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IN THE HIGH COURT OF KERALA AT ERNAKULAM Con.Case(C).No. 308 of 2010(S) 1. SUNIMOL L.PULICKAN,W/O.P.O.VARGHESE, ... Petitioner Vs 1. ANILA GEORGE,AGED & FATHR'S NAME NOT ... Respondent 2. LILLLY MARIA,AGE AND FATHER'S NAME N0T For Petitioner :SRI.K.I.ABDUL RASHEED For Respondent : No Appearance The Hon'ble MR. Justice S.SIRI JAGAN Dated :26/03/2010 O R D E R S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - C.O.C No. 308 of 2010 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of March, 2010 J U D G M E N T This contempt case is filed complaining of non- compliance of Annexure A2 interim order passed in W.P.(C) No.5910/2010. In view of the fact that, subsequently the writ petition itself was disposed of, I think that it is not necessary to take further proceedings in the contempt case. Accordingly the contempt case is closed. S. SIRI JAGAN JUDGE shg/ 

Sunimol L.Pulickan vs Anila George on 26 March, 2010

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL A No. 1969 of 2006() 1. K. NOUSHAD, S/O. HAMMED, ... Petitioner Vs 1. STATE OF KERALA, ... Respondent 2. V. ABDUL RASHEED, For Petitioner :SRI.C.K.PRASAD For Respondent :SRI.P.SANJAY The Hon'ble MR. Justice K.THANKAPPAN Dated :01/08/2007 O R D E R K.THANKAPPAN, J. ---------------------------------------------- CRL. APPEAL NO.1969 OF 2006 ---------------------------------------------- Dated this the 1st day of August, 2007 JUDGMENT This appeal is filed against the judgment in S.T.C. No.2187 of 2004 on the file of the Judicial First Class Magistrate's Court, Thalassery. By the impugned judgment, the trial court acquitted the accused under Section 256 (1) Cr.P.C. 2. The impugned order would show that the accused - second respondent herein was acquitted for the reason that the complainant - appellant was not present before the court below on the date of posting of the case for giving evidence. Though the dates of adjournments are mentioned in the order, the order sheet produced by the appellant would show that on the said dates of posting of the case, there was no sitting. However, on certain days of posting, the appellant was absent, but his absence was represented except on 23.7.2005, the date of the impugned judgment. The order sheet would also show that the accused - second respondent did not appear before the court below on summons and  CRL.APPEAL NO.1969/2006 2 coercive steps were taken against him and finally he was arrested on 16.12.2004 by issuing non-bailable warrant. Thereafter the case was posted on two occasions for evidence, but there was no sitting on those two days. The learned Magistrate found that the appellant was not interested in prosecuting the case. The said finding is not correct. The appellant had taken steps to produce the accused before the court below. That apart, the impugned judgment would not show that the court below could not proceed with the case only because of the absence of the complainant. 3. The impugned judgment is not legally sustainable in the light of the principles laid down by this Court in the decisions reported in Don Bosco v. Partech Computers Ltd., 2005(2) K.L.T. 1003 and G.F.S. Chit & Loans (P) Ltd. v. Rajesh, 2006(3) K.L.T. 825. In the above judgments, this Court had categorically held that mechanical order under Section 256(1) Cr.P.C. without applying judicial mind is illegal and not justifiable. The Apex Court had also taken the same view in the decision reported in Associated Cement Co. Ltd. v. Keshvanand, 1998(1) K.L.T. 179 (SC). In the above circumstances, this Court is of the view that the impugned judgment is liable to be set aside. CRL.APPEAL NO.1969/2006 3 4. It is seen that inspite of the acquittal of the accused due to the absence of the appellant, there was a delay of 156 days in filing the petition for special leave to appeal. Hence, the matter can be remanded only on terms. The impugned judgment is accordingly set aside and the matter is remanded to the trial court for fresh disposal from the stage at which the impugned judgment was passed on condition that the appellant pays an amount of Rs.3000/- as costs to the counsel appearing for the second respondent within one month from the date of appearance before the court below. The Crl. Appeal is allowed by way of remand. The parties shall appear before the court below on 7.9.2007. (K.THANKAPPAN, JUDGE) sp/  CRL.APPEAL NO.1969/2006 4

K. Noushad vs State Of Kerala on 1 August, 2007

Kerala High Court

Court No. - 34 Case :- FIRST APPEAL FROM ORDER No. - 264 of 2010 Petitioner :- The Oriental Insurance Company Limited Respondent :- Smt. Rani Devi And Others Petitioner Counsel :- Km. Pratima Srivastava Hon'ble Prakash Chandra Verma,J. Hon'ble Ram Autar Singh,J. Admit. Issue notice. The appeal will be heard and the stay of the order impugned passed by the learned Judge, Motor Accident Claims Tribunal/Additional District Judge/Special Judge, Aligarh in MACP No. 316 of 2007 dated 23.10.2009 will be operative subject to deposit of the entire awarded amount alongwith the interest accrued thereon till date within a period of one month from the date. The Tribunal concerned is directed to release 50% of the total deposited amount to the claimant/s without security and the remaining balance 50% of the total deposited amount will be kept in a short term Fixed Deposit of a Nationalised Bank and will be renewed time to time till the payment is made or till further order/s of the Court, whichever is applicable. The entire deposited amount will include the statutory deposit of Rs. 25,000/- which will be remitted in favour of the concerned Tribunal as expeditiously as possible. Order Date :- 28.1.2010 ssm

The Oriental Insurance Company ... vs Smt. Rani Devi And Others on 28 January, 2010

Allahabad High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 15855 of 2009(B) 1. M.USHA KUMARI,STAFF NURSE,GOVERNMENT ... Petitioner Vs 1. STATE OF KERALA,REPRESENTED BY THE ... Respondent 2. THE DIRECTOR OF HEALTH SERVICES, 3. THE DISTRICT MEDICAL OFFICER OF HEALTH, For Petitioner :SRI.T.A.SHAJI For Respondent : No Appearance The Hon'ble MR. Justice P.N.RAVINDRAN Dated :09/06/2009 O R D E R P.N.RAVINDRAN, J. ------------------------------------- W.P.(C)No.15855 of 2009 -------------------------------------- Dated 9th June, 2009 JUDGMENT Heard Sri.T.A.Shaji, the learned counsel appearing for the petitioner and Smt.Anu Sivaraman, the learned Senior Government Pleader appearing for the respondents. 2. The petitioner is presently working as Staff Nurse in the Government Mental Health Centre, Kozhikode. She was appointed as Staff Nurse on 10.4.1992 on advice by the Kerala Public Service Commission. Prior to her regular appointment, she had served as Staff Nurse on provisional basis during the period from 9.10.1987 to 31.3.1989 and thereafter from 7.12.1989 to 9.4.1992. The petitioner's grievance is that though the provisional service rendered by her during the aforesaid spells has to be reckoned for the purpose of grant of increments, applying Government Decision No.2 under Rule 33 of Part I of the Kerala Service Rules, the said benefit has not so far been extended to her. Relying on the Full Bench decision of this Court in State of Kerala v. Ponnamma (2005(4) KLT 987 (F.B)), the petitioner contends that as the provisional service rendered by her was prior to 1.10.1994, such provisional service has to be reckoned for the purpose of grant of increments. In this writ petition, the petitioner  WP(C).No.15855/2009 2 seeks a writ in the nature of mandamus commanding the respondents to reckon the provisional service rendered by her as Staff Nurse for the purpose of increments and other service benefits. 3. The pleadings disclose that the petitioner has not moved any authority other than the District Medical Officer of Health, Kozhikode claiming the said benefit. In my opinion, the petitioner ought to have moved the Director of Health Services instead of moving the District Medical Officer. In any case, the petitioner ought to have moved the Director of Health Services before seeking the intervention of this Court. I accordingly dispose of this writ petition with the direction that in the event of the petitioner filing an appropriate representation before the second respondent within one month from today, setting out her claims and contentions, the second respondent shall consider the same in the light of the decision of the Full Bench of this Court in State of Kerala v. Ponnamma (2005(4) KLT 987 (F.B)) and other decisions of this Court and take a decision thereon within three months from the date on which such a representation is received. Needless to say, before passing orders as directed above, the petitioner shall also be afforded a reasonable opportunity of being heard. The Director of Health Services after orders are passed as directed above  WP(C).No.15855/2009 3 communicate a copy thereof to the petitioner expeditiously. In the event of the petitioner's claim being allowed, the Director of Health Services shall also issue necessary directions to the concerned officer to disburse to the petitioner the monetary benefits, expeditiously. P.N.RAVINDRAN Judge TKS 

