing payment of Rs. 275 per month in order to meet the expenses and in order to support herself during the pendency of the main petition for divorce filed by the respondent-husband. The plea is that the amount awarded is inadequate. 3. The learned Judge permitted the conversion of the revision petition into a Miscellaneous appeal following the decision of this Court in the case of Parashuram Rao Anantha Rao Pise, . Subsequently the decision of this Court in the case of Mrs. Sudha, (ILR (1979) 1 Kant 382) was brought to his notice in which it has been held that no appeal would lie under S. 28 of the Hindu Marriage Act. In the light of this, the earlier order was recalled by the learned Judge and this reference has been made. 4. There is no conflict between the two decisions referred to above. Section 28 of the said Act was amended by Act 68 of 1976. As the provisions stood earlier thereto, an appeal was maintainable against every order made under the Act except in respect of order for costs. But by virtue of the amendment, an appeal was provided against all the decrees made by the Court in a proceeding under the Act except that no appeal was permissible on the subject of costs only. So far as the orders were concerned, Section 28(2) provided that orders made by Court in any proceedings under the Act under Section 25 or Section 26 and if they were not interim orders, were appealable. Even in respect of such orders, no appeal was permissible on the subject of costs only. It is therefore apparent that there is no conflict between the two decisions and the decision reported in Mrs. Sudha's case (ILR (1979) Kant 382) was applicable on the facts and in the circumstances of the case. The revision petition was therefore maintainable. No appeal -was competent against the order made by the Civil Judge. 5. Coming to the merits of the cases the learned Civil Judge directed the payment of Rs. 275 per month on the basis that the respondent's salary was Rs. 1500 and making some deductions for payment of compulsory insurance premia, the net income has to be taken at Rupees 1400 and award of 1/5th of that amount would be reasonable. The order was made on 4th September 1978 and the direction was that the amount should be paid from the date of application, i. e., 30th May 1977. 6. Smt. Pramila, learned counsel appearing for the petitioner, urged that the interim payment is inadequate and the Court below was in error in holding that an interim maintenance could not be granted in regard to the minor child in an application under S. 24 of the Hindu Marriage Act, 1955. She relied upon the decision of this Court in the case of Thimmappa v. Nagaveni, (1976) 2 Kant LJ 24: (AIR 1976 Kant 215). Sri Shama Rao, learned counsel for the respondent, however, supported the view taken by the Court below that in such an application, a claim for maintenance on behalf of the minor child would not. be tenable and relied upon a decision of this Court reported in Chandrakant v. Sharadabai (1977) 2 Kant LJ 29. In Thimmappa's case, the learned single Judge noticed a decision of the Andhra Pradesh High Court and agreed with the principles enunicated therein that in an application filed under Section 24 of the Hindu Marriage Act, maintenance could be determined in the light of Section 26 also which empowers the Court to make orders for interim maintenance in regard to the minor children. Though Section 24 in terms refers only to the wife or husband making an application, the Court has got power -under Section 26 to make interim order in respect of maintenance of minor children also. Venkataswami, J. observed in Thimmappa's thus (at p. 217 of AIR 1976 Kant): - We are in entire agreement with this observation. The decision in Chandrakant's case, makes no reference to the provision of S. 26, as also to the earlier decision. In our opinion, where an application is filed under S. 24 and there is an averment of existence of minor child, the Court having regard to the provisions of S. 26 can make an order awarding maintenance pendente lite in respect of minor child as well as the applicant. We accept the view expressed in Thimmappa's case. 7. It appears that the petitioner is staying with her parents and her father is a retired Divisional Forest Officer. It does not appear that she has to incur expenditure for purposes of residence and we do not consider that the amount directed to be paid is in any way inadequate to meet the requirements of the petitioner. Even taking into account that she has got a minor child. the amount awarded was reasonable considering the salary the respondent is entitled to get. It is also seen that the respondent paid a lump sum payment of Rs. 4,000 on 16th October 1978, Rs. 650 on 23rd August 1978 and Rs. 2,200 on or about 8th June, 1979. Again a lump sum payment was made during February as submitted by the learned counsel for the respondent. Considering the entire circumstances, we hold that there is no ground-'made out to interfere with the order of the Court below or to modify it in any manner. 8. The revision petition is accordingly dismissed. Parties to bear their own costs, 9. Revision dismissed.

Author: S Iyengar

Subhasini vs B.R. Umakanth on 27 March, 1980

Karnataka High Court

JUDGMENT S.S. Sodhi, J. 1. The identity of the offending truck emreges as the Main point for consideration in the appeal here. 2. According to the claimants (Om Parkash deceased was proceeding towards his house in Shakti Nagar, Hissar and when he reached near Malik Hospital, the driver of his rikshaw suddenly took it on to the kachcha portion of the road on seeing the truck HRJ-5595 coming from the opposite direction at a fast and reckless speed. In the process Om Parkash fell off the rikshaw on account of a bump received by him. It was when he fell that he is said to have been run over by this truck. The respondents, however, denied the involvement of this truck in any such accident. The Tribunal negatived the claim for compensation put-forth by the widow and children of Om Parkash deceased holding that they had failed to prove that this accident had been caused by the truck HRJ 5595. It is this finding that was sought to be challenged in appeal. 3. The accident in the present case is said to have taken place on July 7, 1979 at about 9 P.M. The case of the claimants rests upon the testimony of PW 4 Sunder Singh and PW 6 Raghbir Singh. According to said Sunder Singh, was returning home from the University when he saw this accident. He deposed as per the claimants' version namely that Om Parkash deceased fell off the rikshaw and was then run over by the truck. Tie Tribunal held him to be an unreliable witness. He was in fact branded as a liar. A reading of his testimony would indeed show that he does not deserve any credence. The statement of this witness was recorded by the police the day after the accident when he stated that he was taken to the police station by Mabavir, the brother of the deceased. It is significant to note that there is, on record. the Daily Diary report exhibit PB with regard to this accident recorded on the statement of one. Tej Bhan at about 9.20 P.M. on the day the accident occurred. In this statement, there is no mention of the number of the truck invloved in the accident or even the name of the deceased. According to PW 4 Sunder Singh ; PW 5 Mahavir, the brother of the deceased, came to the place of incident of few minutes after the accident. If this was so, there is so explanation why the statement of this witness was not recorded that very night and there was, at the rate, no mention to the police of the name of the deceased or the number of the offending vehicle. What is more, PW 5 Mahavir denied that he ever met Sunder Singh on the day of the accident. He in fact deposed that he learnt of the accident only the next day when he went to the police station .In this situation the Tribunal very rightly discarded the testimony of PW 4 Sunder Singh. 4. Similarly, the testimony of PW 6 Raghbir Singh was also rightly not relied upon. He too emerged as a witness only a day after the accident. According to him he happened to go to the place of accident the next day at about mid-day when he found the police there and then he got his statement recorded. In his case too if indeed he had seen the occurrence and noted the number of the truck, the report by Tej Bhan to the police would not have omitted to contain the truck number. 5. The most material witness as per the claimants' version would undoubtedly have been the rikshaw driver but he was not produced. In this behalf, it is significant to note that the Tribunal had summoned the file of the Criminal case registered with regard to this accident. A perusal of it shows that this rickshaw had been given on supardari to one Hoshiari Lal. There is no explanation to account for the non examination of this person. 6. Such being the state of evidence on record, no exception can be taken to the finding of the Tribunal that the claimants had failed to estabish that the accident had caused by the truck HRJ-5595. 7. This appeal is accordingly hereby dismissed. In the circumstances, however, there will be no order as to costs.

Author: S Sodhi

Man Kauri And Ors. vs Sat Paul And Ors. on 10 July, 1985

Punjab-Haryana High Court

JUDGMENT Anantanarayana Ayyar, J. 1. One Macherla Peda Kondihh filed a private complaint in P.R.C. No. 2 of 1958 on the file of the Judicial Second Class Magistrate, Repalle. Subsequently, he died. His brother Macherla China Kondiah (PW. 1) continued to prosecute the case. Ultimately, the learned Magistrate committed 26 accused in that case to the Sessions Court, Gunlur Division fur trail. The learned Additional Sessions Judge, Guntur framed thirty-six. charges against the 26 accused in S.C No. 48 of 1958 on his file Alter full trial in that case, the learned Additional Sessions Judge acquitted every one of the accused of nil the charges trained against him. Macherla China kondiah was examined P.W. in that case. He filed C.M.P. No. 203 of 1959 in this Court for leave to file an appeal against the order of acquittal. Special leave Was granted by an order of this Court dated 24.2.1959 and the appeal filed by him was token en file as Criminal Appeal No. 231 of 1959. No appeal was tiled by the State against the acquittal of any of the accused. 2. The prosecution examined 30 witnesses and marked documents, Exs. P-1 to P-58. The prosecution story was briefly to the following effect: Ilavaram is a village which is a few miles from Repalle. The prevailing community in that village consists of Padma Saleelu who were about 3,000 strong. Yadavas and Gowdas form a small minority numbering about 200 or 300. In the elections during the year 1952, Padma Saleelu (Weavers) supported the Congress party whereas the Yadavas and Gowdas supported the communist Party. Subsequently, in the year 1955 the Padma Saleelu got a drama called "Sasirekhaparinayam" enacted in which there was some comic scene introduced which reflected badly on the Yadavas who were referred to as "Gollas" and whose ancestry was mentioned to be as uncertain as that of their sheep. The Yadavas felt it to be a great insult. Subsequently, the Padma Saleelu enacted some other drama. A14, who is a Yadava, filed a petition before the Magistrate for stopping the performance of a play (drama) called "Kalidasu1". In due course, this petition reached the Sub Inspector of Police who investigated into it. In the morning of 21.12.1955, the S.I. camped at Vellatur, sent for the Padma Saleelu as well as Yadavas and took an undertaking from the Padma Saleelu not to humiliate the Yadavas any further. The very next day a big rioting took place in the village in which two groups, viz. Padma Saleelu on one side and Yadavas and Gowdas on the other, had a clash with the result that several people on both sides got injured. The party of Yadavas and Gowdas were the aggressors. They attacked the Padma Saleelu and injured a number of them. The Padma Saleelu acted in exercise of their right of private defence In the course of the attack A-14 beat P.W. 26 causing very server injuries. The Doctor (P.W. 29) in charge of the Hospital at Repalle, examined the injured and issued wound certificates for the following injured persons (a) P.Ws. 1 to 15 and 26; (b) A-4 A-5, A-8, A-13 A-15, A-18, A-19, A-20, A-21, A-22, A-23, (c) D. Ws. 2. 5, 8 and one Tata Raghavulu who had penetrating stab wound few inches below the chest as a result of which he later died. 3. The Village Munsif (P.W. 28) sent the report Ex. P1 to the Police Station. On receipt of it, the Head constable (PW. 30) went to the village. He found A-22 and A-23 injured and sent them to the Hospital. The Circle Inspector who came to the village the same day investigated the case. He examined P.Ws. 1, 15 and 26 and sent them to the Hospital. He, however, was not examined as a witness, because at the time of the trial he was blind and he was unable to examine and identify the persons. 4. P.W. 26, Battu Kotaiah is an old man of 70 years His brother died on 21.12.1955. On the next day, i.e. 22.12.55 he went out from his house to secure vegetables for performing the second day funeral ceremony of his brother. On his way, he saw the rioting which was going on near the well close to the house of the Karnam. Then A13 beat him with a stick on the head and A-14 beat him with a stick across the chest PW. 26 vomited blood and fell down unconscious. He was taken to the Hospital at Repalle and later to the Hospitals at Tenali and Guntur. He sustained severe injuries which were described by the Doctor (P.W. 29) in the wound certificate, Ex. P-17. The injuries included the fracture of several ribs and are grievous in nature. Similarly, A-6 beat P.W. 14 who also sustained grievous injuries which are described in the wound certificate, Ex. P-15, A-7 beat P.W. 6 and the letter sustained injuries described in the wound certificate, Ex P-7 by the Doctor, (P.W. 29) various other injured prosecution witnesses were beaten by various accused as deposed to by them P.Ws.). 5. When examined, all the accused denied the offence. They stated that it was the Padma Saleelu who were the aggressors, that they attacked the Yadavas and Gowdas and caused lot of injuries to them and that one of those victims namely Tata Raghavulu died of a stab injury which was inflicted by one of the Padma Saleelu. 6. The accused examined ten defence witnesses. Of these, D.W. 1 is an old woman who is the grand-mother of A-11, A-22 and DW 2, D.Ws. 1 and 2 deposed that when they were going homeward from the rice mill after getting some paddy hulled along with A-11 and A-22, at the corner of the house of Macherla Peda Kondaiah, Macherla Venkata Rao, along with others, obstructed and removed the rice bags from them and that when D.W. 1 objected, two persons beat DW. 2 with stick on the head and that some of the assailants pushed A-11 into a ditch and beat him with sticks, that D.W. thereupon raised an alarm and ran away and that, from the large crowd of Padma Saleelu who were present, Macherla Peda Kondaiah threw a bomb on A-23 who came there. The other defence witnesses also deposed to the occurrence in support of the version of the accused. 7. The learned Additional Sessions Judge framed four points for consideration as mentioned in paragraph 4 of his judgment. He held on Point No1 that it was not the accused party that took law into their hands, but it was the prosecution party that started rioting and were the aggressors; that the accused party was entitled to fall back on the right of self-defence and use the necessary violence to ward off the attack and that the prosecution had not established that the accused committed any rioting. On Point No. 2 the learned Judge held that the prosecution had not established that A-14 beat P.W. 26 and caused injuries on him; that even assuming that A-14 beat P.W. 26 and caused the injury, it cannot be stated that he attempted to commit murder and that the offence, if made out would be under Section 325, I.P.C. and not under Section 307, I.P.C. On point No. 3 the learned Judge found that the prosecution had failed to prove charge No. 3. Or Point No. 4, the learned Judge considered the respective charges in his discussion against each accused individually and in the end found each of the accused wag "not guilty" of all the charges framed against him. 8. The learned Advocate for the respondents Mr. Rajeswara Rao, has raised an objection that the appeal by Macherala China Kondaiah (P.W. 1) was not competent. In support of his contention, he points out that the complainant who filed the original complaint is not the present appellant (P.W. 1) but one Macherla Peda Kondiah who died after he filed the complaint. Even in the committing Court, Macherla China Kondiah (P.W. 1) helped in continuing the prosecution after the death of the original complainant. Macherla Peda Kondiah. 9. The word 'complaint' is defined in Sec 4 of the Code of Criminal Procedure as follows: 4 (1) In this Code, the following words and expressions have the following meanings, unless a different intention appears from the subject or context: X X X X (h) 'Complaint' means the allegation made orally or in writing to a Magistrate with a view to his taking action under this Code, that same person whether known of unknown, has committed an offence, but it does not include the report of a police officer: Section 417(3) Cri. P.C. runs as follows: If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. 10. The requirements under Section 417(3) Cri. P.C. are: (a) The acquittal must be in any case instituted upon complaint. (b) The application must be made to the Court (for grant of special leave) by the complainant. (c) If permission were granted, the complainant may present appeal to the High Court. 11. Requirement (a) is certainly fulfilled; for the case was instituted on complaint by Macherla Peda Kondiah. Subsequently, he died and Macherla China Kondiah appears to have helped in continuing the prosecution of the case in the committing court. The question is whether this is sufficient to enable him to claim or to be treated or recognised is complainant. For requirements (b) and (c) would be fulfilled only if P.W. is "complainant P.W. 1 styling himself as "complainant-petitioner" filed G.M.P. No. 203 of 1959 in this Court for grant of special leave to appeal under Section 417(3), Cri. P.C. In this petition, he did not refer to the facts which' had a bearing on the question whether he was tile 'complainant' for the purpose of Section 417(3), Cri. P.C. Order in the C.M.P. was passed without going into the question and deciding whether the petitioner was the 'complainant' within the meaning of Section 417(3). Cri.P.C. Consequent the question as to whether the requirements of Section 417(3), Cri.P.C. have been fulfilled, which has not been gone into and decided in the C.M. Plan and has to be gone into and decided in this appeal. 12. The word 'complainant' has not been defined in the Criminal Procedure Code. Section 200, Cri.P.C. says that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant upon oath there 'complainant' obviously means a person who presented the complaint and who was to be examined on oath. In Section 202(2), Cri.P.C. it is provided that if the complaint, not made in writing, is presented to a Magistrate who is not competent to take cognizance, the Magistrate shall direct the complainant to the proper court. In these two pro-visions the word 'complainant' has been used to refer to a person who presents a written complaint or makes an oral complaint even before the sworn statement is recorded. 13. In Osman Gani v. Baramdeo Singh a person presented a complaint before a Magistrate. The latter did not record sworn Statement but ordered police investigation and consequently received a police report and took cognizance of that report as a case. The question was whether the case was one instituted on complaint for the purpose of Section 417(3), Cri.P.C. It held that the case was not one instituted on complaint within the meaning of Section 417(3), Cri.P.C. 14. In In Re Syed Ibrahim a Bench of the Madras High Court observed that a report to a village munsiff will not fall within the definition of complaint in the Code of Criminal Procedure even if, as a result of investigation of that report, the Police filed charge-sheet in court. 15. In Prasannachary v. Chikkapinachari AIR 1959 Mysore 106, the petitioner made a written complaint to the police and after investigation, the police filed charge-sheet. It Was held that the petitioner was not the complainant entitled to present an appeal under Section 417(3), Cri.P.C. 16. In Udit Narayan v. Ramrup , a Sub-Divisional Officer filed a complaint as required under Section 195(1)(a), Cri.P.C. as a result of a petition by a certain person. It was held by the Patna High Court that that person was not entitled to file an application for leave under Section 417(3), Cri.P.C. as complainant and that only the Sub-Divisional Officer was competent to file such application. 17. In the present case, the appellant-petitioner admittedly did not file complaint before the Village Munsiff or Police or Magistrate. The question is whether his helping to continue the Preliminary Register Case after the death of the original complainant, Macherla Peda Kondaiah made the petitioner a 'complainant' or gave him right under Section 417(3), Cri.p.C. 18. In Muhammad Ibrahim v. Sk. Dawood ILR 44 Mad 417 : AIR 1921 Mad 278 a Bench of the Madras High Court decided that a criminal prosecution under Section 323, I.P.C did not abate by reason of the death of the person injured. The case depended on the interpretation of Section 89 of the Probate and Administration Act with which we are not concerned here. Further, in that case the entire prosecution had been closed and the entire defence evidence had been also closed by the time when the Advocate for the accused raised the contention that owing to the death of the person injured, the charge against the accused must be held to have been abated. 19. The learned Advocate for the appellant has relied on the decision of the Bombay High Court in Mahomed Azam v. Emperor AIR 1926 Bom 178 In that case, the trustees of a mosque filed a complaint under Sections 426 and 143, I.P.C. against the accused. Before evidence was recorded, the complainant died. The accused applied for action under Section 247, Cri.P.C. on the ground that the complaint had abated by reason of the complainant of death. The Magistrate rejected that application and allowed the proceedings to continue with a certain witness on record in place of the deceased complainant. The matter was taken on revision to the High Court. The latter observed as follows: We are of opinion, therefore, in the present case of a non-cognizable offence instituted upon a complaint, the axiom of actio personalis moritur cum persona, in civil law confined to torts, does not apply, and that the trying Magistrate has discretion in proper cases to allow the complaint to continue by a proper and fit complainant, if the latter is willing. The Courts would always be on their guard against needless harassment of an accused by substituting a complainant, who is not a fit person. In that case, the question was considered as to whether accused were entitled to be discharged under Section 259, Cri.P.C. The learned Judges have observed about this as follows: There can be no question that in the case of cognizable offences, where a complainant and a complaint are not necessary, the death of the injured person makes no difference to the criminal proceedings, which are a matter for the state and which are undertaken by the Government…. Under Section 259…the Magistrate may not 'shall' discharge the accused. The learned Judges have referred to Sections 143 and 426. I.P.C. as offences of which complainant charged the accused. They have considered Section 259, Cr.P.C. and also mentioned that the accused applied for a discharge and not for an acquittal. The offence under Section 143, I.P.C. is punishable with rigorous imprisonment for six months. Obviously, the case under Sections 143 and 426, I.P.C. was a cognizable case and a summons case. So obviously Section 247, Cri.P.C. ought to have applied if summons procedure had been followed. Section 247, Cri.P.C. says that if summons had Been issued on complaint, and if the complainant did not appear on the day of hearing; the Magistrate shall acquit the accused unless for some reasons the thinks proper to adjourn hearing of the case to some other day. In the Bombay ease, some previous decisions were referred to wherein the view had been expressed that 'it is seven to doubt whether Section 247, of the Code was intended to apply to such u case and that it seems to apply primarily to tile case of a complainant who is alive but does not appear'. Thus, the learned Judges gave a liberal interpretation to the word 'complainant' for the purpose of Sections 247 and 259, Cri.P.C. and held that when a witness was allowed to continue the case and act in the place of the complainant, after the original complainant had died, the witness became a substituted complainant. 20. On this question, as to whether one complainant can be substituted for another, there has been difference o£ opinion among the various High Courts. In Appala Naidu v. Emperor ILR 51 Mad 339 : AIR 1928 Mad 167 the relevant facts were as follows: When a summons case was taken up for hearing, the Magistrate was informed that the complainant had died. Thereupon, the Magistrate adjourned the case in order to enable the complainant's son to come on record. Subsequently the case was proceeded with obviously with the presence of complainant's son in place of the original complainant and it ended in conviction. The learned Judge, Devadoss, J in revision set aside the conviction observing as follows: (at p. 340 of ILR Mad : at p. 168 of AIR: The Magistrate adjourned the case in order to enable the complainant to appear and not for any other reason. If the complainant" is dead he could not appear before the Magistrate and, there-fore, the clause beginning with the words 'unless for some reason he thinks etc cannot apply to the case of the complainant who is dead. In this case, the complainant being dead during the course of the enquiry the Magistrate should have acquitted the accused and should not have proceeded with the enquiry. I may in this connection refer to Puran Chandra v. Dengar Chandra 19 Cal WN 334 : AIR 1915 Cal 708 (1). In effect, the learned Judge held that the word "complainant" used in Section 247, Cri. P.C. could mean only the man who filed the complaint and instituted the case and could not cover any other person and that the son of the complainant could not be substituted as complainant or become a complainant for the purpose of Section 247, Cri.P.C. The decision in 19 Cal WN 334 : AIR 1915 Cal 708(1) was relied and affirmed by the Calcutta High Court in Ashraf v. Surendra Nath AIR 1949 Cal 232. There the learned Judge has positively held that there is nothing in the wording of the section itself to suggest that it has no application when a complainant is dead and observed that the same view had received considerable support in other Courts. The decision in ILR 51 Mad 339 : AIR 1928 Mad 167 is a decision of the Madras High Court which is binding on this Court. I respectfully follow it in preference to the decision of the Bombay High Court in AIR 1926 Bom 178 from which I respectfully dissent. 21. In Nabi Bakhsh v. Emperor AIR 1924 Lab. 627 it was held: It is clear that in a warrant case of the kind in question as the Magistrate is bound to proceed with it after framing a charge against the accused and to finish the trial, and as the complainant cannot either compound the offence or withdraw the complaint, he is not bound to attend the court in his capacity of complainant though he may be bound and can the compelled to attend as a witness…. The position of a complainant in a P.R. Case after the case is taken on file is similar to that of the complainant in a warrant case after the charge is framed in that the case can and has to proceed without in any way requiring or depending on the presence or co-operation of complainant. 22. Civil Procedure Code contains various provisions for continuation of proceedings in the case of death of a party or his unwillingness to prosecute his case; for example, transposing of a party, substitution of a petitioner by another and adding of legal representatives. There is no such provision in the Code of Criminal Procedure regarding a complainant. 23. Section 417, Cri.P.C. actually provides for the State to direct the Public Prosecutor to-present the appeal. Originally, the provision for appeal against acquittal was only by the State. This section was amended by the Amending Act XXVI of 1955 which introduced this new provision under Section 417(3), Cri.P.C. but the Legislature retained the provision for the State to direct the Public Prosecutor to present the appeal. So, Section 417(3), Cri.P.C. is a new enabling provision in which the right is given, only to the complainant. Under Section 244 Cri.P.C. when following the summons procedure, the Magistrate has to take all such evidence as may be produced in support of the prosecution and he may issue summons1 to witnesses On the application of the complainant. If complainant is not present on a day of hearing as contemplated in Section 247 Cri.P.C. the Magistrate shall acquit the accused unless he adjourns the case for some proper reason. So, a complainant, is necessary for producing the witnesses and to apply for issuing summmons and for the case to continue to exist and progress. Under Section 259 Cri.P.C. when following warrant procedure on a private complaint, tile Magistrate may discharge the accused if the complainant is absent on a day of hearing if the offence is lawfully compoundable and not a cognizable offence. This is in contrast with Section 247, Cri.P.C. in that the Magistrate has no power to discharge the accused under Section 259, Cri.P.C. if the ease is not lawfully compoundable or is a cognizable offence. Even if it is lawfully compound, able and non-cognizable, the Magistrate may discharge the accused and is not bound to discharge the accused. Under Section 252(2), Cri.P.C. the Magistrate shall ascertain from the complainant or otherwise the names of any persons likely to he acquainted with the facts of the case and to Be able to give evidence for the prosecution, and shall summon to give evidence before himself such or them as he thinks necessary'. Thus, there is provision for the Magistrate to continue the case even if the complainant does not appear and co-operate and even after the death of a complainant. 24. In the case of P.R.C. enquiry, which has been instituted on a private complaint there hi provision in Section 208(1), Cri.P.C. for the Magistrate to call for evidence even without the complainant or prosecution producing it. In procedure relating to P.R. enquiry, there is no provision similar to Section 247 or Section 259, Cri.P.C. enabling the Magistrate to discharge the accused because of the absence of the complainant as distinct from the provision in Section 209 for discharging the accused for other reasons. Thus, the case can proceed and has to proceed even after the death of the complainant and even without anyone being called complainant afterwards, unless the Magistrate chooses to discharge the accused for reasons other than the death of the complainant. Hence, any one who was allowed to help the court alter the death of the complainant (who had filed the complaint) need not be called, or treated, or deemed to be a complainant for the purpose of Section 417(3), Cri.P.C. 25. In this case the proceeding which been started by the complainant Macherla Peda Kondiah was a P.R. case relating to cognizable offences, some of which could not be lawfully compounded (Sections 307 and 326, I.P.C.) The (mere fact that, after the death of Macherla Peda Kondiah one witness, who was a relative d Macherla Peda Kondiah, was allowed to help the committing court in its proceedings in the P.R. case does not mean that the latter was a 'complainant' or deemed to be a 'complainant' or substituted as a 'complainant' by the Committing Court. But the fact that a person originally filed the complaint would make him] the complainant. Consequently, Macherla Peda Kondiah alone was the complainant and Macherla China Kondiah (who did not file the complaint which was taken, On file) was only a witness and did not become of the complainant. I agree with the contention of the learned advocate for the accused that the witness (P.W. 1) Macherla China Kondiah is not a 'complainant' and is not competent to file appeal under Section 417(3). On this finding itself, this appeal can be and has to be dismissed. 26. The learned Advocate for the appellant, Mr. T.V. Sarma has strenuously contended that the lower court erred in holding that the accused acted in the right of private defence when they had not specifically raised the plea of private defence. He points Out that none of the accused in his statement under Section 342, Cri.P.C. pleaded that he exercised the right of private defence. The lower Court would be entitled to consider the question of right of private defence and find on evidence in favour of the accused that they acted in exercise of such right, if the accused, though they did not specifically plead that that they acted in such right, let in evidence to show that they acted in the right of private defence or made suggestion to the witnesses that they had acted in exercise of such right. The learned Additional Sessions Judge held in paragraph 41 of his judgment as follows: There is also no doubt that a rioting took place because it is seen that Padma Saleelu, Yadavas and Gowdas were injured. The question, however, is whether the accused party stinted the rioting or whether they were acting in self-defence when they were attacked by the Padma Saleelu…. P.W. 8 makes the position absolutely clear and states that in the initial stages, Yadavas and Gowdas, were attacked and at that time they had no escape until they beat some of the Padma Saleelu. That this is true is seen from certain circumstances to which I shall refer. The passage in the evidence of D.W. 8 referred to by the learned Additional Sessions Judge is as follows: …As there was no escape, some Saleelu were beaten in Congress street after our people were badly beaten and after Raghavulu was stabbed. The learned Advocate for the appellant points out that this passage in the evidence of D.W. 8 has come only in cross-examination but not in chief-examination. But this is a distinction without a difference. For, what a witness stated in cross-examination is as much evidence of that witness-as what he says in chief-examination. Further, Mr. R. Rajeswara rao, the learned Counsel for the respondents, points out passages in the depositions of P.Ws. 10 and 12 wherein suggestion has been made to those witnesses that the accused were acting in the exercise of right of private defence. It has been elicited from P.W. 10 in cross-examination, as follows: It is not true that we raided Gowda locality and beat Gowdas. It has been elicited in the evidence of P.W. 12 as follows: It is not true that I and other Saleelu went and attacked Gowdas and Yadavas. 27. In Re Jogali Bhaigo AIR 1927 Mad 97 it was observed that, even if the accused did not plead self-defence, it was open to the Court to consider such plea if the prosecution evidence would support it. 28. In Sambasiva Rao v Public Prosecutor. 1958-2 Andh W R 627 a Division Bench of this Court observed that a plea of right of self-defence need not be taken specifically, but there should be circumstances to raise such an inference or even reasonable doubt in favour of the accused that they night have in fact acted in exercise of their right of private defence. 29. I respectfully agree with the views expressed in the above decisions. I find that, in this particular case, the plea of exercise of right of private defence has been raised by way of suggestion to the prosecution witnesses (P.Ws. 10 and 12) in cross-examination and is also found in the evidence of one defence witness (D.W. 8). It cannot be said that the lower court erred in considering the question of private defence or in holding that the accused acted in exercise of the right of private defence. 30. Mr. T.V. Sarma, learned Counsel for the appellant, has contended that the occurrence was a 'free fight' and, as such, the accused were liable to be convicted of various offences. In Ahmad Sher v. Emperor AIR 1931 Lah 513 a 'free light' was defined as 'one when both sides mean to fight from the start, go out to fight and there is a pitched battle'. The learned Judges proceeded to observe as follows: The question of who attacks and who defends in such a fight is wholly immaterial and depends on the tactics adopter by the rival commanders. This definition of 'free fight' was approved by the Lahore High Court in a later decision in Mohammad v. Emperor AIR 1947 Lah 106 wherein it was also held that the question whether or not there was a free fight in a particular case depended on the peculiar facts of that case. The same definition of 'free fight' was also approved by the Supreme Court in Gajanand v. State of Uttar Pradesh wherein it was observed thus (at page 698). There can be no question of a free fight in the present case, as there is a clear finding of the High Court that Anjaniandan's party were the aggressor. Referring to the facts, the Lordships of the Supreme Court observed as follows (at page 698). In these circumstances, it is not possible to suggest that both parties were pre-determined for a trial of strength and had a free fight. Gajanand's party were the worst sufferers and though they also inflicted the injuries on the other side, they did so in the exercise of their right of self-defence. In the present case, there is a finding of the trial, court that the party of Padma, Saleelu constituted the aggressors. The mere fact that some Padma Saleelu also sustained injuries is no gound for holding that there was a 'free fight'. 31. In State v. Kartar Singh AIR 1958 All SO the Allahabad High Court, relying on the above-mentioned decision of the Supreme Court, held as follows (at page 95): There could be no question of a free fight when where was a clear finding of the learned Sessions Judge, with which we concur, that it was Dayal Singh's party (the party opposed to the accused, Kartar Singh who had been the aggressor. In this case also, I agree with the finding of the learned Additional Sessions Judge that Padma Saleelu were the aggressors and that, therefore, there can be no question of a 'free fight' 32. The learned Advocate for the appellant had relied on the decision of the Madras High Court In P. Somadu v. N. Appigadu AIR 1924 Mad 379. Therein it was held that the plea of self-defence must be specific and could not be relied upon when there is good evidence to hold that there was a general fight between two parties. The learned Judges held on the facts of that case that there was good evidence to hold that there was a general fight and, on that basis, decided that the plea of self-defence was not open to the other party They also observed that it was admitted in that case that there was no evidence of self-defence on the record. In the present case, the lower court held On evidence that Padma Saleelu Were the aggressors and that the accused acted in exercise of the right of private defence. Further In the principle of first deciding' as to which party was the aggressor and then holding that as the party opposed to the accused was the aggressor, there could be no question of the free fight, was approved and laid down. 33. In Re G. Subbi Gadu AIR 1941 Mad 280 it was observed that the burden lay on the person setting up the plea of private defence to prove it under Sec105 of the Evidence Act. But, that observation was made in connection with the peculiar facts of that case. In that case, there was only one aggressor and he inflicted fatal stab injuries upon the deceased by stabbing him on the back and then inflicting more stabs in front also. A contention was raised that the clear evidence of the prosecution should be rejected because the P.Ws. did not explain how the accused himself sustained these injuries. In that case, there was no scope for holding, in the light of the proved facts and circumstances, that the deceased was the aggressor. 34. In Subba Reddi v. Emperor 1943 Mad WN 273 : AIR 1943 Mad 492 it was observed as follows: …where it is clear from the evidence that the two parties were Spoiling for a fight and that each person began to pick up stones and threw it at the other party, then the accused's party cannot plead that because the prosecution witnesses were also intent on beating them, every blow which 'they gave was given in self-defence. In that case, on facts, it was found that both parties were spoiling for a fight. In this case, the facts are different and the finding is that the accused is the aggressor. Consequently, that decision does not apply to the facts of this case. 35. In the end, I do not accept the contention of the learned Advocate for the appellant that there was a 'free fight' and, that, therefore, the accused are liable to be convicted. 36. The principle that an appellate court can reverse the finding of acquittal by the trial court only for substantial and compelling reasons, has been laid down and stressed in the following decisions : Surajpal Singh v. State , Aher Raja Khima v. State of Saurashtra , Ajmer Singh v. State of Punjab ; Balbir Singh v. Punjab State and Dharam Das v. State of Bombay . In this case, there are no substantial and compelling reasons for this Court to come to a conclusion different from that of the trial Judge that the party of the Padma Saleelu was the aggressor-party and that the accused acted in exercise of right of private defence and are not guilty of any of the charges. 37. In view of my findings above, I do not consider it necessary to go into the evidence on each charge or against each accused individually-I dismiss the appeal.

Author: A Ayyar

Macherla Kondian vs Ede Venkataratnam And Ors. on 16 January, 1961

Andhra High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.28537 of 2010 1. SURESH KUMAR SINGH @ SURESH SINGH 2. Akhilesh Singh Versus STATE OF BIHAR ------ shail (Mandhata Singh, J.) 2/ 17.09.2010 Heard learned counsel for the petitioner and learned counsel for the State. Having similar allegations, co-accused persons namely, Dinesh Pandey and Others have already been granted anticipatory bail by a Bench of this Court vide Cr. Misc. No. 23437 of 2010. Taking that into consideration, prayer of the petitioners is allowed. In the event of arrest or surrender within one month from the date of receipt/production of a copy of this order in connection with Patahi P.S. Case No. 77 of 2009 above named petitioners shall be released on bail on furnishing bail bond of Rs. 10,000/- (ten thousand) each with two sureties of the like amount each to the satisfaction of S.D.J.M., Sikrahana, East Champaran subject to the conditions as laid down under Section 438(2) of Cr. P.C.