M.Usha Kumari vs State Of Kerala on 9 June, 2009

Kerala High Court

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 1133-1134 OF 2009 (Arising out of SLP(C) Nos. 1015-1016/2008) State of M.P. & Ors. .. Appellant(s) Versus M/s Gaylord Chemicals .. Respondent(s) ORDER [ D.K. JAIN ] ...................J. [ R.M. LODHA ] NEW DELHI, FEBRUARY 20, 2009.  Delay condoned. Leave granted. Both these appeals arise out of order dated March 14, 2007, passed by the High Court of Madhya Pradesh, Bench at Indore in Writ Appeal No. 180 of 2007, whereby the appellate Bench has dismissed the intra-Court appeal preferred by the appellants before us under the Madhya Pradesh Uchha Nayayalaya (Khand Nyaupith Ko Appeal) Adhiniyam, 2005 (for short the Adhiniyam) as not maintainable. The said appeal had been filed by the appellants against order dated 5th July, 2005, passed by a learned Single Judge of the High Court. The Division Bench held that the order impugned in the appeal was, in substance, passed by the learned Single Judge in exercise of his jurisdiction under Article 227 of the Constitution and therefore, in terms of proviso to Section 2 of the Adhiniyam, intra- Court appeal was specifically barred. ..2/- C.As. 1133-1134/2009... :2:  We have heard learned counsel for the parties. We have also perused the writ petition filed by the appellants in the High Court. We are of the view that the Division bench was not justified in dismissing the appeal on the stated ground. It is evident from the body of the writ petition that the writ petitioner had invoked the jurisdiction of the High Court both under Articles 226 and 227 of the Constitution, seeking issuance of an appropriate Writ of Certiorari, quashing the orders passed by the sub-divisional officer-cum-competent authority and the Revenue Commissioner under the M.P. Lok Parisar (Bedakhali) Adhiniyam, 1974. The learned Single Judge allowed the writ petition and set aside both the orders with certain directions. Moreover, the grounds taken in the writ petition go to show that primarily it was a petition under Article 226 of the Constitution and the order passed by the Single Judge was also under the said Article. A Similar controversy, with reference to clause 15 of the Letters Patent of the Bombay High Court, came up for consideration of this Court in Umaji Keshao Meshram & Ors. vs. Radhikabai, Widow of Anandrao Banapurkar & Anr.- (1986) suppl. SCC 401. In that case, it was held that where the ..3/- C.As. 1133-1134/2009... :3: facts justify a party in filing an application either under Article 226 or 227 of the Constitution and the party chooses to file his application under both these Articles, in fairness of justice to party and in order not to deprive him of valuable right of appeal, the Court ought to treat the application as being made under Article 226, and if in deciding the matter, in the final order the Court gives ancillary directions, which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under Clause 15 of the Letters patent, where the substantial part of the order sought to be appealed against is under Article 226 of the Constitution. The ratio of the said decision squarely applies on facts in hand. As noted earlier, the writ petition had been filed in the High court both under Articles 226 and 227 of the Constitution. Once, the writ petition was entertained and allowed on merits, it cannot be said that the Single Judge had exercised his jurisdiction only under Article 227, as held by the Division Bench. For all these reasons, we are of the opinion that the Division Bench erred in holding that the appeal was not maintainable against order dated 5th July 2005, passed by the ..4/- C.As. 1133-1134/2009... :4: learned Single Judge. Consequently, we set aside the impugned order and remand the appeal preferred by the appellants herein to the Division Bench for its decision on merits. We may note that although in the impugned order, it is mentioned that the appeal is barred by limitation but no final decision on the application seeking condonation of delay, filed along with the writ appeal, seems to have been taken. It will be open to the Division Bench to pass appropriate orders on the said application.  In view of the fact that matter is quite old, we would request the High Court to decide the appeal as expeditiously as practicable. The appeals are allowed in the above terms with no order as to costs. ...................J.

Author: ...................J.

State Of M.P. & Ors vs M/S Gaylord Chemicals on 20 February, 2009

Supreme Court of India

JUDGMENT 1. Heard both the Counsel. 2. The petitioner-plaintiff has filed this revision aggrieved by the orders of the III Additional Judge, City Civil Court, Sccunderabad in I.A.No.1031/97 in O.S.No.311/1997, dated 3-11-1997. 3. The learned Counsel for the petitioner submits that a suit O.S.No.311/97 has been filed for recovery of Rs.7,78,643/- along with a petition under Order 38, Rule 5 C.P.C. praying to order attachment before judgment the plot bearing No.585 admeasuring 346 sq.yards situated at Salebnagar, Kurdu Village, L.B. Nagar Municipality, Hayatnagar Revenue Mandal, Ranga Reddy District covered by Sy.No.52 to 56 and also to order an attachment before judgment of movables and immovables as pointed out by the petitioner at the time of attachment such as plant and machinery, tables, chairs, almirahs along with the building etc. 4. It is stated by the learned Counsel for the petitioner that the petitioner is a Company incorporated under the Companies Act and carrying on business and it is having its registered office at Secunderabad. The first respondent represented by its Managing Partner and other partners approached the plaintiff Company for the bill discounting facility stating that their firm is engaged in the manufacture of Engineering plastics, Rigid Polyurethene Foam, Isocynarate foam etc., and stated that for carrying on the business they will be requiring to purchase from time to time various items of which the materials from different Company and from different suppliers. It is stated that in respect of the spares and raw materials purchased from the suppliers draw bills of exchange or Hundies whose period is of 90 days on documents against acceptance basis and for these purposes they have requested the petitioner to discount the said bills/Hundies drawn by their suppliers upto a limit not exceeding Rs.8,49,000/- per month and agreed to repay promptly within the period of issuance of each and every one of the bills the amount so paid by the petitioner/ plaintiff if paid within a period of issuance and if not paid within the said period, they undertook to pay interest at 36% per annum excluding other costs, damages expenses etc., which may be incurred by the petitioner Company, the respondents also undertook to indemnify the petitioner for any loss, damage costs, charges or expenses which may be caused or occasioned to the petitioner/plaintiff on account of acceeding to their request and paid the suppliers, bills on account of any claims disputes relevant to them. Apart from that the respondents also gave their acceptance to other terms and conditions which is evident from the undertaking dated 26-9-1995. 5. The learned Counsel for the petitioner further submits that basing on the request of the respondents, the petitioner accepted for bill discounting and has extended the bill discounting facility to the respondents. The respondents have forwarded the bill amounting to Rs.8,49,000/- of M.s N.M. Urethene Catalysis Private Limited, and the drawee of the said bill dated 18-12-1995 is the first respondent. The respondents gave personal guarantee of their plant and machinery and also factory premises to the bill discounting facility extended to them. The fifth respondent stood as guarantor for bill discounting facility extended to them vide his undertaking letter dated 18-12-1995. It is also signed by the partners of the first respondent. The fifth respondent gave his plot described in the petition. The respondents have not cleared their dues to the petitioner Company, as per the statement of account, calculated upto 31-7-1997 and the total outstanding is Rs.7,78,643-00. A cheque bearing No.266025, dated 10-6-1996 drawn a Punjab National Bank, Hyderabad was issued to the petitioner by the respondents and was bounced. It was returned with endorsement "exceeds arrangement" vide their bankers Memo dated 13-6-1996. Inspite of reminders and notices the respondents have not cleared the same. 6. The petitioner Company on reliable information came to know that the respondents in order to evade the payment to its creditors, are alienating their movable and immovable property to defeat the claim of the petitioner. Therefore, unless they are prevented from alienating the movable and immovable property, especially the property mentioned in the petition by an order of attachment before judgment, the petitioner may not realise the fruits of the decree that may be passed. The respondents also segregating the assets and movables and they are in the process of creating third party interest by alienating the movables and immovables. The petitioner is a finance Company and answerable to its depositors. Any delay in realising the amounts or failure to realise their amounts, the Company would Suffer severe loss which cannot be compensated. Hence, petitioner seeks to pass orders of attachment of property before judgment. 7. Respondent Nos.1 to 3 remained exparte. Petition against Respondent No.4 was dismissed as no batta was paid and the petition is being contested only by the fifth respondent -guarantor. The fifth respondent, in his counter affidavit, contends that the first respondent along with his partners approached the petitioner is partly true and their involvement in manufacture of the products mentioned therein and also the mode of transaction carried on by them in regard to the payments in part but not the transaction which is mentioned in the petition amounting to Rs.8,49,000/-. The true facts are that the petitioner by virtue of proceedings TCIF/Bills/AFT, dated 13-9-1995 has sanctioned for a discount of the bills of 1st respondent Company against N. Murethane Catalysts Private Limited to the total amount of Rs.7,82,838/- thereby a cheque bearing No.849529 drawn on State Bank of Mysore favouring N. Murethane Catalysts Private Limited was issued. To this particular transaction the other respondents herein have approached one L. Jayaram, Tax Consultant and who in turn approached the fifth respondent with a request that the transaction is only for a period of 60 days for which he requested to stand as guarantor. He also requested to deposit original sale deed etc. which were required to be furnished with the petitioner. Accordingly, having confidence in Mr. Jairam who has introduced these respondents the fifth respondent has accepted the transaction without any personal gain because the said Jayaram also stood as the personal guaranter for the said transaction. In pursuance of finalising the formality, the petitioner herein after deducting Rs.38,606/- has issued a cheque for Rs.7,44,232/- to the knowledge of the fifth respondent and the said transaction is over. In such circumstances, his original sale deed etc. were handed over to him by L. Jayaram some time in the month of December 1995. As such, he will be confined with his involvement only to the first transaction, but surprisingly he was made a party in this suit and also the bailiff has served the summons on 30-8-1997. He submits that the fifth respondent is not aware of any sanctions or other suit transactions by signing anywhere and also did not handover his original sale deeds to other respondents or to the petitioner. The fifth respondent is also disputing the signature alleged to have been affixed on Ex.A1. 8. The trial Court, though granted attachment before Judgment, after notice and hearing of both the parties and on consideration of evidence has dismissed the petition and raised the order of attachment. 9. The point for consideration in this case is whether the petitioner has made out a case for attachment before judgment within the meaning of Order 38 Rule 5 of C.P.C.? 10. The submission of the learned Counsel for the petitioner is that Ex.A-1 is the agreement for continuing guarantee i.e. bill discounting facility to be extended to the first respondent-firm, Ex.A-2 is the letter of guarantee on behalf of the firm wherein the Respondent No.5 stood as guarantor and signed over the document for continuing guarantee from time to time under the Promissory Note not exceeding a sum of Rs.8,49,000/- for the transactions and purchase effected by Respondent No. 1 - firm and the payment on its behalf. Ex.A-3 to A-6 and Ex.A-9 to 13 are inter se correspondence between the petitioner, the first respondent and fifth respondent with regard to the payment of amounts on behalf of the first respondent. Ex.A7 is the certified copy of the sale deed of the property in favour of the Respondent No.5 Ex.A8 is the certified copy of the sale deed in favour of the predecessor in title of Respondent No.5 of the same property. Ex.A14 is the copy of the statement of account Exs.15 and 16 are the nil encumbrance certificates in respect of the property of the fifth respondent. The arrangement was continuing between the petitioner and the first respondent Company, but an amount of Rs.7,78,643/- was found due and as the payment was not effected, the demand was raised by the petitioner Company first, to the respondent firm, but as it was evading the payment, the petitioner Company filed the suit for recovery of the said amount impleading the fifth respondent, who stood as guarantor, and also filed a petition under Order 38 Rule 5 C.P.C. for attachment of property before judgment alleging that the respondents are trying to obstruct or delay the execution of the decree that may be passed against them. 11. It is significant to note that all the above documents which were marked at the time of the hearing of the petition are xerox copies. No originals have been filed. So far with regard to these copies, the learned Counsel for the petitioner Mr. D.Devender Rao submits that at the time of filing the suit these copies were verified with the originals, but there is no stamp or attestation of any Court Officer on these documents. It is not known why the petitioner failed to file the original documents atleast at the time of hearing of the petition when the same are seriously contested by the fifth respondent including his signature over the discounting facility document as guarantor. The fifth respondent has taken a specific plea in his counter affidavit that his signature has been forged and that he did not sign any document nor he has in any way concerned with the suit transactions now set up in the suit on which the claim of the petitioner rests. 12. Apart from this, it is also to be seen whether xerox copies of documents can be relied on for the prima facie conclusion of the liability of the fifth respondent to the suit transactions. In the affidavit filed in support of the petition, the petitioner Company has merely stated that the respondents are trying to alienate the property. The petitioner has not stated in the affidavit as to what type of action the respondents are taking or about to take or took for alienating the property and whether fifth respondent has entered into any agreement with third parties or whether the fifth respondent is trying to create any encumbrance in contracting with third parties so that the same will not be available in the event of the decree being passed in favour of the petitioner. The material document on which the liability, if any, of the fifth respondent clinches is Ex.A-2. 13. On perusal of xerox copy of Ex.A-2 shows that it has been addressed to the petitioner with regard to the bill discounting facility signed by two partners of the first respondent dated 18-12-1995 on a ten rupees stamp paper. Below that there is initial/ signature under which S. Venkateshwar Rao is written and plot No.585, Prashantnagar, Vanastalipuram, Hyderabad-500 660. No date is written. The petitioner is a Finance Limited Company wherein the documents will be executed in correct proformas maintained by institutions or ex facie the signatures should state the capacity, status of a person who has signed over it. 14. It is stated by Mr. Kishore, learned Counsel for Respondent No. 1 that financial institutions do not return the original documents or sale deeds of the guarantor unless and until the liability is discharged. But, in this case, it is not disputed before me that fifth respondent has specifically stated in the counter that the original sale deeds of his property which he had submitted earlier to the petitioner through Jairam, were already returned to him in the month of December 1995 itself. To that effect the explanation is that the petitioner has replaced those documents by certified copies, but nothing has been stated by way of reply affidavits. 15. The trial Court, while considering the effect of Ex.B1 and B2, in Para 7 of the order, has stated that the fifth respondent stood guarantor for the transaction under Ex.Bl which was original letter issued by the petitioner to the first respondent dated 13-9-1995 while making payment of Rs.7,44,232. Ex.Bl is the original letter under which the petitioner paid an amount of Rs.7,44,232/- through cheque drawn on State Bank of Mysore in favour of the first respondent. The lower Court also held that no prudent man will allow the bill discounting facility to such a huge sum of Rs.8,49,000/- relying on the xerox copies of documents and so far with regard to Ex.A-2 it is observed that whether the signature of fifth respondent is forged or not is a debatable point which can ' only be decided during the course of full fledged trial, but not at this interlocutory stage and negatived the plea of the petitioner that fifth respondent has stood as guarantor for the suit transaction. The lower Court has also held that Respondent Nos.1 to 3 remained exparte and the relief against the fourth respondent was dismissed and also rejected the other prayer of the petitioner for attachment of plant, machinery, tables etc. along with the building and the factory site and also raw materials lying in the factory premises, finished and, unfinished situated at Plot No.30, Electronic Complex Extension, Kushaiguda, Hyderabad as no particulars were given nor the valuation of the material or the municipal number of the building have been furnished. 16. As the petitioner failed to produce any cogent evidence before the Court, and in the absence of not filing the original documents for which no explanation is submitted by the petitioner, I am not persuaded to take a different view, for it is not safe to rely on the xerox copies of the documents on record. 17. There is no error of jurisdiction or illegality in the order passed by the Court below. The C.R.P. lacks merit and it is accordingly dismissed. 18. However, the trail Court shall dispose of the case uninfluenced by the observations of this Court or Court below.

T.C.I. Finance Limited vs S. Venkateswara Rao And Others on 26 February, 1998

Andhra High Court

Court No. - 7 Case :- WRIT - A No. - 71091 of 2009 Petitioner :- Amit Kumar Respondent :- Addl. District & Sessions Judge And Others Petitioner Counsel :- Manish Goyal Hon'ble Ran Vijai Singh,J. Heard Sri Manish Goel learned counsel for the petitiner. This writ petition has been filed seeking a writ of mandamus directing respondent no.1 to decide the Rent Control Appeal No. 61 of 2007 M/s Ram Narayan Om Prakash & others Vs. Amit Kumar which is pending since 2007. Sri Goel has brought order sheet on record as annexure no.4 to the writ petition. He has also given complete details of adjournments sought in para 9 of the writ petition which has been granted by the court below. From the perusal of which it appears that on number of dates, adjournment has been sought by the appellant and on the some dates, adjournment has been allowed on payment of cost also. In view of that and considering the facts and circumstances of the case, it is provided that the Rent Control Appeal No. 61 of 2007 M/s Ram Narayan Om Prakash & others Vs. Amit Kumar shall be decided by respondent no.1 expeditiously preferably within a period of four months from the date of receipt of certified copy of the order of this Court without granting any unnecessary adjournment to the learned counsel for the parties. Subject to above observations, the writ petition is disposed of. Order Date :- 8.1.2010 VKM

Amit Kumar vs Addl. District & Sessions Judge ... on 8 January, 2010

Allahabad High Court

Gujarat High Court Case Information System Print ST/11179/2009 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD STAMP NUMBER (SPL.C.A.) No. 11179 of 2009 ====================================== JEHANGIR KAWASJI PATEL THRO P.O.A HOLDER NAVIN - Petitioner Versus SECRETARY & 4 - Respondents ====================================== Appearance : MR RAMNANDAN SINGH for Petitioner(s) : 1,MS ABHA B MAKWANA for Petitioner(s) : 1, None for Respondent(s) : 1 - 5. ====================================== CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 19/01/2010 ORAL ORDER1. Office objections to be removed on or before 04/02/2010, failing which, the petition shall stand dismissed for default automatically without referring the matter to the Court. 2. On removal of office objections, Registry is directed to notify this petition for admission-hearing on 08/02/2010. [M.R.SHAH,J] *dipti     Top