Suresh Kumar Singh @ Suresh Singh ... vs State Of Bihar on 17 September, 2010

Patna High Court - Orders

JUDGMENT K.N. Sinha, J. 1. The brief facts, giving rise to the present petition, are that petitioner moved an application under Section 156(3) Cr.P.C. before the court of Additional Chief Judicial Magistrate, Khurja, which is Annexure No. 3, on the ground that Smt. Sayana, daughter of the petitioner and Mobin were beaten. The petitioner filed affidavit, medical examination report, X-ray report and receipt of sending the complaint to the police officer with the above prayer. The said application was dismissed, taking the help of the judgment of this Court in the case of Gulab Chandra Upadhyaya v. State of U.P. (2002 (44) ACC-670). The revision against the said order was also dismissed. The revisional court also resorted to the above judgment. The approach on the fact and law is quite erroneous. There are medical report in respect of Smt. Sayana, wife of Mustakim and Mobin. There are also a fracture of 9th rib in the X-ray of Smt. Sayana. The allegations set forth coupled with the injury report and X-ray report, make out a cognizable offence. Whenever the application under Section 156(3) Cr.P.C. discloses a cognizable offence, the Magistrate is bound to direct for registration of the case and investigation. The law laid down in Gulab Chandra case (supra) has been wrongly interpreted. It gives a guideline to the Magistrate. Suppose, in a murder case, where all the accused are known and murder takes place in broad day light and on inaction of police, if the complainant approaches the Magistrate under Section 156(3) Cr.P.C., whether his prayer can be thrown away, taking resort to Gulab Chandra case (supra) that offence was committed in broad day light and accused are known, hence case could not be registered. The answer is No. This type of approach to law is not proper. 2. This is absolutely misinterpretation of the judgment of this Court by the revisional court and the law laid down did not permit the court to interpret in such a way. Any guide line given by this Court has to be followed in the circumstances and facts of each case. There may be false type of complaint. There may be some complaint of civil nature or otherwise or some complaint in which the cognizable offence is patently not made out. The courts should examine the genuineness of each complaint and in his wisdom, should pass a proper order. The case of Gulab Chandra (Supra) lays down only the guidelines. There cannot be any straight jacket formula. Moreover, no judgment of superior court says that the court of Magistrate or the revisional court should close their eyes to the facts of the case. The facts of each case differ. The order of the revisional court, as passed in the revision, is absolutely illegal and not tenable in the eyes of law. 3. Consequently the writ petition is allowed. The judgment and order dated 15.4.2005 passed by the Additional Chief Judicial Magistrate, Khurja (Bulandshahar) in case no, 70/2005 and order dated 19.12.2005 passed by the revisional court in Criminal Revision No. 222/2005 are hereby quashed. The matter is remanded back to the court of Chief Judicial Magistrate, Bulandshahar with the direction to reconsider the whole matter examining the factual aspects of the case, considering the medical examination report, X-ray report and other relevant papers, and pass the order afresh.

Author: K Sinha

Mobin Son Of Sri Haji Ismayal vs State Of U.P., Jamal Son Of Sri Haji ... on 2 May, 2006

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.40608 of 2021 Arising Out of PS. Case No.-44 Year-2020 Thana- RAJGIR District- Nalanda ====================================================== KAUSHAL YADAV Son of Shri Bala Lakhendra Yadav Resident of Village- Barachhibigha, P.S.- Giriyak, District- Nalanda. ... ... Petitioner/s Versus The State of Bihar ... ... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. None. For the Opposite Party/s : Mr. Dilip Kumar No. 1, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA ORAL ORDER5 28-02-2022 Let the defects, as pointed out by the office, be removed within four weeks of starting of Court proceeding in physical mode in normal course. Nobody appears on behalf of the petitioner. However, learned A.P.P. for the State is present. Put up this case on 02.03.2022. (Rajesh Kumar Verma, J) brajesh/- U

Kaushal Yadav vs The State Of Bihar on 28 February, 2022

Patna High Court - Orders

PETITIONER: NETI SREERAMULU Vs. RESPONDENT: STATE OF ANDHRA PRADESH DATE OF JUDGMENT02/04/1973 BENCH: DUA, I.D. BENCH: DUA, I.D. MATHEW, KUTTYIL KURIEN CITATION: 1973 AIR 2551 1973 SCR (3) 844 1974 SCC (3) 314 CITATOR INFO : R 1974 SC 799 (15) E&D 1989 SC1335 (62) ACT: Indian Panel Code, s. 302-Accused convicted for murder- Whether sentence to be reduced from death to life imprisonment. HEADNOTE: Appellant, aged 20, was convicted and sentenced to death for murdering his wife on October 30, 1971 and the High Court confirmed the death sentence on January 24, 1972. The appeal to this Court was limited only to the question of sentence. In the High Court it was argued that the sentence should be reduced to life imprisonment because, the appellant was a young man of 20 years of age, the incident arose out of sexual jealousy and the crime was not pre-meditated. The High Court did not consider these circumstances to be sufficient to merit a lesser sentence. In this Court it was contended that appellant acted under grave provocation and secondly, the Courts below had ignored the effect of the recent amendment of s. 357 Cr.P.C. Allowing the appeal, HELD : (1) While confirming the capital sentence, the High Court has an obligation to itself to consider why sentence should be imposed and should not be content with the trial court's decision on the point. It is the duty of the High Court to consider the proceedings in all their aspects and come to an independent conclusion on the materials, apart from the view expressed by the Sessions Judge., In so doing, the High Court will be assisted by the opinion expressed by the Sessions Judge but the law requires that the High Court should come to an independent conclusion of its own. [847E] Jumman & others v. The State of Punjab, A.I.R. 1957 S.C. 469, referred to. (ii)In the present case, assuming the trial court was justified in imposing the capital sentence, the long lapse of time since the imposition of the capital sentence by the trial court and the consideration of the question by this Court, constitutes a relevant ground for reducing the sentence to life imprisonment. The appellant must have been in the condemned cell ever since the death penalty was imposed on him. The appellant must have been subjected to acute mental agony ever since the death penalty was imposed on him. Therefore, the sentence of capital punishment must be reduced to life imprisonment in the present case. [848C] in Piare Dusadh & Others v. Emperor A.I.R. 1944 F.C. 1, the sentence of death was reduced to one of transportation for life when the convict had inter alia, been awaiting execution of death sentence for over a year. JUDGMENT: S.C. Appeal allowed (1) A.I.R. 1944 F.C.I. 850 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 50 of 1973. Appeal by special leave from the judgment and order dated January 24, 1972 of the Andhra Pradesh High Court in Cr. A. No. 796 of 1971 and Referred Trial No. 9 of 1971. O. P. Rana, for the appellant. The Judgment of the Court was delivered by DUA, J.-In this appeal from the judgment and order of the Andhra Pradesh High Court convicting the appellant for the murder of one Gadusula Seetha under s. 302, I.P.C. and sentencing him to death, special leave granted by this Court was limited only to the question of sentence. The preparation of the record was dispensed with and the appeal was directed to be heard on the S.L.P. paper book. In the order granting special leave dated March 1, 1973 it was specifically directed as under : Earlier, on July 5, 1972 the special leave petition has been placed before the vacation Judge (K. K. Mathew J) and notice was directed to go to the respondent to show cause why special leave should not be granted in regard to the sentence only. It is unfortunate that the matter could not be placed before the Bench after service of 'show cause notice for nearly eight months. The appellant had been sentenced to death as far back as October 30, 1971 by the Additional Sessions Judge, West Godavari Division at Eluru and the death sentence was confirmed by the High Court. on January 24, 1972.. The prosecution story as upheld by the High Court stated briefly is that the deceased, who was a married woman, was having :an illicit intimacy with the appellant and they were both living at Tadimalla. Before they came to Tadmalla to settle down there, the deceased was married to one Basavaiah of Eythapuram. There, she had developed illicit intimacy with her husband's brother and is stated to have eloped with him. Sometime later, she patched up with her husband and they both then went down to Tadimalla to live there, which was the native village of the deceased. But there also the deceased developed illicit intimacy with the appellant who belonged to Harijan community. Apparently the deceased belonged to a higher caste. It appears that the appellant and the deceased started living together in a portion of the appellant's house in Harijanwada of Tadimalla village. According to the testimony of Osha Tharmaiah (P.W. 14) even ,when the deceased was living with the appellant she was having a liaison with this witness. The deceased met with her death on 846 April 24, 1971 at about 6 a.m. About 20 days prior to this date, the deceased left the appellant's house and started living in a portion of the house of Gapapati Bapanamma (P.W. 13), the maternal grandmother of Osha Thammaiah (P.W. 14). According- to P.W. 14 the deceased did so in order to continue her illicit intimacy with that witness. The appellant apparently felt distressed on account of this conduct on the part of the deceased. On the morning of April 14, 1971, the deceased went to the Panchayat well to take water to her house and while she was standing there on the platform of the well, the appellant went there, caught hold of her pig-tail from behind with his left hand and delivered two blows on the left side,, of her neck and gave two or three blows on her left upper fore-arm. The deceased tried to free herself from the appellant's grip but fell down flat about six yards away from the well. The appellant is said to have delivered another blow with the knife on the left side of her abdomen which resulted in her intestines protruding out. The deceased it appears died soon after the receipt of these injuries. In the High Court on behalf of the appellant it was argued that the sentence should be reduced to life imprisonment because(1) the appellant is a very young man of about 20 years of age; (2) the incident arose out of sexual jealously and (3) the crime was not pre-meditated. The High Court did not consider these circumstances to be sufficient to merit a lesser sentence, because from the evidence of the doctor and the. postmortem certificate given by him it was evident that the appellant had inflicted as many as ten incised injuries out of which two injuries were fatal and even after inflicting the injuries on the deceased indiscriminately the appellant stabbed her in the abdomen With such violence that the intestines actually came out and this happened after the deceased had fallen down. From the injuries caused by the appellant to the deceased the High Court felt that the accused must have intended to murder her and his intention in attacking the deceased was only to chastise her or to teach her a lesson. Finding no reason to reduce the sentence passed by the trial court the High Court confirmed the capital sentence. In this Court it was contended on behalf of the appellant that there was grave provocation for the appellant in that the appellant had sacrified everything for the sake of keeping the deceased with him but she had proved unfaithful and had not only started living with someone else but had even ridiculed him. It was also contended that the courts below had completely ignored the effect of the recent amendment of s.357, Cr. P.C. and that they have proceeded as if there must be some mitigating circumstance in order to justify the. imposition of a lesser penalty in case of con- viction under s. 302, I.P.C. The learned additional Sessions Judge, when dealing with the question of sentence observed that there were "absolutely no extenuating circumstances to justify imposition of lesser sentence". No doubt, according to the trial court, the murder was committed in broad day-light in the presence of many persons in the heart of the Harijanwada and nothing had transpired on the day of the occurrence which could have conceivably given any provocation to the appellant so as to incite him to commit the offence and the murder was committed in cold blood with pre-meditation. But it does appear to us that the learned additional Sessions Judge was perhaps not fully conscious of the amendment and his approach suggests that he was looking for some mitigating circumstance to justify the imposition of lesser penalty. Having found none, the capital sentence was imposed. In the High Court also when the question of sentence was raised it was observed as follows : While confirming the capital sentence the High Court had quite clearly an obligation to itself consider what sentence should 'be imposed and not be content with the trial court's decision on the point unless some reason was shown for reducing that sentence. As observed in Jumman & others v. The State of Punjab(1), in such a case, "it is the duty of the High Court to consider the proceedings in all their aspects and come to an independent conclusion on the materials, apart from the view expressed by the Sessions Judge. In so doing, the High Court will be assisted by the opinion expressed by the Sessions Judge, but under the pro- visions of the law above-mentioned it is for the High Court to come to an independent conclusion of its own." No doubt, as observed by the High Court there were as many as ten incised injuries on the deceased and injuries nos. 1 and 4 were considered by the medical evidence to be fatal. It is also clear that on the day of the incident nothing had happened to cause sudden provocation which should be grave enough to make the appellant lose his balance of mind. But in that case an argument would be open to take the offence out of the purview of ss. 300 and 302, I.P.C. That point does not appear to be open to the appellant because this appeal was not admitted on the merits and we are only required to consider whether on the conclusions of the High Court and on the assumption that the offence (1) A. 1. R. 1957 S. C. 469. is one of murder, lesser penalty should be imposed in *,he present case. Apart from the question of what sentence should have been imposed by the trial court, in our opinion, it is open to this Court under Art. 136 of the Constitution to see what sentence permissible under the law would meet the ends of justice now when we are called upon to consider that question. The appellant was clearly on terms of improper intimacy with the deceased and was perhaps overcome by a sense of jealousy or indignation of' what he thought was unfaithfulness on the part of the deceased. Assuming the trial court was justified in imposing the capital sentence, the long lapse of time since the imposition of the capital sentence by the trial court and the consideration of the question of sentence by us, in our opinion, constitutes a relevant ground for reducing the sentence to life imprisonment. In the present case the appellant must have been in the condemned cell ever since October 30, 1971 when the sentence of death was imposed on him by the trial court. The High Court confirmed the sentence as far back is January 24, 1972. Since then the agonising consciousness and feeling of being under the sentence of death must have constantly haunted the appellant. No doubt, this delay has been caused because of the time taken by the High Court in disposing of the application for leave to appeal to this Court and because of the pendency of the application for special leave to appeal in this Court since October, 1972. But that cannot detract from the acute mental agony to which the appellant must have been subjected ever since the imposition of the capital sentence on him. We find that in July, 1972 this Court issued notice to the respondent State to show cause why special leave should not be granted in regard to the sentence. The notice was apparently issued without any delay. But the matter was unfortunately not set down for hearing till March 1, 1973. This delay was perhaps due to the fact that the respondent- State did not put in appearance. Indeed, he State was not represented at the hearing either of the special leave petition or of the appeal before us. Now the importance of speedy disposal of cases involving sentence of death has been recognised by this Court, for, in r. 21(2) of O.XXI,,it is expressly provided that in such cases the printed record shall be made ready and despatched to this Court within a period of 60 days after the receipt of intimation from the registry of this Court of the filing of the petition of appeal or of the order granting special leave to appeal. The same anxiety and concern for speedy disposal of special leave petitions in such cases is equally desirable. It appears that the importance of speedy hearing of the petition for special leave was not realised in this case. In our view, the neglect or unwillingness of the State to enter appearance should not have prevented the posting of the special leave. petition for hearing with the greatest possible dispatch. On the facts and circumstances of this case we feel that the interests of justice require that the sentence of death should be reduced to that of life imprisonment and we so order. The fact that the State of Andhra Pradesh has not cared to enter appearance in spite of notice suggests that in the opinion of the legal advisors of the State there was no good cause to show against the reduction of sentence. In Piare Dusadh & others v. Emperor(1) the sentence of death was reduced to one of transportation for life when the convict had inter alia been awaiting execution of death sentence for over a year. The Federal Court there observed:--- These observations are equally pertinent to the case in hand. The appeal is accordingly allowed and the appellant's sentence is reduced to that of imprisonment for life.

Author: I Dua

Neti Sreeramulu vs State Of Andhra Pradesh on 2 April, 1973

Supreme Court of India

HIGH COURT OF JUDICATURE FOR RAJASTHAN JODHPUR S.B. Criminal Misc. Bail No. 5597/2018 Virendra ----Petitioner Versus State ----Respondent For Petitioner(s) : Mr. RS Rawal For Respondent(s) : Mr. AS Rathore, PP HON'BLE MR. JUSTICE MANOJ KUMAR GARG Judgment / Order 08/10/2018 Put up on 25.10.2018, as prayed. Interim order, if any, shall remain continue till the next date of haring. (MANOJ KUMAR GARG),J Hanuman/62 Powered by TCPDF (www.tcpdf.org)

Virendra vs State on 8 October, 2018

Rajasthan High Court - Jodhpur

JUDGMENT Mathur, J. 1. By way of this writ petition under Article 226 of the Constitution of India, the petitioner Mewar Chamber of Commerce and Association of Industries has challenged the validity of Nagar Parishad Bhilwara (Pradushan Janya Vyavsay Kar) Nlyam 2001, hereinafter referred to as 'the Rules of 2001' whereby tax has been imposed on trades, callings engaged in inter alia activity of the textile processing or trading of the raw materials for the purpose of entry of transporter/trader within the boundaries of the Municipal Council, Bhilwara with effect from 1-1-2002. The tax has been levied at the rate of Rs. 20/- per quintal of grey cloth/fibre/yarn or half per cent of value of the chemicals. 2. The Bhilwara town is known as Manchester of Rajasthan because of existence of large number of textile industries. There are about 450 weaving Units operating within the municipal limits of Bhilwara. It is reported that millions of gallons of waste and effluents are discharged by the industrial Units. The entire polluted water is discharged by the said Units in the drainage and on open land within the municipal limits of Bhilwara. Even the two rivers Banas and Kothari passing through the limits of public surroundings of Bhilwara town have been badly affected by the polluted water. The Kothari river is at the low level point of Bhilwara city and, therefore, the entire effluent discharged by the aforesaid Industrial Units while passing through the different drainages/nalas ultimately fall in the said river. It has created health hazard and drinking water problem for the inhabitants of the surrounding villages. There are about thirty five thousand labourers earning livelihood, while working in the said industrial Units. Sixty per cent pollution of the City relates in one way or the other from the said industrial Units. The Municipal Council is under the statutory obligation under the Rajasthan Municipalities Act as well as under Environment (Protection) Act, 1986 to make necessary arrangement so that the effluent discharged by the various manufacturing Units may not be scattered over the various places in the City and the same are properly treated so as to save the public at large from Us adverse effect. The Municipal Council is under an obligation to set up waste processing and disposal facilities and to undertake number of other measures, which will cause heavy burden on it. Section 105 of the Act of 1959 empowers the Board to impose and levy, in the whole or any part of the Municipality, a tax on traders and callings carried on within the municipality and deriving special advantage from, or imposing special burden on municipal services. Thus, to ease the burden in exercise of powers conferred by Section 88(h) and Clause (xi) of Sub-section (1) of Section 105 of the Act of 1959, the Municipal Council, Bhilwara has framed the impugned Rules. 3. Challenging the validity of the Rules of 2001, it is submitted by Mr. Manish Singhvi, learned counsel for the petitioner, that the State Government by virtue of Entry 52 of List II of Schedule VII of the Constitution of India has enacted the Act known as Rajasthan Tax on Entry of Goods into Local Areas Act, 1999, hereinafter referred to as 'the Act of 1999'. Section 5 of the said Act provides that a tax shall be levied, collected and paid to the State Government on entry of any goods brought into the local area for consumption, use or sale therein with effect from such date and at such rates not exceeding 10% of the value of goods, as may be specified by the State Government. It is also submitted that the Government of Rajasthan by virtue of Entry 66 of List II of Schedule VII of the Constitution of India, has enacted Rajasthan Tax on Professions, Trades, Callings and Employments Act, 2000, hereinafter referred to as 'the Act of 2000'. Section 3 of the Act of 2000 empowers the State Government to levy and collect a tax on professions, trades, callings and employments at such rates not exceeding Rs. 2500/- per annum per individual person, as may be notified by the State Government in the Official Gazette. The said levy is subject to the provisions of Article 276 of the Constitution of India, and the Act of 2000. In the aforesaid background, it is submitted by Mr. Manish Singhvi, learned Counsel for the petitioner, that Section 105(1)(xi) of the Act of 1959 stands repealed by the subsequent legislation of the State viz.; the Act of 2000. Advancing the argument, it is submitted that the State Government by its subsequent legislation has occupied the field by taxing on professions, trades, callings and employments and its earlier law delegating the tax on professions, trades, callings and employments stands repealed. He has placed reliance on a decision of the Apex Court reported in Ratanlal Adukia v. Union of India, reported in 1989 (3) SCC 537 : (AIR 1990 SC 104), wherein it is held that two tests are laid down and one of them is that the two acts must be in direct conflict with each other and intention of the latter legislation must be to occupy the same field. It is also argued that there cannot be two acts which levy the same tax twice. He has placed reliance on a decision of the Apex Court in Gobind Sugar Mills Ltd. v. State of Bihar, reported in (1999) 7 SCC 76 : (AIR 1999 SC 3097), wherein it is held that tax on Sugarcane Act being a special Act shall displace the purchase tax under the Finance Act, which was general in nature. According to Mr. Singhvi, applying the same principles, the latter legislation of the Act of 2000 shall prevail and displace Section 105 (1) (xi) of the Act of 1959. He has also placed reliance on a decision of the Apex Court in Belsund Sugar Co. Ltd. v. State of Bihar, reported in 1999 (9) SCC 620 : (AIR 1999 SC 3125), wherein it is held that the transaction of purchase of sugarcane cannot be taxed twice i.e. one under the Market Act and another under the Sugarcane Act. The authorities acting under the different Acts of the same State but dealing with the same subjet matter and covering the same transactions cannot exist and there are chances of head-on collision between the two Acts. Thus, it was held that the Sugarcane Act shall prevail over the Market Act as the Sugarcane Act is the special Act. Another contention of the learned counsel is that source of power to legislate emanates out of Articles 245 and 246 of the Constitution of India, However, the power to tax under Articles 245 and 246 of the Constitution of India is subject to other constitutional limitations. The entries of the Seventh Schedule merely delineate the fields of legislation but they are not source of power to legislate. As such, the power to legislate under Article 245 is subject to provisions like Article 276(2) of the Constitution of India, which specifically provides that if there is a tax on trades, employments, callings or professions, then the rate of taxation cannot exceed Rs. 2,500/- per annum. Per contra, it is submitted by Mr. Sagar Mal Mehta, learned Advocate General, that in view of Entry 5 of List II of Seventh Schedule and Article 243-X of the Constitution of India, the legislative competence to impose the impugned tax and authority of the municipality to levy, collect and appropriate such tax simply cannot be doubted. It is submitted that the entire edifice of the writ petition raised by the petitioner is misdirected and without foundation. 4. We have given thoughtful consideration to the rival contentions. The Rajasthan Municipalities Act, 1959 provides a scheme of taxation for imposition of various categories of taxes by the local authorities classified as obligatory tax under Section 104 and other tax that may be imposed under Section 105. Section 88 (h) empowers the Municipal Council to make rules for the purpose of levying tax under Section 105 of the Act of 1959. Section 105 (1) (xi) reads as follows : "Section 105. Other taxes that may be imposed - (1) Subject to any general or special orders of the State Government in this behalf, a board may impose and levy in the whole or any part of the municipality for which it is established all or any of the following taxes, namely - (xi) a tax on trades and callings carried on within the municipality and deriving special advantages from, or imposing special burden on, municipal services." A reading of Clause (xi) of Sub-section (1) of Section 105 clearly shows that the provision empowers to the State Government to levy tax on the trades and callings carried on within the municipality and deriving special advantages from, or imposing special burdens on municipal services. 5. In the instant case, the impugned Rules have been framed and the tax has been levied with a view to meet its special burden and to provide services. Thus, it is also wrong to say that by subsequent legislation, the State has occupied the field by taxing on professions, trades, callings and employments. In fact, the learned counsel for the petitioner has raised the contentions completely overlooking the words "imposing special burdens on municipal services" employed in Clause (xi) of Sub-section (1) of Section 105 of the Act of 1959 and missing In the Act of 2000 and Act of 1999. The Municipal Council has power under Entry No. 5 of List II of Schedule VII and Article 243-X of the Constitution of India to Impose the impugned tax or to levy, collect and appropriate such tax, Article 243-X is extracted as follows : "Article 243X. The Legislature of a State may, by law,-- (a) authorise a Municipality to levy, collect and appropriate such taxes, duties, tolls and fees in accordance with such procedure and subject to such limits; (b) assign to a Municipality such taxes, duties, tolls and fees levied and collected by the State Government for such purposes and subject to such conditions and limits; (c) provide for making such grants-in-aid to the Municipalities from the Consolidated Fund of the State; and (d) provide for constitution of such Funds for crediting all moneys received, respectively, by or on behalf of the Municipalities and also for the withdrawal of such moneys therefrom, as may be specified in the law." The Entry No. 5 of the List II of the Schedule VII is also extracted as follows : "5. Local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration." Thus, the three Acts i.e. the Act of 1999, the Act of 2000 and the Rules of 2001 operates in different fields as per the demarcation of powers provided under the different entries in the Constitution. Thus, there is no repugnancy or overlapping the field. The burden of the municipal service is onerous and the levy is justifiable in view of Entry No. 5 of the List II of Schedule VII and Article 243-X of the Constitution of India, may it be in the name of pollution tax or any other name. The purpose of such levy is to ease the burden of the local body from the pollution created by such industries. 6. As far as Article 278 of the Constitution of India is concerned, it is carved out as an exception to Article 246 of the Constitution of India which deals with the subject-matter of laws made by the Parliament and by the Legislature of the State. The Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I of the Schedule VII referred in the Constitution of India as Union List. As per the Entry No. 82 of the Union List, the Parliament has exclusive powers to make law for levy of tax on income other than agricultural income. By virtue of Article 276(1), no law of the Legislature of a State relating to taxes for the benefit of the State or of a municipality, district board, local board or other local authority therein in respect of professions, trades, callings or employments shall be invalid on the ground that it relates to tax on income. Therefore, Article 276 only I deals with a particular situation that the law enacted by the State Legislature imposing tax on professions, trades, callings and employments shall not be invalid notwithstanding that it relates to tax on income for which the Parliament has exclusive power to enact the law by virtue of Entry No. 82 of the Union List under the Constitution of India. Article 276(2) has to be read in context of Article 276(1) and it simply cannot be read in isolation. A careful reading of the provisions will show that the ceiling provided in Article 276(2) of the Constitution of India does not operate if any tax is sought to be imposed by the State on professions, trades, callings and employments which does not relate to tax on income. In the instant case, the impugned tax has been imposed under the Rules of 2001 on particular professions, trades and callings carried on within the municipality which are generating pollution and, as such, creating special burden on municipal services. Therefore, the provisions of Article 276 does not divest the State Government from imposing the liability of tax on profession, trades, calling and employments beyond Rs. 2500/- per annum by virtue of Entry No. 60 of the State List of the Constitution of India. The Rajasthan Tax on Professions, Trades, Callings and Employments Act enacted by the State Legislature simply does not preclude the municipal board from imposing the tax on trades and callings carried on within the municipality deriving special advantages from and imposing special burden on municipal services in exercise of powers conferred under Section 105 of the Act of 1959. 7. In view of the aforesaid, the levy of tax under the Rules of 2001 is within the legislative competence of the State. Accordingly, the Rules of 2001 are held to be intra vires of the Constitution of India. 8. Consequently, we find no merit in this petition and the same is dismissed.

Author: Mathur

Mewar Chamber Of Commerce And ... vs Municipal Council And Anr. on 3 June, 2002

Rajasthan High Court

CENTRAL INFORMATION COMMISSION Club Building (Near Post Office) Old JNU Campus, New Delhi - 110067 Tel: +91-11-26161796 Decision No. CIC/DS/A/2010/000202/SG/8441 Appeal No. CIC/DS/A/2010/000202/SG Relevant FactsRespondent : Mr. P. K. Tamrakar PIO & Under Secy. Gov of India, Ministry of Labour and Employment, Shram Shakti Bhavan, Rafi Marg, New Delhi RTI application filed on : 31/07/2009 PIO replied : 02/09/2009 First appeal filed on : 23/09/2009 First Appellate Authority order : Not enclosed Second Appeal received on : 08/12/2009 Sl. Information Sought Reply of the Public Information Officer (PIO) emerging from the Appeal Appellant : Dr. Sapna Flat No. 1015, 'A' Block Brigade Komarla Residency Appts, Utarahalli Main Road, Chikkakallasandra Bangalore -- 560061. 1. Furnish the criteria adopted by the Ministry of One cadre review has taken place for CLS Labour and employment for effecting promotions Cadre since 1986. to the various grades since 1986 in respect of CLS. 2. CLS being an organized group A' services, whether The promotion of CLS officers are done in features of organized group Services have been accordance with Recruitment Rules of CLS adopted? If not why? and DPC guidelines. 3. Furnish necessary guidelines for DOPT for As above promotion of organized group "A" service. 4. CLS being an organized group "A" service, The features of organized group 'A' services whether features of organized group A services are being adopted as far as possible have been adopted. If not why. 5. Furnish information about the exact reasons for not It does not constitute any information under formulating the recruitment rules for CLS on par the RTI Act, 2005 because this platform is with other organized group 'A' Services. meant to provide the information which already exists. 6. Furnish information CLS has not been empanelled As above in Central Staffing Scheme though it is an organized group 'A' Services? Is there any proposal for empanelling Central Labour Services under Central Staffing Scheme. Grounds for the First Appeal: 1. A general reply was offered stating that the promotion of CLS Officers are done in accordance with Recruitment Rules of CLS and DPC, guidelines 2. A clumsy/casual reply has been given by the Under Secretary stating that the features of organized group 'A' Services are being adopted "as far as possible". 3. The reply was offered stating that the same does not constitute any information under the RI Act 2005 as the platform is meant to provide the information which already exists. Order of the First Appellate Authority (FAA): Not enclosed Grounds for the Second Appeal: Not satisfied with the reply of CPIO. Relevant Facts emerging during Hearing: The following were present: Appellant: Absent; Respondent: Mr. P. K. Tamrakar, PIO & Under Secy. Gov of India; Most of the queries of the appellant seek the reasons for not formulating recruitment rules and such other matters. The respondent states that there are no specific records of these. However, DOPT guidelines are certainly available for promotions. The Commission directs the PIO to furnish the DOPT guidelines for promotion for organized Group-A services. Decision: The Appeal is allowed. The PIO is directed to provide the DOPT guidelines as described above to the appellant before 25 July 2010. 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 08 July 2010 (In any correspondence on this decision, mention the complete decision number.)(ARG) Page 2 of 2

Dr.Swapna vs Ministry Of Labour And Employment on 8 July, 2010

Central Information Commission

Court No. - 43 Case :- CRIMINAL MISC. WRIT PETITION No. - 6206 of 2007 Petitioner :- Smt. Narangi Respondent :- State Of U.P. & Others Petitioner Counsel :- Smt. Usha SriVastaVa,V.K. Srivastava Respondent Counsel :- Govt. Advocate Hon'ble Ravindra Singh,J. Hon'ble Naheed Ara Moonis.J. List along with record on 16.7.2010. Order Date :- 9.7.2010 Su

Smt. Narangi vs State Of U.P. & Others on 9 July, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.85 of 2011 Dr. Mukul Sinha & Ors Versus Ramdeo Singh Yadav & Ors ---------------------------------- 4 28-7-2011 Two weeks'time, as prayed for, is granted to remove the defects, failing which this civil revision application shall stand rejected without further reference to the Bench. ( V. Nath, J.) roy

Dr. Mukul Sinha & Ors vs Ramdeo Singh Yadav & Ors on 28 July, 2011

Patna High Court - Orders

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl No. 7535 of 2007() 1. VIPIN, S/O. LATHA, MINOR, AGED 16 YEARS, ... Petitioner Vs 1. STATE OF KERALA REPRESENTED BY THE ... Respondent For Petitioner :SRI.B.MOHANLAL For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice R.BASANT Dated :10/12/2007 O R D E R R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 7535 of 2007 - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of December, 2007 O R D E R Application for anticipatory bail. The petitioner faces allegations in a crime registered for offences punishable under Section 379 r/w. 34 I.P.C. The petitioner claims to be a juvenile, having not completed the age of 18 years on the date of the commission of the offence. He has produced before this Court Annex.I, which shows that the petitioner was born on 2.8.1991. The alleged incident had taken place on 26.9.2007. 2. The learned counsel for the petitioner submits that the petitioner is entitled to bail as a matter of right in view of the provisions of the Juvenile Justice (Care and Protection of Children) Act. The petitioner is also willing to appear before the Juvenile Justice Board/Principal Magistrate. But in as much as the prosecution has not filed any report before the Juvenile Justice Board, the petitioner is unable to surrender before the  B.A.No. 7535 of 2007 2 Juvenile Justice Board. He is willing to offer any appropriate safeguards and is willing to comply with the conditions. He, a juvenile, may be spared of the risk of arrest and incarceration by the police, it is prayed. 3. The learned Prosecutor does not oppose the application. He further submits that the petitioner is not alleged to have any dominant role in the alleged theft. The other two miscreants had allegedly snatched the gold chain from the possession of the victim. The chain was allegedly handed over to the petitioner herein. Recovery has not been effected. Appropriate opportunity to question the petitioner may be given to the Investigator, submits the learned Prosecutor. 4. I am satisfied in the facts and circumstances of the case that subject to appropriate conditions, anticipatory bail can be granted to the petitioner. 5. In the result: (1) This application is allowed in part. (2) The following directions are issued under Section 438 Cr.P.C. B.A.No. 7535 of 2007 3 a) The petitioner shall surrender before the Juvenile Justice Board/ Principal Magistrate on 17.12.2007 at 11 a.m. He may file application for regular bail after giving sufficient prior notice to the learned Prosecutor in charge of the case. Needless to say, it shall be open to the Investigator, if that be necessary, to make application before the learned Magistrate for opportunity to question the petitioner through an appropriate police officer as contemplated under the Juvenile Justice Act. The petitioner shall abide by the conditions to be imposed by the learned Magistrate. On or before that date, the police shall make appropriate report to the Juvenile Justice Board/Principal Magistrate. (b) If the petitioner does not appear before the learned Magistrate as directed in clause (1) above, these directions shall lapse on 17.12.07 and the police shall be at liberty thereafter to arrest the petitioner and deal with him in accordance with law. (c) If the petitioner were arrested prior to his surrender on 17.12.2006 as directed in clause (1) above, he shall be released on his  B.A.No. 7535 of 2007 4 executing a bond for Rs. 25,000/- without any surety undertaking to appear before the learned Magistrate on 17.12.2007. (R. BASANT) Judge tm 