Author: M.R. Shah,&Nbsp;

Jehangir vs Secretary on 19 January, 2010

Gujarat High Court

Gujarat High Court Case Information System Print LPA/1460/2004 3/ 3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 1460 of 2004 In SPECIAL CIVIL APPLICATION No. 1361 of 2003 With LETTERS PATENT APPEAL No. 1501 of 2004 In SPECIAL CIVIL APPLICATION No. 1211 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE V. M. SAHAI HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 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 ? ========================================================= AMRELI NAGAR PALIKA - Appellant(s) Versus BHANUBEN ODHAVJIBHAI & 1 - Respondent(s) ========================================================= Appearance : MR PV HATHI for Appellant(s) : 1, MR GM JOSHI for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE V. M. SAHAI and HONOURABLE MR.JUSTICE KS JHAVERI Date : 11/10/2011 ORAL JUDGMENT(Per : HONOURABLE MR.JUSTICE KS JHAVERI) 1. Both these appeals arise out of the common judgment and order dated 24.12.2003 passed by the learned Single Judge in Special Civil Applications No.1211/2003 & 1361/2003 preferred under Articles 226 & 227 of the Constitution of India whereby, both the said petitions were partly allowed. 2. We have heard learned counsel for the parties. In a recent decision of the Full Bench rendered in Special Civil Application No.12382/2010 with 15308/2010 dated 28.07.2011, it has been held that Letters Patent Appeal against petition preferred under Article 227 of the Constitution of India is not maintainable. 3. In a similar matter being L.P.A. No.1204/2004, this Court was required to consider a similar issue. The following observations were made by this Court in Para-2 of its judgment dated 23.09.2011; "2. In view of the recent decision of the Full Bench in Special Civil Application No. 12382 of 2010 with Special Civil Application No. 15308 of 2010 delivered on 28.7.2011, holding that Letters Patent Appeal against petition under Article 227 of the Constitution of India is not maintainable. Only on this ground, the Letters Patent Appeal is liable to be dismissed. However, Mr.P.V.Hathi, learned counsel appearing for the appellant has relied on the Full Court decision in case of Pathan Umravkhan Amirkhan v. Shakinaben wd/o. Umravmiya and others 2004(3) GLR 2329 whereby it is held that Labour Court has no jurisdiction. Since we are dismissing the Appeal on the ground that it is not maintainable, we cannot enter into the question of merits of case. Moreover, it is relevant to point out here that controversy on merits involved in this Appeal is covered by the decision of earlier judgment of this Court in LPA No. 1205 to 1213 of 2003 decided on 28.11.2003 and LPA No.1079 of 2003 decided on 25.11.2003. But since LPA is not maintainable, we have not entered into rival contentions of the learned counsel for the parties. This Appeal is devoid of any merits. It is accordingly dismissed." 4. In view of the above, both these appeals stand dismissed on the ground on non-maintainability, without entering into the rival contentions of learned counsel for the parties. The appeals are, accordingly, dismissed. [V.M. SAHAI, J.] [K. S. JHAVERI, J.] Pravin/*     Top

Author: V. M. Jhaveri,

Amreli vs Bhanuben on 11 October, 2011

Gujarat High Court

Gujarat High Court Case Information System Print CRA/22/2005 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 22 of 2005 ========================================================= KIRANCHANDRA BHAMBHAI - Applicant(s) Versus KAMAL KIRANCHANDRA BHAMBHAI - Opponent(s) ========================================================= Appearance : MR YM THAKKAR for Applicant(s) : 1, MR CB DASTOOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 18/08/2010 ORAL ORDER Learned advocate Mr. Thakkar for the applicant states that the main H.M.P. No. 74 of 2001 is settled between the parties and places on record copy of the compromise which is filed at Exh.81 in the said petition. The same is taken on record. In view of the above, the Civil Revision Application does not survive and the same is disposed of. Rule is discharged with no order as to costs. Interim relief, if any, is vacated. [H.B. ANTANI, J.] pirzada/-

Author: H.B.Antani,&Nbsp;

Kiranchandra vs Unknown on 18 August, 2010

Gujarat High Court

[Complete Act]

Central Government Act

Gujarat High Court Case Information System Print CR.MA/5095/2006 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIM MISC.APPLICATIONs Nos. 5095,5098,5099 and 5101 of 2006 ====================================== GURUPALSINGH JASBIRSINGH PROPRIETOR OF M/S.G.S.TEXTILES Versus JAYPEE EXPORTS LTD AND OTHERS ====================================== Appearance : MR BR GUPTA for the Applicant None for Respondent(s) : 1 - 3. Ms Archana Raval for the respondent ====================================== CORAM : HONOURABLE MR.JUSTICE AKSHAY H.MEHTA Date : 05/10/2007 COMMON ORAL ORDER: Leave to give fresh address of the respondents. Upon frunishing the fresh address, Registry to issue notice returnable on 25.10.2007. Ms Archana Raval, learned APP waives service of the notice for the respondent-State. (Akshay H Mehta, J.) *mohd     Top

Author: Akshay H.Mehta,&Nbsp;

Jaypee vs None For on 21 March, 2011

Gujarat High Court

_ 1 _ IN THE HIGH COURT OF EARNATAEA AT BANGALORE DATED THIS THE 23m DAY OF NOVEMBER. EOTOC. BEFORE 1' I I THE RONELE MRJUSTICE3 WRIT PETITION NO.35928::'OF' " BETWEEN: I I I I I SRI. D LOGANATHAN S/O M DORAI RAJ AGED ABOUT 49 YEARS . V. R/AT NO.49, 111 CROSS, 5 MARAPPATHOTTA - ' J C NAGAR, '- ._ . = ._ BANGALORE 560006 " 1 PETITIONER (By Sri RUMAR ADV.) THE REGISTRAR .. ---- THE BANGALORE VUjNIvERS'ITY JNANA BHARATHI CAMPUS, BA.i\?GA1{ORE 55005.5 .... I RESPONDENT g_S_R1 ADV.) PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT T O I THE RESPONDENT UNIVERSITY TO PROVIDE CHANCE TO ~ I?E'II'.IfIONER TO WRITE EXAIVIINATEON OF HIS REMAINING ONE --.,SUB.JEC'I' IN IST YEAR LLB. THIS VVRIT PETITEON COMING ON FOR PRELIMINARY I HEARING THIS DAY. THE COURT PASSED THE FOLLOWING: -2... ORDER Sri N.K.Rarnesh, learned Advocate is directediitokptaiie notice for the respondent. 2. In this case, the petitioner has;'soiight._i"orVa diifeoti'L»:n to the respondent--Ur1iversity '*.'.KiC')'p_V<.31'l'Z{11:t'].'l};.'I'£1VtO" for the ; examination of remaining one sui5jec't--.of 15t'y'€.ar LLB course. 3. Learr1edaCounse--1i--fortheppetitioneijsiibmits that the petitioner \xz111§«_.Vnot€'seekj'further _opporttii'iity to appear for the examinati.on.. 7;. in this Court has directed the Universityitoh pern1it'iih'ey:p'etitioners therein to provide a last oppiirtiiriity oi""app_ea1fing for the examination in the failed ' s'ubjVect_s course. The petitioner is also entitled for . 'sirniiiarre1iefL'p;Therefo1'e, 1 direct the respondent--University to grant opportunity to the petitioner to appear for the ., "examination in the failed subjects of first year LLB course. it hereby clarified that petitioner is not entitled for any at "Lfurther opportunity to appear for the examination in the 3% -3 _. 3 _. failed subjects, if any. Writ petition is disposed of accordingly. No costs. 5. Sri N.K.Ramesh, learned Advocate iS.<}7€F»II}i'tt€=.'jh'! file his vakalath within a period of eight weeks KLY/