Vipin vs State Of Kerala Represented By The on 10 December, 2007

Kerala High Court

-1- in: THE men coum OF KARNATAKA AT' BANGALORE mm}: 'THIS THE: gm my are Ji.}1'~1E'i, 2009 BEFORE 1' Q THE; HQNBLE MR.-JUSTICE: SE1Bf§5SH__E'§§'AE§~§'§~ : _CRIMINAL PETITIQN N"(3.4U1 112095 V % BETWEEN: %' SR: C G SHWANNA S/O GURAPPA A6233 ABOUT' 52 YEARS ' PRINCIPAL v_ GOVERNMENT PRE--UNVERSITY'--»~CGLi,EGE.__ ' MALLBENNUR, HARIHAE? TALUK DAVANAGERE DISTRICT.--- - PE'I*moNER (By SITLARAVINB H, ADV.) ANS : SR1 PANDURANGA 3,2-;:g Vi?3N:¥_{ ATE'S?H~--. A MAJOR, I:>R0PR1E:f_r'<;_>R " * .. E SR1 NIDI w:.NEs,.xfAi:2zmA*»«I-MAD,' " c;ANAmH§'NAc3A;2:;,,sAc:;A£2A'v._ _ - SH.IM(}G:"9s_ DI--E:i'I{'E';£:' -. , u ' ' » _.. RESPGNDENT '7.c.c:.;~;Q;153Q;':;Ga3 on THE mg 012' I ADDL. CZJ (JR.Ii)N.) &. JMFC,' "'A!\%"r'7__ "QF THE CGLTRT IN HARIHAR TALUK, DAL"v'E;.?*I A';'«HfS:.__'P.E?.'£'TfTIGN comma {ZEN FOR GRDERS, firms my, THE csum $15.95 'THE FOLLGWING: V Mbffenca punishablc under Section 138 of Negetiabie Igigirumcnts Act 1"] W Sectian 420 of IPC. _g_ 2. Complainant allsges that, the petitioner had issueci a cheque for R3.?',48,0GO/'- on 8.3.2003. On }31"€Sf3I1f£lIgi{3f{'3 '~Qf the said cheque, it was dishonoured. In fhis r6gaI'_d;';""f:é..'_'}-flsgrfi cemplamt with the reqxzimmsnt of Section '::hé"T;IV'§'€gQti§:}3'ie, instrtunents Act, He has alleged fhgit, tfié'ac€:.11:%%.:d=.}i;3¢:{vvgiifigstésd " the c0111plai:::a11t, Case is pexzfiing on £11: 'file of J,5\»*§VfE7'§:; 3. Learned counsel for pc_tit.*i'<>.ii€J%". .'s;L:;¥:;§m.its that, petitionex' is Working u fiovexitxmcnt Pm» University Coliege, §3f9.lH'.)€?i:[_}I1.I":t.1_"{'ft:'§,;3'%T]f)'f'E5(#iT§.§é%{?i1!£(3I}t for him to go to Sagar and at_§ici4i§1. V:.t'h¢V;:c:as}¢ he do not get the necessary leawéeaf. j 4. has "been registsred against thff peiitioner. d"e,3st* be<5a':;.uSe is working eisawhere, is 1101: a g1'0u11d4;fd1L..I1'a;1sfi:r,V: if the Gfiizxxce is committed W:ii;§1ii1 ihfi léjf %£i'€;::v Claurt, Court. has get jurisdiction ta the of?£:21icfi;_ made: cut fer ézansfer. }'§.:::_coI7g:i;tI2@}?", petition fails and sane is éiismiased. Sd/-s Judge

Author: Subhash B.Adi

Sri C G Shivanna S/O Gurappa vs Sri Panduranga S/O Venkatesh on 9 June, 2009

Karnataka High Court

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4070 OF 2010 (Arising out of SLP(C) No. 21385 of 2009) N. Rajanna and others ...Appellant(s) Versus State of Karnataka and others ...Respondent(s) With CIVIL APPEAL NO.4071 OF 2010 (Arising out of SLP(C) No. 22394 of 2009) JUDGMENT G.S. Singhvi, J. 1. Leave granted. 2. Whether the Division Bench of the High Court of Karnataka could modify order dated 13.2.2009 passed by the learned Single Judge in Writ Petition No. 15348/2008 without issuing notice and giving opportunity of hearing to the appellants, who claim to have right over the land sought to be acquired by the State Government on behalf of respondent No.3 and  2 who were represented before the learned Single Judge through an advocate is the question which arises for consideration in these appeals filed against order dated 17.4.2009 passed by the Division Bench in Writ Appeal No. 1295/2009. 3. Respondent No.3 filed an application under the Karnataka Industries (Facilitation) Act, 2002 (for short, `the Facilitation Act') for approval of its proposed project which included Tourist Complex, Commercial Space, Financial Hub, Research and Development Facility with Residential Condominium, Service Apartments and Medical City to be set up in Chalamakunte village, Chikkajala Hobli, Bangalore North Taluk on land measuring 500 Acres. On coming to know of the application made by respondent No.3 for acquisition of land for its project, the appellants and others filed objections dated 30th May, 2007 by asserting that their claim for grant of occupancy rights over a portion of the land sought to be acquired was pending before the competent authority, which is required to decide the matter in compliance of the direction given by the High Court in Writ Petition Nos. 33954 and 41207 of 1982. 4. The project of respondent No.3 was considered in 10th, 13th and 15th meetings of the State High Level Clearance Committee (for short, `the  3 Committee'). After seeking some clarifications from respondent No.3, the Committee recommended approval of the project. The State Government accepted the recommendations of the Committee and issued order dated 18.11.2008 for approval of the project of respondent No.3 subject to certain conditions. While making recommendations in favour of respondent No.3, the Committee took note of letter dated 28.4.2008 sent by Principal Secretary to Government, Revenue Department, wherein he made a mention of the pendency of case for grant of occupancy right. This is evinced from the following extract of order dated 18.11.2008: 5. After 8 days, the State Government revised its decision and issued order dated 26.11.2008 for withdrawal of the approval accorded to the project of respondent No.3 on the ground of pendency of the case before the competent authority. This action of the State Government was ratified by the Committee in its meeting held on 28.1.2009. 6. Respondent No.3 challenged order dated 26.11.2008 in Writ Petition No. 15348/2008 by contending that under the Facilitation Act, the State Government does not have the power to review the approval accorded to its project. Another plea taken by respondent No.3 was that the action of the State Government is vitiated due to violation of the rules of natural justice. 7. During the pendency of the writ petition, the appellants filed an application dated 13.1.2009 for their impleadment as party by asserting that they have direct interest in the property sought to be acquired for the project of respondent No.3. On their part, respondent Nos. 1 and 2 filed objections to contest the writ petition. 8. After hearing learned counsel for the parties and Shri B.M. Shyam Prasad, who had appeared on behalf of the appellants, the learned Single Judge passed order dated 13.2.2009 whereby he partly allowed the writ petition. He rejected the plea taken by respondent Nos.1 and 2 that approval to the project of respondent No.3 did not create a right in its favour and held that the minimum expected of the State Government was to hear the writ petitioner before withdrawing the approval. However, instead of quashing order dated 26.11.2008, the learned Single Judge  5 directed the State Government to hear respondent No.3 and pass fresh order. Paragraph 8 and operative portion of the order passed by the learned Single Judge read as under: 9. Respondent No.3 did not feel satisfied with the directions given by the learned Single Judge and challenged the order passed by him in Writ Appeal No. 1295/2009. By the impugned judgment, the Division Bench allowed the writ appeal, quashed order dated 26.11.2008 and directed the State Government to proceed on the basis of approval granted by it on 18.11.2008. 10. Shri P.S. Patwalia, learned senior counsel appearing for the appellants argued that the impugned judgment is liable to be set aside because the Division Bench of the High Court disposed of the appeal without complying with the basics of the natural justice, inasmuch as no notice or opportunity of hearing was given to his clients. Learned counsel emphasized that the appellants have direct and substantial interest in the land sought to be acquired for the project of respondent No.3 because their claim for grant of occupancy rights is pending before the competent authority and argued that the Division Bench committed serious error by directing implementation of the project of respondent No.3 without issuing  7 notice to the appellants. Shri Patwalia submitted that the so-called consent given by one of the claimants of occupancy rights, namely, Shri H. Kempiah cannot be made basis for depriving the appellants of their legitimate right to be heard and oppose the acquisition of land ignoring that in terms of the direction given by the High Court in Writ Petition Nos. 33954 and 41207/1982, the competent authority is yet to decide the issue relating to grant of occupancy rights. Ms. Anitha Shenoy, learned counsel for the State of Karnataka not only supported Shri Patwalia, but also justified the Government's decision to withdraw the approval accorded to the project of respondent No.3 by arguing that the decision contained in order dated 18.11.2008 was vitiated due to non consideration of the relevant factors including the pendency of case relating to occupancy rights. Dr. Abhishek Manu Singhvi, learned senior counsel appearing for respondent No.3, pointed out that the impleadment application filed by the appellants had not been allowed by the learned Single Judge and submitted that the factual statement contained in paragraphs 5 and 13.11 of the impugned judgment suggesting that the learned Single Judge had already impleaded the appellants as parties to the writ petition does not appear to be correct. He then submitted that the appellants do not have any locus to be heard in the proceedings instituted by respondent No.3 against the Government's decision to withdraw the approval to its project  8 because the competent authority is yet to decide their claim for occupancy rights. The last submission of the learned senior counsel is that even if this Court comes to the conclusion that the Division Bench ought to have heard the appellants, the impugned judgment may not be disturbed because, in the event of grant of occupancy rights to the appellants, they will get a maximum of 103 Acres land and for that his client is prepared to pay the prevailing market value so that the implementation of the project may not be delayed. 11. We have considered the respective submissions. In our view, the impugned judgment is liable to be set aside only on the ground that the procedure adopted by the Division Bench in deciding the appeal preferred by respondent No.3 was contrary to one of the well recognized facets of natural justice i.e., audi alterm partem. A careful scrutiny of the records reveal that while considering the project of respondent No.3 and approving the same, the Committee and the State Government were alive to the fact that the issue relating to grant of occupancy rights in respect of the land comprised in survey Nos.1 to 104 of Village Chalamakunte is pending adjudication before the competent authority. It is also not in dispute that even before consideration of the project of respondent No.3 by the Committee, the appellants had filed objections dated 30.5.2007 against  9 proposed acquisition of the land. They had also filed an application under Order 1 Rule 10 CPC for being impleaded as parties to Writ Petition No.15348/2008. Although, it is not clear from the order of the learned Single Judge whether the application filed by the appellants was allowed, but this much is evident that their advocate Shri B.M. Shyamprasad was heard along with other learned counsel. This appears to be the reason why in paragraph 5 of the operative portion of the order passed by him, the learned Single Judge made it clear that land owners must be heard before their land is acquired. The Division Bench of the High Court proceeded on the premise that the application filed by the appellants for their impledment as parties was allowed by the learned Single Judge. This is clearly reflected in paragraphs 5 and 13.11 of the impugned judgment. Therefore, the Division Bench should have afforded an opportunity of hearing to the appellants before deciding the appeal preferred by respondent No.3 and directing the State Government to act in accordance with approval accorded vide order dated 18.11.2008. In any case, once the learned Single Judge had heard the counsel representing the appellants and the Division Bench found that their application for impleadment had been allowed, the minimum which the Division Bench ought to have done was to issue notice to the appellants and given them an opportunity to contest the appeal. 12. Although, the issue relating to grant of occupancy right over the land comprised in survey Nos.1 to 104 of Village Chalamakunte is yet to be decided by the competent authority, it cannot be said that the appellants do not have the locus to be heard in the proceedings which may result in acquisition of the land. If ultimately the competent authority accepts the claim of the appellants for grant of occupancy rights and in the meanwhile the land is utilized by respondent No.3, the determination made by the competent authority will become illusory for them. 13. The submission of the learned counsel for respondent No.3 that his client is prepared to pay market value of the land to the appellants subject to their claim being finally adjudicated by the competent authority in the proceedings relating to grant of occupancy rights cannot be accepted because the learned counsel for the appellants emphasized that his client would like to contest the very approval of the project of respondent No.3 and support the decision taken by the Government to withdraw the same. 14. In the result, the appeals are allowed. The impugned judgment is set aside and the matter is remitted to the High Court for deciding the appeal of respondent No.3 afresh after giving opportunity of hearing to the  1 parties. Keeping in view the nature of the case, we request the High Court to dispose of the appeal as early as possible but latest within two months from the date of receipt/production of copy of this order. .....................................J. [G.S. Singhvi] ......................................J. [Asok Kumar Ganguly] New Delhi May 04, 2010 

Author: G Singhvi

Mr. N.Rajanna & Ors vs State Of Karnataka & Ors on 4 May, 2010

Supreme Court of India

Gujarat High Court Case Information System Print CRA/1004/2001 2/ 2 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 1004 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= BHAVNAGAR UNIVERSITY & 3 - Applicant(s) Versus ABDULRASHID ABDULGAFUR SHAIKH & 3 - Opponent(s) ========================================================= Appearance : MR JR NANAVATI for Applicant(s) : 1 - 4. RULE SERVED for Opponent(s) : 1, NOTICE SERVED for Opponent(s) : 2, [R SHAKTISINH GOHIL] for Opponent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 01/10/2010 ORAL JUDGMENTIt appears that the present petition arises against the interim order passed by the trial Court. The subject matter of the petition was pertaining to the election in the University. The interim relief was granted in the present proceedings and thereafter pending the petition, the statutory term of the disputed body is also over. Under these circumstances, no useful purpose would be served in examining the questions for academic purpose. Hence, the present petition is disposed of as having become infructuous. Rule discharged. I.R., if any, shall stand vacated. (Jayant Patel, J.) vinod     Top

Author: Jayant Patel,&Nbsp;

Bhavnagar vs Unknown on 1 October, 2010

Gujarat High Court

Court No. - 27 Case :- FIRST APPEAL FROM ORDER No. - 376 of 2005 Petitioner :- National Insurane Company Ltd. Thru Manager Respondent :- Smt. Surya Kiran Singh & 4 Ors. Petitioner Counsel :- Waquar Hashim Respondent Counsel :- K.C. Nigam,Manish Mathur,Vidyadhar Upadhyay Hon'ble Devi Prasad Singh,J. Hon'ble Dr. Satish Chandra,J. Heard learned counsel for the parties and perused record. It has been brought to the notice of this Court that no permission was accorded by the Tribunal under Section 170 of Motor Vehicles Act, 1988. Hence in view of law settled by Hon'ble Supreme Court in the judgment reported in 2003 (3) T.A.C. 293 (S.C.); National Insurance Co. Ltd. vs. Nicolletta Rohtagi and others, the present appeal is not maintainable. The appeal is dismissed. The amount deposited in this Court shall be remitted to the Tribunal forthwith. The appellant shall also deposit rest of amount in terms of Award before the Tribunal within two months and the Tribunal shall proceed in terms of Award. Order Date :- 8.7.2010 Rajneesh)

National Insurane Company Ltd. ... vs Smt. Surya Kiran Singh & 4 Ors. on 8 July, 2010

Allahabad High Court

ORDER 1. Invoking the review jurisdiction of this Court under Order 47, Rule 1 of Code of Civil Prodedure, the petitioner/appellant in C.M.P. No. 14563 of 1991 in S.A. No. 1659 of 1991 has filed this application to review the order passed by a learned single Judge of this Court, in the above petition, dated 7-4-1994 on the ground of legal error, grave injustice and apparent mistake. 2. The applicant is the sixth defendant in the suit, O.S. 137 of 1984 on the file of the First Additional Subordinate Judge, Pondicherry. The first respondent filed the suit against the respondents 2 to 6, the defendants 1 to 5 and the applicant herein for the relief of specific performance of an agreement of sale dated 27-4-1977 executed by the 2nd respondent for herself and on behalf of the respondents 3 to 5, agreeing to sell the suit property for a sum of Rs. 22,500/- in all. An advance of Rs. 13,780/- was received, agreeing to execute the sale deed within a period of six months from the date of the execution of the said agreement. Though the first respondent/plaintiff was ready and willing always to pay the balance and get the sale deed executed, respondents 2 to 5 did not comply with the demands, which necessitated the first respondent to file the above suit. The suit was resisted or; the ground that the said agreement of sale claimed to have been entered into is not a valid one for dearth of legal sanctity according to the Court of law along with other grounds inter alia. Respondents 2 to 5 who are defendants 1 to 4 in the meanwhile, are claimed to have sold the suit property to the 5th defendant by name Lakshmi Ammal who in turn, sold the same to the 6th defendant, Kandasamy, who is the appellant as well as the applicant herein. According to the first respondent herein viz., the plaintiff, the sale deed executed by the respondents 2 to 5 to the 6th respondent and the sale deed executed by the 6th Respondent in favour of the applicant herein are not valid. 3. The execution of the sale deed in favour of the 6th respondent by respondents 2 to 5 in respect of the suit property was admitted and so also the transfer of the suit property by the 6th respondent in favour of the applicant herein was admitted. Consequently, the applicant herein initiated eviction proceedings against the tenant by name Shanmugham Chettiar and got an order of eviction, which was also admitted by respondents. It was further admitted that the first respondent herein viz., the plaintiff has already purchased one-fourth share in the suit property from one Vaidyanathan and his legal heirs. However, the validity of the agreement of sale claimed by first respondent/plaintiff was denied and on that ground, the suit for the relief of specific performance was hotly contested. As no legal sanction was obtained from the Court of law and the claim of the plaintiff was also barred by the law of Limitation and so on, after full trial, the suit O.S. 137 of 1984 was dismissed in full by the trial Court on 4-1-1989. An appeal was preferred against the said judgment in A.S. No. 32 of 1989 by the first respondent/plaintiff. The appeal was allowed and consequently, a decree for specific performance in favour of the first respondent/plaintiff was passed on 23-2-1990. 4. Aggrieved at this, the 6th defendant in the suit, who is the purchaser of 3/4th of the suit property from the 5th defendant, filed second appeal along with a petition CM.P. 14563 of 1991 to condone the delay of 335 days under Section 5 of Limitation Act. The applicant/6th defendant purchased the suit properly under the sale deed dated 23-11-1981 from the 5th defendant, under Ex. B.3, whereas the 5th defendant purchased the property on 13-6-1977 and 30-10-1980 under Exs. B. 2 and 4. As on the date of Ext. B.4th, the 5th respondent was minor, the sale deed has been rectified on 19-8-1985 under Ex. B.5. 5. Aggrieved at the judgment rendered by the learned lower appellate Judge in A.S. No. 32 of 1989, the present applicant filed I.A. 199 of 1990 for review of the judgment dated 23-2-1990. However, it was dismissed on 26-3-1991. Thereafter, a Civil Revision Petition was filed on this Court against the order made in the Review Petition and that was also dismissed by this Court. Subsequently the present Second Appeal was presented in this Court on 29-4-1991. For the delay in filing the second appeal against the judgment of the first Appellate Court dated 23-2-1990, the reason stated in the affidavit filed along with CM.P. No. 14563 of 1991 was that the application for getting certified copies of judgment and decree was made on 22-4-1991 and charges were called for on 24-4-1991 and the same was deposited on the same day and copies were made ready on 26-4-1991 and delivered on the same date and so, the second Appeal was presented on 29-4-1991. As against the disposal of the first appeal on 23-2-1990, the second Appeal ought to have been filed on or before 24-5-1990, but it was filed only on 29-4-1991. It was stated by the applicant that the filing of review application in I.A. 199 of 1990 before the lower Appellate Court on 30-3-1990 was within the time only on the advice that Second Appeal would not lie and that, therefore, the filing of review application, waiting for the disposal of the same and consequential filing of Civil Revision Petition were all on the advice given by the counsel and the delay till 22-4-1991 was due to the wrong advice and there were no deliberate or wanton activities or attitutes on the part of the applicant to controvert the condonation of delay. The applicant has further stated that the moment he was advised properly on 22-4-1991 he filed application for getting certified copies of judgment and decree made in the First Appellante Court and he took every steps and got the copies on 26-4-1991 and accordingly, on 29-4-1991, he filed the present Second Appeal, however, with an application to condone the delay, and therefore, in this way, the delay of 335 days in filing the Second Appeal had happened. 6. The first respondent who is the plaintiff resisted the said application by contending inter alia that the petition was filed only with the mala fide intention of dragging on the proceedings for some more time by filing the second Appeal, with a view to cause monetary loss and hardship to this respondent. Respondents 2 to 5 who are the defendants 1 to 4 failed to prefer any Second Appeal even in the context that the decree passed by the lower Appellate Court is only against them. The first respondent contended that the present applicant who is the subsequent purchaser to the utter disregard of the agreement of sale executed in favour of the plaintiff-first respondent herein, cannot have any grievance in this Second Appeal. It has also been contended by her that the applicant has filed Copy Application No. 5661 of 1990 for getting the certified copies of judgment and decree of lower Appellate Court and it was furnished to the appellant as early as on 7-9-1990 and the Second Appeal was actually presented before this Court only on 29-4-1991. The recalcitrant attitude of the appellant has been referred to by stating that even the affidavit to be filed in support of the petition to condone the delay was absent and that has not been filed along with the petition, but, however, it was presented only on 11-10-1991, pointing out the procedural law laid down under Rule 3-A of Order 41, of Code of Civil Procedure, the suppression of the fact that certified copies of decree and judgment of the lower Appellate Court in Copy Application No. 5661 of 1990 were obtained on 7-9-1990, has been emphasised much in opposing the relief being granted to the applicant. In short, therefore, it was contended that there was no adequate ground or material supplied by the applicant to condone the delay of 335 days. 7. On hearing both sides, learned single Judge, Swamidurai, J. (as he then was), by passing the impugned order on 7-4-1994 dismissed the application and consequently, refused to condone the delay. Aggrieved at this, on the ground of want of legal propriety, and error and mistake, this review application is being canvassed. 8. I have heard the Bar for and against the impugned order very much involved in the instant case. 9. Before proceeding further, it has become necessary for me to advert the procedural law laid down under Order 47, R. 1 Code of Civi! Procedure which is extracted as hereunder: "Rule 1. (1) Any person considering himself aggrieved - (a) by a decree of order from which an appeal is allowed, but from which no appeal has been preferred. (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter of evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review. Explanation: The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment". 10. The explanation provided above has been added by Act 104 of 1976. It is clear from a careful reading of the above rule, that a party aggrieved by a decree or an order from which an appeal is allowed, but no appeal has been preferred, nor any appeal was allowed, shall prefer an application for review on the discovery of a new important matter or evidence which was not within his knowlege during the course of the exercise of his due diligence and the decree or order was passed on account of some mistake or error apparent or for any other sufficient reason, to the Court which passed such an order or decree. 11. Section 114 of Code of Civil Procedure provides like this:-- "Subject as aforesaid, any person considering himself aggrieved - (a) by a decree or order from which an appeal is allowed by this code but from which no appeal has been preferred. (b) by a decree or order from which no appeal is allowed by this code, or (c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order; and the Court may make such order thereon as it thinks fit." By reading of the above provision of law, it is also noted that a similar and analogous right vested with a person who is aggrieved by a decree or order for which an appeal is allowed by the Code, but no appeal has been filed, or no appeal has been allowed is to apply with the same Court for review of the judgment or order, provided, no (sic) the establishments of the grounds more specifically spelt out under Order 47 of Code of Civil Procedure. 12. On the concept of justice and review to be culled out, the Supreme Court in S. Nagaraj v. State of Karnataka , has spelt out the legal ratio as follows:-- "Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher Courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court. In Administrative Law the scope is still wider. Technicalities apart if the Court is satisfied of the injustice then it is its constitutional and legal obligation to set it right by recalling its order. Here as explained, the Bench of which are of us (R.M. Sahai, J.) was a member did commit an error in placing all the stipendiary graduates is the scale of First Division Assistants due to State's failure to bring correct facts on record. But that obviously cannot stand in the way of the Court correcting its mistake. Such inequitable consequences as have surfaced now due to vague affidavit filed by the State cannot be permitted to continue. review literally and even judicially means re-examination or re-consideration. Basic Philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the Courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even then there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the Courts culled out such power to avoid abuse of process or miscarriage of justice. In Raja Prithi Chand Lal Choudhury v. Sukhraj Rai, AIR 1941 FC 1, the Court observed that even though no rules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council in Rajunder Narain Rae v. Bijai Govind Singh, 1 Moo PC 117 (sic) that an order made by the Court was final and could not be altered. "Nevertheless, if by misprison (sic) in embodying the judgments, by errors have been introduced, these Courts possess, by common law, the same power which the Courts of record and statute have of (sic) rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have, however, gone a step further and have corrected mistake introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies." Basis for exercise of the power was stated in the same decision as under:-- "It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard." Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed and substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitution-makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And Clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this Court to review an order in Civil proceedings on ground analogous to Order XLVII, Rule 1 of the Civil Procedure Code. The expression, 'for any other sufficient reason' in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL, Rule 1 of the Surpeme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of the process of Court. The Court is thus not precluded from recalling or reviewing its order if it is satisfied that it is necessary to do so for sake of justice." 13. From the legal ratio held by the Surpeme Court in the above case law, it is deducible that review though literally and even judicially means re-examination or reconsideration, but the basic philosophy inherent in it is the universal acceptance of human fallibility and yet in the realm of law, the Courts as well as the statutes strongly lean in favour of finality of decision and exceptions to them have been carved out to correct accidental mistakes or miscarriage of justice for which even there was no specific rules or statutory provisions framed by the Court of higher forum to rectify such mistakes thus the horison of the power of the Court and the law, in order to render proper justice, has been extended by Supreme Court to an aggrieved person by virtue of a decree or order, on the ground of human fallibility, or a mistake or error of law and to prevent or end the miscarriage of justice. Though finality is presumed on the rendering of every judgment or order, when it is found with apparent error or mistake of law or miscarriage of justice, then, the same forum will recitify the same in spite of the fact, that in the realm of law, Courts in this courty and even the statutes lean strongly in favour of finality of decision legally and properly made. However, exceptions both statutory and judicially have been carved out to correct accidental mistakes or to prevent miscarriage of justice. This philosophy has been carved out from the the very object of the statute provided under Order 47, Rule 1 Code of Civil Procedure. It is, therefore, under the circumstances, if any decree or order passed by a Court is found inherent with apparant error or mistake of law causing miscarriage of justice and for other sufficient reasons by which justice could not be rendered to the aggrieved person, review of the said order or judgment is possible, but certainly not otherwise. So far as this above legal proposition is concerned, the Bar for the respective parties in this case, have no dispute or controversy. 14. Mr. G. Masilamani, learned Senior counsel appearing for the applicant would confine his main throng of attack on the impugned order only by saying that the impugned order passed by the learned single Judge of this Court is perverse for the reason that learned single Judge has not considered the reasonings and grounds provided thereof for condoning the delay of 335 days, but however has gone into the merits of the appeal and as admitted by the other learned single Judge of this Court on identifying the substantial question of law which is a gross mistake and an error apparent, and that without hearing the parties in the appeal while it is pending for looking into the same, and instead of going into (he merits of the application to condone the delay, the observation given by the leaarned single Judge is certainly an error of law and the order is inherent with human fallibility and for the said reason, the order is to be reviewed in accordance with law. On the other hand, Mr. G. Subramanian learned Senior counsel appearing for the respondents would controvert the said contention by submitting that the mandatory procedure laid down under Rule 3A of Order 41, of Code of Civil Procedure has not been followed by the applicant/appellant and when the second Appeal was presented, the affidavit to be accompanied with the petition to condone the delay has not been filed and the petition to condone the delay was rightly rejected by learned single Judgs and even so, the suppression of the fact of obtaining certified copies on 7-9-1990 would go to the root of the controversy and that therefore, severe mala fide has been established in the claim of the applicant and so, for the said reason, the review application cannot be entertained at all. By contending so, the impugned order passed by learned single Judge was justified by learned Senior Counsel appearing for respondents. 15. Rule 3A of Order 41, of Code of Civil Procedure is as follows:-- "(1) When an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause or not preferring the appeal within such period. (2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under Rule 11 of Rule as the case may be. (3) Where an application has been made under sub-rule (1), the Court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under Rule 11, decide to hear the appeal". 16. The above procedural law has mainly been relied upon by and on behalf of the respondents. For the reasons that when the Second Appeal was filed on 29-4-1991, though a petition to condone the dealy was accompanied, but however with no affidavit stating the reasons for the condonation of the delay and it appears from the case records that the affidavit containing reasons and grounds for condonation of delay was filed on 11-10-1991, in such circumstances the learned single Judge had held that the application seeking for condonation of delay was not proper. The explanation offered on behalf of the applicant by the Bar for such delay is that strict compliance of the procedure need not be followed and since many of the litigants would come at the last moment for filing the Second Appeal or Revision sometimes with delay in filing the appeal or revision as the case may be, it may not be possible for the party to prepare an affidavit and immediately file it along with the appeal and the application for condoning the delay and only when the Office returns the papers, the affidavit could be filed at the time of representation. Accepting the said contention, learned single Judge has given the view in the following words:-- "No doubt, on the practical aspect of the case, the submission made by the Mr. G. Masilamani appears to be reasonable and probable also. According to him, justice should not be defeated on account of technicalities aspecially in this case when the affidavit could not be filed immediately along with the appeal on 29-4-1991. But assuming without admitting that this argument is correct, but there is no mention about the receipt of certified copies of judgment and decree on 7-9-1990 as pointed out by the first respondent in bis counter and the appellant has not stated anything about the receipt of those certified copies of judgment and decree and we are not able to know as to what had happened to these copies obtained on 7-9-1990". Apart from the findings given by the learned single Judge as above referred with regard to the non-filing of affidavit along with the petition as provided under Rule-3A of Order 41, Code of Civil Prodcedure, I have necessarily to refer to case laws which are the following:-- (1) In Das Gupta v. Prakash K. Shah , it was observed as follows:-- "Despite the apparently peremptory language of Rule 3A of Order 41 of the Code the Appeal preferred after the expiry of period of limitation cannot be dismissed summarily on the ground that the application for condonation of delay does not accompany the memo of appeal. The obvious object of making such a provision is to see that the appeal will not be heard unless delay in the filing the said appeal is condoned after proper notice to the respondent. This is evident from the provisions contained in sub-rule (2) of Order 41, Rule 3A of the Code. This sub-rule provides that when the court does not reject the application for condonation of delay summarily notice of the said application should be issued to the respondent and it is only after the said application is finally decided that the Court can proceed to dismiss or admit the appeal under the provisions of Rule 11 or Rule 13 respectively of Order41 of the Code. This must be so because several times it might be the case of the appellant that there is no delay at all and in such a case after examination of the papers if the Office of the appeal Court finds that there is delay then an application for condonation of delay may legitimately be presented by the appellant. A proper construction of the procedural rule like this must take into account contingency such as this." (2) Maya Devi K. K. Krishna Bhattathiri , The Division Bench of Kerala High Court while dealing with the scope of Rule 3A of Order 41, Code of Civil Procedure has observed as follows:-- "Rule 3A of Order 41 is intended only to emphasize that if an appeal had been filed out of time before the appeal is taken up for consideration the question of delay must be considered before any order is passed in the appeal. It is to achieve this object that the Rule provides that the appeal should be accompanied by a petition to excuse the delay. If the petition to excuse the delay is filed as a consequence of the direction of the Court to cure the defect, when the defect is cured there is a valid presentation of the appeal. Once the Court returns the same for representation after supplying the deficiency or curing the defect it must mean that permission is granted by the Court for that purpose and once that is complied with it should be deemed to have been presented on the day it was originally filed. This is on the same principle as is provided for in Section 149 Code of Civil Procedure and Section 5 of the Court-fees Act." 17. It is therefore, under the circumstances, if the above views of the Courts, referred to in the above case laws, are imported to the facts of the case, it is noticed that on the date of filing the Second appeal on 29-4-1991, it was filed along with a petition for condonation of delay but, however without any affidavit. According to the learned single Judge, the affidavit in support of the application was sworn on 29-9-1991 and it was presented in this Court on 11-10-1991. It is, therefore, under the circumstances, noticed that the second appeal was presented on 29-4-1991 with as petition for condoning the delay viz., C.M.P. No. 14563 of 1991, however with no affidavit, but the affidavit was contemplated was sworn on 29-9-1991 and the same was filed in the Court on 11-10-1991. The case records are silent about the facts that only on the returns to cure or comply with the defects, the sworn affidavit was filed on 11-10-1991. There was no evidence or finding in this regard. However, it is seen that the sworn affidavit as well as the petition to condone the delay as contemplated under Rule 3A of Order 41, Code of Civil Procedure have been filed and accepted by this Court and numbered as C. M. P. No. 14563 of 1991 for which a counter-affidavit has also been filed. There was no finding given by the learned Judge as to whether on the above given facts, the petition filed seeking for condonation of delay is a defective one or is liable to be rejected. But instead, learned single Judge with great respect has proceeded to give the following findings:-- "I have carefully gone through the material records and the judgments of the Courts below. The Trial Court dismissed the suit on the sole ground that the first defendant-mother without getting permission of the Court for selling shares of the minors, cannot execute an agreement of sale in favour of the plaintiff. The lower appellate Court found that the very same defendants 1 to 4 without getting any permission from the Court for selling the shares of the defendants 3 to 4, have sold the property to the 5th defendant for valid ..... consideration and the 5th defendant in turn sold the property to the 6th defendant. Unfortunately, in this case, neither the defendants 1 to 4 nor the defendants 5 and 6 have come forward to repay the advance amount of Rs. 13,780/- paid by the plaintiff on 27-4-1977. It appears that defendants 1 to 4 and also defendants 5 and 6 have tried to cheat the poor woman, the plaintiff herein, without at least offering to repay the huge advance amount of Rs. 13,780/- paid by her as early as on 27-4-1977. We have to think about the value of such huge money paid by the plaintiff on 27-4-1977 and we have to think about the present value of the money and the rise in price of immovable property after a period of 16 years from 1977. Defendants 1 to 4 have not contested the suit in the Trial Court even though they have filed Written Statement. The Plaintiff's husband was examined as P.W. 1 and the 6th defendant was examined as D.W. 1. Defendants 1 to 4 have not let in any oral evidence, regarding the truth and part of sale consideration received by them. Defendants 1 to 4 have sold the property to the 5th defendant without getting permission from the Court. The 6th defendant had purchased the suit property from the 5th defendant. No doubt the suit agreement dated 27-4-1977 is a registered one and if defendants 5 and 6 have looked into the encumbrance in respect of the suit property, they would have found out the registered agreement of sale dated 27-4-1977 in favour of the plaintiff and at least they could have asked the plaintiff whether the agreement in his favour has been discharged or not and whether the plaintiff was reimbursed of his advance amount. Defendants 5 and 6 do not appear to be bona fide purchasers for value without notice after enquiry of any encumbrance in respect of the suit property. The suit agreement is a registered one and defendants 5 and 6 have purchased litigations knowing about the registered agreement in favour of the plaintiff. There is no equity at all in favour of the appellant and the defendants 1 to 6 have attempted to deceive the plaintiff and to cause her loss and hardship. In the circumstance, I do not find that there is just and sufficient cause for condoning the delay. The delay is more than 335 days, if we take into account the date of receipt of the certified copies of judgment and decree of the lower appellate Court as on 7-9-1990. It appears that there is an order of this Court dated 14-11-1991 which runs as follows:-- "Let the Second Appeal be listed for hearing under Order 41, Rule 11, C.P.C. and accordingly number the Second Appeal and put up along with this petition for condonation of delay". There is another order of this Court dated 21-11-1991 as follows :-- "For the reasons stated in the affidavit, the delay is condoned for the present, subject to the objections, if any of the respondents." Mr. S. Subramanian, learned Senior counsel for the first respondent contended that the delay was condoned for the present subject to objections if any by the respondents and it does not mean that the delay has been condoned once and for all and the Second Appeal was directed to be registered. It is not the case of the appellant that the delay has been condoned once and for all. It is only an interim order made possibly for registering the Second Appeal in view of (he urgency then shown by the appellant for obtaining an interim order in the Second Appeal. The delay was condoned for the present subject to the objections if any by the respondents. After hearing both parties at length and after considering the materials available on record, I am of the view that there is no just and sufficient cause for condoning the delay. Accordingly, C.M.P. No. 14563 of 1991 is dismissed." 18. From a very casual reading of the above findings of the learned single Judge, with great constraint and respect, I may observe, that the same does not curtail the adjudication of the matter involved in this case viz., the reason for condonation of the deiay of 335 days. It is worthwhile to note that while the learned single Judge accepted the contention of the learned Senior counsel in respect of not complying with the procedural law, we can apply the same logic with regard to the reasonings given for condonation of delay of 335 days, to be accepted or rejected, According to learned Senior Counsel for the Applicant/appellant, if the delay is calculated properly, it would come to only 301 days, not 335 days. Having thus considered the very gamut of the impugned order, without going through the merits of the Second Appeal, it is manifest that there was no iota of finding or observation given by learned Judge with regard to the availability of grounds to grant or to reject the relief of condonation of delay in filing the Second Appeal, which in the eye of law is a mistake or error apparent, happened due to judicial infallibility. It is also noticed at this juncture, that every gist and scope of Order 47, Rule I, Code of Civil Procedure has been well identified when some reasonings and grounds for seeking condonation of delay have not been scrapped out, but, however, the merits of the Second Appeal pending before this Court, have been taken into and considered without hearing the parties. On that scope, I may observe with great respect, that there was total deviation in exercising the judicial power in its proper perspective, while passing the impugned order. Mr. G. Subramanian, learned Senior Counsel has placed reliance upon a catena of case laws rendered by various High Courts and Supreme Court, amongst which, the one relevant for the purpose is extracted :-- M/s. Northern India Caterers v. l.t. Governor of Delhi (, the Supreme Court in this regard has observed as follows:-- "party is not entitled to seek a review of a judgment delivered by the Supreme Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. Power to review its Judgments has been conferred on the Supreme Court by Art, 137 of the Constitution and that power is subject to the provisions of, any law made by Parliament or the rules made under Art. 145. In a Civil Proceeding, an application for review is entertained only on a ground mentioned in Order XLVII, Rule 1 of the Code of Civil Procedure, and in a Criminal Proceeding on the ground of an error apparent on the face of the record. But, whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except where a glaring omission or patent mistake or like grave error has crept in earlier by judicial infallibility. An error apparent on the face of the record exists if of two or more views canvassed on the point it is possible to held that the controversy can be said to admit of only one of them. If the view adopted by the Court in the original judgment is a possible view having regard to what the record states, it is difficult to hold that there is an error apparent on the face of the record." 20. It is thus seen that there is not controversy among the Bar or/and on behalf of parties that if a patent error or mistake of law causing total miscarriage of justice in a judgment or order passed by a Court of law is well identified and for other sufficient reasonings clearly spelt out, under Order 47, Rule 1 of the Code of Civil Procedure, an aggrieved party can seek the relief of review of the said impugned order of judgment and for that there cannot be any dispute. For all the said ingredients having been found and well identified in the instant case, in the context that there is no quarrel or dispute by learned Senior counsel on behalf of the respondents with regard to the case laws, so many in numbers, on the facts of the instant case and for the foregoing reasonings, I do not propose to traverse into each and every case laws for the sake of avoiding repetition. Accordingly, under the circumstances, I am constrained to hold that this is a fit case liable to be reviewed and accordingly, the impugned order passed by the learned single Judge in C.M.P. No. 14563 of 1991 dated 7-4-1994 is hereby set aside. 21. In the result, for all the foregoing reasons, the review application is allowed and the Order in C.M.T. No. 14563 of 1991 dated 7-4-1994 is set aside. Post the case for further hearing under Order 47, Rule 8 Code of Civil Procedure. However, under the circumstances, there will to no order as to costs for either of the parties. 22. Application allowed.

Kandasamy vs Rathinambal And Others on 3 July, 1995

Madras High Court

IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 15TH DAY OF SEPTEMBER, 2010 :PRESEN'I': THE HON'BLE MRJUSTICE N.K.PATIL'-._ AND THE HON'BLE 1\m..ms'rIcE K. M.F.A.N0. 11o73»0F_2or:§é»' Between: -- -- Sri. Kutti. S/0. Mani, Aged about 28 years, R/at. No. 20, . Cholanayakanahalli, R.T.Nagar Post, ' Bangalore~56O O32. . if . . ..Appe11ant (By Suit'. Sréé Sn'. T.N. Viswanatha, AdVOCates}~_ » 132$ Director, Bangalote-560 027. H.R, Renuka, Advocate} ~7Sat'i'ge "B'_r'1jaV'an"'. K..I;1.Roaci, " ' Shanthinagar, . . . Respondent*7l=***$*$ X This MFA is filed U/s 173(1) of MV Act against the Judgment and Award dated 03.03.2006 passed in MVC No.31 16/ 2002 on the file of the VI Additional Judge, Court of Small Causes and Member, MACT. Bangalore, (SCCH.No.2). partiy allowing the claim petitio1at_'=;'or compensation and seeking enhancement of comp«enfsa,ticn, " This M.F'.A. coming on for Admission. ddagdf, 22 N.K. PATEL J, delivered the following;_ :JUDG Ms.~r;et? Admit. 2' 2. This appeat by d_ out of the impugned judgfn'ent..at1d?V0.a>av'afd dated: 03/03/2006 passed in MVCV_.No.:3'1"1€$)f20Og2-._A dbyfme VI Additional} Judge, Qatisesd Member, Motor Accident_ j Bangaiore, (SCCHM2) (for Short The by its judgment and award has of Rs.2,49,160/-- under different heads 7% per annum from the date of evtdenee on 18.11.2003 till its deposit, as against A 'th,e4_.c1ai'm of the claiman for a sum of Rs.6,00,000/-, on "W°w'JM,__'fl____....» appellant has presented this appeal, seeking enhancement of compensation. 5. We have heard the Iearned counsel appearing for appellant and learned counsel appear1ng;'._¢'for respondent. 6. After perusal of the material avai1a"eZe'_~on'»re--eord," " including the impugned judgment and the Tribunal, it emerges" the _ 5afte1-'dd' assessing the oral and exfideince and taking into consideration j.ag'erd,f ..oCeupation and in come def "a1so..t'aking into Consideration the nature and the nature and durationhof -treatn\ent"~~dt' taken by the appeilant, has __a sum rrrr Rs.35,000/-- towards pain and of Rs.'75,000/-- towards medical sum of Rs.10,000/»~ towards conveyance nourishing food and attendant charges and a sum of R:s'..3;2,000/~ towards loss of income during the period of treatment. The sai% compensation awarded by the .d_"__m____m__.,_..« Tribunal is just and reasonable and therefore, it does not cal} for interference. 7. However, the Tribunal has erred' awarding any compensation towards loss ofamenities of ' life and therefore, it needs to aiwardedi seen from the records that, in'--View oflthe t'inj'3uries"g sustained by the appellant acciden'ti,*Vhe.i:1as taken treatment as inpatient for. inor.e"*«than one month, underwent oneV_surgeryV_a_nd assessed the disability at': the V' and he has to sufferthis'V:dilsa:tiility"--jthrotigh-.o1;tt his life and he could not " he was doing before the accident:LThisVV'aspect«.r.'§-has not been disputed by the C<:iripo§r_ation. ""Hav.i11g regard to the facts and ieireuprn.s_tta,'nces of the case, we award a sum of loss of amenities of life. " Further, the Tribunal has erred in awarding a of Rs.1,10,160/-- towards loss of future income M assessing the income 0: the appellant at Rs.4,000/- per M month, taking the disability at 13.5% and adopting the Multiplier of '17'. The income of the appellant talgen by the Tribunal is just and proper and we accept The Multiplier of '17' adopted by the rribuna: is:liabie'.'to be modified in View of the law-ilaid. Court in Sarla Verma's case repl'orte--d and accordingly, we adopt t-he..tMultiplierA inlsteadl' V of '17'. Having regardpto oft permanent disability suffered accept the disability 13.5% and we rounded re--determine the compensation' loss of future income at Rs.1,20,t§6.(l/'v~ V(4,OOvO/'ad-~ll'x 12 X 18 X 14/ 100) instead of 160/?" accordingly. it is awarded. 1 the Tribunal has erred in awarding towards future medical expenses and the same is'; inadequate and it needs to be enhanced. Having "__"_________,___,._.......s to the facts aréjécircumstances of the case as stated above, we award a sum of Rs. 10,000 / - under this head instead of Rs.7,000/- awarded by the Tribunal. 10. Having regard to the facts and circumstances of the case as stated above, the impugned award passed by the Tribunal is liable The total compensation payable' oo'r11es't0 /: T and the break-- up is as follows: Towards pain and sufferings.» . 1 V lv.8H5H,000/~ 0 Towards medical exp_enses,_..._ "Rs. f75,000/- Towards conveyance,"r1ou:§ishing_foo~d Rs. 10,000/- and attendant charges' V_ Z 0 Towards loss of in¢Q;;ie..Vc1:;;\ihg.,,,t 12,ooo/- period of treatment 3' T' " 'V ' Towards loss ofsameiiitfeslll Rs. 40,000/-- Towards loss««.ofV~fij;tulrejglooroe'j Rs. 1,20,960/- Towards ft1tt;1re._vr1aerl_igaI'expenses 0 Rs. 10,000 / - Total Rs. 3,02,960/- it 1.1. Aooordingljr, the appeal is allowed in part and ir1ipug12.e_d judgment and award passed by the No.31 16/2002 stands modified, granting a lE5o;n'p¢n5aaon of Rs.3,02,960/~ instead of Rs.2,49,160/--. "The erihanced compenflon comes to Rs.58,800/-- with "'___',,.» interest at 6% pa, frem the date of petition till the,:da.te of realisation. The Insurance Company is directec}__te~--:: in enhanced compensation with intereat the date of receipt of a copy of this t' The enhanced comlaeizeation V.sh3_.ii' in favour of the appella'n.t_, by the Insurer. sd/9 was 5&3 ttttt fudge? . .,..

Author: N.K.Patil And K.Govindarajulu

Sri Kutti vs The Managing Director Bmtc ... on 15 September, 2010

Karnataka High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10032 of 2009 DR.DHARAM SHEELA PRASAD & ORS Versus THE CHANCELLOR OF UNIVERSITY OF BIHAR & ORS ----------- Trivedi/ (Navaniti Prasad Singh, J.) 08 01.09.2010 Today is the 5th date on which Sri K.K. Pathak, in spite of direct positive order of this Court to appear, has failed to appear. Mr. Lalit Kishore, AAG-III states that inspite of his persuasion and that of the learned Advocate General Sri Pathak refuses to change his defiant attitude. This Court then requested the learned Advocate General to assist the Court in the matter. Learned Advocate General appeared and submitted that he was aware of the day to day development of this case in relation to Sri Pathak and had called him to his Chambers in the High Court telling him to obey the orders of this Court to appear in person still he has not changed his defiant attitude. In such a situation, both learned Advocate General and Additional Advocate General-III submit that they were not in a position to defend the action and the defiant attitude of the Officer and it is now open to the Court to take necessary steps for securing his presence in the Court, which now could not be opposed. Orders reserved for consideration.

Dr.Dharam Sheela Prasad &Amp; Ors vs The Chancellor Of University O on 1 September, 2010

Patna High Court - Orders

Court No. - 40 Case :- APPLICATION U/S 482 No. - 21635 of 2010 Petitioner :- Smt. Munesh And Another Respondent :- State Of U.P. And Another Petitioner Counsel :- R. P. Singh Respondent Counsel :- Govt Advocate Hon'ble Vinod Prasad,J. Heard learned counsel for the applicants and the learned A.G.A. The applicants, through the present application under Section 482 Cr.P.C., have invoked the inherent jurisdiction of this court with the prayer that their bail application in case crime no. 418 of 2010, under Sections 323, 325, 504, 506, 308 I.P.C., P.S. Sihani gate, district Ghaziabad be ordered to be considered expeditiously without unnecessary delay by the court below. After hearing learned counsel for the applicants and learned AGA this application is disposed off with a direction that if the applicants surrender within two weeks from today their bail application shall be decided as expeditiously as possible without unnecessary delay and if possible on the same day after giving opportunity to the prosecution in the aforesaid crime number for the aforesaid offences. With the aforesaid direction this application is finally disposed off. Order Date :- 28.6.2010 R.C.

Smt. Munesh And Another vs State Of U.P. And Another on 28 June, 2010

Allahabad High Court

ORDER Lajja Ram, Member (T) 1. M/s. T.V.S. Electronics Ltd., Tumkur (hereinafter referred to as 'TVS'), have filed the present appeal being aggrieved with order dated 21-9-1992 of the Collector of Central Excise, Bangalore. 2. The matter relates to the classification of the products Modem, Cartridge Tape Drive (CTD) and Passive Hubs, used with the Data Processing Machines. Data Modem and Fax Modem were classified by the TVS under Heading No. 84.71 of the Schedule to the Central Excise Tariff Act, 1985 (hereinafter referred to as the 'Tariff'), and were classified by the Revenue under Heading No. 85.17 of the Tariff. CTD were classified by TVS under Heading No. 84.71 of the Tariff and were classified by the Revenue under Heading No. 84.73 of the Tariff. Passive Hubs were classified by TVS under Heading No. 84.71 and were classified by the Revenue under Heading No. 84.73 of the Tariff. In the show cause notice dated 26-3-1992 issued by the Collector of Central Excise, Bangalore, the extended period of limitation was invoked. The Collector of Central Excise, Bangalore in his Order dated 21-9-1992 ordered classification of Modems under Heading No. 85.17 and CTD under Heading No. 84.73 and confirmed the demand of differential duty relating thereto. The demand with regard to Passive Hubs was however, vacated as time barred. The Id. Collector, Central Excise observed that it was open to the Asstt. Collector to determine the correct classification of the Passive Hubs in accordance with Law. A penalty of Rs. 3 lakh was imposed on TVS. 3. The matter was posted for hearing on 17-10-1995 when Shri Krishna Srinivasan, Advocate with Shri P.K. Ram, Advocate appeared for the appellants. Shri K.K. Jha, SDR represented the respondents. 4. Shri K. Srinivasan, Id. Advocate stated that the show cause notice is dated 26-3-1992 while the duty had been demanded for the period 1-9-1988 to 28-2-1990. He referred to the earlier show cause notices on the same issue and submitted that the entire material had been furnished by them to the Deptt. and that there was no ground for alleging suppression against them. On merits, the ld. Advocate stated that no independent inquiry had been made by the adjudicating authority and that the reliance on Expert's opinion was not correct. The testimony of Shri Hemant Kumar was not reliable. The end use was not relevant for classification. There was no mens rea and therefore, penalty was not imposable. 5. In reply Shri K.K. Jha, Ld. SDR submitted that as per HSN Explanatory Notes, Fax Modem and Data Modem were excluded from the Heading No. 84.71. CTD were also excluded as per Chapter Note 5 of Chapter 84 from Heading No. 84.71. They performed specific functions and is in the nature of parallel back-up facility. On limitation, the ld. SDR referred to the show cause notice and the Order-in-Original and submitted that the appellants had misrepresented. In support of his arguments, the ld. SDR relied upon the Hon'ble Supreme Court's decision in the case of CCE v. Fuse Base Eltoto Ltd. 1993 (67) E.L.T. 30 (SC). 6. We have carefully considered the matter and have given our due thought and consideration to the submissions made by both the sides. 7. First, we would take up the matter of classification of the three products under consideration. MODEM 8. In their supplementary classification list No. 4/89, TVS had declared Data Modem and Fax Modem as units of Automatic Data Processing Machines and units, thereof, classifiable under Heading No. 84.71 of the Tariff. A Modem is a device that allows computer users to communicate with one another over telephone lines. It takes the digital information from the computer and modulate it into audio signals that can be sent over telephone lines. Using the modem we can send information to another computer by calling its modem on the phone. The matching compatible modems communicate through the communication software which controls the connection between the two identified computers. Communications software calls the other computer; that computer's modem answers the phone, talks to the modem of the calling computer and then the two computers start sending information back and forth to each other. There are two kinds of modem; internal and external. The internal modem is plugged inside the expansion slot. The external modem is outside the computer and is connected to the serial port (other than printer port), via a modem cable. An internal modem is useful only on a personal computer (PC), it can plug into. The modems modulate and demodulate the information transmitted through telephone lines into transmittable digitable form. The appellants had explained their product in Annexure-I & II Supplementary Classification List No. 4/89 at page 73 of the Paper Book No. II as under:- "Computers process data which are in the digital binary format. This data cannot be sent to another computer located in a different location through telephone lines. The signal is modulated and transmitted in the analog form, which is accepted by telephone lines. The signal received is demodulated and given to the computer in the digital format, which it understands. Data Modem is the short form of Modulator and Demodulator." Fax Modem was described at page 74 of the paper book as an alternative to conventional telex communication. Through Fax modem documents, letters, drawings, pictures or any other image could be sent over telephone lines to fax machines. 9. TVS had sought classification of their product Data Modem and Fax Modem, CTD, and Passive Hubs under Heading No. 84.71 of the Tariff Heading No. 84.71 covered the following :- "Automatic Data Processing Machines and units thereof : magnetic or optical readers, machines for transcribing data on two data media in coded form and machines for processing such data, not elsewhere specified or included." 10. In the case of Collector of Central Excise v. Wood Craft Products Ltd. 1995 (77) E.L.T. 23 (S.C.), the Hon'ble Supreme Court had held in para 12 of their judgment that "for resolving any dispute relating to Tariff Classification a safe guide is the internationally accepted nomenclature emerging from the HSN. This being the expressly acknowledged basis of the structure of Central Excise Tariff in the Act and the Tariff Classification made therein, in case of any doubt, the HSN is a safe guide for ascertaining the true meaning of any expression used in the Act." 11. Heading No. 84,71 of the HSN covers the same description as in Heading No. 84.71 of the Tariff as given above. In the HSN, Heading relating to Automatic Data Processing Machine and units thereof, excludes machines, instruments or apparatus incorporating or working in conjunction with an Automatic Data Processing Machine and performing a specific function. Such machines, instruments and apparatus are classified in the Headings, appropriate to their respective functions failing that in residual headings. It has been specifically mentioned at page 1301 of vol. 3 of the HSN Explanatory Notes under Heading No. 84.71 that "Modulator and Demodulator, apparatus (Modems) which modulate in transmittable form over a Telephone Network Information obtained from an Automatic Data Processing Machine and re-convert it into digital form", are excluded from Heading No. 84.71 and they are classifiable under Heading No. 85.17 which covers "electrical apparatus for line telephony or line telephony including such apparatus for carrier current line system." It is explained at page 1363 of Vol. IV of the Explanatory Notes that apparatus of the group of 'special apparatus for carrier-current line systems' "consists in the transmitting section of oscillators, modulator, etc., and in the receiving station, of filters, demodulators, etc. This group includes combined modulators - demodulators (Modems)." 12. We have carefully gone through the analysis made by the ld. Collector of Central Excise, Bangalore with regard to the Modems and we agree with him that the Modems merited classification under Heading No. 85.17 of the Tarrif. CTD 13. TVS had sought classification of their product CTD under Heading No. 84.71 of the Tarrif. Heading No. 84.71 of the Tarrif had been extracted above. The Heading No. 84.71 as appearing in the HSN had also been discussed above. It has been explained at page 1299 of Vol. III of the HSN Explanatory Notes that Heading No. 84.71 also covers separately presented constituent units of data processing systems. The constituent units are those defined under digital machines and analogue machines, as being parts of a complete system. Examples of such units apart from central processing units and input and output units included additional storage external to the central processing unit (Magnetic tape transports, magnetic card transports, magnetic disc and drum storages, magnetic core storage etc.). 14. The CTD is a back-up system for use with compatible machines. It is a separately housed unit, a sort of removeable secondary medium on which the information otherwise stored on the Winchester drive could be backed-up. Backing-up is making a safety copy of the Data. It is not an additional storage units. It is packed and despatched separately and had to be configured with PCS and mini computers. The product literature on record provides that it is an accessory suitable for use with the PCS and fits into the space next to the monitor. 15. The Revenue had proposed the classification under Heading No. 84.73 which covered "parts and accessories (other than covers, carrying cases and the like) suitable for use solely or principally with machines of Heading Nos. 84.69 to 84.72." Heading No. 84.73 specifically covers accessories of the machines of Heading No. 84.71. It has been explained that for the purposes of Heading No. 84.73 the term accessories covers only those articles which are designed to be mounted on the machines; it does not extend to independent accessories or ancillary machines used in conjunction with other office machines. The accessories covered by Heading No. 84.73 are therefore, interchangeable parts or devices designed to be mounted on a machine to adapt it for a particular operation or to perform a particular service relative to the main function of the machine or to increase its range of operations. In the present case, the PCS are configured with CTD. 16. The ld. Collector of Central Excise, Bangalore had dealt with the matter in great detail at page 14 to 25 of his Order and had held that they were correctly classifiable under Heading No. 84.73 of the Tarrif. We have discussed the product as well as the Tarrif Description above and we concur with the views of the ld. Collector of Central Excise, Bangalore that CTD are correctly classifiable under Heading No. 84.73 of the Tarrif. PASSIVE HUBS 17. The ld. Collector of Central Excise, Bangalore had left it to the Asstt. Collector to determine the correct classification of Passive Hubs. As he had not discussed the classification of the Passive Hubs and had not recorded any finding in this regard, we are not dealing with that product. 18. On limitation, the Ld. Collector Collector Sic. of Central Excise had observed that the goods were not correctly described, there was wilful misstatement and that the relevant facts had been suppressed. All the relevant information had not been furnished and he had held that with regard to the products - Modems and CTD the extended period of limitation had been rightly invoked. The appellants had contended that it is a matter involving classification dispute and that there was no suppression and that they rightly considered that all their products were classifiable under Heading No. 84.71 of the Tarrif. They have also referred to the earlier show cause notices issued on 26-10-1990, 27-2-1991, 26-8-1991 and 29-1-1992 wherein the duty had been demanded for the period from 1-3-1990 to 31-12-1991. The last show cause notice was issued by the Asstt. Collector on 29-1-1992 while in the present case the show cause notice had been issued on 26-3-1992 for the earlier period not covered by these four show cause notices. They have contended that as the above show cause notices had been issued invoking only the normal period of limitation how it could be said that there was any suppression on their part. 19. We have recorded our findings on classification above. With regard to limitation, we have given our anxious thought to the developments in this case. The ld. Collector of Central Excise had himself recorded that the matter was technical in nature. The jurisdictional Central Excise Officers had approved the classification lists without any change. The assessments were not provisional. On going through the correspondence exchanged between the Deptt. and appellants, we do not find that there had been any positive suppression. The Assessing Officer had approved the classification and had not raised any objection to the clearances made under the approved classification lists. For the subsequent period from 1-3-1990, the show cause notices were issued invoking the normal period of limitation. 20. With regard to the product - Passive Hubs, the ld. Collector of Central Excise had vacated the demand as the same was hit by limitation of time as no mis-declaration on the part of TVS was established. In the circumstances, we are not convinced that it was a case where the extended period of limitation could be rightly invoked. 21. Thus, on the question of classification, we agree with the ld. Collector of Central Excise. On the question of limitation, we consider that the demand could only be sustained for the normal period of limitation in the facts of this case. In the circumstances, there is no ground for imposition of penalty. The appeal is disposed of in the above terms.

T.V.S. Electronics Ltd. vs Collector Of Central Excise on 12 March, 1996

Customs, Excise and Gold Tribunal - Delhi

CASE NO.: Appeal (civil) 5872 of 2002 PETITIONER: Haryana Urban Development Authority RESPONDENT: Shanti Devi DATE OF JUDGMENT: 24/09/2004 BENCH: S.N. VARIAVA & A.K. MATHUR JUDGMENT: J U D G M E N T S. N. VARIAVA, J. Before this Court a large number of Appeals have been filed by the Haryana Urban Development Authority and/or the Ghaziabad Development Authority challenging Orders of the National Consumer Disputes Redressal Commission, granting to Complainants, interest at the rate of 18% per annum irrespective of the fact of each case. This Court has, in the case of Ghaziabad Development Authority vs. Balbir Singh reported in (2004) 5 SCC 65, deprecated this practice. This Court has held that interest at the rate of 18% cannot be granted in all cases irrespective of the facts of the case. This Court has held that the Consumer Forums could grant damages/compensation for mental agony/harassment where it finds misfeasance in public office. This Court has held that such compensation is a recompense for the loss or injury and it necessarily has to be based on a finding of loss or injury and must co-relate with the amount of loss or injury. This Court has held that the Forum or the Commission thus had to determine that there was deficiency in service and/or misfeasance in public office and that it has resulted in loss or injury. This Court has also laid down certain other guidelines which the Forum or the Commission has to follow in future cases. This Court is now taking up the cases before it for disposal as per principles set out in earlier judgment. On taking the cases we find that the copies of the Claim/Petitions made by the Respondent/Complainant and the evidence, if any, led before the District Forum are not in the paper book. This Court has before it the Order of the District Forum. The facts are thus taken from that Order. In this case, the Respondent was allotted a plot bearing No. 1489, Sector-14(P), Hisar. The Respondent paid substantial amounts but the possession was not delivered. The Respondent thus filed a complaint. On these facts, the District Forum awarded interest @ 15% p.a. on the entire deposited amount from the date of re-allotment till offer of possession. The State Forum dismissed the Appeal and confirmed the Order of the District Forum. The Appellants went in Revision before the National Commission. The National Commission dismissed the Revision filed by the Appellants relying upon its own decision in the case of Haryana Urban Development Authority v. Darsh Kumar and observing that interest @ 18% p.a. has been allowed by them under similar circumstances. As has been stated in so many matters, the Order of the National Commission cannot be sustained. It cannot dispose of the matters by confirming award of interest in all matters irrespective of the facts of that case. It must, on facts of a case, award compensation/damage under appropriate heads if it comes to the conclusion that such award is justified/necessary. Accordingly the Order of the National Commission is set aside. We are informed that the Appellants have offered possession on 24th February 1998. Counsel had no instructions whether Respondent had taken possession or not. Undoubtedly the Respondent will be entitled to take possession, if he has not already taken possession. Appellants will deliver possession without demanding any further or other amounts. We are informed that the Respondent has paid a sum of Rs.1,64,810/-. We however find from the copy of the allotment letter, filed in this Court along with the affidavit of the Estate Officer dated 29th July 200, that only a sum of Rs.1,23,700/- was payable. As per the affidavit a sum of Rs.89,126/- being interest payable to the Respondent, as per the Orders mentioned hereinabove, has been paid to the Respondent on 25th July 2004. Counsel had no instructions and could not explain what were the amounts due from the Respondent. As stated above Respondent has paid more than what he was bound to pay. Also neither before the District Forum or the State Forum or the National Commission and even in the Appeal Memo before this Court is there a claim that Appellants have to recover amounts from the Respondent. When the dispute has been subjudice the Appellants are bound to put before the Court/Forum not just their defence but also their claim/counterclaim, if any. Without permission of Court, the Appellants cannot set at naught awards of the Forum by raising, outside Court, demands against the Respondents. It must be remembered that the Appellants were to deliver possession within a reasonable time. They do not offer possession till 24th February 1998. As they were not in a position to deliver possession they cannot expect parties like the Respondent i.e. allotees to keep on paying installments to them. In such cases i.e. where Appellants are not in position to deliver possession they cannot charge interest on delayed payments till after they offer possession. Clause 6 of the letter of allotment also so provides. It reads as follows: "6. The balance amount i.e. Rs.92,775/- of the above tentative price of the plot/building can be paid in lump sum without interest within 60 days from the date of issue of the allotment letter or in six equal instalments. The first instalment will fall due after the expiry of one year of the date of issue of this letter. Each instalment would be recoverable together with interest on the balance price at 10% interest on the remaining amount. The interest shall, however accrue from the date of offer of possession." Thus, interest could only have been charged from date of offer of possession. As we are unable to understand and Counsel has no instructions to be able to explain why extra payment has been collected and what adjustments are purported to have been made, we direct that Appellants shall now recalculate in the manner set out hereunder. In this case, Appellants must pay interest at 15% from date of each deposit till date of payment. They will not charge interest on delayed payments prior to 24th February 1998. If by that date the original price of Rs.1,23,700/- had been paid they will not be entitled to and will not charge any interest. If anything extra is recovered they will repay that back to the Respondent with interest thereon at 15% from the date of such wrongful recovery till payment. We, however, clarify that if Appellants have a claim and feel that they have to recover such amounts from Respondent, they are at liberty to approach this Court for clarification/modification of the Order and if on that application they are permitted to so recover they may. But in the absence of any such permission, they shall not recover anything extra/over and above the allotment price of Rs.1,23,700/-. Further, if TDS amount is deducted they will now pay that over to the Respondent with interest thereon at the rate of 15% from date it was so deposited till payment. Such recalculation to be made within 15 days from today and the amounts found due and payable to the Respondent to be paid to him within 15 days thereafter. A compliance report to be filed in this Court within one month from date. A copy of the recalculation to be annexed to the compliance report. We clarify that this Order shall not be taken as a precedent in any other matter as the order is being passed taking into account special features of the case. The Forum/Commission will follow the principles laid down by this Court in the case of Ghaziabad Development Authority vs. Balbir Singh (supra) in future cases. With these observations, the Appeal stands disposed of with no order as to costs.

Author: S N Variava

Haryana Urban Development ... vs Shanti Devi on 24 September, 2004

Supreme Court of India

Gujarat High Court Case Information System Print CR.MA/4748/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 4748 of 2010 In CRIMINAL APPEAL No. 176 of 2007 ========================================================= JAYANTIBHAI ATMARAM VAGHELA - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MR RAXIT J DHOLAKIA for Applicant(s) : 1, MR HH PARIKH ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 13/05/2010 ORAL ORDER(Per : HONOURABLE MR.JUSTICE A.L.DAVE) This is successive application preferred by the applicant for bail. The earlier application came to be withdrawn. At that point of time, the Court had directed the appeal to be fixed for final hearing in July 2009. 2. No case is made out for reconsidering the case for suspension of sentence and grant of bail pending the appeal. It would be open for the applicant to move the Registry for fixing the matter as per earlier order. 3. The application stands rejected. (A.L. DAVE, J.) (BANKIM N. MEHTA, J.) zgs/-

Author: A.L.Dave,&Nbsp;Honourable Mr.Justice Bankim.N.Mehta,&Nbsp;

Jayantibhai vs State on 13 May, 2010

Gujarat High Court

Security Code Check for Accessing Judgment/Order Document   eLegalix - Allahabad High Court Judgment Information System Welcome to eLegalix, Judgment Information System for Allahabad High Court and Its Bench at Lucknow. Disclaimer Please enter the 4-digit numerical security code below to download Judgment/Order Document   Security Code:    GO   Visit http://elegalix.allahabadhighcourt.in/elegalix/StartWebSearch.do for more Judgments/Orders delivered at Allahabad High Court and Its Bench at Lucknow. Disclaimer   System designed and developed at Computer Centre, High Court, Allahabad.

Tellu & Others vs Mukha on 7 September, 2010

Allahabad High Court

Court No. - 7 Case :- WRIT - A No. - 44039 of 2000 Petitioner :- Ramji Gupta Respondent :- 15th A.D.J.& OthersPetitioner Counsel :- A.N.Sinha Respondent Counsel :- C.S.C. Hon'ble Rakesh Tiwari J. The case is passed over on the illness slip of Sri C.M. Rai, learned counsel for the respondent. Order Date :- 9.8.2010 CPP/-

Ramji Gupta vs 15Th A.D.J.& Others on 9 August, 2010

Allahabad High Court

In the Central Information Commission  at New Delhi File No: CIC/AD/A/2011/000810 Date  of Hearing     :  June 22, 2011 Date of Decision     :  June 22, 2011 Parties: Applicant Shri  H Raghavendra S/o  Shri H Basavaraj 2954/4, M C C  'B' Block 5th Cross, 5th Main Devanagere - 577004. Applicant was not present. Respondent(s) Ministry of External Affairs Regional Passport Office 80 Feet Road, 8th block Koramangala, Bangalore ­ 560095 Represented by  :    Shri P Roy Choudhary, Advocate Information Commissioner :   Mrs. Annapurna Dixit ___________________________________________________________________ In the Central Information Commission  at New Delhi File No: CIC/AD/A/2011/000810 ORDER  Background                 1. The RTI Application dated   27.11.2010  was filed by the Applicant with the PIO, Regional Passport  Office, Koramangal, Bangalore   seeking information   with regard to his Passport Application dated  19.8.2010.  The PIO replied on  23.12.2010  stating that   the report has been forwarded by the Police  Authorities and that  the same is under process for uploading  The Applicant filed his first appeal on  3.1.11 seeking the required information once again.  On not receiving any reply from the Appellate  Authority, the Applicant filed his second appeal before the Commission on 7.2.11.   Meanwhile the  Appellate Authority replied on 7.2.11 directing the PIO to provide point wise information which was  furnished to the Appellant by the PIO on 25.2.11 in compliance with the Appellate Authority's Order.   Decision    2. During the hearing the Respondent  submitted that the Passport has been issued to the Applicant on  15.2.11.   Since the grievance of the Applicant has been redressed there is no requirement for any  further disclosure of information. 3. The appeal is accordingly disposed of and the case closed.  (Annapurna Dixit) Information Commissioner Authenticated true copy  (G.Subramanian) Deputy Registrar Cc    1. Shri  H Raghavendra S/o  Shri H Basavaraj 2954/4, M C C  'B' Block 5th Cross, 5th Main Devanagere - 577004. 2. The Public Information Officer  Ministry of External Affairs Regional Passport Office 80 Feet Road, 8th block Koramangala, Bangalore ­ 560095 3. The Appellate Authority Ministry of External Affairs Patiala House Annexe Tilak Marg New Delhi         4.        Officer Incharge, NIC.