Author: S.Abdul Nazeer

Sri. D Loganathan vs The Registrar on 23 November, 2010

Karnataka High Court

ENTRAL INFORMATION COMMISSION Club Building (Near Post Office) Old JNU Campus, New Delhi - 110067 Tel: +91-11-26161796 Decision No. CIC/SM/A/2011/000246/SG/13113 Appeal No. CIC/SM/A/2011/000246/SG Relevant FactsAppellant : Mr. Maneesh Agnihotri, Qt.No.6, Type lV, EPF Colony, Shyam Bagh, Umrred Road, Nagpur - 440024. Respondent : Mrs. Madhu Sham PIO & Dy. Secretary, Central Vigilance Commission, Satarkta Bhavan, GPO Complex, Block-A, I.N.A., New Delhi RTI application filed on : 07/01/2009 Reply of the PIO : 06/02/2009 First appeal filed on : 25/02/2010 FAA order : 20/03/2009 Second appeal received on : 03/09/2011 emerging from the Appeal: Information sought in the RTI Application : i) Action taken on my letter regarding whistleblower-protection reg(copy enclosed) ii) Copy of comments/ reply submitted by CVO of EPFO iii) Copy of any direction/order issued by CVC in this regard. Reply of the PIO: (a)The appellant is informed that his representation regarding protection to "whistleblower" was forwarded to CVO, EPFO and the Commission decided not to interfere in the matter further as the same was under investigation ; and (b) the copy of the CVO, EPFO's reply to the Commission was denied under Sec8(1)(g) of the RTI Act. Grounds for First appeal: That the application of Section 8(1)(g) RTI Act 2005 is wrong and liable to be rejected. As per section 8(1)(g) information, the disclosure of which would endanger the life of physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes. Neither of the two reasons is considered. First reason is not mentioned at all and for the second one I already requested that the information if given by editing the name of person is acceptable to me. Information has been denied. FAA order: As a final view in the matter had not been taken by the Administrative Authority concerned, the CPIO's decision to deny the information under Sec 8(1)(h) of the RTI Act was correct. I, therefore uphold the decision of the CPIO. Grounds for Second appeal: The information sought for has not been provided. Relevant Facts emerging during Hearing: The following were present Appellant: Mr. Maneesh Agnihotri on video conference from NIC-Nagpur Studio; Respondent: Mrs. Madhu Sham, PIO & Dy. Secretary; The respondent states that information regarding query-1 has been provided. But at the time when RTI application was made investigation was incomplete and the role of the appellant was also being inquired into, hence information was not provided claiming exemption under Section 8(1)(h). The PIO states that the investigation is over and is directed to send the information about query-2 to the Appellant. Decision: The Appeal is allowed. The PIO is directed to send the information on query-2 as per available records to the Appellant before 10 July 2011. 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 27 June 2011 (In any correspondence on this decision, mention the complete decision number.) (JK)

Mr. Maneesh Agnihotri vs Central Vigilance Commission on 27 June, 2011

Central Information Commission

PETITIONER: INDRAVADAN H. SHAH Vs. RESPONDENT: STATE OF GUJARAT & ANR. DATE OF JUDGMENT19/03/1986 BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) SEN, A.P. (J) VENKATARAMIAH, E.S. (J) CITATION: 1986 AIR 1035 1986 SCR (1) 926 1986 SCC Supl. 254 1986 SCALE (1)456 ACT: Constitution of India, 1950, Articles 14 and 16 - No discrimination in appointment either by promotion or directrecruitment - Necessity for. Gujarat Judicial Service Recruitment (Amendment) Rules, 1979 - Rules 6(4)(i) and 6(4)(iii)(a) - Promotion to Assistant Judge from category of Civil Judge Junior/Senior Division - Imposition of age restriction - Whether ultra vires Articles 14 and 16. HEADNOTE: The Gujarat Judicial Service Recruitment Rules 1961 as amended upto 1979 lay down the mode of recruitment to and constitution of the Gujarat Judicial Service. The Service shall constitute of two branches, namely, (1) Junior Branch and (2) Senior Branch. Rules 6(4)(i) and 6(4)(iii)(a) provide that a Civil Judge (Senior Division) after completing 48 years of age will not be eligible for consideration for promotion to the post of Assistant Judge and his name appearing in the select list will be struck out therefrom on his completion of 48 years. The appellant was found suitable for appointment by promotion to the post of Assistant Judge and his name appeared in the Select List prepared for the year 1982-83. His turn did not come up and the select list lapsed on 30.4.1983. On that date as he had already completed 48 years, his name was not put on the select list for the year 1983-84. The appellant filed a writ petition under Art.226 assailing the validity of Rules 6(4)(i) and 6(4)(iii)(a) alleging that they were unreasonable, arbitrary, discriminatory and violative of Arts. 14 and 16. The High Court dismissed the petition holding that the age restriction provided by the recruiting authorities for 927 different cadres of post is not repugnant to Article 14 of the Constitution; that this system was in vogue for many decades, even in the bilingual State of Bombay; that though there was no restriction regarding age for selection from the members of the Bar to the post of District Judge, there was age limit for selection and appointment by promotion from the members of Junior Branch to the post of Assistant Judges; that members of the Bar have got free atmosphere to work and there was enough scope for them to better develop their mental faculty. If for an important post like that of a District Judge, a member of the Bar is to be recruited in order to enthuse fresh blood at that important position of the service cadre, it can be said to be a different class altogether; that there was no discrimination by introducing age bar in the recruitment rules so far as the appointment to the post of Assistant Judges by promotion is concerned and that the class of Assistant Judges and the class of District Judges for this purpose constitute two different classes. In the appeal to this Court on behalf of the appellant, the contentions raised in the High Court were reiterated. On behalf of the respondent-High Court, it was contended: (1) that the age restriction for promotion to the post of Assistant Judge was in vogue since 1924 or so even in the erstwhile State of Bombay, though there was no age limit for selection to the post of District Judge from the Bar; (2) that the rationale underlying the age restriction for recruitment to the post of Assistant Judge is that they should have sufficient number of years left before they reach the age of superannuation so that their services can be utilised as District Judges; (3) that the pay scale of Civil Judges (Senior Division) and that of the Assistant Judges is the same; if an incumbent is taken as an Assistant Judge at an advanced stage, he may have to retire as an Assistant Judge and he will not have any pecuniary gain; and (4) that a Civil Judge (Senior Division) or Civil Judge (Junior Division) who completes 48 years of age may not be fully equipped with the physical and mental calibre for that higher post calling for essentially different type of duties, namely, conducting of Sessions cases, appeals etc. Allowing the appeal, 928 ^ HELD: 1. Articles 14 and 16 of the Constitution ensure that there should not be any discrimination in the matter of appointment in service, nor there will be any arbitrariness or unreasonableness in the rules of recruitment providing for appointment to the service either by promotion or by direct recruitment. [935 B-C] E.P. Royappa v. State of Tamilnadu & Anr. [1974] 2 S.C.R. p. 348 at p.386, Maneka Gandhi v. Union of India [1978] 2 S.C.R. p.621 and R.D. Shetty v. International Airport Authority of India & Ors. [1979] 3 S.C.R. p. 1014 referred to. 2. The provisions of Rule 6(4)(i) read with Rule 6(4)(iii)(a) of the Gujarat Judicial Service Recruitment (Amended Rules) 1979 are irrational, arbitrary and unreasonable inasmuch as there is no nexus to the object sought to be achieved by introducing the age restriction in regard to appointment of Assistant Judge by promotion from amongst members holding post of Civil Judges (Junior Division) and those in the cadre of Civil Judges (Senior Division) whose names have been entered in the select list. [937 B-C] 3. The posts of Assistant Judge as well as of District Judge are included in the Senior Branch of Gujarat Judicial Service. It is incomprehensible how these two cadres of Assistant Judges and District Judges can be treated as two different classes altogether thereby justifying the introduction of age restriction in regard to selection and appointment by promotion to the post of Assistant Judge, while doing away with any such sort of age limit or restriction in respect of appointment to the post of District Judge by promotion amongst the members of the Junior Branch who have served as Assistant Judges. The reasoning given by the High Court is totally unsustainable. With the coming of age and experience, a Judicial Officer becomes more suited and well equipped to perform and discharge the higher duties and responsibilities attached to the higher post of Assistant Judge or District Judge. [935 A-B; 934 E, G-H] 4. The rule regarding age restriction which was originally introduced in the recruitment rules of Judicial Service in bilingual State of Bombay has subsequently been deleted in the Recruitment Rules of Maharashtra Judicial 929 Service. This archaic, unreasonable and irrational rule which is ex facie arbitrary and discriminatory has been allowed to continue in the Gujarat Judicial Service Recruitment Rules 1961 as amended upto 1979. [937 D-E] 5. The provisions of Rule 6(4)(i) and Rule 6(4)(iii)(a) of the Gujarat Judicial Recruitment (Amended Rules) 1979 are invalid and bad as they are unreasonable, irrational, arbitrary and discriminatory and violate equality clause envisaged in Articles 14 and 16 of the Constitution. These rules in so far as they impose age restriction in the matter of promotion to the post of Assistant Judge are liable to be quashed and set aside. [936 G-H; 938 A-B] 6. The name of the appellant shall be deemed to have been continued in the select list of 1983-84 and his case for appointment to the post of Assistant Judge shall be considered on that basis by the authorities concerned. If he is appointed to the post of Assistant Judge, he shall get his due seniority and all retiral benefits reckoning the service on that basis. [938 B-C] JUDGMENT: A.P.J. Appeal allowed. 939 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2588 of 1985 From the Judgment and Order dated 17.12.84 of the Gujarat High Court in Special Civil Application No. 2332 of 1984. P.H. Parekh and C.B. Singh for the Appellant. T.U. Mehta, Girish Chandra and M.N. Shroff for the Respondents. The Judgment of the Court was delivered by B.C.RAY, J. This appeal raises a very short though important question as to the validity and vires of the provisions of Rule 6(4)(i) and Rule 6(4)(iii)(a) of the Gujarat Judicial Service Recruitment (Amendment Rules) 1979. The relevant rules are quoted hereinbelow:- The appellant was born on 6.4.1934 and in accordance with the provisions of Gujarat Judicial Service Recruitment Rules 1961 as amended in 1964 to 1969, the appellant being in the cadre of Civil Judge (Senior Division) was considered for selection for inclusion in the select list to be considered for appointment by promotion to the post of Assistant Judge in the year 1980-81 and 1981-82, but he was not found suitable. He was, however, found suitable and his name appeared in the 931 Selection List prepared for the year 1982-83. His turn did not come up and the Select List lapsed with the expiry of 30.4.1983. On that date as he had already completed 48 years, his name was not put on the Select List for the following year, namely 1983-84. It is against this non- appearance of his name in the Select List of 1983-84, the appellant assailed the validity of the aforesaid provisions of rules 6(4)(i) and 6(4)(iii)(a) of the Gujarat Judicial Service Recruitment Rules, 1961 as amended upto 1979 on the ground that it was unreasonable, arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India by a Writ Petition in the High Court of Gujarat being Civil Application No. 2332 of 1984, whereon a rule was issued on December 17, 1984. The said rule after notice to the parties was discharged and it was held that the impugned rules were not arbitrary, unreasonable or irrationale and they are not also discriminatory. The Governor of Gujarat framed the Gujarat Judicial Service Recruitment Rules 1961 under proviso to Article 309 of the Constitution of India read with Article 234 of the Constitution laying down the mode of recruitment to the Gujarat Judicial Service. These rules as amended upto 1979 provide that the Gujarat Judicial Service shall consist of two branches namely (i) Junior Branch and (ii) Senior Branch. The junior branch shall consist of two classes, i.e. (a) Class I comprising the cadre of Civil Judges (Senior Division) (b) the Judges of the Courts of Small causes and (c) Class II comprising Civil Judges (Junior Division) and Judicial Magistrate of First Class. In accordance with the amended recruitment rules 1979 the cadre of Civil Judge (Senior Division) shall consist of :- The Senior Branch shall consist of District Judges Principal Judge and Judges of Ahmedabad City Civil Court, the Chief Metropolitan Magistrate, the Chief Judge of Small Causes Court, Ahmedabad, the Additional Chief Metropolitan Magistrate, Ahmedabad and the Assistant Judges. Rules 6(4)(i) and 6(4)(iii)(a) clearly provide that