Mr.H Raghavendra vs Ministry Of External Affairs on 22 June, 2011

Central Information Commission

IN THE HEGH COURT OF KJXRNATAKA AT BANGALORE DATED THIS THE 2913 DAY OF' SEPTEMBER 2009 PRESENT: THE HONBLE MRJUSTICE V.GOPALA G1o%Xf1jA.' E. AND THE HONBLE MR.JUS'I'ICE K.N7;JEESTmTANARA%YANA7' W.A.NO.331 1[/2005'{U'L.(_i1 BETWEEN: 1 B S PANDITI-I S/O S S PANDITH ._ V SINCE DEAD BY LES. _ V 1{A} SMT.vANAjE_E."PAIs§I3:'TH" WTTIES--LAfI~E E;S,.12AN:;1T1--1 ' AGED 66' 1(5) ANJANA,%SURES'EEW-[:O«S.SURESH D /0 LA_T13.B.S_.PA_NDITI'H AGED 4o..yEARS '- ' .fl'1[C)V""ANUPAI~lA B. PANEITH W/O R.K.BARA'I'H » _ VAGE<34_YEARS ARERJTQ N"O';113?, MOKSHA MARGA SIDDIIAREEHA; NAGARA, MYSORE DISTRICT. T '(AMENDED VIDE COURT ORDER ' _--,DATED 19.12.2008) 2 " KV VANAJA D /0 K VENKATARAMAIAH 50 YEARS R/O NO 1137, MOKSHA MARG SIDDARTH NAGAR MYSORE 3 RATHNAMMA W/O B K KENCHEGOWDA 48 YEARS R/O NO 311/A, 2ND CROSS D SUBBAIAH ROAD MYSORE 4 SHEELA D / O R K BHARATI-I 46 YEARS R/ O NO '7, DAYAJVIARGA SIDDARTHA LAYOUT MYSORE {By STLJAYAKUMAR S. PATEL, SENiOR:'¢O'IUNS_EL SR1. M R RAJAGOPAL, ADV.) : _ AND: 1 THE STATE OF EAISIJATAIIA1. O' A' BY ITS SECRETARY I DEPARTMENT OF. HO1I:'3INCf9_AND'. I " ' ' IcISBUIL"m13;O.,% 'I - BANOALO_RE'e A1. ' 2 THE'DEFUTY,cO_M1yIISS1ONER . ;..»xND PRESCRIBED AUTHORITY '-'.,UR}3AN LANDQEILING REGULATION MYSOPE DISTRICT MYSORE CO--OP SOCIETY Q 'I-.I'BY'I'fE3. SECRETARY, WSOEE 4 M§?SORE URBAN DEVELOPMENT AUTHORITY = BY ITS COMMISSIONER _ MYSORE CITY RAMEGOWDA S/ O RANGEGOWDA AGED ABOUT 60 YEARS 6 BASAVEGOWDA S/ O RANGEGOWDA AGED ABOUT 55 YEARS 7 LAKKAPPA S/ O RANGEGOWDA AGED ABOUT 52 YEARS 8. KRISHNA S / O RANGEGOWDA AGED ABOUT 49 YEARS R-5 TO 4-8 ARE ALL RESIDING AT NO2777. RAILWAY GATE ROAD, K.G.KOPPALU (KANNE GOWDANA KOPPALU} MYSORE. (AMENDED VIDE COURTORDER DATED 25.1.2007} RESRONDENTSV. is E I (By SMTGEETHA MENON, G.A. _RoR R.--_1*& R-2.ARD SR1. PSMANJUNATH, ADV. EQ'R._R4) " A 'V _ " THIS. WRIT APPEAL IS i'aE1LED ms" 4 }OF THE KARNATAKA HIGH COURT ACTT-PRAYING TO ASIDE THE ORDER PASSED IN TH'E4_V'JRIT--if PE;Ti';'§_IO_N«.NO.46942--45/2004 DATED OI/O8/2005. * = RESERVED ON 4; ':r..§sb.-;3..2009 _ V_ PRONOUNCED;_oNf;.- 'V22;19.2009 " T1518 = HAVING BEEN HEARD AND RESERVED, THIS,DAYv.VKE3H./':VANARAYANA.J, PRONOUNGED THE FOLLOWING: ' _ ' _ -._J__.UDG M ENT A is directed against the order dated by the learned Single Judge of this Court 40942 to 45/2004, dismissing the Writ "fiéeetitiopns med by the appellants. 2. Following are the facts leading to the presentation @ of writ petitions and the present appeal: (i) (ii) One Rangegowda @ Chikkahydegowda, S/0 Lakke Gowda, father of respondents 5 to 8 to thvigsiflappealwho were not parties to the Writ Petiti_ojns;..' owner of lands bearing Suryey No_.- Sacres 16 guntas, Survey:'»No.:-'~2.23l/4g" 'rneastft-ruingg_A4 acres 21 guntas, Survey'No. 18-2 1 Vmea'sij1ri.ng acreiit 32 gnntas and Survey 2.'n1easu1fi§ng 1 acre 34 guntas in a1l""rrie.as:_1ri--t1gu .ac~res 23 guntas all situated in Bogalcii 2 l Aftertbrce Land (Ceiling and aegfiiatibn) l'i'Act l:"».i976l_ll('fc5i~ short the Act), said Rangegowda ':.lj:"i}le'd._:fsta'tement in Form No.1, as per 5R1%1eslll4"3..:l&I1d"' 9."-ofvthe Rules framed under the Act lV.gi£fingA.particti"lars of the extent of vacant land held V' the urban agglomeration of Mysore city', other particulars, as required by Section A. Blil of the Act on 13.9.1976, before the competent authority under the Act. According to the appellants, said Rangegowda formed a revenue lay--out of residential building sites in land bearing Survey N0. 210, and sold sites to V (iv) different persons. According to the appeilants during 1982 a 1983, each of them purcha.s_'e--d"'--one site in the said 1ay--out from Rangegiowdiaffnnderv.4 unregistered sale deeds, and»--they wer'eI.'4pi'aced'9'».in f Vacant possession of the respective sit.es,vpa,1fc;has'ed by them, and thereafteI'v,..:'p:ti1ey const1*ucted:Vstfuctures thereon. Thus accyordingf appellantsvgthey have been in possession 'sites. In the; authority, 'as"'per Section 8(1) of the held in excess of ceiling 1irn;it," on showing that the declarant 5Rangeégoyvdatisffhoiding 36,344.01 sq.Ints. of excess ~.Thereafter, final statement as per Section 9 if under Section 10(1) of the Act were p1.;z1:)iis:hed on 1.8.1985; notification under Section A. 10(3) of the Act was published on 25.9.1985 9' "jdeclaring that the excess vacant land is deemed to have been acquired by the State Government with effect from 10.10.1985; possession of excess vacant land was taken on 19.9.1990 as per Section 10(6) of i (ix) memorandum dated 21.9.1993 Annexure--F issued by MUDA are void and ineffective. In these Writ Petitions. The appellants _ that pursuant to unregistered ,sa1e_-'deeds: = 'V by Rangegowda, they are in ;"pos'.s_'es;sion 'ofjreispiectiiye sites and at no point of-tlinie possession sites-" was taken from them bythe-cornpetentauthority, as per Section 10(6)' 9 of no notice as required. Sectiong ..th'e":,ri'rct was served on them;' as V"s'uch,"--.i,jtliey ycointinued to remain in possession respective sites, therefore, by virtue- of of Sections 3 (2) & Section 4 j' .,of Act 91999, all further proceedings stood lal:iateid,p'They""a1so contended that Bogadi Village was it the urban agglomeration of Mysore City, as' the entire proceedings initiated were illegal and without jurisdiction. They further contended that, even prior to passing of the award dated 31.3.1993 and taking possession of the land by the Government as per the provisions of the Act, the Government purported to have exercised its power ( Xi) "rt 12 After hearing both sides, the learned Single Judge by the order under appeal, dismissed the_,«p:et4itions holding that the appellants being who filed the declaration andnot ' _ the proceedings before the e_orripete_nt_ have no locus standi to.,:;c'h_allelnge the '-orders" passed' V by the respondent 'Deputy"Comrnissioner. The learned held that the originalfovvner toyhvave hands with the ' called sale deeds as the appellants based 'e.oll:.isive documents, created by the _ original ,_:dcclarantA"'to over come the effect of order 7...hAiissued.gunder"Section 10(3) of the Act, which he did as provided by Section 12 of the Act beforeithe Divisional Commissioner. aggrieved by the order of the learned Single --*:Judge, dismissing the Writ Petitions, the appellants have filed this appeal. Upon service of notices of appeal, the respondents have appeared through their learned Advocate. 3. We have heard Sridayakurnar S. Patil, learned Senior Advocate appearing for the appellants; Sri.P.S.Manjunath, learned Advocate Sri.H.M.Mnjunath, learned Advocate for': respondents 1 and 2, and Advocate for respondent _ Coal' operative Society. We.havev.pert1sed the " origintal records pertaining to the Deputy Commissioner', . f1;\:/Iysoijeg H by the learned Governmefl ti . A it 4:;__ Patil, learned Senior counsel would subafrlitpthatl' be seen from the recitals of theagreement' / sale deeds, the appellants are the 4 sites in Revenue lay out formed by the 'origir1al'VRangegowda, and they were placed in possessionv of respective sites and in the absence of any it to show that ULC authorities took possession of V the sites from the appellants as provided by Section 10(5) and (6) of the Act, the appellants deemed to be in possession of the sites as such, the entire proceedings stood abated by virtue of Repeal Act of 1999, and the %//. 17 the property who was the declarant did not question the actions on the part of the respondents, and sincelethe declarant and his family members themselye--s'_' _ admitted that they have voluntarily .del_iver_ed" po:sse'ssi'on oi " = the property to ULC authorities, :'t.he1'_'_AapVpeiiants locus standi to question the orders A13..nexures=§_*Eand that as the excess vacant --v§rith'the._yGo;irernment upon publication of Section 10(3) of the Act, and since. had been taken in of Section 10(5) 8: (6) of the ;Act coming into force, acquisitiorrof as such, the Repeal of the Act 1jor.e;.:"reictk3i~1 the acquisition of the land in 'hquestionf a"s.,such,"'the learned Single Judge is justified in thehwrit Petitions; that since there is nothing on'"r.eco_r'd show that as on the date of taking possession of,,land"-as per Section 10(5) 8: (6) of the Act, the appellants ""«2s:7e're' in possession of the sites, they were not entitled for "any notice from the competent authority under Section 10(5) of the Act; that the observation made during the course of the order dated 16.4.1997 -- Annexure--R2 and f'\ unregistered sale deeds are all created documents in collusion with the erstwhile owner. Before this Court the appellants have produced the alleged unregisteVre':::l""'rs.ale deeds, along with a memo. Reading of the _ these documents indicates that they 2 deeds transferring title in respect of irnmiovablre As could be seen from the's_e'~--._docu1nents,f:they.,,are note' properly staniped and they are__u:Iiregistered«.f_ Seciiion 34 of the Karnataka Stamp uthatfiio document not properly stamped ._shali"'beiilreceiiredlv'-indict'evidence for any purpose] l"Not..o:dioubl§,"'Section the Indian Registration Act permits unregistered document for collateral purpeosefto prove a transaction, which does not ' V' "requ.a.fe :registration';"""However, the prohibition imposed i..1nc_l_er of the Karnataka Stamp Act is total and as provision a document which is not properly insufficiently stamped cannot be received and into for any purpose including the collateral -purpose. The decisions cited by the learned Senior " counsel for the appellants in this regard have been rendered in the light of the provisions of Section 49 of the 29 the State Government or any person duly authorised by the State Government or by the competent authoriisfiiyand any amount has been paid by the State Gove_rnm.e_nt: respect of such land, such landwshall unless the amount paid has been Government. Section 4 abatement of legal Section, all proceedings relating"-any' or purported to be made underiflghe immediately before the before any court, abate. However, according vpflselction 4, the said section has no ap_plicat'ion'to: the.,_p1'..oceedings relating to Sections 11, oi'tl1e----«13'rincipal Act, if such proceedings are "tIr:1:e:..1and, possession of which has been taken 'State Government or any person duly V'~».autho"rised by the State Government or by any competent it Admittedly, in this case by 1999, no __proceedings as referred to under Section 4 of the 1999 Act V was pending before any Court, Tribunal or authority. In View of the fact that possession had been taken much ('3 32 in contravention of Section 23 of the Act. Ultimately, the Writ Petition was dismissed and the said order was not challenged. Therefore, it is not now again open appellants to question the very same order _ Petition also. Therefore, the challenge to V. this Writ Petition is not competentpasfthe suffered an adverse order inrespect" ofltliisg * order AnneXure--F', in the earlierV:Wri't._» so far as the order dated rjtflw/_VGovernment as per AnneXuref.Efallottingflthe in favour of the said order was not questioned "Petition though in the order dated _2l.9.l"i-993. 5 [Ann'exure--F, a reference has been made ' Vto An'nexure--E an'd"'it is only pursuant to Annexure--E, to be passed. From this, it is clear that the»..app'ell.ants. were not aggrieved by the order Annexure -- passed by the Government when they filed the earlier Wrtt,.'..fr"Petition. In fact, their relief in the earlier Writ ..Petition for regularisation of their unauthorised V occupation sought against MUDA was based on the notice said to have been issued by MUDA admitting that MUDA 34 proceed against the legal representatives of the original owner. However in these proceedings, no reiief can be granted in favour of the appeliants against re's.p:ondent Nos. 5 to 8 being the legal representatives In view of the above discussion, we .ans\zvergJpeint'"No,3"int" the affirmative. Therefore, there a.re':no"nierits appeal and the appeai is 1iab1eVg:'to_%be 16. Accordingly, we dis_mis:s'g_:the-.appeal;-.. EUDGE Sfi/4 , EUDGE . _._...-.4 V.Rw?'

Author: V.Gopalagowda & K.N.Keshavanarayana

B S Pandith S/O S S Pandith vs The State Of Karnataka on 22 September, 2009

Karnataka High Court

JUDGMENT (1) One Rangavellala Thevar, the plaintiff's grandfather's brother executed a mortgage in favour of one Sabhapathi Patharin 1882.The properties survived to the undivided brother of Rangavellala Thevar, Vaithi.Vaithi's son is Panchanatha Thevar.Panchanatha had two sons, one Marudiah and the plaintiff. Marudiah died issueless, so that the plaintiff claimed that he is the sole surviving member of the family who is entitled to the equity of redemption. (2) Before his death, this Marudiah Thevar sold the property to the fifth defendant in 1920. The mortgage right changed hands in the mortgagee's family in the following manner.After the death of the original mortgagee Sabhapathi Pathar, his undivided brother Arunachala was in enjoyment of the property.In a will executed by him, he is said to have admitted that the family owned only a mortgage right in the property.Defendants 1 to 3 became entitled under the will.That was in 1903.In 1922, defendants 1 to 3 executed a mortgage in favour of one Mangalambal. Mangalambal assigned his mortgage in 1928 to the fourth defendant.Subsequently, defendants 1 and 2 executed a sale deed conveying their right to the 4th defendant.The plaintiff claimed that he had been living in Singapore from the year 1922 onwards and that it was only on his return to India in 1958 that he became aware of these transactions.He issued notices to the defendants expressing his willingness to redeem the property.But the notices sent to defendants 1 to 3 were undelivered and the fourth defendant did not render any reply to the notice.The plaintiff further alleged that the fifth defendant, who had obtained a sale deed in 1920 from the plaintiff's elder brother Marudiah, can claim to title under that document, as that sale is a nominal one.It is in these circumstances that the plaintiff purported to be entitled to redeem the property and filed the suit. (3) It was the contention of the fourth defendant that defendants 1 to 3 were in possession and enjoyment of the property as full owners and that they purported to execute a mortgage over the property in exercise of such rights as full owners in favour of Mangalambal, from which person the 4th defendant derived title.As stated already, defendants 1 and 2 had also conveyed there right in the properties by a sale deed to the 4th defendant.It was alleged therefore that from 1928 onwards the 4th defendant had been in continuous possession openly as the owner of the lands. The 5th defendant, who claims under the sale deed from the plaintiff's brother, alleged that the plaintiff is not the heir of the original mortgagor. According to him, Marudiah Thevar acting for himself and as guardian of his minor younger brother, the plaintiff, sold the property for valuable consideration and directed the fifth defendant to discharge the said mortgage. It was claimed that the fifth defendant filed an application under S. 83 of the Transfer of Property Act in O. P. 18 of 1920, but as the mortgagee refused to receive the amount, the petition was dismissed. While alleging that the plaintiff had no right of redemption, the 5th defendant claimed that he is the person entitled to redeem the mortgage. (4) The learned Subordinate Judge found that while the plaintiff is no doubt the heir of the original mortgagor Rangavellala Thevar, the sale executed by the plaintiff's elder brother Marudiah was not shown to be a nominal transaction, as alleged by the plaintiff. He held that the 5th defendant was not able to establish the family necessity and that the sale would be binding on the plaintiff's half share in the suit property. He, however found upon the evidence that in so far as the fifth defendant was concerned, he was aware of the sale in favour of the 4th defendant in the year 1932, and that, whatever right the might have got under the sale deed from Marudiah he lost that right, as he allowed the 4th defendant to be in adverse possession for 12 years from 1932.That disposed of the claim of the 5th defendant that he was the only person entitled to redeem. In disposing of the plaintiff's claim, the learned Subordinate Judge held that since the sale in favour of the 5th defendant by Marudiah was valid till set aside, the lack of possession on the part of the 5th defendant would equally affect the plaintiff. That being so, the possession by the 4th defendant was as much adverse to the plaintiff as to the 5th defendant. (5) With that decision, the plaintiff dropped out of the suit. But an appeal was filed by the 5th defendant in the court of the District Judge, West Tanjore, and he contended that his right to redeem did not stand barred under Art. 134 of the Limitation Act.The learned District Judge examined the evidence in this regard and found it fully established that notwithstanding the sale in his favour, the 5th defendant, knowingly allowed the 4th defendant to be in possession of the properties on foot of a hostile title.That being so, the conclusion reached by the trial court was confirmed. (6) Mr. K. S. Naidu, learned counsel for the fifth defendant-appellant, concedes that the finding of the question that the 5th defendant had knowledge of the claims of the 4th defendant is a finding of fact and does not challenge it.He argues, however, that Art. 134 of the Limitation Act would apply only when the transferee had no notice of the limited nature of the vendor's right.According to him, when Arunachala Pathar, the brother of the original mortgagee, had admitted in a will executed by him that his right in the suit items was only that of a mortgagee and when defendants 1 to 3 became entitled to this right under the will, there had been an acknowledgment of the fact that the right which the family had was only that of a mortgagee.In 1950, when the fifth defendant issued a notice to the 4th defendant, a reply thereto was given by the 4th defendant.This did not establish, according to the learned counsel, that any such absolute right as now set up was claimed therein.It is also contended by the learned counsel that in the written statement of the 5th defendant, threes an assertion that the fifth defendant came to know of the sale in favour of the fourth defendant only after the filing of the suit. The specific contention of the fourth defendant in her written statement was that defendants 1 to 3 were in open enjoyment of the land and had effected a usufructuary mortage in favour of Mangalambal in 1922 and in this document there is an express recital that they were enjoying the properties absolutely in their own rights.The subsequent transaction by Mangalambal also indicated that no title other than that of defendants 1 to 3 as the owners was recognised.But, nevertheless, the question that has to be considered is whether the contention that Art. 134 will not apply finds any support from decided cases. (7) In Mariumma v. Andu, AIR 1929 Mad 145, it was held that if a purchaser from a mortgagee honestly and after due care believed that his transferor was the full owner, it may be presumed that what he had intended to acquire was full ownership and therefore Art. 134 would govern his case.Again in R. C. Mission v. Thirumalaiyappa, AIR 1929 Mad 417, it was held that when a transferee knows well that his transferor has no absolute right that he can transfer, the transferee cannot be held to have bargained for transfer of that non-existent right.But, in this very same decision, it is pointed out that even if the transferee had only the bare assertion of his vendor that the vendor had an absolute title, that does not necessarily prove that the transferee did not believe his vendor, so that he could rely upon that fact in support of his claim that he bargained for full ownership. In Motilal v. Gita Rama, AIR 1952 Bom 214 the nature of a transfer by a mortgagee contemplated by Art. 134 was considered at some length.The learned Judges refer to the decision of the Privy Council in Skinner v. Naunihal Singh, 31 Bom LR 854: (AIR 1929 PC 158), and quotes the following passage: "The transfer of property mortgaged contemplated by Art. 134 of the Limitation Act 1908 is admittedly something other than the express transfer of the original mortgage.The Article contemplates the transfer by a mortgagee purporting to transfer a larger interest than that given by the mortgage, or, at any rate, an interest unencumbered by a mortgage.The Article is not, however, limited in its application to cases where the mortgagee transfers the property mortgaged while still ostensibly a mortgagee, nor to cases where the mortgagee transfers possession which he had obtained qua mortgagee.It is immaterial, for the purpose of Art. 134, that the mortgagee should have thought he was the absolute owner, if, in fact, he was the mortgagee, and immaterial whether he got possession before, under or after the mortgage, if, in fact, he purported the property to the transferee.Art. 134 does not protect a transferee of a mortgage by express transfer, nor does it protect a person who has taken a transfer only of a mortgage, but has taken it without his knowledge, mistakenly supposing that he was getting something better." Relying upon this passage, the learned Judges of the Bombay High Court held that a purchaser from a mortgagee would be entitled to the benefit of Art. 134 of the Limitation Act, when the transfer was under circumstances, which would lead to the conclusion that the mortgagee was transferring to him not merely the mortgagee's rights but a larger interest than that given by the mortgage. (8) While the 5th defendant purported to acquire only the mortgagor's interest in the property by reason of the sale to him by the plaintiff's brother Marudiah Thevar in 1920, the 4th defendant purported to purchase the full ownership in the property from defendants 1 and 2.These defendants are the successor-in-interest of the original mortgagee Sabapathi Pathar and whatever might have been admitted in the will executed by Arunachala, from 1922 onwards, when they executed the mortgage in favour of Mangalambal, defendants 1 to 3 had been claiming an absolute interest in the property.While Mangalambal assigned the othi to the fourth defendant, the 4th defendant purchased the equity of redemption from defendants 1 and 2. It was not merely a mortgage interest that came into the hands of the fourth defendant, but undoubtedly an interest which right from 1922 was claimed to be larger than the mortgage right. In Kuruppanan v. Devasigamani, , the scope of Art. 134 again came to be considered.In that case, the mortgagee's interest in the property was purchased in court auction, and that purchaser effected a private sale to another proper party.The question was whether the last purchaser could claim the benefit of Art. 134. It was held that he could.The learned Judges observe thus: "To understand the true scope if Art. 134, it is necessary to read it along with Art. 148.Art. 148 provides a period of 60 years for redemption of a mortgage and Art. 134 cuts down that period to 12 years when there is a transfer by the mortgagee. Art. 134 is, therefore, an exception to Art. 148. In both the Articles, the same word "Mortgagee" is used.It must clearly have the same meaning in both the articles.If "Mortgage" in Art. 148 should mean only the original mortgagee, then the present action for redemption of Ex. P.1 would not be maintainable as against the defendant, who, is the purchaser from Balaguru.But if 'mortgagee' in Art. 148 includes all persons who succeed to the interest of the mortgagee, it must bear that meaning under Art. 134 as well, and the appellant will be entitled to its benefit.If the defendant is under a liability to be redeemed under Art. 148, he is also entitled to the protection afforded by Art. 134.Likewise, the right of a mortgagor to redeem under Art. 148 is subject to the bar enacted in Art. 134 in favour of transferee." (9) It should follow from the above decisions that Art. 134 should necessarily apply to the instant case.There is no doubt that when the successors of the original mortgagee purported to transfer full ownership in the property, the right which the mortgagor has to recover possession is controlled by Art. 134, and no longer by Art. 148.Coupled with the finding that the 5th defendant-appellant had knowledge of the transaction from 1932 onwards but took no action whatsoever to enforce his rights to redemption, his claim at the present time is consequently barred.The appeal fails and is dismissed with costs.No leave. (10) Appeal dismissed.

Palanithurai Mudikondar vs Veerappa Thevar And Ors. on 19 August, 1964

Madras High Court

ORDER Prafulla C. Pant, J. 1. Heard. This Revision, preferred under Section 397 read with Section 401 of Code of Criminal Procedure, 1973, is directed against the judgment and order dated 4-10-1988, passed by learned Additional Sessions Judge, Dehradun in Criminal Appeal No. 15 of 1985, whereby conviction under Section 500 of Indian Penal Code, passed against the accused (present revisionist) by learned Munsif and Judicial Magistrate, Dehradun in Criminal Case No. 302 of 1984, is upheld. 2. Prosecution story in brief is that the complainant-Pyare Mohan Labru (P. W. 1) is a manufacturer of ink. Accused/revisionist-Mangana Nand is a Postman. In July, 1982, a letter appears to have been sent by one Shri S. K. Goyal, Advocate, addressed to complainant-Pyare Mohan Labru, which was to be handed over by the accused/revisionist to him for delivery of the same. But the complainant Pyare Mohan did not receive the registered letter on which the Postman (accused), recorded the following report of the envelope of the registered letter: ikus okys dk fnekx [kjkc gks x;k gSA og gj le; xkfy;k nsrk jgrk gs mlds ?kj tkuk [krjukd gSA vr% i= vkj0vkbZ0 }kjk forfjr djk;k tk;A The complainant appears to have made a complaint, alleging that he has been defamed and insulted by the accused by making the aforesaid endorsement. On said complaint before the Magistrate, the trial Court after examining complainant and witnesses under Sections 200 and 202 of the Code of Criminal Procedure, 1973, summoned the accused for his trial in connection with the alleged offence, punishable under Section 500 of Indian Penal Code, 1860. After recording the evidence adduced on behalf of the complainant and putting the same to the accused under Section 313 of the Code of Criminal Procedure, 1973, the trial Court recorded the evidence, adduced in defence, on behalf of the accused. The trial Court found that the accused Mangana Nand is guilty of the offence punishable under Section 500 of Indian Penal Code and sentenced him to two months simple imprisonment. Aggrieved by said order dated 9-4-1985, the accused preferred an appeal under Section 374 of Code of Criminal Procedure, 1973 before the learned Sessions Judge, Dehradun, which was registered as Criminal Appeal No. 15 of 1985. The said appeal appears to have been transferred to Court of Additional District and Sessions Judge, who after hearing the parties, upheld the conviction but modified the sentence from two months simple imprisonment to fine of Rs. 1,500/-. In default of payment of said fine, the appellate Court directed the appellant (present revisionist) to undergo two months simple imprisonment. This revision has been preferred against said orders. 3. The offence of defamation is defined in Section 499 of Indian Penal Code, 1860, which provides that 'whoever, by words either spoken or intended to be read or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person. There are four explanations and ten exceptions to this provision in Section 499. In short, after reading whole of the Section, it can be said that defamation means a publication of a false statement about a man to discredit him without any legal justification or excuse there for. 4. In the present case, the above mentioned endorsement made by the Postman (accused) is an admitted fact but in defence he has made attempts to explain by adducing evidence that on 27-7-1982, when he went to deliver the letter to the complainant, he was not found in his house again the accused (Postman) went to deliver the letter on 28-7-1982 and on that date complainant, Pyare Mohan misbehaved with him and hurled abuses at him. Further again on 29-7-1982, the complainant misbehaved and hurled abuses at the Postman (accused). Statements of D. W. 1 Prakashwati and D. W. 2 were got recorded on this point. 5. 9th exception to Section 499, reads as under: Ninth Exception - Imputation made in good faith by person for protection of his or other's interests - It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public goods. Illustrations (a) A, a shopkeeper, says to B, who manages his business - 'Sell nothing to Z unless he pays you ready money, for I have no opinion of his honesty'. A is within the exception, if he has made this imputation on Z in good faith for the protection of his own interests. (b) A, a Magistrate, in making a report of his own superior officer, casts an imputation on the character of Z. Here, if the imputation is made in good faith, and for the public good, A is within the exception. 6. The report of the Postman about the conduct of the complainant on the basis of his experience on vesting on him to deliver the letter, in the opinion of this Court, are covered in the ninth Exception to Section 499, quoted above. The accused appears to have made the observation in good faith for the protection of his own interest. He was required to make a report as to why the letter was not delivered to the addressee else he would have invited action for not discharging his duty. As such in the opinion of this Court the act of revisionist is covered under ninth exception of Section 499 of Indian Penal Code, 1860. 7. In the above circumstances and for the reasons as discussed above, both the trial Court as well as the appellate Court have committed error of law in convicting and sentencing the revisionist under Section 500 of the Indian Penal Code, 1860. Therefore, in view of the said illegality, the revision deserves to be allowed. Accordingly, the revision is allowed. The impugned judgments and decrees passed by both the Courts below are set aside. The accused/revisionist Mangana Nand is acquitted from the charge under Section 500 of Indian Penal Code, 1860.

Author: P C Pant

Mangana Nand vs State Of U.P. And Anr. on 17 April, 2006

Uttaranchal High Court

Court No. - 36 Case :- WRIT - C No. - 55351 of 2009 Petitioner :- Pt. Nawin Sharma Respondent :- Branch Manager, United Bank Of India And OthersPetitioner Counsel :- Pt.Nawin Sharma,In Person Respondent Counsel :- Asgi,K.M. Asthana,S.C. Hon'ble Prakash Krishna J. Hon'ble Yo2esh Chandra GuDta.J. List has been revised. The petitioner who appears in person is not present. The case is passed over. Order Date :- 25.1.2010 Zh

Pt. Nawin Sharma vs Branch Manager, United Bank Of ... on 25 January, 2010

Allahabad High Court

IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 4" DAY OF MARCH, 2010 BEFORE: THE HON'BLE MR. JUSTICE L. NARAYANA SWAMZ U CRIMINAL APPEAL No.72? gg 2007* C.w. IN CRIMINAL REVISION PETITION No.41? §§* gg CRIMINAL APPEAL No.72?/07: BETWEEN: State by Byatarayanapura PQli¢éb %_...fiI"APPELLANT/S {By Sri. A.V.Ramakri§hna,IHCGH.j¥Egr*_ AND: Nanjundesh, S/0. Hongappa, Aged 50 years, g. 2 .H R/o.No.1i1p_€m Main, 1 '* ----- ~ BSK 3m'Stage;pAvalaha11i, Bangalore#85:'T"v" " W Va RESPONDERT/S {By $;;. M H.Sawkar}jAav.} fig CRIMINAL REvIs:ofi PETITION No.419/07: .PmfiEmwgE$E._II I "xN;R}Pramila}Q Q/OgPSQL,Nanjundesh, A§ed about 48 years, Rfat No 119, 1" Floor, 7""Mainf*3m'Stage, Avalahélli, Banga15:e--56o 085. _.. PEITITIONER/S {By Sri. B.V.Pinto, Adv.} English calendar month. The respondent~Nanjundesh shall pay a sum;"of Rs.50,000/~ by way of demand draftgLj3.h to the petitioner Smt. N.R. Prani1a»i" before the Hon'ble Court_ on the hnert " hearing date. (ii) The petitioner~Smt.wN;R. pfemiia sng;1gg. withdraw the cases '"mentioned_ 'below filed against _ the ~. '-- it "respon'dent~;_ Nanjundesh: (a) Revision_ p§tn{fio.4i9[2po7» pending before..."--:he:';f":_;:.Hcr§"_bis-5 Court of Karnataka;gBangalore;r°" (bk Criminal . Wifippeal No.72?/2007 pending" before, the~.Hon'ble Bigh Court of Karnataka,_Bangalore. A (fa), v C.R "~ ~&o.13433/2005 ---------- pending '*»he£orevthe_III ACMM., Bangalore. Io) '¢g$r' No.2l0/2006 pending before ithezh city Civil Court, ccn No.27, Bangalore. "«¢é) P.C.R. No 12876/2007. h"»_ "%(iii) The petitioner and the respondent have agreed to withdraw all the allegations made against each other and also all 4 E