a Civil Judge (Senior Division) after completing 48 years of age will not be eligible for consideration for promotion to the post of Assistant Judge and his name appearing in select list will be struck out from the select list on his completion of 48 years i.e. on reaching 49 years of age. The only question for consideration is whether the provisions of aforesaid rules 6(4)(i) and 6(4)(iii)(a) of the Gujarat Judicial Service Recruitment Rules 1961 as amended upto 1979 are invalid being arbitrary, irrationale, unreasonable and in contravention of the equality clause envisaged in Articles 14 and 16 of the Constitution of India. To decide properly this question, it is relevant to consider in this connection rule 6(2)(i), which provides for appointment to the post of District Judge. The relevant excerpt of the said rule is quoted hereinbelow :- It appears that regarding appointment to the posts of District Judges by promotion from amongst members of the Junior Branch who have ordinarily served as an Assistant Judge, there is no limit or bar of age unlike that of the appointment of an Assistant Judge by promotion from the members of Civil Judges (Senior Division) or from members of Civil Judges (Junior Division). It is only in the case of direct recruitment from amongst the members of the Bar to the post of District Judges there is an age limit of 45 years which is relaxed to 48 years in the case of recruitment of persons belonging to the community recognised as backward by the Government. It was tried to be justified on behalf of the respondents particularly by the High Court of Gujarat by filing Counter that this age restriction for promotion to the post of Assistant Judge was in vogue since 1924 or so even in the erst-while State of Bombay, though there was no age limit for selection to the post of District Judge from the Bar. It has been further stated that the rationale under lying the age restriction for recruitment to the post of Assistant Judge is that such Assistant Judges should have sufficient number of years left before they reach the age of superannuation, so that their service can be utilized as District Judges. There would be no point in selecting them as Assistant Judges if they have to retire only as Assistant Judges. It has been further stated therein that the present pay scale of Civil Judges (Senior Division) is Rs.1300-1700 p.m. and the same is the scale for the post of an Assistant Judge. So if an incumbent is taken as an Assistant Judge at an advanced stage he may have to retire only as an Assistant Judge with the result that he will not have any pecuniary gain by being promoted as an Assistant Judge from the post of Civil Judge (Senior Division). It has been further stated that the law making authority might have considered that a Civil Judge (Senior Division) or Civil Judge (Junior Division) who completes 48 years of age may not be fully equipped with the physical and mental calibre for that higher post calling for essentially different type of duties, namely conducting Sessions cases, appeals, etc. The High Court duly considered this aspect of the case and thereafter the rules in question were framed. No rejoinder has, however, been filed on behalf of the State. Similar contentions were made before us by the learned counsel who appeared on behalf of the High Court to support the rationale behind the laying down of the age bar for the purpose of promotion to the post of Assistant Judge in case of persons already in service. The Division Bench of the Gujarat High Court held that this system was in vogue for many decades, even in the bilingual State of Bombay. Though there was no restriction regarding age for selection from the members of the Bar to the post of District Judge, there was age limit for selection and appointment by promotion from the members of Junior Branch to the posts of Assistant Judges. This age restriction provided by the recruiting authorities for different cadres of posts is not repugnant to Article 14 of the Constitution. It was also observed that members of the Bar have got free atmosphere to work and there was enough scope for them to better develop their mental faculty. If in the interest of an important post like that of a District Judge, a member of the Bar is to be recruited in order to enthuse fresh blood at that important position of the service cadre, it can be said to be a different class altogether. As such there was no discrimination by introducing age bar in the recruitment rules so far as appointment to the post of Assistant Judges by promotion is concerned. The class of Assistant Judges and the Class of District Judges for this purpose constitute two different classes. This reasoning given by the High Court is totally unsustainable for the simple reason that if a person holding the post of Civil Judge (Senior Division) who has completed 48 years of age is considered to be not fully equipped with the physical and mental calibre for being appointed to the higher post of Assistant Judge, then on the same analogy how a member of the Bar will be considered at the age of 48 years to be most suitable for being appointed to the higher and responsible post of District Judge and such appointees will infuse fresh blood at the important service. On the other hand it is well established that with the coming of age and experience, a Judicial Officer becomes more suited and well equipped to perform and discharge the higher duties and responsibilities attached to the higher posts of Assistant Judge and that of District Judge. The posts of Assistant Judge as well as of District Judge are included in Senior Branch of Gujarat Judicial Service. It is incomprehensible how these two cadres of Assistant Judges and District Judges can be treated as two different classes altogether, thereby justifying the introduction of age restriction in regard to selection and appointment by promotion to the post of Assistant Judge while doing away with any such sort of age limit or restriction in respect of appointment to the post of a District Judge by promotion from amongst the members of the Junior Branch who have served as Assistant Judges. Articles 14 and 16 of the Constitution ensure that there should not be any discrimination in the matter of appointment in service, nor there will be any arbitrariness or unreasonableness in the rules of recruitment providing for appointment to the service either by promotion or by direct recruitment. There is no nexus to the object sought to be achieved by introducing the age restriction as regards the promotion by appointment to the post of Assistant Judge from amongst the members of the Gujarat Judicial Service (Junior Branch), as provided in Rules 6(4)(i) and 6(4)(iii)(a) of the said rules. But in respect of appointment to the higher post of a District Judge by promotion from amongst the members of the Junior Branch who have served as Assistant Judges, no such restriction of age has been provided in Rule 6(2)(i)(a) and (b) of the said rules. There is obviously no rationale, nor any reasonableness for introduction of this age bar in regard to appointment by promotion to the post of an Assistant Judge. The rule, is, therefore, arbitrary and it violates the salutory principles of equality and want of arbitrariness in the matter of public employment as guaranteed by Articles 14 and 16 of the Constitution. It is pertinent to refer in this connection to the observations of this Court in the case of E.P. Royappa v. State of Tamilnadu & Anr. [1974] 2 S.C.R. p. 348 at p. 386 which are in the following terms :- Similar observations have been made in the case of Maneka Gandhi v. Union of India [1978] 2 S.C.R. p. 621. It has been observed that :- The reach and ambit of Article 14 has been very succinctly reiterated again by this Court in the case of R.D. Shetty v. International Airport Authority of India & Ors. [1979] 3 S.C.R. p. 1014 as follows :- We have already stated hereinbefore that the provisions of rules 6(4)(i) read with 6(4)(iii)(a) are irrational, arbitrary and unreasonable inasmuch as there is no nexus to the object sought to be achieved by introducing the age restriction in regard to appointment of Assistant Judge by promotion from amongst members holding posts of Civil Judges (Junior Division) and those in the cadre of Civil Judges (Senior Division) whose names have been entered in the select list. We have also held that though the post of Assistant Judge as well as the post of District Judge belong to the Senior Branch of Gujarat Judicial Service, yet in the higher cadre of District Judge no such age bar has been introduced. Moreover, as has been stated by the learned counsel appearing on behalf of the High Court of Gujarat that this rule regarding age restriction which was originally introduced in the recruitment rules of Judicial Services in the bilingual State of Bombay has subsequently been deleted and discontinued in the relevant Recruitment Rules of Maharashtra Judicial Service, it is curious that this archaic, unreasonable and irrational rule which is ex- facie arbitrary and discriminatory has been allowed to continue in the Gujarat Judicial Service Recruitment Rules 1961 as amended upto 1979. We wish to make it clear that our observations made hereinbefore should not be construed to mean that there cannot be any fixation of age of superannuation in different grades of other services namely armed forces, air force and naval force. In such services the fixation of different age of superannuation in different grades may be made in public interest in order to ensure excellence in service as well as merit and efficiency which to a great extent depend on physical fitness apart from merit. In the premises aforesaid, the provisions of rule 6(4)(i) and rule 6(4)(iii)(a) of the Gujarat Judicial Service Recruitment (amended rules), 1979 is invalid and bad as it is 938 unreasonable, irrationale, arbitrary and discriminatory, and violating the equality clause envisaged in Articles 14 and 16 of the Constitution of India. These rules in so far as they impose age restriction in the matter of promotion to the post of Assistant Judge are liable to be quashed and set aside and the judgment of the High Court of Gujarat is also set aside. We direct that the name of this appellant shall be deemed to have been continued in the select list of 1983-84 and his case for appointment to the post of Assistant Judge shall be considered on that basis by the authorities concerned. If he is so appointed to the post of Assistant Judge, he shall get his due seniority and all retiral benefits reckoning his service on that basis. The appeal is accordingly allowed. There will be no order as to costs.