Author: L.Narayana Swamy

State By Byatarayanapura Police vs Nanjundesh on 4 March, 2010

Karnataka High Court

JUDGMENT L.C. Bhadoo, J. 1. By this appeal under Section 374(2) of the Cr.P.C. accused Girjabai has questioned legality, correctness of the judgment of conviction and order of sentence dated 2-5-2000 passed by 2nd Additional Sessions Judge, Baloda Bazar, District Raipur, in S.T. No. 57/2000 whereby learned Additional Sessions Judge after holding the accused/appellant guilty for commission of offence under Section 302 of the IPC, for committing murder of her daughter-in-law namely, Nisha Bai, sentenced her to undergo imprisonment for life and to pay a fine of Rs. 1,000/-, in default of payment of fine to further undergo S.I. for 6 months. 2. Prosecution case, in brief, is that on 17-12-99 Rooplal Sahu gave Dehati Nalishi Exh. P-2 to the Station House Officer, Police Station Kasdol to the effect that he is resident of Village Sarkhor. Today he and Kotwar Chamradas were going to Hawaldar, who came in the village in connection with investigation. At that time, they heard the word "Jai Santoshi Maa" from behind, when they turned their faces back side, they saw Girjabai of Village Manipur, there were blood spots on her face, she was saying 'I have committed "Kand" (an untoward incident)', she is going to the police, on which, they enquired from her as to what has happened, she replied that she has committed murder of her daughter-in-law by attacking her with axe and hammer. Kotwar further enquired as to why she has committed murder, on which Girjabai replied that her daughter-in-law was a witchcraft. Kotwar asked him that he is taking care of Girjabai, you find out the veracity of what she has stated. He left for Manipur on bicycle. He went to the house of Girjabai along with Rameshwar, Bahadur, Bisahu, Rajaram, Kaleshwar, Dharam and Kansram, there they saw a girl was standing outside the house of Girjabai. On enquiring about the presence of her father, she replied that her father has gone to the agricultural field, there is nobody inside the house. When he enquired from her about the presence of her mother, she replied that her mother has gone towards Sarkhor, thereafter, they went towards the courtyard of the house and saw that there was blood on the floor of Verandah, daughter-in-law of Girjabai was lying dead in the said Verandah, there were injuries on her head, one hammer, axe and one club of Babool stained with blood were lying on the ground. On further enquiry, daughter of Girjabai informed that her mother has committed the murder, thereafter, he returned and informed Kotwar. 3. Receiving this Dehati Nalishi (Exh. P-2) Station House Officer, Police Station, Kasdol registered FIR under Exh. P-2/A for commission of the offence under Section 302 of the IPC. He left for the scene of occurrence and prepared the site plan Exh. P-4. Clothes of accused Girjabai stained with blood were seized under Exh. P-5. Axe, hammer and one club of Babool tree were seized under Exh. P-6. After giving notice Exh. P-7 to the Panchas, inquest (Exh. P-8) on the body of Nisha Bai was prepared. The body of Nisha Bai was sent for post-mortem examination to the Community Health Centre, Kasdol under Exh. P-16, Dr. Yogesh Kumar Sharma conducted post-mortem on the body of Nisha Bai, prepared post-mortem report Exh. P-22, in which he opined that cause of death was due to head injury and death was homicidal in nature. He also noticed 5 lacerated wounds, 4 incised wounds and one contusion on the head and face of deceased Nisha Bai. He further opined that injury Nos. 1, 2, 9 and 10 were caused by sharp cutting object and remaining injuries were caused by hard and blunt object. Mastoid bone and left side of mandible were fractured. 4. After usual investigation, charge-sheet was filed against the accused in the Court of Additional Chief Judicial Magistrate, Baloda Bazar, who in turn committed the case to the Sessions Judge, Raipur, from where learned 2nd Additional Sessions Judge received the case on transfer for trial. 5. In order to establish the charge against the accused, prosecution examined 14 witnesses. Statement of the accused was recorded under Section 313 of the Cr.P.C. in which she denied the incriminating material appearing against her in the prosecution evidence. She also stated that at the time of the incident she was in agricultural field, she does not know how her daughter-in-law died, when she returned from the agricultural field, she saw the body of her daughter-in-law in the house, on seeing that, she became unconscious. She had also examined D.W. 1 Santosh and D.W. 2 Rameshar in defence. 6. We have heard learned Counsel for the parties. 7. Miss Minu Banerjee, learned Counsel for the accused/appellant has not disputed homicidal death of Nisha Bai. Apart from that, P.W. 11 Dr. Yogesh Kumar Sharma, who conducted the post-mortem on the body of Nisha Bai, has stated that there were 10 injuries on various parts of the head and face. These injuries were ante-mortem in nature. Mandible bone and mastoid bone were fracture. One molar tooth was broken. He has also stated that he examined axe and hammer. It was possible to cause these injuries with axe and hammer. The injuries were serious in nature and death was homicidal. The evidence of P.W. 1 Rooplal and P.W. 2 Chamra Das before whom the accused made extra judicial confession also establishes that the death of Nisha Bai was homicidal in nature. Therefore, it is established that the death of the deceased was homicidal in nature. 8. As far as involvement of the accused/appellant in crime in question is concerned, there is no direct or ocular evidence in this case. Conviction rests on the circumstantial evidence, i.e., (i) extra judicial confession made by Girjabai before P.W. 1 Rooplal, P.W. 2 Chamra Das and P.W. 4 Bhagchand, (ii) immediately after the incident P.W. 1 Rooplal and P.W. 2 Chamra Das saw blood on the clothes and face of accused, weapons of offence, i.e., axe, hammer and club were found stained with blood. It is settled law that in order to rest conviction based on the circumstantial evidence, the Court is required to ascertain from the circumstantial evidence as to whether the prosecution has been able to establish the involvement of accused in the crime in question based on the following principles laid down by the Hon'ble Apex Court: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 9. Now, we shall proceed to scrutinize the evidence available on record to find out as to whether the prosecution has been able to establish the charge against the accused and whether the evidence led by the prosecution has been stood up to the test laid down by the Apex Court for resting on circumstantial evidence. 10. First circumstance : As far as this circumstance is concerned, learned Counsel for the accused/appellant argued that as per the evidence of P.W. 1 Rooplal and P.W. 2 Chamra Das, extra judicial confession was made by accused Girjabai in presence of Hawaldar and Dwarika Prasad Tandon, Police Officials, therefore, extra judicial confession is hit by Section 25 of the Evidence Act and same is not admissible in evidence. 11. On the other hand, learned Counsel for the State/respondent argued that as extra judicial confession made by the accused was not "to" the Police Officer but it was to P.W. 1 Rooplal and P.W. 2 Chamra Das, therefore, provisions of Section 25 of the Evidence Act are not attracted. 12. If we look into the evidence of P.W. 1 Rooplal, he has stated that on the fateful day he along with Kotwar, Chamra Das were going with two police man, i.e., Tandon and one Head Constable Verma, at that time, Girjabai came in the street, she was saying that she has committed murder. On that, police personnel said that she seems to be a mad lady, take her. Thereafter Girjabai again said that she has committed murder. On enquiry, she further said that she has committed murder of her daughter-in-law, on which, he along with Kotwar took her to Chakki Para Square, we decided that let us go to the residence of Girjabai to find out the veracity of her statement. Thereafter, he along with other persons went to the house of Girjabai and saw that dead body of daughter-in-law of Girjabai was lying in the Verandah in a pool of blood, she was already dead. Near her body one axe, hammer and club stained with blood were lying. On cross-examination by the Government pleader, he has further stated that it is correct that when they looked back after turning their faces, they saw the blood spots on the face and hands of Girjabai, Girjabai said that she has committed Kand (an untoward incident). When they reached to the house of accused, Narayani, daughter of the accused was standing there. On enquiry, she disclosed that her father has gone to the agricultural field and on enquiry about the mother, she disclosed that her mother has gone towards Sarkhor. She further disclosed that her mother has committed the murder. Thereafter, they gave Dehati Nalishi Exh. P-2. Similar is the evidence of P.W. 2 Chamra Das. He has stated that on the fateful day at 4 p.m. he along with two police personnel and Rooplal were going, at that time, Girjabai came, saying that she has committed murder and she is going to the police, on which he asked Rooplal that you should go to the Village Manipur in order to find out the veracity of the statement made by Girjabai, thereafter, Rooplal went to the house of Girjabai where Narayani was standing and she disclosed the fact. The evidence of P.W. 1 Rooplal and P.W. 2 Chamra Das has further been corroborated by the evidence of P.W. 4 Bhagchand, who has stated that the accused came and disclosed him that she has committed murder of her daughter-in-law. P.W. 4 Bhagchand has stated that Girjabai came in the village and said that she has committed murder of her daughter-in-law, blood spots were present on her neck, hands and clothes. Therefore, evidence of these witnesses discloses that witnesses P.W. 1 Rooplal, P.W. 2 Chamra Das along with two police personnel were going in the Village Sarkhor, at that time, Girjabai came, she was saying that she has committed murder of her daughter-in-law, therefore the accused made extra judicial confession where the police personnel were present, but she had not made confession "to" the police personnel, as she was saying that she has committed murder of her daughter-in-law and she is going to the police station, therefore, she was not knowing that in these 4 parsons some were police personnel. On enquiry, she made extra-judicial confession before P.W. 1 Rooplal and P.W. 2 Chamra Das. Of course, at that time, perchance two police personnel were also present but she was not aware that they are police personnel that is why she said that she is going to the police. There is no reason to disbelieve the evidence of P.W. 1 Rooplal, P.W. 2 Chamra and P.W. 4 Bhagchand and the defence has not been able to elicit any circumstance in the cross-examination of these witnesses to discredit their evidence. There is nothing on record which suggests that confession was not voluntary or true. Moreover confession was prompt. 13. Section 25 of the Evidence Act envisages that no confession made "to" a police officer shall be proved as against a person accused of any offence whereas, Section 26 envisages that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Therefore, in order to attract the provisions of Section 25 it is necessary that confession must be made "to" a police officer, in that case only the same cannot be proved against him. 14. Now, therefore, the question for consideration before this Court is as to whether in the circumstances extra judicial confession made by the accused is hit by Section 25 of the Evidence Act, merely because same was made "in presence of police", as the above extracted provisions of Section 25 of the Evidence Act envisages that any confession made "to" a police officer, shall not be proved against the accused. In this case confession was not made "to" police, but the same was made to P.W. 1 Rooplal and P.W. 2 Chamra Das. The spirit behind the provisions of Sections 25 and 26 of the Evidence Act is that any confession made "to" a police or "in the custody of the police" cannot be used as against the maker for the reason that the police being Investigating Agency, there is every likelihood that they may extract the confession by coercion or by use of third degree methods or there is every chance that out of fear of beating or harassment by police accused may make confession. In such a case, there will be every chance of failure of justice. The provisions of Section 24 of the Evidence Act which contemplate that when confession appears to the Court has been caused by any inducement, threat or promise having reference to the charge against the accused person that is why Section 24 of the Evidence Act envisages that confession caused by inducement, threat or promise is irrelevant in the criminal proceedings. Sections 25 and 26 further lay down that confession made "to" a police, or while in the police custody cannot be used against the maker. Therefore, requirement of Section 25 of the Evidence Act is that confession made "to" a "police officer" cannot be proved against the maker. This section does not prescribe that if any confession is made "in presence" of the police, then same cannot be used against the maker, particularly, when the maker does not know that any police personnel are present or without taking notice of those persons or in presence makes voluntary confession to the persons other than the police, then in our considered opinion, provisions of Section 25 are not attracted. The only requirement is that the said confession should not be made on asking by the police or on intervention by the police personnel or in answer to the query made by the police officer. For this view, we are fortified by the judgment of the Bombay High Court in the matter of Alluri Ramayya v. State of Maharashtra reported in 1987 Cri.L.J. 1172. In present case, the confession made by the accused was voluntary, as the accused came from Village Manipur, without asking by anybody, she was saying that she has committed murder of her daughter-in-law, therefore, confession was voluntary and true for the reason that in pursuance of the confession made by the accused, on being asked by P.W. 2 Chamra Das, P.W. 1 Rooplal went to the house of the accused in Village Manipur and he found that the dead body of daughter-in-law of the accused was lying in the Verandah of her house, even Narayani daughter of the accused was standing and she disclosed that Nisha Bai daughter-in-law has been murdered by her mother. 15. Second circumstance : As far as this circumstance is concerned, P.W. 1 Rooplal and P.W. 2 Chamra Das have stated that Girjabai came near to them saying that she has committed Kand (an untoward incident). They saw that there were blood spots on her face and clothes. Further P.W. 1 Rooplal has stated that on asking by Kotwar Chamra Das he went on the spot, there he saw that in the Verandah of the house of the accused, the body of her daughter-in-law Nisha Bai was lying in a pool of blood, there were injuries on her face and head. The blood stained hammer, axe and club were lying on the spot. As per the evidence of P.W. 9 Ratnesh Mishra, Investigating Officer, clothes of the accused were seized under Exh. P-5/A, hammer, axe and one club of Babool stained with blood were seized under Exh. P-6/A. Perusal of the FSL Report Exh. P-21 reveals that Sari (D-1), Blouse (D-2), Saya (D-3), Axe (E), Hammer (F), Club (G) were found stained with blood. Even P.W. 11 Dr. Yogesh Kumar Sharma has stated that he examined axe & hammer, it was possible to cause injuries with hammer and axe in question which were found on the body of the deceased. The body of the deceased was found in the house of the accused in injured condition. As per the evidence of P.W. 1 Rooplal, Narayani, daughter of the accused, said that her father has gone to the agricultural field, therefore, it was for the accused to explain as to how her daughter-in-law sustained injuries, which resulted into her death because this was the house of accused, as per the provisions of Section 106 of the Evidence Act, it was within the special knowledge of the accused to explain that how her daughter-in-law sustained injuries in the house. Of course, she has explained that she had gone to the agricultural field, when she returned, she saw Nisha Bai in injured condition, she became unconscious. But, this explanation was false because P.W. 1 Rooplal and P.W. 2 Chamra Das, who are independent witnesses, have stated that the accused came all the way to Sarkhor from her Village Manipur. She made extra judicial confession before them that she has committed murder of her daughter-in-law. Therefore, she has made false explanation that she was at her agricultural field. 16. Learned Counsel for the accused/appellant argued that mental condition of the accused was not perfect and she was behaving like an insane person, as such, she is entitled for the benefit under Section 84 of the IPC. 17. In order to attract the provisions of Section 84 of the IPC, it is necessary that it is established that at time of commission of crime, the accused by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. As per the provisions of Section 105 of the Evidence Act, burden is on the accused to establish that when crime was committed by her, she was suffering from unsoundness of mind. Section 105 of the Evidence Act envisages that 'When a person is accused of any offence, the burden of providing the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, 1860 (45 of 1860) or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances'. Of course, the basic ingredients of the offence has to be proved by the prosecution. The burden contemplated under Section 105 of the Evidence Act can be discharged by bringing some material on record, i.e., by producing documentary evidence, medical evidence, other defence witnesses or by cross-examination of the prosecution witnesses which probabilize the defence raised by the accused that the accused was suffering from unsoundness of mind at the time of commission of crime. In this case, nothing has been placed on record by the accused to show that she was suffering from unsoundness of mind. On the contrary, in her statement under Section 313 of the Cr.P.C. she has taken the plea of alibi that at the time of commission of crime she was at the agricultural field. In cross-examination of the prosecution witnesses the defence has not been able to elicit anything which establishes that the accused was suffering from unsoundness of mind at the time of commission of crime. Even in the cross-examination, P.W. 9 Ratnesh Mishra, I.O., has categorically stated that mental balance of the accused was all right, therefore, argument of learned Counsel for the accused/ appellant that the accused was suffering from unsoundness of mind at the time of commission of crime is not established. 18. In the result, finding of the Trial Court does not suffer from illegality or infirmity. The appeal being devoid of merit is liable to be dismissed and it is hereby dismissed.

Author: L Bhadoo

Girjabai vs State Of Madhya Pradesh (Now ... on 4 December, 2006

Chattisgarh High Court

IN THE HIGH COURT OF' KARNATAKA AT BANGALORE DATED THIS THE 2:?' DAY 01:' SE}P'1"¥£Z\%IBE:1I{_.;2f§'%.i_:"(}.V_v PRESENT % V % A' THE HONBLE MR JUSTICE-..V_ Q ,1 u AND: THE HONBLE MR JUS K G'0f»»IND;%§:i;<x;}:5.Li§ WRIT PETITION NO.(34-*?:%&{vO'f?..201.'O '{S.~:KAT} BETWEEN: SR1 sARDA1i§.A£iMEI:s' V _ _ S/O _ _ AGED ABi5U"F,5"1" ' V A R/AT DoD%x)AB:;9:.LAvAN*c;;~kLA VILLAGE'A.T'iPOS/§i".- _ V DOD1)ABAIJI;A.P?JRRA.ffAL'{J}§, BAN'G}\.LORE RURAL..pTzsirR1cT. ...PETITIONER (BYSRI R;'pAmMAN;§7B'i~{;A, SR1 STFHYAGARAJA, ADVS.) A. ..... 'E 'FHVVEOF KARNATAKA ~B'Y,:Ts S§~7CRE.*rARY~11, Dfi}PAR..'£.'M§:$NT OF' EDBCATIONQ (PRIMARYAND SECONDARY) M.S,§3LT}LDING. BANGALORE'. M 560001. % % M THE COMMISSIONER FOR PUBLIC . __.ENS'i'RIjC'I'IONS IN KARNATAKA, f'-J NEVV PUBLIC OFFICES BUILDING, NRUPATHUNG-A ROAD. BANGALORE «-~ 580001. 8. THE DIRECTOR POR PUBLIC INSTRUCTIONS, SECONDARY EDUCA'I'IQ_N;'-, NEW PUSLIC OFFICES BUILDING, I' ' NRUPATHUNGA ROAD, I ' «I " BANGALORE _- 560001. 4. TIII3: JOINT DIRECTOR O_E'"_ PUBLIC INSTRUCTIONS, " AND ENQUIRY OFFICER, BANGALORE DIVISION '_ _ DEPARTMENT OF PUBLIC INST'URCTIONS, NEW PUBLIC OFFICE..B,UILDIN.G," ; I. NRUPATIIIINCAIROAD, ' BANGALORI'§~»;E3'60QG1.';_V I f.;RI:SPONI)ENTS (BY SMT I{'RISPINAgACAVI 'TIIIS W'I€1'1?_ I3E'§'ITI'QI'€ IS FILED UNDER ARTICLES 226 AND. 227'»C>F*«.THi}. CONSTITUTION OF' INDIA PRAYINSTO Q1JASI'i "F}-{E IMPUG-NED ORDER DATED 08.07.2009 VPASSED IN APPLICATION I956/2002 BY THE? KARNA.'I"AKA ADMINISTRATIVE TRIBUNAL VICE A;'I*vENE£XU§%E~B, IIII -- ITIIIS"' INRIT PETITION BEING RESERVED AND I:OIvIING:._ON FOR PRONOUNCEMENT OF ORDERS TIIIS ,IJAjI--',' K GOVINSARAJULU J., MADE'. TIIS POI..LO.WINO: ORIDEZR Applicant in Application 310.1956/2002 on the fiie of the Karnatztka Administrative '1':'ibunal, is the péstitiortczt' in this Writ petition. 2. The case of the is -:t.ht:tt'._h_é"'Vixras appointed as a part time t.eachor.. along "two '=tn'oré'--.. appiicants visa, M Govindartéghand MV"I;aks}:3ni§.;1arayana applicants in 7829/ roopévotiveiy on the fiie of the Tribunal, (heroin "é1I°tet}fin ) Banggalore in the year 1988» 89 vvith - per month. 3' 'Thér,Va;5p1ic:aI:t:_§;1ong with ot.h(~:r appiicatats have '_ t.h'e'-Va,o_t_i_o:1 of the State w}1en the State tried ' .disc;ont::._fiue_ their services. It is further pieadeci that "théVt'petit'foné1:r and others were selectxad as t.eaCh_ers of §""Iigh,f3f'2. Primary Schools on I:'{igL1L':'t1' basis, were A Ahvgitgipoiitted for the post in the year 1994. Regularisyation '1..,~,.~ was not done; increments were not granted. So, the petitioner along with the other applicants M Iekshmineirayazia and M Goviradarajti is _ given a rep3feseI1tat.ioIi that as_per of the" Hiorfbie High Court, they are e'1";tit?g'ed ifot».regiL1i3;i'i:s.g1tiaj;n. and also co-risequentiai be;'1de:f-:.ts. High COtivi"'f:If1aSVVpé£SS€(f. ' the order for The order of this C0tiv1~'t~,ft1'5. Verified by the concerned authoritie-S" that the writ petitions Amanda Sathyaraju and not by the a departmentai inquiry is initiated. ia£3'etitiot1ei"'vhéi's§Vdenied the charge of submitting th'e.'<'dioetered doe1;i'frrienti After izzqtiiry, the inquiririg "h'e5Id_1.thate the charge is proved. A second Show eattse .11e7_tifee is issued. Thereafter, by an order dated x7,12:2i(?aUO, the applicant is dismissed from service. It is contended that the appeals preferred are also V. ._ ..dismiseed. 4. It is the further ease of the petitioner that this order dated 7.12.2000 is ehaiienged before KAT has not considereci the vit.aI aspects of the c_e;s'e.«' i. of the Karnataka Civil Services (Ciassifie-:tt_:i:o:1v,'*1}C0ntrot» .e And Appeal} Ruies. 195? proyidesiAA.ffo4i*i».ifiro-eedeuregto conduct an inquiry. Wit:-1.__oL1t:Viieoiiidueiirigi.:4si,1eh inquiry, the order is passezir-,v:Petitioriet ready and willing to face even 'a.riy_ktnci'ofiiriqiuiiry. Petitioner is _ interested in fi<n(v:1ing,0'ut-- :t'he'*tr'2,_1th.V';41riti.v"that he has not subm;ittfet1-tagiiedoetereiti._o1-oc1itii'e11't. These aspects being not cvo:1sidereti':.ij3rhV contends that the order passed KV!?(i'AA1%.s iiéibte to be interfered with by this power under Articie 227 of the 'Cofisti't:itio'11._of India. " Learned advocate for the petitioner vehemently "CQ1"'1:t.€I1CiS that a charge is said to be framed. To prove V. _..the charge, there is at speetfi.e provision eontroilirtg the \;«....,.» (3 method of inquiry. Under Rule 11 of the Karnataka Civil Servicee (C1aSSifi(f'c1.tiO1"£. Crmtzfol and Appe:1})"Rt;1es 1957 provides for procedure to conduct client is i.m;e1*eSt.ed in finding out .t,.he truih." =15" " not 3. party to the so called pro:d11i§_i.1c3'h document. So, the iindiV11g°'g;iven"'is notv.Va"«~._iinc1i:ig in-' compliance of the prixicipies---o_f "*;131$ura1 jigieficef So, ihe inquiry is vitiated. _iprayf?i'or iiéehigiiside the order of KAT. "A"c'i£i«VV1'i,ior2«:«,'iI'"Government, Advocate for respo-:_1de:1ts' other hand contends that the High 4Cou'r=t._ inquiry is held, it in aceordaneie }5vii:.iji'.'- V'I):i'OC€i?d113."€ preeeribed under law, r6:':£:i°i%=01f1_;2iblV€; oapportunity is given to the petitioner. » :pe"g.it.io:n§:I*haxffing pa::'i;ieipated, having received the first ._Sh_o\v"'vrzfaue-s§_'viiotice second Show Cause notice how, o2;;moi:~ back. So, pray for dismissa.1 of the writ, ' petition, 7. have given careful Consideration. C0nf.er1t,1'0us of the COE11'1S€} appearing for scrutinized the material on l'(~:CO}Td~ 8. Rule 11 of sémce- (C1assificat.ion, Control }&ppea1)fl"vvR1.:eVEe 1957', prescribe procedure ::'1'Irip§3siti0r3 of major punishment, K :;"TRiPA'm+11 vs STATE BANK OF 1ND:A 4:3) has held that scope of natural j1j'siiee.Vdepe_n€:'£é upon particular facts situation ' zmdi'e.£.;*e:_;msi:aI:eVeS"ef§f each case" 1O: i.--AV'I1nexure A8 is the letter attached to the AAc:ha.rg'e__AAi11en10. Charge memo is ciateci 23.11.1998 and annexed to the charge memo is dated 30.1 1.1998. V. __::Er1 the charge meme, there is a mention that there is 21 .=£_.,_M,W. prima facie ziiatcrial €Vidfi'I]C€ in regard to the Charges. It refers to the xerox Copy of izhe order of this Court being fui"ni.she:e:i and it being doctered, ii: ifs:;.""».a}so contended in the charges based upon documents, the petiitioner has ._ Vi reguiarisation, increnients in is in pursuance of this, thei"?'<._iS iZ(.')'}€:é3.1Vi()'3't'>.:' exchequer in a sum of /- .i.'£"i to five )of p€'1'SOI1S Who affi obtaining the regularisation. Iii-isv.haIsO 'false affidavit is fu_r;1ishiédiiiii§g;% a'p;:5;I'icaiii""bii 1.6.1989, 20.7.1994. Wage is obtained 1.1.";<_!_i2Vv AIiziei:L:.1F; 'A9 petitioner has stated in ptuiguarice t§f§"hi$_ appointment. he has reported to duty ~ iii» _(u._"'x.(..?vv.'§«"(3'1"'i'1vAi;ii'"i€.'"E_i'k'f Schaoi at Htiiikunte. Doddabaiiapur H at this place from 1.6.1985 to 3144.23. Further, for the period from 1.7.198'? to 1.3988 ha did not work. Again. he reportcsd to duty 5'L-.-.,.-»-' on li§.l988 and worked upto 20.721994. He refers to the appointment being approvecl on 20.8.1989. He wae entitled for Continuation of service, refer '£Q"'»t.the dismissal, proceedings before this _j€I;e1;§rt_j' 5_._.i1'1 WP. 1_O235/ 91, this Court having directed..t_bv.reeensitier..x the case for regularisation fr0m:=.32O,-7't.lzl§9l§}t-4;:the 4h:iS__l_lV:l)eeri_ working on permanent has__is irie.V_G0ver;ntiiVent Jgijnior College, Kanasawadi, D0clt_iE;lt>_allapura..'Ta11,{k. So. allegations are false; 'e.h'arges ..éan»n0t be sustained le all . 'i'hen..< llof the char es g Y _ , .:PY_._ g sepaJfately.-- he"'Cétnn0t be found fault for the see-1cti.of1 lireimlfiureemeiqt of the salary. It is the fault_ of lliifaev r)fi7iee'rsV""(l)i' the Department who have ' eC;mrri.i't.tedz wit,h "'éi'"vtew to make u.r:£awfL1.1 and illegal not submitted («,1 copy of the order of this Cezf;,1rt tvit:h the representation. ,. A'm1e:s:ure A14 is the letter by the petitioner 'berm. Peti.ti0t1er contends that list of witnesses, documents sought to be relied by the Department are not served upon him. Request. to engage the se1~vi(:vesf"~o:i5'~iE.he learned advocate is not Considered. The i_'riqtiii*y5['offi€:ei* has not Coriciueted the ii1.qtiiry'__with Cii_1éMC"',&1.--.T."._€. "oa{1tjg;.:;," closed the inquiry within two deiys, ;i'i1qtii1t'y._ is 'eo1'ii,fa1f§r¥1.t:> the evidence on record, "o'n._ suspicion iand..'v«-vsuriinises.," findings are given, grounds the are not considered by the the discipiinary authority, reqti-ests :'E:'é?i.1.1999 to the Charge also reply dated 14-. IO; dated 29.9.1999 has also to be 'co11si:jfe1feidp.°~.t_ .. ' it 13. 'i'hew-..inate:ria1 pieced in AI1I1€X't3I'€ A14 would » theieharge memo is issued on 30.11.3998. Reply" H the petitioner on 18.1.i999 i.e., more "£.1'.1tii"1 days is given to the pet1'.ti.oner to submit his reply. "Si::i_ii1d'i*'1y, after '35 days, the petitioner has submitted his to the show cause notice. Sitting of the inquiry 'iioificter on i8.1.i999 a.i:i.d 1.3.1999 is asserted and it is categorised as 'hurrieci siiti:1g' almesi: 11%;: 1110:1t.h's time gap is found in between two siiiings. Nothing is to su'pp01."*i. that the i.r.1quiry is violative of the . ;§f:>'i"i:'1~:%q1'f:)--§.e';s:§-'.__O5'1" _ naii:L'1r.21i justice. 'Fi.r11e spent. for inqt:.iryv--..:sBa1:3§:Q:"€'.A éhev contention of the learned AGA. 3 1 14. The Inquiry Officer Sn1'i'..Ml;feEagahahi refer" version of the witnesses viz, Sriizaripresad -2;1"1'€_1 eiceepteci the evidence of the witness; prove', pa1'tici§$2;'ti;3ur1~ petitioner in the inquiry proceedinghs. ree.eiV51dg_ "0--I'_ ihe benefits under the doctored d0cLm1er1i:, "i:i:;£ec1.27.'(a3."i991_ in win 7037 to 7041 of 1990. Trjjé-:Llp}:§or§ the }ii0r:.i:e:'1'{ion that the inquiry is not conducted ~ with Ruie 11, copy of the impmation is not .fti'r_;1Ais'i'1e':;i.,._ \vitv2*i'ess iisf: is moi, iizrzlished. assist.ar1ce of the ac¥__voCa1;e 'is---hot furnished, is not found in the course of the c:c:»r£<33e:1é':":i, ef the inquiry. So, the c:omeni,ion of the Ieamed V' Asadjaocziie for the petitiener ihat the inquiry is V'itiat:ed and 'Dad for n0n--ee:np1ia:nc:e of princziples of na1.u1'a1 jusiice and piiyzeiples in Section N of the Keimaizika Civil $€.I_'ViCf3S (Ciassifieaiiori. Control and Appeal) Rules. 1957 So the conclusion of the Tribunai that even aissiimiirigiihéxt petitioner has not produced .'.-h'e~..<ji0c'ie're'§i"-idoeuiiiefii. Vi petitioner eouici have produced t:I"i"ei Ct.-eiyiivof Tithe' High Court in we No.703'.?'.i:£:-V..f7'<::--~:Li'V-of 1990 i~?§presént:ngV.i' that he is entitled to the benefif.:0?regu1a1'i.sat:iQr;_:ind saiary is justified and (fees tietfi i'I4'i"[4;'3:Vi'f.Cf'i'C.f'IC€ in exercise of the writ Jurisdiction 01-"'Ehi*&=, :C0£1.€.i':s,_ iiiii Eiégé .

Author: V.G.Sabhahit And K.Govindarajulu

Sri Sardar Ahmed S/O D I Khasim vs The State Of Karnataka on 24 September, 2010

Karnataka High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.35506 of 2010 RAM BISUN RAI Versus STATE OF BIHAR ----------- 2 28.09.2010 Heard learned counsel for the petitioner as well as learned counsel for the state. Admittedly, co-accused Akhileshwar Rai and Vijay Rai have already been granted privilege of bail by this court vide order dated 03.08.2010 passed in Cr. Misc. No. 433 of 2010. The case of this petitioner also stands more or less on similar footing to the above-mentioned co-accused persons. The petitioner is languishing in jail custody since 23.08.2010 and the trial of the petitioner has not been concluded as yet. Considering the facts and circumstances of the case as well as submission of the parties, I direct the petitioner, Ram Bisun Rai to be released on bail on furnishing bail bond of Rs 10,000/- (ten thousand) with two sureties of the like amount each In connection with Sessions Trial No. 1494 of 2008 arising out of Bihta P.S. Case No. 03 of 2007 to the satisfaction of Additional Sessions Judge, Danapur. It is made clear that the conditions imposed upon another accused vide order dated 03.08.2010 passed in Cr. Misc. No. 433 of 2010 shall be applicable against the petitioner also. ( Hemant Kumar Srivastava, J.) PN/AKV/-

Ram Bisun Rai vs State Of Bihar on 28 September, 2010

Patna High Court - Orders

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.7100 of 2010 AJAY KUMAR SINGH Versus STATE OF BIHAR ----------- JA/- (Anjana Prakash, J.) 2/ 01.12.2010 It has been submitted that the petitioner has already paid part of the bill made on provisional assessment and is even ready to pay if the final assessment is made. Mr. Vinay Kirti Singh, learned counsel for the Electricity Board is directed to take instructions in the matter as to by what time final assessment shall be made in the matter. Put up after three weeks, as prayed for, retaining its position.

Ajay Kumar Singh vs State Of Bihar on 1 December, 2010

Patna High Court - Orders

Court No. - 29 Case :- WRIT -- A No. -- 20877 of 1997 Petitioner :- Anil Kumar Mody Respondent :- British India Corporation Ltd.Petitioner Counsel :- A.K. Srivastava Respondent Counsel :- U.N. SharIna,S.C.,V.B. Singh Hon'ble Sunil Ambwani J. Hon'ble Kashi Nath PandeV.J. No one appears to press the writ petition even in the revised call. The writ petition is dismissed for want of prosecution. Order Date :- 1.7.2010 A. Verma

Anil Kumar Mody vs British India Corporation Ltd. on 1 July, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.1070 of 2009 LAKHIA DEVI Versus STATE OF BIHAR & ORS ----------- Manish/- ( Shailesh Kumar Sinha,J.) 5 11.03.2011 As prayed for on behalf of the petitioner, with consent of the other side, put up this matter after a week.

Lakhia Devi vs State Of Bihar &Amp; Ors on 11 March, 2011

Patna High Court - Orders

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 4831 of 2010(D) 1. M/S.SOFTLAND INDIA LTD., ... Petitioner Vs 1. COMMERCIAL TAX OFFICER, ... Respondent 2. CHIEF PARCEL SUPERVISOR, 3. INTELLIGENCE INSPECTOR, For Petitioner :SRI.HARISANKAR V. MENON For Respondent :GOVERNMENT PLEADER The Hon'ble MR. Justice P.R.RAMACHANDRA MENON Dated :18/02/2010 O R D E R P.R.RAMACHANDRA MENON, J --------------------------- W.P(C) No.4831 of 2010-D ---------------------------- Dated this the 18th day of February, 2010. J U D G M E N T P.R.RAMACHANDRA MENON JUDGE ab //True Copy//  The petitioner is a company engaged in the trading of hand held computers-ticketing machine. The petitioner despatched 21 boxes of such machine and the same were entrusted with the Railways at Madgaon. Exts.P1 and P2 are the invoices, which show the number of packages as '3' and '18' boxes respectively. The goods were accepted by the Railways and Ext.P3 receipt was issued with the number C 277299. Immediately thereafter the petitioner approached the assessing authority at Thiruvananthapuram and filed Ext.P4 dtd.6.2.2010 showing the number of boxes and also with specific reference to the railway receipt bearing No.277299 dated 5.2.2010. It was nearly four days thereafter, that the goods were intercepted by the third respondent on 10.2.2010 by issuing Ext.P5 notice under Section 47(2) of the KVAT Act, pointing out some discrepancies with regard to the number noted in the boxes referring to railway receipt No.C 277298, this doubting evasion of  W.P(C) No.4831 of 2010-D 2 tax and in turn of demanding security deposit. The case of the petitioner is that even though the petitioner sought to explain the position, in the light of the relevant records issued by the Railways, the same was not accepted by the third respondent and hence is constrained to approach this Court by filing this Writ Petition. 2. The learned Government Pleader, with reference to the statement filed, submits that the discrepancies noted by the third respondent are very much obvious from the materials on record and that it has not been properly explained. The learned counsel for the petitioner submits that Ext.P6 letter has been issued by the authorities ie, the Railways, Madgaon stating that altogether '21' packages were booked vide railway receipt No.C 277299, which however was noted erroneously by the staff of the Railways as C 277298 on one carton and hence the discrepancy. The learned counsel also placed reliance on Ext.P7 letter issued by the Railway authorities of the destination at Thiruvananthapuram, in support of the mistake occurred at the hands of the Railways. That apart, a statement has also been filed on behalf of the second respondent/Railways, which reads as follows: W.P(C) No.4831 of 2010-D 3 3. In the above facts and circumstances, this Court finds that there is absolutely no justification in detaining the goods belonging to the petitioner any further. Accordingly, the third respondent is directed to release the goods covered by Ext.P5 on condition that the petitioner executes a 'simple bond' for the amount shown as security deposit thereunder, forthwith. This shall be without prejudice to the right of the concerned authorities of the Sales Tax Department to pursue the adjudication proceedings, if any, which shall be finalised in accordance with law, as expeditiously as possible, at any rate within two months from the date of receipt of a copy of this judgment. The Writ Petition is disposed of as above. Sd/-

M/S.Softland India Ltd vs Commercial Tax Officer on 18 February, 2010

Kerala High Court

[Complete Act]

Central Government Act

Separate Order Sd/- (Shiben K. Dhar) (Jyoti Balasundaram) Member (J) Member (J) Per Shri Shiben K. Dhar, Member, (T): 9. With respect to ld. Member (J), I am writing a separate order as under: INGERSOLL-RAND Ingersoll-Rand (India) Ltd. Registered Office Muybaker House, S.K. Ahire Marg P.O. Box 9138, Bombay 400 025 Tel. 4936765 Tlx. 011-71395/011-71674 Grams. INGERSILER July 6, 1989. TO WHOMSOEVER IT MAY CONCERN Sd/- Sd/- (Shiben K. Dhar) (Jyoti Balasundaram) Member (T) Member (J) Dt. 21.1.1998 Dt. 20.1.1998 ORDER Jyoti Balasundaram, Member (J) 1. The issue for decision in this appeal which arises out of the order passed by the Collector of Customs (Appeals), Bombay is the classification of spring and channel sets for air compressors imported by the appellants herein - according to the importers the item is classifiable under sub-heading 8414.90, while the Revenue has classified it under subheading 7320.90 by application of Rule 3(b) of the General Rules of Interpretation of the Schedules, holding that a set of channel and spring derives its essential character from the spring and since, by virtue of Note 2 to Section XV of the Customs Tariff, spring is an article of general use and since by virtue of Note l(g) to Section XVI, such articles of general use are excluded from Chapter 84, the imported items fall under sub-heading 7320.90. 2. Learned Counsel, Shri L.P. Asthana, submits that the item has been imported as a set and accepted by the Department to be a set. Therefore, Interpretative Rules have been resorted to. However, since the essential character of the set is that of the valve as seen from the technical literature, the goods are required to be assessed not as a spring but as parts of compressors under subheading 8414.90. He submits that the assessment under Heading 8418.90 as part of valve is ruled out in view of the HSN Explanatory Notes to Heading 84.81. Alternatively, he submits that the classification of the goods by application of Rule 3(b) is not possible because it cannot be definitely determined as to which gives the item its essential character, whether spring or channel and, therefore, resort has to be made to Rule 3(c) in which case, the goods would be covered under Chapter 84 (later chapter) and particularly under sub-heading 8414.90 of the Schedule to the CTA. On the other hand, learned SDR contends that the literature on record shows that the set of spring and channel derives its essential character from the spring and since HSN Explanatory Notes to Heading 7320 exclude only those springs which are assembled with other articles to form identifiable parts of machinery from the scope of sub-heading 7320.90, the disputed goods are covered by sub-heading 7320.90 since springs are not mounted or assembled with channel to form an identifiable part of machinery. He reiterates the findings contained in the orders of the authorities below. 3. We have carefully considered the submissions of both sides. 4. The goods hi question are sets consisting of channels and springs and they are parts of type A channel valve (in the nature of inlet and exhaust valves) which in turn is a part of compressor. The compressor sucks the air through the inlet valve in the cylinder and discharges the air at the specific requirement of the pressure through the discharge valve. It is seen from the technical literature placed before us that a typical I-R channel valve consists of a seat, seat plate, stop plate, several sealing elements called channels (because of their shape) and channel springs which assist the channel seals to open and close to a desired timing so as to prevent slamming and extend valve life. The entire sealing area is made up of multiple sealing elements (channels) to keep these as light as possible to respond to changing pressure differential across the valve which causes it to move from close to open and back to close in conjunction with the cylinder pressure fluctuation between intake and discharge pressures. All channel valves are automatic valves, as they are automatically opened and closed by pressure. Air compressor valves are placed in the cylinder to permit one way flow of air either into or out of the cylinder. The operation of the valve is automatic. As the piston moves in the compression stroke, pressure builds up in the cylinder and when this pressure slightly exceeds the discharge pressure, it overcomes the spring tension and all the channels of the valve open. As the piston reaches the end of the compression stroke, the differential pressure across the valve reduces and spring tension closes the valve. Each channel valve is a combination of several smaller valves with its bowed leaf spring operating individually. The cushioning is effected when a small volume of air is trapped between the channel and its spring, causing the channel to float silently to a stop. This positive cushioning action, prior to the critical point of valve impact with the stop plate reduces valves breakage. This is explained in detail as under: Valve ClosedA tight seat is formed without slamming or friction, so seat wear is at a minimum. Both channel and spring are precision-made to assure a perfect fit. An air space is formed between the bowed spring and the flat channel. Valve openingChannel lifts straight up in the guides without flexing. Opening is even over the full length of the port, giving uniform air velocity without turbulence. Cushioning is effected by compression of the air between spring and channel. Valve wide openAir trapped between spring and channel has been compressed, and in escaping has allowed channel to float to its stop; full opening has been attained without impact. The light pressure of the spring soon starts the closing action. 5. From the above it is seen that the channel and spring work by balancing and counter-balancing the effect of in-flowing air passing through the valve mechanism and the spring which is designed specifically to suit each channel length and can never be sold or installed as a separate entity and can only be used in a set with channel as a single component of the compressor. 6. it is neither the spring nor the channel which gives the item its essential character and the spring and the channel are equally important. Therefore, we have to apply Ride 3(c) of the General Rules for the Interpretation of the Schedule to the Customs Tariff which stipulates that "when goods cannot be classified by reference to (a) or (b), these shall be classified under the Heading which occurs last in numerical order among those which equally merit consideration". Applying Ride 3(c), the goods in dispute are to be classified under Chapter 84. The two competing entries in Chapter 84 are Heading 84.14 and Heading 84.81. 84.14 covers "air or vacuum pumps, air or other gas compressors and fans...." and sub-heading 8414.90 covers parts thereof. Heading 84.81 covers taps, cocks, valves and similar appliances for pipes....including pressure reducing valves ...." and Heading 8481.90 covers parts thereof. What has, therefore, to be seen is whether the item in dispute is to be classified as a part of the valve under 8481.90 or as part of air-compressor under 8414.90. Out attention is drawn by the learned Counsel to HSN Explanatory notes to Heading 84.81 wherein it is stated that "taps, cocks, valves, etc. remain in this Heading even if specialised for use on a particular machine or apparatus .....". However, certain machinery parts which incorporate a complete valve, or which regulate the flow of a fluid inside a machine although not forming a complete valve in themselves, are classified as parts of the relative machines, for example,".........suction or pressure valves for air or other gas compressors (84.14)". Since pressure valves for air compressors are themselves excluded from Heading 84.81 and fall for classification under Heading 84.14, the rightful parentage for the goods in dispute which are parts of pressure valves for air compressors lies under sub-heading 8414.90. 7. In the light of the above discussion, we hold that the spring and channel sets for air compressors imported by the appellants herein are to be classified under sub-heading 8414.90 of the Schedule to the Customs Tariff Act, 1975, set aside the impugned order and allow the appeal with consequential relief, if any, due to the appellants in accordance with law. 8. Before parting, we wish to record that, independent of our decision, the Revenue has been assessing these goods under Heading 8414.90 as seen from several Bills of Entry filed by the appellants herein on 31.7.1997, after the conclusion of the hearing of the appeal, in response to the SDR's placing on record a communication dated 10.7.1997 from the Additional Commissioner of Customs, Group 5A, Mumbai stating that currently the set of spring and channel imported by the appellants are being classified under Heading 73.20. 10. The appellants claimed classification of valve channel and spring imported as a set under CTH 8414.90 claiming the goods to be parts of discharge valve which, according to HSN Notes, are to be classified as parts of compressors, the appellants claimed classification of the impugned goods as parts of compressors. Assistant Collector relying on Interpretation Rule 3(b) held that the set of channel and spring would derive its special character from spring and therefore, the entire set is classifiable as a spring. No reasons whatever have been given by Assistant Collector for holding that essential character of the impugned goods is derived from springs. 11. Collector (Appeals) at internal page 3 of his order has recorded: In the instant case, the impugned goods are to be bought in sets for retail sale and each set of channel consists of a channel and spring. It is observed from the catalogue that the impugned set of channel derives its special character from spring and not from channel. Therefore, the impugned goods merit assessment.... 12. Collector (Appeals) has not indicated how exactly catalogue points out to such a conclusion. The catalogue placed at P-22 of the Appeal Papers reads: Attached to this is also description of IR Channel Valves, relevant portion of which is reproduced below: 13. Collector (Appeals), however, has not indicated which part of the catalogue indicates that the essential character of the set is derived from a spring. It was contended before us by the Id. Advocate that function of spring is only to protect the channel and the principal function is derived only from the valve channel. Further, it appears that certificates from Chartered Engineers were also placed before the lower authorities and we find no findings have been given with reference to these certificates. Relevant extracts from the certificate given by Dr. Yashwant R. Ullal, Chartered Engineer, is reproduced below: It is further certified that the Channel and Spring do complement in each other's working by balancing and counter-balancing the effect of in-flowing air passing through the valve mechanism. The Spring which is designed to suit each channel length can never be used independently as a separate entity and can only be used in set as single Component of the Compressor. Sd/- Dr. Yeshwant R. Ullal Chartered Engineer Approver/Corporate Valuer 14. Certificate from Ingersoll-Rand dated July 6,1989, is reproduced below: This is to confirm that the Set of Channel consists of a Channel, Spring and also a Wear Strip wherever applicable. A set of the above items jointly forms a component which is part of the Compressor Channel Valve which in turn forms an internal part of the Compressor. We further confirm that the spring is an integral part of the Channel and it can never be used separately in any other applications. The Channel and Spring complement in each other's working by balancing and counter-balancing the effect of in-flowing air passing through the valve mechanism. Further, the spring is designed specifically to suit each channel length and can never be sold or installed as a separate entity but must be installed in Set. For Ingersoll-Rand (India) Ltd. Sd/- (N.D. Kapadia) Manager-Technology. 15. These certificates, however, only indicate that spring is an integral part of channel and the two complement each other's functioning. Whether essential character is derived from spring or channel does not come out from these certificates. During hearing before us, however, the Ld. Advocate placed on record letter dated 26.6.1997 from Ingersoll-Rand which indicates that channel valves can work without any spring and often times even after a spring has broken and that spring only assists the valve in opening and closing to a pre-designed valve timing that is necessary to achieve maximum efficiency. A spring by itself would not perform the sealing action required of a valve. Catalogue on Continuous-Duty Air Compressors from Ingersoll-Rand was also presented in the Court on 17.7.1997. In addition, the Ld. Advocate also produced some extracts from literature on compressor valves. This was additional evidence which was not gone into by Assistant Collector or Commissioner (Appeals). While the Chartered Engineer, whose certificates were produced before the authorities below certify that spring and valve complement each other's function, the appellants through the evidence now produced contended that the spring is placed only for protection of valve and its function is to return the valve to its seat. The appellants have also filed extracts from publication. THE INGERSOLL-RAND COMPANY COMPRESSOR VALVE STORY K.H. White April 30, 1965 March 4, 1971 (Rev.) 16. The appellants had produced certificates from Chartered Engineers before lower authorities which, however, only indicated that valves and springs complement each other's function. The literature produced at that time also did not clearly indicate that essential character of the impugned goods is derived only from valves. The appellants have now submitted letters from the manufacturers as well as other evidence to substantiate their contention. The question, therefore, arises whether the Tribunal can at this stage evaluate this evidence to arrive at a decision as to whether it is the spring or the channel valve which gives the set of springs and channel valves the essential character. 17. Admittedly the appellants did not place this evidence before the Collector (Appeals). Hon'ble Apex Court in case of Commissioner of Customs, Calcutta v. Hannman Trading Corporation held Tribunal was not correct in admitting fresh evidence and then deciding the case on merits on that basis. The relevant extract from the judgment of the Hon'ble Apex Court is reproduced below: 5. There is no controversy that the respondents did not avail of the opportunity before the authorities to adduce any evidence and it was only before the Tribunal that material was produced by the respondents/sole proprietor challenging confiscation and penalty. In the facts and circumstances of the case, we are satisfied that the course adopted by the Tribunal of permitting respondents to adduce evidence before it for the first time and then in proceeding to decide the case on merits on that basis was not correct. If the Tribunal was of the view that a fresh opportunity was required to be given to the respondents to adduce evidence and show cause in response to the notice given to the respondents, the appropriate course for adoption was to remit the matter to the Commissioner of Customs, Calcutta. For this reason alone, (he Tribunal's order must be set aside. 18. I am, therefore, of the view that the matter pertaining to essential character of the impugned goods has to be considered by lower authorities by evaluating the fresh evidence now produced. 19. In view of this, I remand the matter to Commissioner (Appeals) for de novo decision after considering the fresh evidence produced by the appellants and after observing Principles of Natural Justice. Sd/- Shiben K. Dhar) Member (T) 20. The following difference of opinion is framed for reference by the Hon'ble President to a third Member Whether Spring and Channel sets for air compressors imported by the appellants herein are classifiable under sub-heading 8414.90 of the Schedule to the CTA 1975 and the impugned order is required to be set aside and the appeal allowed with consequential relief, as proposed by the learned Member (Judicial) or The issue regarding the essential character of the impugned goods has to be considered by the lower authorities and the matter requires to be remanded for this purpose, as proposed by the learned Member (Technical).

Ingersoll-Rand (India) Ltd. vs Cc on 21 January, 1998

Customs, Excise and Gold Tribunal - Mumbai

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.461 of 2011 1. Bindeshwar Ram @ Bindeshwari Ram son of Dukha Ram alias Duwha Ram 2. Pramod Kamait alias Pramod Kamat son of Deo Narayan Kamat 3. Ram Bali Ram S/o Deo Narayan Ram 4. Md. Ainul Mian S/o Late Khatar Mian 5. Sanjeev Pathak S/o Murlidhar Pathak 6. Amresh Mehta S/o Shreelal Mehta @ Harilal Mehta 7. Surya Narayan Yadav S/o Late Chulhai Yadav @ Chulai Yadav Versus The State Of Bihar ----------- Narendra/ ( Anjana Prakash, J. ) 3. 23.8.2011 Heard learned Counsel for the petitioners and the State. The petitioners seek bail in Birpur (Bhim Nagar) P.S. case No.97 of 2009 (Special case No.7 of 2009) instituted for the offence u/ss.8/20(B), 22, 23 of the N.D.P.S. Act. The petitioners were refused bail by an order dated 12.7.2010 vide Cr.Misc.No.14509 of 2010, but the prayer for bail has been renewed on the ground that there is undue delay in trial. A report was called for from the Trial Court which has been received and it reveals that out of ten charge sheet witnesses two of them have been examined as also F.S.L. report has been received and only further three months time would be required for concluding the trial. In view of such, I am not inclined to review the earlier order. The prayer for bail is once again rejected. The Trial Court (Additional Sessions Judge 1st, Saharsa) is directed to send a list of the witnesses fixing -2- specific dates for production of the witnesses along with a copy of this order to the S.P., Saharsa and the S.P., Saharsa is directed to ensure production of the witnesses on the date so fixed by the Trial Court so that there is no further delay in trial.

Bindeshwar Ram @ Bindeshwari Ram ... vs The State Of Bihar on 23 August, 2011

Patna High Court - Orders

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 581 OF 2007 RAM PAT & ORS. ... APPELLANTS Versus STATE OF HARYANA ... RESPONDENT JUDGMENT Tenderness was present. X-ray was advised." S.B. Sinha, J. 1 Appellants, four in number, are before us aggrieved by and dissatisfied with the judgment and order dated 14.2.2007 passed by a Division Bench of the High Court of Punjab & Haryana at Chandigarh in Criminal Appeal No.298-DBA of 1997, in terms whereof a judgment of acquittal recorded by learned Sessions Judge, Narnaul in case No.27 of 1993 was set aside. 2. We may, at the outset, notice that eight persons were arrayed as accused in the aforementioned case. The High Court, however, did not grant special leave in respect of accused Nos.6 to 8. Accused No.1 died during the pendency of the trial. Accused Nos.2 to 5 only are, therefore, before us. 3. The prosecution case is as under: Daya Ram and Ram Pat, along with Rajinder, Surinder and Mukesh alias Manoj had purchased 1/36th share of the right of the owners in the land measuring 264 kanals, 12 marlas comprised of Khewat No.10, Khatauni No.69 mustkil and Killa No.24/27 and 1/48th share of 37 kanals 8 marlas of land by reason of a deed of sale dated 7.5.1993. They are said to have purchased 1/18th undivided share in the land measuring 264 kanals 12 marlas and 1/24th share of land measuring 2 kanals 5 marlas totaling 14 kanals 14 marlas of land by reason of a deed of sale dated 24.5.1993. Allegedly, they sowed some Bajra crop therein. Occurrence is said to have taken place on the land comprised of Khasra No.24/8/1 situated at village Nawadi. Harda Ram (the deceased) claimed himself to be the co-owner and in possession of the said land for a long time. He claimed right thereon on the basis of khasra girdawaries.  3 Appellants, as noticed hereinbefore, claimed to be in possession thereover in terms of the aforementioned deed of sale dated 7.5.1993 and 24.5.1993. According to the prosecution, however, the deceased was in possession of the land and after the execution of the said deeds of sale, it was the accused persons who had tried to enter into the suit land and plough it. The prosecution case, as disclosed in the FIR lodged by P.W.8 - Rajbir, was that he was ploughing his agricultural land with his tractor on or about 14.7.1993. His father Harda Ram ("the deceased" for short) was also standing in the field. Sheo Ram, Daya Ram, Bajrang and Raja Ram armed with lathies and Ram Pat and Balwant armed with Jellies came at the spot. The entire occurrence as would appear from the depositions of the prosecution witnesses before the court lasted for hardly two to two and half minutes. Ram Pat is said to have given a jelli blow on the head of the deceased; Sheo Ram inflicted a lathi blow above his eyes; Balwant Singh gave jelli blow on the back of his neck (Gudhi); Daya Ram inflicted a lathi blow on his back and Bajrang also inflicted a lathi blow on his person.  4 In the FIR, Rajbir further stated that in the meanwhile his uncle Lal Singh, his aunt Dhankauri wife of Lal Singh and his sister Mamli, who were fetching water from a water tap situated nearby, had arrived at the scene of occurrence. Basanti and Santosh armed with lathis came there. Whereas Basanti dealt a lathi blow on the head of Mamli, Santosh gave a lathi blow on the person of Dhankauri. P.W. 8 further stated that Raja Ram also inflicted a lathi blow on the person of Lal Singh. The occurrence is said to have been witnessed by Ami Lal son of Sohan and Ram Avtar son of Bhuru Ram, who intervened and rescued them from the clutches of the accused and thereafter the accused persons left the spot with their weapons. P.W. 8 further alleged that after getting the injured admitted in the Primary Health Centre, Ateli, he proceeded towards the Police Station for lodging the FIR. His statement was recorded at 1.50 p.m. The deceased was, however, taken to Civil Hospital, Narnaul. Head Constable Kailash Chand (P.W. 13) came to learn thereabout on reaching Primary Health Centre, Ateli. He recorded the statement of Dhankauri, Mamli and Lal Singh. He thereafter came to Civil Hospital, Narnaul with a view to examine the deceased but it was found that he was not in a position  5 to make a statement. The doctor had also reported that the injuries suffered by the deceased were dangerous to life and as such the offence was converted to one under Section 307 IPC. 4. Before the learned Sessions Judge, 14 witnesses were examined on behalf of the prosecution. Some of the witnesses although named in the charge-sheet were not examined by the public prosecutor on the premise that it was not necessary to examine them. They are Dr. Vijay Singh Yadav, Dr. Vinay Chaudhary, Dr. O.P. Saroha, Sheo Ram, Babu Lal, Raghbir, Mamli, Dhankauri and Ram Avtar. Lal Singh and Suraj Bhan were also not examined on the ground of having been won over by the accused. 5. The prosecution in support of its case mainly relied upon the evidence of Rajbir (P.W.8), Lal Singh (P.W.12). We would refer to their evidence a little later. 6. We may, however, notice that in the aforementioned incidence, Mamli, Dhankauri, wife of Lal Singh, as also Lal Singh were injured. They were examined by Dr. S.C. Goel (P.W.5). Mamli was examined immediately after the said occurrence and two injuries were found on her person, namely: He was examined at about 1.40 p.m. The injuries suffered by her are as under:  7 Lal Singh was examined at about 1.55 p.m. He is said to have suffered the following injuries: The doctor opined that the injuries suffered by Mamli, Dhankauri and Lal Singh were inflicted by a blunt weapon and were caused within a duration of 24 hours of examination. Two of the accused, namely, Raja Ram and Sheo Ram were also found to have suffered injuries. They were also examined by Dr. S.C. Goel (P.W.5). The injuries suffered by Sheo Ram are as under: 6. On all over the back chest of the left and right, multiple cylindrical reddish contusions were present. X-ray was advised. 7. The patient had complaint of pain all over the body. The injuries suffered by Raja Ram are as under: It is, however, of some significance to notice that according to Dr. Goel, injuries Nos.2 to 6 on the person of Sheo Ram and injuries Nos. 1 to 6 on the person of Raja Ram could be caused by a fall on a hard surface. It may further be placed on record that Sheo Ram and Raja Ram were not admitted in the Hospital. There was no X-ray facility in the Primary Health Centre, Ateli. It, however, stands admitted that X-ray of the aforementioned two accused were not taken subsequently. No complaint was made; no further medical complication was found and no further treatment was found to be necessary. Harda Ram, the deceased, was examined by Dr. A.K. Chhakkar (P.W. 10) at about 1.40 p.m. at Civil Hospital, Narnaul. He is found to have suffered the following injuries. 7. Harda Ram died on the same day. A post-mortem examination was conducted by a panel of doctors at 10.30 a.m. on 15.7.1993. The report shows the presence of following ante-mortem injuries on his person: 8. The learned trial judge recorded a judgment of acquittal as noticed by the High Court on the following grounds: 9. The High Court, however, by reason of the impugned judgment reversed the said judgment of the trial court, holding: But the factum of with regard to the presence of the present respondents has been duly taken note of by us and the plea of right of private defence has been turned down in the preceding paras. It would not be inappropriate to observe that the trial Court while acquitting the accused on the basis of some inadmissible evidence and also overlooking the facts as discussed in the preceding paras, fell in error and formed a view which was not practically  14 reasonable in the facts and circumstances of the case. Consequently, interference in the impugned judgment has become inevitable. As an upshot of the above discussions, necessary conclusion which can be drawn is that the prosecution has been successful in leading sufficient evidence against the accused to prove the fact that they in furtherance of their common object inflicted injuries to Harda Ram which were found sufficient to cause death in the ordinary course of nature. Since Dr. Dinesh Poddar (PW11) opined that cause of death was coma, due to compression of brain as a result of head injury which is attributed to Ram Pat accused, therefore, he is convicted under Section 302 IPC and the remaining accused namely Sheo Ram, Daya Ram, Balwant and Bajrang are convicted under Section 302/149 IPC. Consequently, they are also convicted under Sections 447/148/506 IPC. Now coming to the sentence, since the minimum sentence is being awarded against the accused, therefore, we do not feel the necessity to hear them on quantum of sentence. Consequently, accused - respondent Ram Pat is sentenced to undergo imprisonment for life and to pay fine of Rs.500/-. In default of payment of fine to further undergo rigorous imprisonment for one month under Section 302 IPC. The remaining accused are also awarded the same sentence under Sections 302/149 IPC, as has been awarded to the accused Ram Pat under Section 302 IPC. Since the accused have already been sentenced for graver offence, therefore, we do not  15 feel necessity to sentence them under Sections 148, 447 and 506 IPC separately." Appellants are, thus, before us. 10. Mr. Sushil Kumar, learned Senior Counsel appearing on behalf of the appellants would submit i. Learned trial judge having assigned sufficient and cogent reasons in support of his findings and its view being a plausible one, the High Court should not have interfered therewith. ii. "Settled possession" on the part of the accused having been found as of fact by the learned trial judge inter alia on the basis of the admission made by the first informant himself in Exhibits DN & DQ, the High Court was not correct in interfering therewith. iii. Exercise of right of private defence on the part of the injured accused persons, namely, Sheo Ram and Raja Ram having been accepted and the High Court itself having not granted special  16 leave to appeal so far as they are concerned, it must be held to have committed a manifest error insofar it failed to extend the said benefit to the appellants also. iv. In any event, the prosecution having not explained the injuries sustained by two of the accused and the FIR having been anti- dated and anti-timed, no interference with the judgment of the trial court was warranted at the hands of the High Court. 11. Mr. T.V. George, learned counsel appearing on behalf of the State, on the other hand, would support the impugned judgment. 12. The accused admittedly did not purchase any specific portion of the property. They purchased undivided share. By reason thereof, in law, they did not acquire any right to obtain possession of the lands. Harda Ram and his family being the co-sharers did not give any consent for hading over their possession in their favour. In law, therefore, the accused persons being purchasers of an undivided share merely acquired a right to sue for partition. In M.V.S. Manikayala Rao vs. M. Narasimhaswami & Ors. [(AIR 1966 SC 470], this Court held: {See also Hardeo Rai vs. Sakuntala Devi & Ors. [(2008) 7 SCC 46]} Recently in Peethani Suryanarayana & Anr. vs. Repaka Venkata Ramana Kishore & Ors. [2009 (2) SCALE 461], this Court held: The two deeds of sale were executed in their favour on 7.5.1993 and 24.5.1993. The learned trial judge, in our opinion, was wholly incorrect keeping in view the aforementioned legal position that having regard to the stipulations contained in the said deeds of sale, possession of the vended properties had been handed over; the vendees would be deemed to be in possession. That is not the law. Handing over of possession is a physical  18 act. Nothing has been brought on record to establish that in fact physical possession had been handed over by all the co-sharers. 12. It is true that some overt acts were committed by the accused on 28.6.1993. It now, however, stands admitted that questioning the validity or otherwise of the aforementioned deeds of sale dated 7.5.1993 and 24.5.1993, father of the deceased Harda Ram filed a suit and an ad interim order of injunction was passed in their favour. Exhibit DN whereupon strong reliance has been placed is a complaint before the court of City Magistrate, Narnaul being under Sections 107 and 151 of the Code of Criminal Procedure (for short, "the Code"). The translated version thereof reads as under: After hearing it we reached at Ateli. Neither they have any Registry nor any mutation in their names. And from whom registry has been done have been injuncted. We have revenue entries (GIRDAWARI) in our name for last 32 years. xxx xxx xxx These persons are going against the law. They have not their names in the Revenue papers (JAMANBANDI). The action be taken against them and they should cultivate the land only after partition. Whether the residents of Gandala will be able to give the possession forcibly to them? Which is not in the possession of the person who has to give the possession. And one appeal dated 15.2.93 is pending against them in the court of Narnaul and a stay order dated 14.6.93 is also against them. They are working against the law. They must be restricted. Neither they have any order of PATWARI and TEHSILDAR nor they are owner of any number. They have 1/12 share. They should get it after partition and cultivate that portion which they are to be entitled for. There is not any mutation in their names. These persons should be restricted. They are going against the law." P.W. 8 was not confronted with the purported admission by him. He could have explained the same. In any event, admission on his part was not such which was admissible against him proprio vigore. Mr. Sushil Kumar has drawn our attention to a decision of this Court in Bharat Singh & Anr. vs. Bhagirathi [(1966) 1 SCR 606], wherein this Court held: Admission made by one of the parties thereto was clear and unequivocal. We may, however, notice that in certain situations even an admission can be explained. In a case of this nature, therefore, the statement made in the aforementioned documents or before the Deputy Superintendent of Police cannot be said to be an admission that they had been totally dispossessed which would be admissible against P.W.8 proprio vigore. Another purported admission made by P.W. 8 was said to have been made in Exhibit DQ. The said document disclosed that the Subordinate Judge First Class, Narnaul had confirmed the order of injunction dated 14.6.1993 by an order dated 9.12.1994 whereagainst an appeal was preferred by Daya Ram and Ram Pat in the Court of Additional District Judge, Narnaul. The parties admittedly had also been litigating before the Revenue Authorities in regard to their respective claims in the matter of getting their respective names mutated in the revenue records. The entries in the revenue records stood in the name of the deceased and his family. 13. Mr. Sushil Kumar made two inconsistent submissions before us; firstly, relying on or on the basis of the decision of the Privy Council in (Thakur) Nirman Singh & Ors. vs. Thakur Lal Rudra Partab Narain Singh & Ors. [1926 Privy Council 100], it was urged that the entry in the revenue  22 records do not prove possession;, on the other hand, our attention was drawn to the order passed by the Financial Commissioner dated 25.2.2002 in terms whereof the order of the appellate authority whereupon reliance has been placed by the High Court to contend that the order passed by the revenue authorities mutating the names of the accused had been set aside. The Financial Commissioner, even if the subsequent event is to be taken note of, in his order held that actual possession cannot form the basis of mutation of the name of a person claiming to be in possession in the revenue records. 14. We would, therefore, proceed on the basis that the entries made in the revenue records were not decisive for proving actual possession. For the purpose of appreciation of evidence on possession, however, the legal position should have been considered. Appellants herein were purchasers. We have noticed hereinbefore that they did not obtain any right to possess the land having not purchased any definite portion of the land; they merely purchased undivided share. Thus, even their vendor could not have put them in possession. Even otherwise, it has not been denied or disputed that the deceased and his family were in possession prior to 28.6.1993. If that be so, having regard to the provisions contained in Section 110 of the Indian Evidence Act, 1872, a presumption would arise that the deceased and the members of his family continued to be in possession. The sole question, therefore, which arose for consideration before the learned trial judge and consequently before the High Court was as to whether the purported overt acts committed by the accused on 28.6.1993 would amount to `settled possession' so as to enable them to exercise their right of private defence in respect of the property. Strong reliance has been placed before the learned trial judge as also before us on Puran Singh & Ors. vs. The State of Punjab [(1975) 4 SCC 518] wherein Fazal Ali, J. speaking for the Bench considered the earlier decision of this Court in Munshi Ram vs. Delhi Administration [(1968) 2 SCR 455], to hold: (i) that the trespasser must be in actual physical possession of property over a sufficiently long period; (ii) that the possession must be to the knowledge either express or implied of the owner or without any attempt at concealment and which contains an element of animus prossendie. The nature of possession of the trespasser would however be a matter to be decided on facts and circumstances of each case; (iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced in by the true owner; and (iv) that one of the usual tests to determine the quality of settled possession, in the case of  25 culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession, in which case the trespasser will have a right of private defence and the true owner will have no right of private defence. These principles logically flow from a long catena of cases decided by this Court as well as other High Courts some of which have been referred to in the judgment of this Court in Munshi Ram's case (supra)." xxx xxx xxx "18. The second point that falls for determination is as to what is the extent of right of private defence which the accused can claim in this case? In this connection, the High Court has given a finding that since the prosecution party had entered the land in. possession of the accused and were trying to plough it, the appellants should have taken recourse to the public-authorities instead of indulging in free fight with the prosecution. In other words, the High Court found that the right of private defence available to the accused was under the limitations provided for in Sections 99 to 102 of the Indian Penal Code and these limitations apply to the facts of the present case, and the accused cannot claim any right of private defence. With respect we find ourselves unable to agree with this somewhat broad statement of the law. It is true that the right of private defence of person or property is to be exercised under the following limitations: (See also Rame Gowda (Dead) by L.Rs. vs. M. Varadappa Naidu (Dead) by L.Rs. & Anr. [(2004) 1 SCC 769] The four attributes of settled possession referred to in Puran Singh (supra), in our opinion, ought to be read conjunctively and not disjunctively. 15. We may also add that the question must be considered keeping in view the facts and circumstances of each case. The parties were on litigating terms. The first informant and his family were attending the court in connection with litigations concerning the very self same land. The accused persons came stealthily with a tractor and cultivated it. The High Court, in our opinion, for good reasons opined that they had not sown any Bajra which was the specific defence taken by the accused. Ram Avatar, Halka Patwari (PW7), who was an independent witness, in his evidence, categorically stated that he could not say as to whether any crop was sown.  27 He, however, opined that had the crop been sown 16 days prior to the occurrence, then the same would have grown to the extent of 6 inch to 1 feet. Such a solitary overt act which had not been repeated on days subsequent to 14.6.1993 in respect whereof even some litigations started and, thus, the same cannot give rise to an inference that the accused were in settled possession of the land and other attributes in regard thereto have been satisfied so as to enable them to claim a right of private defence in respect of the property. In view of the decision in Puran Singh (supra), the trespassers not only must be put in actual physical possession of the property but also must continue to be in possession. Acquiescence to act of purported possession by the accused on the part of the complainant would arise only if an attempt is made to take possession in their presence. On the date of occurrence, PW 8 started cultivating. It has been amply proved that the scuffle lasted for only two minutes to two and half minutes. PW8 - Rajbir was not armed with any weapon, so was not Harda Ram (the deceased). It was Lal Singh alone who had in his hand a small twig (Kamari). According to him, the same is used to drive camels. Kamari was said to be used by Lal Singh in his sole  28 defence as a result whereof Sheo Ram and Raja Ram were injured. We have noticed hereinbefore that the injuries on the person of the said two accused were simple in nature. It is true that the fact that two of the accused persons had suffered injuries had not been disclosed in the FIR or in their statement before the Investigating Officer, but the same, in our opinion, was not necessary inasmuch as they got themselves medically examined by Dr. Goel almost at the same time when the other prosecution witnesses got themselves examined. By that time they had already been arrested. It was the police authorities who had submitted an application along with the injuries chart. They had been brought by Constable Satbir Singh. Thus, the fact that two of them had suffered injuries in the same incident was known to the Investigating Officer. It has furthermore well settled that whereas grievous injuries suffered by the accused are required to be explained by the prosecution, simple injuries need not necessarily be. Non explanation of simple injuries of the nature suffered by the accused would not be fatal. In Hari vs. State of Maharashtra [2009 (4) SCALE 103], this Court held: 16. The nature of injuries suffered by the deceased and the prosecution witnesses have been noticed by us. They had been caused by lathis and/or  30 jallies. Accused, therefore, were fully armed with when they came to the place of occurrence. They not only assaulted the deceased indiscriminately, but the prosecution witnesses were also not spared. The learned trial judge laid emphasis on the fact that the injuries on the person of Sheo Ram and Raja Ram had not been explained. We may notice that Lal singh in his examination-in-chief itself disclosed as under: Mr. Sushil Kumar, however, drew our attention to his denial to the suggestion made to the said witness, which is in the following terms: From the question put to the said witness, it is evident that two questions were clubbed together which should not have been permitted by the learned trial judge. The fate of the said statements must, therefore, be  31 considered having regard to the nature of the suggestion put to him. It is also worthwhile to notice that Rajbir (P.W.8) also accepted that Lal Singh had caused injuries to Sheo Ram and Raja Ram in his self defence. Lal Singh's presence at the spot, therefore, cannot be denied or disputed. The fact that some incident had taken place also could not be denied or disputed. 17. It has been contended that the FIR was anti dated and anti timed. Such a contention was raised inter alia on the premise that the first informant got his father admitted in the General Hospital, Narnaul at about 1.35 p.m. whereas the FIR was lodged at about 1.50 p.m. at Ateli having regard to the fact that one has to take at least half an hour to reach Ateli from the General Hospital, Narnaul in his own conveyance and also having regard to the fact that Head Constable Kailash Chand (P.W. 13) reached the hospital at about 5.00 p.m. The High Court, on the other hand, opined that by the time the examination of the deceased had ended which may be at about 2.30 p.m.; the first informant (P.W. 8) must have reached the hospital as, according to the High Court, it takes about 15-20 minutes to cover the distance from Ateli to Narnaul. The said contention cannot be sustained having regard to the fact that by 1.30 p.m. or 1.40 p.m. even accused persons were arrested; they had been produced before Dr. Goel and they had been examined; even P.W.12 and other witnesses were also examined. The FIR might have been recorded at a later stage. But the information about the occurrence must have been given by P.W. 8. to the office in-charge of Ateli Police Station prior thereto. Even a copy of the FIR was received by the Magistrate concerned at about 10.30 p.m. on the same day. Furthermore, the Investigating Officers were not cross examined on that point. In any event, it is wholly unlikely that the FIR was anti-timed and anti-dated. Even assuming that the same was anti-timed or anti-dated, the fact that an incident had occurred was not disputed. At least two of the accused persons accepted their presence. The defence story is that two accused persons had sustained injuries at the hands of the prosecution witness Lal Singh (P.W.12). If occurrence of the incident stands admitted, in our opinion, even if some delay has been caused in writing of the FIR, the same would not render the entire prosecution case suspicious. 18. This brings us to the question as to whether a case for exercise of right of self defence has been made out. We have noticed hereinbefore that the appellants cannot be said to have been in `settled possession' of the land in question. Furthermore, they came wholly armed, whereas except Lal Singh who was having a small twig (Kamari), deceased party were not armed with any weapon. It was not a dangerous weapon. No grievous injuries could have been caused by use thereof and in fact no grievous injuries have been suffered by the accused Sheo Ram and Raja Ram. Appellants herein did not raise any plea of self defence. According to them, they were not present at the spot at all. Learned Senior Counsel would contend that Accused No.1 and Accused No. 6 raised the plea of self defence. The learned trial judge although accepted the said plea but the same was accepted not with particular reference to the said accused. All the accused persons did not raise the defence of exercise of right to private defence. In regard to claim of right of self defence, the matter may have to be considered from somewhat a different angle. Accused Nos. 6, 7 and 8  34 were attributed with assault of Lal Singh and two ladies, namely, Mamli and Dhankauri. 19. The second part of the story was not relied upon. Any overt act on their part, thus, having regard to the fact that the deceased - Harda Ram - had already been assaulted, there was no evidence against Raja Ram as also accused Nos. 7 and 8 that they had participated in assaulting the deceased. The right of private defence can be exercised provided any occasion arises therefor. The learned trial judge wrongly held so, on the premise that the appellants were in settled possession of the property. If they were not, they had no right of private defence to defend the possession of the property. They were, thus, the aggressors being fully armed. We are not unmindful of the fact that right of private defence need not be specifically raised. {See Bishna Alias Bhiswadeb Mahato & ors. vs. State of W.B. [(2005) 12 SCC 657]}. We may notice that in Surendra & Anr. v. State of Maharashtra [(2006) 11 SCC 434], this Court held: "26. We are not unmindful of the fact that in all circumstances injuries on the person of the accused need not be explained but a different standard would be applied in a case where a specific plea of right of private defence has been raised. It may be true that in the event prosecution discharges its primary burden of proof, the onus would shift on the accused but the same would not mean that the burden can be discharged only by examining defence witnesses. 27. The learned courts below committed a manifest error of law in opining that the Appellants had not discharged the initial burden which is cast on them. Even such a plea need not be specifically raised. The Courts may only see as to whether the plea of exercise of private defence was probable in the facts and circumstances of the case. 32. In regard to the duty of the prosecution to explain the injuries on the part of the accused, this Court observed: In Satya Narain Yadav v. Gajanand & Anr. [2008 (10) SCALE 728], this Court held: (See also Ravishwar Manjhi & Ors. vs. State of Jharkhand [2008 (16) SCALE 45) In Bhanwar Singh & Ors. vs. State of M.P. [2008 (7) scale 633], this Court held: "51. To put it pithily, the right of private defence is a defence right. It is neither a right of aggression or of reprisal. There is no right of private defence where there is no apprehension of danger. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self creation. Necessity must be present, real or apparent. 52. The basic principle underlying the doctrine of the right of private defence is that when an individual or his property is faced with a danger and immediate aid from the state machinery is not readily available, that individual is entitled to protect himself and his property. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. We may, however, hasten to add that the means and the force a threatened person adopts at the spur of the moment to ward off the danger and to save himself or his property cannot be weighed in golden scales. It is neither possible nor prudent to lay down abstract parameters which can be applied to determine as to whether the means and force adopted by the threatened person was proper or not. Answer to such a question depends upon host of factors like the prevailing circumstances at the spot, his feelings at the relevant time; the confusion and the excitement depending on the nature of assault on him etc. Nonetheless, the exercise of the right of private defence can never be vindictive or malicious. It would be repugnant to the very concept of private defence." It was furthermore observed that it is not in all situations that such a right can be claimed only because some of the accused persons have suffered injuries even if they are simple. 20. We have been taken through the depositions of P.W. 8 and P.W. 12. P.W.12's presence stands admitted. P.W.8's presence has been doubted by the learned Sessions Judge only on the ground that he got his father admitted at 2.30 p.m. The presence of P.W. 8 - Rajbir, in our opinion, could not have been doubted on such slender evidence. He was driving the tractor. Accused persons came prepared to assault the deceased. By the time the first informant could come and intervene, the entire incident must have occurred as it is stated that the same took place only for two to two and half minutes. No suggestion had been given to any of the prosecution witnesses by the defence that no tractor was found at the place or it was the deceased who himself was driving the tractor. P.W. 8 in his evidence categorically stated that he left the tractor at that place. Furthermore, his evidence, taking a holistic view of the matter, in our opinion, appears to be trustworthy. He vividly described the entire incident. He was cross examined on all material  40 points. He had also explained as to why he did not suffer any injury categorically stating and that too in cross-examination that by the time he reached all the accused had started running with their weapons towards their respective houses. 21. There cannot be any doubt or dispute whatsoever that if two views are possible, the Appellate Court should not interfere with a judgment of acquittal, but this has many exceptions. In State of Punjab vs. Gurnam Kaur & Ors. [2009 (4) SCALE 343] this Court held: In U.O.I. vs. Bal Mukund & Ors. [2009 (4) SCALE 606], this Court held: 22. For the aforementioned reasons, the appeal is dismissed. Appellants are on bail. Their bail bonds shall stand cancelled. Accused persons are directed to surrender forthwith to serve out the remaining sentence. ......................................J. [S.B. Sinha] ......................................J. [Dr. Mukundakam Sharma] New Delhi; May 12, 2009 

Author: S Sinha

Ram Pat & Ors vs State Of Harayana on 12 May, 2009

Supreme Court of India

Court No. - 18 Case :- WRIT - A No. - 23484 of 1996 Petitioner :- Shri Mohd. Furqan Respondent :- State Of U.P. & Others Petitioner Counsel :- M.A.Qadeer Respondent Counsel :- C.S.C. Hon'ble Arun Tandon,J. Nobody is present on behalf of the writ petitioner even in the revised reading of the cause list. The writ petition filed in the year 1996 is directed against suspension. It appears that the writ petition has become infructuous by efflux of time. Therefore, the writ petition is dismissed as infructuous. Interim order, if any, stands discharged. Order Date :- 22.7.2010 Puspendra

Shri Mohd. Furqan vs State Of U.P. & Others on 22 July, 2010

Allahabad High Court

Gujarat High Court Case Information System Print SCA/8896/2010 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8896 of 2010 ===================================== ASHOK T CHAWLA (SENIOR CITIZEN) - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ===================================== Appearance : PARTY-IN-PERSON for Petitioner(s) : 1, MR JK SHAH, AGP for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 1, MR HS MUNSHAW for Respondent(s) : 2, ===================================== CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 23/09/2010 ORAL ORDER1.0 Learned Assistant Government Pleader Mr. Shah acted promptly and utilized the time for communicating the matter with the responsible authorities. 1.1 The Court puts its appreciation on record. 2.0 The learned Assistant Government Pleader made available for perusal a copy of communication dated 22nd September 2010 with regard to the grant of 'deemed date' and also a copy of communication dated 21st September 2010, which deals with the grant of 'Higher Pay-scale'. Both these communications are taken on record. 3.0 Learned advocate Mr. Munshaw is in receipt of the communication dated 21st September 2010 only yesterday i.e. on 22nd September 2010. 3.1 Learned advocate Mr. Munshaw, taking instructions, states that the matter will be pursued under the supervision of a responsible officer and if four weeks' time is granted, all required formalities will be completed and amount will be paid to the petitioner. 4.0 Taking into consideration the fact that the payment is sufficiently delayed, the request is partly allowed. Time is granted up to 15th October 2010, by which date, the authority shall see to it that all formalities are completed and amount is paid. 4.1 S. O. to 15th October 2010. 4.2 A copy of this order be made available to learned advocate Mr. Mushaw for its onward communication for compliance. [ Ravi R. Tripathi, J. ] hiren     Top

Author: Ravi R.Tripathi,&Nbsp;

Ashok vs State on 23 September, 2010

Gujarat High Court

JUDGMENT Vyas, J. 1. This appeal raises a point as to the law which is applicable, in matters of succession and inheritance, to the Sunni Bohras of the territory which was formerly known as the Baroda State. Are they governed in such matters (succession and inheritance) by the Hindu law or does the Mahomedan law apply to them? This point has arisen in this way. 2. The plaintiff, who is the appellant in. this appeal, is the sister of. one Gulam Hussein Kasnbhai. Gulam Hussein died on April 19, 1944. This is, therefore, a suit by a sister of a deceased person for the administration of the properties left by him and for partition and separate possession of what she contends is her share in the said properties. It may be noted that Bai Biban and Bai Urbai, who are defendants Nos. 1 and 2, are the widows of Gulam Hussein. Gulam Hussein died without leaving any issue. His properties with which, we are concerned in this suit are three houses, certain ornaments, lands etc. In these properties the plaintiff: claims a three-fourth share and she has asked for separate possession of that share after having the properties partitioned. 3. The suit of the plaintiff is resisted by the defendants upon several contentions, the principal contention bring that the parties being Sunni Bohras of Baroda, are governed by the Hindu law in matters of succession and inheritance, that under the Hindu law sisters are not entitled to a share in the properties of their deceased brother so long as the tatter's widows are alive and that, therefore, the plaintiff's suit must fail. 4. The learned trial Judge has taken the view that the law applicable to the parties in matters of succession and inheritance is the Hindu law. Consistently with this view of his, he has ordered the dismissal of the plaintiff's suit. It is from that decree that the plaintiff has filed this appeal. 5. It is clear that if the Sunni Bohras of the former Baroda State, to which community the parties belong, are governed in matters of succession and inheritance by the Hindu law, the plaintiff being a sister of the deceased would not be entitled to claim, by right of succession, any share in the estate of the deceased so long as the widows of the deceased are alive. On the other hand, if the Mahomedan law governs matters of succession and inheritance amongst the Sunni Bohras of the former Baroda State, the plaintiff would be entitled to claim a share in the properties of her deceased brother even though his widows are alive. Mr. Thakor for the plaintiff contends that the Sunni Bohras of Baroda are governed not by the Hindu law, but by the Mahomedan law, and that accordingly the plaintiff would be entitled to a three-fourth share in the properties of her deceased brother. On the other hand, Mr. Karlekar for the defendants contends that in matters relating' to succession and inheritance, the Sunni Bohras of the former Baroda State are governed by the Hindu Jaw and. therefore, the plaintiff's suit deserved to fail and was rightly dismissed. 6. Now, in order to determine whether the Snnni Bohras of the former Baroda State are governed by the Hindu Jaw or the Mahomedan law in matters of succession and inheritance, we might turn to paragraph 26 of Sir Dinshah Mulbi's Principles of Mahomedan Law. Paragraph 26 says: The Sunni Bohra Mahomedans of Gujrat, and the Molesalam Girasias of Broach, are governed by the Hindu Law in matters of succession and inheritance. Mr. Karlekar for the defendants contends that as the Baroda State was a part; of the territory of Gnjerat, the parties who are Sunni Bohras of the Baroda State would be governed by the Hindu law in matters of succession and inheritance. On the other hand, Mr. Thakor for the plaintiff says that the word 'Gnjerat' in paragraph 26 of Sir Dinshah Mulla's Principles of Mahomedan Law means those parts of Gnjerat which, before the merger of the States, were amenable to the jurisdiction of the Province of Bombay. Mr. Thakor says that. the. former Baroda State was a progressive State, that it had its own laws and that the learned author of the Principles of Mahomedan Law could not have intended his statement: of law in paragraph 26 of his treatise to affect the administration thereof in any way. Mr. Thakor seems to forget, however, that in the territory of Gnjerat there were several States big and small, besides the Baroda State, before the merger of the States, and he does not contend, and. indeed could not contend, that all those States had their own Legislatures and their own laws for the Sunni Bohras in matters of succession and inheritance. In assigning a meaning to the word 'Gujerat' in paragraph 26 of Sir Dinshah. Mulla's Principles of Mahomedan Law, we would not be justified in discriminating inter se between the former States which were situated in the territory of Gujerat. When a question has arisen as to what law is applicable to the Sunni Bohras of Gujerat in matters, of succession and inheritance, we would not be justified in putting the Sunni Bohras of the Baroda State on one footing and those of the other States of Gujerat on a different, footing. The word 'Gujerat' in paragraph 26 must, therefore, be so construed as to make the application of the Jaw in matter's of succession and inheritance amongst the Sunni Bohras of Gnjerat uniform, whether the Sunni Bohras resided in one State of Gnjerat or the other State or whether they resided in those parts of Gnjerat which were under the jurisdiction of the Province of Bombay. The limitation which Mr. Thakor puts upon the word 'Gnjerat' in paragraph 26 of Sir Dinshah Mulla's Principles of Mahomedan. Law, namely, that it should be construed to mean only these parts of Gujerat which were amenable to the jurisdiction of the Province of Bombay, is artificial and cannot be accepted. If the word 'Gujerat' bad occurred in a Bombay statute enacted, before the merger of the States, then perhaps it might have meant only those parts of Gnjerat which were amenable to the jurisdiction of the Bombay Province, since, until the merger took place, the Bombay Legislature could competently make laws only in respect of those territories to which its jurisdiction could extend. It is to be noted, however, that Sir Dinshah Mulla's Principles of Mahomedan Law is not is statute and paragraph 26 of this treatise does not embody statutory law. The word 'Gujerat' which is used in this paragraph is a territorial term and it is used in its territorial sense. It means the territory which is geographically known as Gujerat. Now, there could not possibly be any controversy that the Baroda State was a part of what is geographically called the territory of Gujarat. The Bombay Province, as it was then known, consisted of three principal divisions, Gujarat, Maharashtra and Karnataka, and each of these divisions comprised of areas some of which were amenable to the jurisdiction of the Bombay Province and others to the jurisdiction of the rulers who were a sovereign power in their States. Baroda was one of the States in Gujarat. Surely, before its merger, it existed in some part of India. If it did not lie in the territory of Gujarat, where was it situated? To say that Baroda was not a part of Gujarat is to say that Kolhapur, for instance, was not a part of Maharashtra. The contention is on the face of it untenable. Before independence, India itself was divided into a, territory which was under British administration, territory known as British India, and States which were under the rulers who were sovereign powers in their own jurisdictions. Could it be possibly contended with any sense that the States were not parts of India? If it could not he so contended, could it be validly contended that the Baroda State was not a part of Gujarat? The contention of Mr. Thakor has no substance. The fact that before the merger the Baroda State was a sovereign State not amenable to the jurisdiction of the Bombay Province is irrelevant for construing the word 'Gujarat' in paragraph 26 of Sir Dinshah Mulla's Principles of Mahomedan Law. That word, as I have said, is used in its territorial sense and its construction should have nothing to do with the executive or judicial administration, legislative structure, political attachment etc. of the particular States, such as Baroda, Lunawada, Idar, Cambay and others situated in that area (Gujerat). It would thus appear from what the learned author (Sir Dinshah Mulla) of the Principles of Mahomedan Law has stated in paragraph 26 of his treatise that the parties to this suit, who are Sunni Bohras of the former Baroda State, would be governed in matters of succession and inheritance by the Hindu law. 7. Apart from paragraph 26 of Sir Dinshah Mulla's Principles of Mahomedan Law if we turn to a decision of the Baroda Privy Council in Chhotatal v. Bai Sakar (1939) 49 Baroda L.R. 415, it would appear that there was no codified law in the Baroda State governing matters of succession and inheritance amongst the Sunni Bohras, and that in the absence of codified law upon those subjects the Sunni Bohras were governed by Hindu law insofar as they had adopted it in matters of succession and inheritance as their personal law. To quote the learned Judges of the Baroda Privy Council in this context, they said (p. 418) : There is no codified law in Baroda governing the succession to Sunni Boharas. The general principles prevailing in the State recognise the personal law of the parties as modified by custom. The statutes of Hindu Law apply to Hindus of the State and communities like Sunni Boharas are governed by it so far as they have adopted it in. matters of succession and inheritance as their personal law. We have, therefore, to see whether the Sunni Bohras of the former Baroda State had, in matters of succession and inheritance, adopted Hindu law as their personal law. Now upon the evidence in this case the learned Judge has concluded, and rightly in my view, that the Sunni Bohras of the Baroda State had adopted the Hindu law in matters of succession and inheritance as their personal law. Noorbhai, a cousin of defendant No. 1, has deposed in his evidence that amongst the community of the Sunni Bohras (of the former Baroda State), if a person dies childless, his widow succeeds to his property and enjoys the property till her death. In support of this statement, the witness has cited four instances. Upon the death of one Abhram Kasam Kantulla, Killi, the widow of Abhram. inherited the entire estate of her husband, although the husband had a sister who was alive when he died. The estate of one Kasam Sodagar, upon the death of Kasam, was inherited by his widow, and when the widow died, the property went to the Masjid. The next instance is the instance of one Rajan's property. Upon the death of Eajan, his estate was inherited by his widow Mariam, although Itajan's sister was alive when lie died. Upon the record of the case, there is a sale-deed exh. 87 and this document would show that Bai Mariam had disposed of the house, which, she had inherited from her husband, in the year 1922. It is, therefore, clear that upon the death of Rajan, it was his widow, and not his sister, who had succeeded to his property. Then there is the instance of the devolution of the estate of the father of defendant No. 1. It may be remembered that this witness Noorbhai is a nephew of defendant No. 1's father he has stated that upon the death of defendant No. 1's rather, his property was inherited by him as his nephew. The same position, in matters of succession and inheritance amongst the Sunni Bohrus. of the Baroda State, emerges from the evidence of another witness also, namely, witness Ismail Rehman. He too has stated in his deposition, that if a Sunni Bohra dies childless, his estate goes to his nephew and that it is not a custom amongst the community of Sunni Bohras for sisters and daughters of a deceased person to inherit his estate. According to this witness, if a deceased Sunni Bohra leaves a widow, his estate is inherited by her, and upon, the death of the widow, it devolves upon a nephew. If there is no nephew in existence, the estate goes to charity. This witness has also fortified his evidence by referring to certain instances, and one of the instances is the instance of his own mother. It is clear, therefore, that the witness' evidence is based upon personal knowledge. He has stated that his mother had a brother of the name of Ibrahim and that upon Ibrahim's death, his estate had devolved upon his nephew and was not inherited by his sister (i.e. the witness' mother). Then there is the evidence of Dhulubhai. He has deposed. that he is a leader of the community of Sunni Bohras. According to his evidence, if a Sunni Bohra dies childless, his widow succeeds to his property and in no case would his property devolve upon his sister or daughter. Upon the death of the widow, the estate would be inherited by a nephew of the deceased, and. if there is no nephew in existence, the property would go to the caste. In support of his evidence, the witness has given an instance of the estate of one Asmal's mother's brother. Upon the death of Asmal's mother's brother, his estate was inherited by his widow. It did not devolve upon Asmal's mother, which would have been the case if the Sunni Bohras were governed, in matters of succession and inheritance, by Mahomedan law. In addition to all this oral evidence, there are certain documents upon the record of this case which also would show that upon a Sunni Bohra of the former Baroda State dying withont a widow or a nephew, his property would go to charity. For instance, exh. 90 is a wakf document of 1932. Exhibit 80 is a wakf document, of 1934. These documents would show that Vora Isap Fateh had given away his estate to the Masjid and that Kasam Sultan Sodagar had also given away his house to the Masjid, because their wives had died during their lifetime and they had no nephews living. Then there is n document exh. 94 which is also a wakf document of the year 1946. It would show that Sultan Abhram gave away his house to the Masjid. This documentary evidence would also show that upon the non-existence of a widow or a nephew of a deceased Sunni Bohra of the former Baroda State, his estate went to charity, but not to his sister or daughter which would have been the case if the Sunni Bohras of the former Baroda State were governed in matters of succession and inheritance by the Mahomedan law. Before parting with this point, namely, the point of adoption of Hindu law by the Sunni Bohras of the former Baroda State in matters of succession and inheritance, I would point out that there are certain admissions even in the evidence led by the plaintiff, which would show that in matters of succession and inheritance, the Sunni Bohras of the Baroda State are governed not by the Mahomedan law, but by the Hindu law. For instance, the plaintiff's son Hassanbhai has deposed in one part of his evidence: There was a custom amongst us about the observance of the Hindu law in the matter of inheritance. It is true that in another part of his deposition the witness has stated: Amongst us the Mahomedan law of inheritance prevails and the Hindu law is not applicable to us. It is true that these two contradictory statements would destroy the value of both the statements. Nevertheless, it is significant to remember that the plaintiff's son, who obviously stepped into the witness box to support the plaintiff's case that in matters of succession and inheritance the Sunni Bohras of the former Baroda State were governed by the Mahomedan law and not by the Hindu law, did say, perhaps without realising the consequence of that statement, that amongst the Sunni Bohras there was a custom and that the custom was that in matters of inheritance, the community was governed by the Hindu law. Then there is another witness of the plaintiff, namely, witness Yakub, and he too has deposed that in the community of the Sunni Bohras of Baroda, so long as there were other heirs of a deceased Sunni Bohra in existence, his sister would not inherit. Such evidence, coming as it does from the plaintiff's own witness, must lend strong support to the evidence led by the defendants that in matters of succession and inheritance, the Sunni Bohras of the former Baroda State are governed by the Hindu law and not by the Mahomedan law. It is scarcely necessary to pursue the point any further. Prom what has been stated above, I am of the view that there is ample oral and documentary evidence on the record of the case which would show. in the words of the decision of the Baroda Privy Council in. Ghhntalal v. Bai Sakar, that in matters of succession and inheritance, the Sunni Bohras of the Bardoa State have adopted Hindu law as their personal Jaw, The plaintiff being a sister of the deceased Gulam Hussein Kasubhai would not, therefore, be entitled to claim any share in the properties of her deceased brother. The suit was, therefore, rightly dismissed by the learned trial Judge and the appeal must also fail and be dismissed. 8. The appeal is dismissed with costs.

Author: Vyas

Bai Asha vs Bai Biban on 27 November, 1956

Bombay High Court

Security Code Check for Accessing Judgment/Order Document   eLegalix - Allahabad High Court Judgment Information System Welcome to eLegalix, Judgment Information System for Allahabad High Court and Its Bench at Lucknow. Disclaimer Please enter the 4-digit numerical security code below to download Judgment/Order Document   Security Code:    GO   Visit http://elegalix.allahabadhighcourt.in/elegalix/StartWebSearch.do for more Judgments/Orders delivered at Allahabad High Court and Its Bench at Lucknow. Disclaimer   System designed and developed at Computer Centre, High Court, Allahabad.

Jagdamba Prasad Singh vs State Of U.P. And Others on 27 August, 2010

Allahabad High Court

Court No. - 19 Case :- MISC. SINGLE No. - 1762 of 1998 Petitioner :- Gokul @ Gujal Prasad & Others Respondent :- Board Of Revenue Lucknow & OthersPetitioner Counsel :- A.R.Khan Respondent Counsel :- C.S.C.,N.K.Seth Hon'ble S.C. Chaurasia J. Counter Affidavit and Rejoinder Affidavit have been exchanged between the parties. As prayed by the learned counsel for the petitioners,list in the next cause list for final hearing. Order Date :- 19.7.2010 AKS

Gokul @ Gujal Prasad & Others vs Board Of Revenue Lucknow & Others on 19 July, 2010

Allahabad High Court

Gujarat High Court Case Information System Print SCA/8979/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8979 of 2010 ========================================================= D P TERAIYA - Petitioner(s) Versus STATE OF GUJARAT THROUGH SECRETARY - Respondent(s) ========================================================= Appearance : MR IS SUPEHIA for Petitioner(s) : 1, MS MANISHA NARSINGHANI, ASSTT GOVT PLEADER for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 25/10/2010 ORAL ORDER On 21.10.2010, learned advocate for the petitioner was granted time to produce some material to show that the letter written by the petitioner- the then Chief Officer was ever received in the office of the Collector. (emphasis supplied). At the request of learned advocate Mr. Supehia for the petitioner, as a last chance, the matter is adjourned to 28th October 2010. (RAVI R.TRIPATHI, J.) omkar     Top

Author: Ravi R.Tripathi,&Nbsp;

D vs State on 25 October, 2010

Gujarat High Court

JUDGMENT Charles Sargent, C.J. 1. The plaintiffs claim to recover possession of land (Survey No. 352), alleging that they hold under a karanama passed to them, on 2nd August 1880, by Mutyawa, the daughter of one Ugapa, The first and second defendants are the eons of one Somana' who, they say, was jointly interested in the land with Ugapa, The Assistant Judge, without deciding whether Somana and Ugapa' were joint, came to the conclusion that Mutyawa was at any rate not in possession when she passed the kararnama; and that, consequently, she could confer no title on the plaintiffs to sue for possession. 2. This is doubtless supported by the reasoning of the Court in Lalubhdi Surchand v. Bai Armit I.L.R. 2 Bom. 299 and more particularly by the Full Bench decision in Bai Suraj v. Dalpatram Dayaahanhar I.L.R. 6 Bom. 380 where it was held, on the authority of the Privy Council decisions in Raja Sahed Pralhad Sun v. Baba Budhusing 12 Moo. I.A. 275, 307 and Rani Bhobosundri Dossah v. Issurshunder Dutt 11 Beng. L.R. 36 followed by this Court in 'Mathews v. Girdhatlal Fatechand 7 Bom. H. & Rep. O.C.J. 1 and Kachu Bayaji v. Kachoba Vithoba 10 Bom. H.C. Rep. 491 that "the sale of an estate by a person who is not in possession cannot operate "as a present conveyance nor enable the purchaser to sue in ejectment." 4. As to the Hindu law, their Lordships express an opinion that it does not require that the vendor should be in possession to -give validity to the contract of sale, and that the texts, which relate to the transfer of possession (except in the case of gifts where it is necessary to give a complete title as against the donor) "have reference only to the comparative strength of a title with possession and a title without if." After commenting on the judgment in Kachu Babuji v. Kachoba Vithoba 18 Bom. H.C. Rep. 491, as proceeding on a misapprehension of what was decided in the cases of Harjivan Anandram v. Naran Haribhai 4 Bom. H.C. Rep. 31 A.C.J, and Girahar Parjaram v. Daji 7 Bom. H.C. Rep. 4 A.C.J, they proceed to explain the decisions in Raja Saheb Pralhad Sen v. Babu Budhusing 12 Moo. I.A. 306 and Rani Bhobosundri Dosseah v. Insurchunder Dutt 11 Beng. L.R. 36 as proceeding on the ground that the contracts from their very nature did not operate as a present transfer of property, being contracts to be performed in future, in the first case on the happening of a contingency which never occurred, and in the second with respect to such property as might be recovered in a certain suit which was never brought, and conclude with the observation that "the ground of them is that the plaintiff was not entitled under the terms of sale to possession." This decision is irreconcileable with the Full Beach decision of this Court in Bai Saraji v. Dalpatram Dayashankar. I.L.R. 6. Bom. 380 and being a decision of the highest authority must be deemed to overrule it. 5. We must, therefore, hold that the circumstance of Mutyawa not being in possession at the time the kararnama was executed, does not prevent plaintiffs from seeking to obtain possession from the defendants. 6. It was contended, however, for the respondents that as the Assistant Judge has found that Mutyawa was not in possession when the kararnama was executed, the plaintiffs could not have been dispossessed on the day of execution which he alleges in his plaint as constituting his cause of action. But we do not think we ought to allow this objection to prevail, the substantial question between the parties being, who has the better title to ' the land. It will, however, be open to the defendants to raise an ' issue as to the plaintiffs' claim being barred by the Statute of Limitation. 7. We must, therefore, reverse the decree of the Assistant Judge and remand the case for trial with reference to the above remarks. Costs to abide the result.

Author: C Sargent

Ugarchand Manackchand And Anr. vs Madapa Somana And Anr. on 4 March, 1885

Bombay High Court

JUDGMENT 1. The question is whether the defendants-appellants, who belong to the Kaikolar (weaver) class are entitled to take their deity Kumarasawmi in procession with Sakkili melam (music) along the path (marked A in the plan, Ex. B.) which passes through the middle of the Vellala quarter. The plaintiffs are Vellalars and sue for a declaration that the defendants are not so entitled, the cause of action. being an order passed by the Magistrate under Section 144, Criminal Procedure Code, restraining them from interfering with the defendants Kaikolars carrying their idol in procession. 2. The Munsif found that the path (A) was a public path and does not belong exclusively to the Vellalars, as contended for by them, and he dismissed the suit. On appeal the Judge found that a portion of the path, he does not find which portion, "was formed by the plaintiff's first witness and otter persons slicing off from their sites for forming a way." He also found that the street was the property of the Vellalars. He further held that because all people walk on it without distinction and without objection, and because the Union servants cleanse it, the defendants have not acquired the right they claim, and he accordingly allowed the plaintiffs' claim. 3. It is contended before us that on the facts found the Judge should have held that this is a public path. 4. The Judge has found that this path has been used by all members of the public, including the Kaikolars, desiring to use it without any interruption or objection of any kind. There is no evidence as to the origin of the user, nor is there any evidence that the dedication, if made by the Vellalars as the Judge finds, was subject to any conditions. The Village Union clean the path. In a case where it was contended that no dedication ought to be presumed on account of the defective title of the owner who made the dedication, Warrington J. said: The law appears to be this: that the continued user by the public of a way raises a presumption that that way belongs to the public, that it has been dedicated by the owner for the public use for which it has been used, and further that it is not incumbent upon the public to show by what particular owner the road has been dedicated. If dedication is possible, dedication will be assumed." Vide Farquhar v. Newbury Rural Council (1908) 2 Ch. 586 596. This judgment was confirmed in Appeal, I Ch. 1909, p. 12; 78 L.J., R. 170. 5. We are, therefore, of opinion that the path (A) is a public path. 6. As it is a public path the defendants, Kaikolars, have the same rights as the plaintiffs to conduct religious processions through it in a lawful manner Sadagopachariar v. Rama Rao 26 M. 376. The fact that they have not been conducting such processions is immaterial. The observations of Subrahmanya Aiyar and Bashyam Aiyangar, JJ. in Vijiaraghava Chariar v. Emperor 26 M. 554 have reference probably to carrying on religious worship as distinct from a religious procession. But if they are intended to apply to religious processions also, then they are opposed to a series of decisions including Full Bench rulings and cannot be followed after the confirmation of the decision in the case of Sadagopa Chariar v. Rama Rao 26 M. 376 by the Privy Council in the case of Sadagopa Chariar v. Krishnamoorthy Rao 30 M. 185; 4 A.L.J. 333; 11 C.W.N. 585; 5 C.L.J. 566; 17 M.L.J. 240; 9 Bom. L.R. 663; 2 M.L.T. 204 (P.C.). 7. We, therefore, set aside the decree of lower appellate Court and restore that of the Munsif with costs in this and in the lower appellate Court.

Maunada Mudali And Anr. vs Nallayya Goundan And Ors. on 16 March, 1909

Madras High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 14888 of 2008(V) 1. SAJEEV KUMAR, S/O.A.K.DAMODARAN ... Petitioner 2. A.K.DAMODARAN, AGED 85 YEARS, 3. V.K.MAIDHILI, W/O.A.K.DAMODARAN, Vs 1. STATE OF KERALA, REPRESENTED BY ... Respondent 2. CITY POLICE COMMISSIONER, 3. THE CIRCLE INSPECTOR OF POLICE, 4. SUB-INSPECTOR OF POLICE, 5. ANILA.M., D/O.MOHAN KUMAR, 6. GIRISH, POLICE CONSTABLE, For Petitioner :SRI.SHAJI P.CHALY For Respondent :SRI.C.S.MANILAL The Hon'ble MR. Justice K.BALAKRISHNAN NAIR The Hon'ble MRS. Justice M.C.HARI RANI Dated :23/06/2008 O R D E R K.BALAKRISHNAN NAIR & M.C.HARI RANI JJ. ----------------------------------------------------- W.P.(C)No.14888 OF 2008 ----------------------------------------------------- DATED THIS THE 23rd DAY OF JUNE, 2008 J U D G M E N T Balakrishnan Nair, J. The 1st petitioner is the husband of the 5th respondent. The petitioners 2 and 3 are the parents of the 1st petitioner. There is some dispute between the first petitioner and 5th respondent in their marital life. The 6th respondent who is a Police Constable interfered in the matter and manhandled the petitioner. It was done in the presence of the 4th respondent after summoning him to the Police Station. The 4th respondent is compelling the petitioner to settle the dispute between him and the 5th respondent as dictated by him. Feeling aggrieved by the said action of the 4th respondent, this writ petition is filed complaining police harassment. 2. The 5th respondent has filed a counter affidavit, denying the allegations against her. She submits, she has been brutally manhandled and a crime has been registered against the petitioners under Section 498A IPC. To prevent the investigation  W.P.(C)No.14888/08 -2- of that crime, this writ petition has been filed making false allegations. The petitioners have filed a reply affidavit denying the averments of the 5th respondent in her counter affidavit. The learned Government Pleader upon instructions submitted that a crime has been registered against the petitioners under Section 498A IPC. The police propose to investigate into the same only in accordance with law. The allegations of harassment are denied by the police. 3. We record the submission of the learned Government Pleader that the police do not propose to harass the petitioners and they will investigate the crime registered against the petitioners only in accordance with law. The writ petition is disposed of as above. K.BALAKRISHNAN NAIR,JUDGE. M.C.HARI RANI, JUDGE. dsn 

Sajeev Kumar vs State Of Kerala on 23 June, 2008

Kerala High Court

CENTRAL INFORMATION COMMISSION Room No. 308, B-Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi-110066 File No. CIC/WB/A/2007/01300/LS Appellant : Shri Kanhia Lal Public Authority : Delhi Development Authority (through Shri S.K. Sethi, SE (HQ) SZ & Shri Kanhiya Lal, Assistant Director, (LM) SE) Date of Hearing : 27.2.2009 Date of Decision : 27.2.2009 Facts By his letter dated 15.5.2007, the appellant had requested for information on 04 points relating to the rehabilitation of families living in Bhoomihin Camp, Kalkaji, New Delhi at Tehkhand, as per survey conducted by DDA in April-May, 2005 and the matters related therewith. 2. SE (HQ) SEZ vide letter dated 6.6.2008 had provided information about point No. 'D' to the appellant and referred the matter to Director (LM) for providing information relating to point Nos. A, B & C. 3. The appeal was disposed of by the Appellate Authority vide letter dated 3.7.2008. 4. The present appeal is directed against the order of CPIO/AA. 5. The matter was taken up for hearing on 27.2.2009. The appellant appeared before the Commission. The public authority is represented by the officers named above. It is noticed that the Land Management Department of DDA has not furnished any information to the appellant in regard to points at A, B & C of RTI application. It is a serious matter and is indicative of causal attitude of the concerned officials of LM department. It is also noticed that Shri Kanhia Lal, Assistant Director, has not come prepared to assist the Commission in the disposal of the matter in hand. INTERIM DECISION 6. Summons may be issued to Director (LM) to appear before the Commission on 6.4.2009 at 1100 hrs. He may also be directed to furnish point-wise information to the appellant and this Commission two days before the date of hearing. Sd/- (M.L. Sharma) Central Information Commissioner Authenticated true copy, Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission (K.L. Das) Assistant Registrar

Shri Kanhia Lal vs Delhi Development Authority on 27 February, 2009

Central Information Commission

Court No. - 10 Case :- CONTEMPT APPLICATION (CIVIL) No. - 3440 of 2010 Petitioner :- Constable Brij Mohan Tiwari Respondent :- Sanjay M. Sarde, Dy. Inspector General Of Police (Est.) Petitioner Counsel :- N.L. Pandey Hon'ble Vikram Nath,J. Heard the learned counsel for the applicant. It is alleged that the order dated 18.5.2010 passed by this Court has been violated. From a perusal of the petition, a prima facie case is made out. Issue notice to opposite party fixing 7.9.2010. The opposite party need not appear at this stage. The counter affidavit may be filed within the aforesaid period or else charges may be framed after summoning the noticee. However, one more opportunity is granted to the opposite party to comply with the order within a month. The office may send a copy of this order along with the notice. Order Date :- 23.7.2010 pk

Constable Brij Mohan Tiwari vs Sanjay M. Sarde, Dy. Inspector ... on 23 July, 2010

Allahabad High Court