Author: B Ray

Indravadan H. Shah vs State Of Gujarat & Anr on 19 March, 1986

Supreme Court of India

JUDGMENT Amitava Roy, J. 1. The challenge to deduction of tax under the Assam General Sales Tax Act, 1993 (hereafter referred to as, "the Act") by Oil India Limited, Duliajan (hereafter referred to as, "the OIL") from its bills for the services rendered under Contract No. OIL/CCO/GEOL/GLOBAL/ 07/98 having failed, the writ petitioner, M/s HLS Asia Ltd., is in appeal. 2. We have heard Dr. Todi, Senior Advocate assisted by Ms. D. Das, Advocate for the appellant, Mr. S. N. Sharma, Senior Advocate for OIL and Mr. D. Saikia, learned Standing Counsel, Finance Department, for the Revenue. 3. The appellant's pleaded version is that it is a public limited company registered under the Companies Act, 1956, engaged in contract business with OIL and provides highly professional and technical services in connection with extraction of oil and is also engaged in wire-line logging activities. It entered into a contract registered as above with OIL on September 10, 1999 for carrying out wire-line logging and perforation activities consisting of electronic/seismic scanning of subterranean strata and rock formation in the oil fields by utilising its own high tech equipment. In the process such equipment are to be released deep down into the subterranean region through drilled holes into the oil fields, which generate electronic/seismic impulses to be processed through special software and recorded through magnetic tapes. These equipment are owned and used by the company to be engaged for providing such services to OIL. In terms of the contract, the equipment remained in absolute possession of the company and used by it to provide the required data and other professional services. The equipment were operated by utilising the services of highly technically qualified and experienced personnel of the company. It has been categorically pleaded that the appellant-company used its own equipment, which were never handed over to OIL as stipulated in clause 7.13 of the contract agreement. The contract further contained clause 7.14 whereunder OIL was to deduct sales tax from the contractor while making payments. According to the appellant, this provision was unnecessary in view of the fact that no such tax was leviable considering the nature of the works to be rendered under the contract. However, in terms thereof, OIL deducted sales tax under the Act from its bills. Its representation that as in the face of the definition of "sale", "lease" and "operating lease" engrafted in Sections 2(3), 2(19) and 2(25), respectively, and the nature of the transaction visualised in the contract agreement did not contemplate transfer of right to use any goods, no such tax was payable, having failed to elicit any positive response, the appellant approached this Court for redress. 4. The respondent-OIL in its affidavit has questioned the bona fide of the appellant/writ petitioner contending that it had abided by clause 7.14 of the contract by charging sales tax at 8.8 per cent over and above their bills for the hire charges of its equipment and tools which on such realisation accordingly was paid to the Government during the entire period of the contract. While denying the assertion that the appellant-company was not liable to pay tax under the Act, it has been contended that it having submitted itself to the stipulations in the contract agreement including clause 7.14 it was estopped from assailing the validity thereof. The maintainability of the writ petition has been assailed referring to the alternative remedy by way of arbitration as per clause 13 of the general terms and conditions of the contract. Section 65A of the Act has also been referred to in this regard. OIL has further contended that the proceedings involve disputed questions of facts for which invocation of this Court's jurisdiction under Article 226 of the Constitution of India ought to be refused. 5. The learned single Judge on a survey of the various provisions of the contract agreement held the view that the equipment and tools to be furnished by the contractor were to be exclusively used for the services of OIL and could not be utilised for any other purpose. The appellant-company was required to provide 24 hours service to OIL by mobilising the crew and the equipment. The covenant for payment of monthly rental charges on equipment also indicated that the wire-line logging and perforation activities were exclusively meant for OIL and that the appellant-company had no right to use those in any manner other than the terms of the contract. It was held that the stipulations of the contract clearly indicated that the appellant-company had entered into an agreement/arrangement whereunder the right to use of the equipment was transferred to OIL on payment of rental charges. 6. Referring to Section 2(19) of the Act defining "lease" it was observed that the same did not envisage any arrangement requiring transfer of possession of the goods involved to constitute the transfer of right thereof. It was recorded that once the right to use any goods is transferred by one person to another for exclusive use it amounted to "lease" within the meaning of the Act. On facts it was noticed that the equipment supplied by the appellant-company were required to be used for OIL only and not for any other purpose denoting thereby that the same were exclusively meant for the use by OIL on payment of charges. The appellant-company having placed the equipment at the work site was not entitled to use the same for any other purpose or withdraw the same at its sweet will. Not only the equipment were required to be pressed into service under the supervision of the officers of OIL, the operation thereof was also subject to their inspection. The learned single Judge thus concluded that the terms and conditions of the contract indicated implied possession of OIL over the equipment. Clause 7.14 was thus held to be in conformity with the provisions of the Act, the transaction envisaged by the contract agreement being a "sale" within the meaning of Section 2(33) (iv) read with Section 2(19) thereof. 7. Dr. Todi has forcefully urged that no sale being involved in the activities comprehended in the contract agreement, tax under the Act was not exactable from the appellant-company. He contended that to attract the applicability of Section 2(33) (iv), the use of the goods by the transferee to the exclusion of the owner was indispensable. He sought to contend that the transfer of right to use any goods to be a deemed sale within the meaning of the Act denotes alienation of all incidental rights of the owner to utilise the same sans the conveyance of title therein. Dr. Todi maintained that as clause 7.13 of the contract agreement enjoined exclusive use of the appellant's equipment by it only in rendering the services, it was apparent that no transfer of right of use thereof had been contemplated by the parties. The covenant permitting the officers of the OIL to observe and inspect the operation of the equipment did not ipso facto signify such transfer and was incorporated to ensure that the same were not placed elsewhere during the relevant period. Not only the appellant-company had an effective control over the equipment, OIL had no authority to use the same in any manner it liked. According to the learned Senior Counsel, bearing in mind, the concept of extended sale introduced by Article 366(29A) of the Constitution of India and transited in Section 2(33) of the Act, conveyance of the proprietary right of use in the goods is an essential pre-condition to constitute a transfer of right to use the same. There being no estoppel against statute, clause 7.14 is of no consequence, he urged. The learned Senior Counsel endeavoured to impress upon this Court that the use of the appellant's equipment by OIL at best amounted to a licence in its (OIL) favour which by no means could be construed to be a lease under Section 2(19) of the Act. Dr. Todi, to buttress his arguments, placed reliance on the decisions of the apex court in State of Andhra Pradesh v. Rashtriya Ispat Nigam Ltd. [2002] 126 STC 114 and of the Andhra Pradesh High Court in Rashtriya Ispat Nigam Ltd. v. Commercial Tax Officer, Company Circle, Visakhapatnam [1990] 77 STC 182. 8. The learned Senior Counsel for OIL while reiterating its pleaded stand has argued that the appellant not having approached this Court with clean hands, the appeal is liable to be dismissed in limine. The appellant-company having charged sales tax over and above their bills in terms of clause 7.14 of the contract and the said amount having been paid by OIL to the Government, the turn around after the period of the contract lacks bona fide and, therefore, it is not entitled to any equitable consideration of this Court. The omission to pray for refund of the amount charged by it and paid by OIL to the Government clearly demonstrates that the purpose of the belated challenge is extraneous and collateral. Referring to the clauses of the contract agreement, the learned Senior Counsel urged that OIL having paid the customs duty on the import of the equipment by the appellant-company, it had an obvious right to the exclusive use of the same and the plea to the contrary is fallacious. In any view of the matter the appellant not having suffered by the deductions made, there is no cause of action for the purported grievance. The learned single Judge having negated the challenge on an exhaustive analysis of the contractual provisions and correct interpretation of law, no interference is called for. 9. Mr. Saikia while endorsing the above, contended that the contract agreement proclaimed exclusive and effective control of OIL over the appellant's equipment detailed for the works which constituted transfer of the right of use thereof as envisaged in Section 2(33) (iv) of the Act. Having regard to the concept of "extended sale" visualised in the said legislation, delivery of possession of the goods was not an imperative essentiality to bring the related transaction within the sweep of the above legal provision. It being evident from the clauses of the contract agreement that the equipment involved had been detailed for the exclusive use of OIL, mere operation thereof by the technically qualified personnel of the appellant-company did not militate against the transfer of the right of use thereof. Mr. Saikia urged that the stipulation of rental charges payable to the appellant-company was clearly suggestive of the transfer of right to use the equipment in favour of OIL. He dismissed the distinction between lease and licence sought to be projected. According to him, the decision of the apex court upholding the view in Rashtriya Ispat Nigam Ltd. v. Commercial Tax Officer, Company Circle, Visakhapatnam , was distinguishable on facts. The learned Counsel placed reliance on the following decisions of this Court in State of Tripura v. Tripura Bus Syndicate [2001] 122 STC 175, Aggarwal Brothers v. State of Haryana , 20th Century Finance Corporation Ltd. v. State of Maharashtra , Bharat Sanchar Nigam Ltd. v. Union of India , Sohan Lal Naraindas v. Laxmidas Raghunath Gadit and Puran Singh Sahni v. Sundari Bhagwandas Kripalani (Smt.) . 10. The contours of the controversy having thus been outlined, the contractual provisions may first be analysed, the same being of determinative relevance. Having heard the parties at length we would prefer to dispose of the appeal on merits rather than dilating on the preliminary objections of maintainability raised on behalf of OIL. 11. The agreement pertaining to the services involved was executed by and between the parties on September 10, 1999 whereunder the appellant-company was required to render wire-line logging, perforation, data processing and interpretation services for the OIL's fields in the States of Assam and Arunachal Pradesh. The contract was effective from July 16, 1999 and was to remain in force for a period of two years from the date of commencement thereof as contemplated therein with an option to OIL to extend the same for a further period of one year at its discretion on the same rates, terms and conditions. Provision for further extension of the contract was also envisaged if called for, on rates, terms and conditions to be mutually agreed upon by the parties. Under clause 8.8 of Section I containing the general conditions of contract, levies and duties, sales tax, octroi, etc., on purchases and sales made by the contractor except customs duty and Assam general sales tax were to be borne by it. A provision for referring the dispute between the parties for settlement by arbitration was made in clause 13.1. Section II of the contract enumerated in details the essential capabilities required for logging units, different heads of services to be rendered together with the particulare and condition of the equipment to be applied and the covenants to be fulfilled by the contractor. Clause F(vii) of the said section stipulated that if any tool or equipment malfunctioned except due to hole condition or negligence of OIL or its sub-contractors and could not be repaired at well-site or base resulting in failure of the contractor to provide its requisite services, the tool or its equipment would be under zero fixed charges with effect from the last date of successful logging operation with that tool or equipment until it was repaired or replaced within 24 hours and a surface check or logging operation with that tool was performed to OIL's satisfaction. Under clause 1.1 of Section III of the contract, OIL reserved to itself the right to depute more than one representative/engineer to act on its behalf for overall co-ordination and operational management at the location. Its representatives were to have the authority to order any changes in the scope of work to the extent so authorised and notified by OIL in writing. Such a representative was empowered to liaise with the contractor, monitor the progress of the works so as to ensure the timely completion thereof. He was also to have the authority to oversee the execution of the jobs by the contractor and to ensure compliance with the provisions of the contract. Under clause 1.2 of the said section, OIL's representatives were authorised to have free access to all the equipment of the contractor during the operations and idle time for the purpose of observing/inspecting the operations performed by the contractor in order to assess whether in OIL's opinion, the contractor was observing the provisions of the contract. Clause 2.1 required the contractor to deploy experienced personnel for the services to be removed and replaced at its expenses if the persons or any one of them was considered undesirable in the opinion of OIL. Under clause 7.7 under the caption "Payment and Invoicing Procedure", the contractor was required to raise two invoices every month-one for minimum charges equivalent to monthly fixed charges for the equipment/tools/computer center plus monthly personnel charges under the contract and the second for all balance amount(s) payable under the contract for the month. The fixed charges under clause 18.1. for equipment, etc., mobilised for the services were to be applicable from the date as certified by OIL's engineer to be in readiness to undertake the operation/services up to the effective date of demobilisation/ termination. Clauses 7.13 and 7.14 having a vital bearing on the issues under the scrutiny deserve to be extracted. 7.13 ... The equipment/tools to be furnished by the contractor under this contract is the contractor's property and shall always remain in the possession of the contractor with the exclusive right to use of such equipment/tools by the contractor for providing services under this contract. 7.14 ... Company shall deduct five per cent AGST or as applicable from rental invoice of the contractor and accordingly the contractor should include five per cent AGST or as applicable on rental component separately in their rental invoice which will be deducted by the company while releasing payment against rental invoice and will deposit the same to Government Treasury. The contractor shall duly comply with all the statutory requirement as envisaged in the said AGST Act. In the event of non-compliance with the statutory requirement as per the AGST Act, consequences arising out of the same will be at the sole responsibility of the contractor. Before claiming the payment against the final invoice, the contractor has to produce documentary evidence to the effect that they have duly complied with the statutory requirements as per the AGST Act. 12. Whereas under clause 7.13, the equipment/tools to be furnished by the contractor were to remain its property in possession and were to be used by it exclusively for providing services under the contract. In terms of clause 7.14 OIL was authorised to deduct five per cent tax or as applicable from the rental invoices of the contractor for which the latter was required to include the same on the rental component separately in its said invoice to be deducted by OIL while releasing the payment against rental invoices for depositing the same in Government Treasury. The said clause further postulated that the contractor would comply with all statutory requirements as envisaged in the Act failing which it was to bear with the consequences of such non-compliance. The contractor was required to produce documentary evidence of the compliance of the statutory mandates before claiming payment against the final invoices. Clause 10.1 visualised assumption of liability by OIL for the loss or damage to the contractor or sub-contractor in the hole below the kelly bushing except in cases of gross negligence on the part of the contractor or its sub-contractors leading thereto. The contractor, as stipulated in clause 14.4, was obliged to furnish to OIL details of all equipment, duration of deployment thereof, spares and consumables to be brought into India three weeks in advance of the date of shipment. OIL took upon itself the obligation under clause 16.1. to pay all the Indian customs duty leviable in India on the contractor's items as specified therein. Under clause 17.2, the contractor, following the award of the contract and mobilisation of the crew and equipment, was required to provide 24 hours service as and when required. The anticipated total foreign exchange requirement to be borne by OIL was (a) US$ 3.50 m for the first two years contract duration and (b) US$ 0.50 m for each 6 months extension or part thereof. In course of the arguments, this amount was claimed to have been invested by OIL to facilitate import of the appellant's equipment for the services under the contract. 13. A cumulative reading of the above clauses, in our considered opinion, unequivocally proclaims an all-pervasive control of OIL over the appellant's equipment deployed for the execution of the contract during its subsistence. Evidently, the equipment, tools and machinery detailed by the contractor were owned by it, physical possession whereof was also permitted to be retained by it. Those were to be operated by its technically qualified personnel. The contractor was to realise rental charges therefor. OIL thus had hired the contractor's equipment for charges to be borne by it. This was in addition to the personnel services for operating the same and providing the data required. As against this, the contractor was required to provide 24 hours service as demanded by OIL. The contractor was permitted to use the equipment/tools exclusively therefor under clause 7.13 referred to hereinabove. OIL's representatives/engineers were empowered to effect overall coordination and management at the location and could also order changes in the scope of work as desired by it. Not only were they guaranteed a free access to the equipment either during the operation or idle time for the purpose of observing/inspecting the performance of the contractor and to determine as to whether the same was in adherence to the provisions of the contract, the contractor's personnel handling the equipment were liable to be removed, if considered undesirable in the opinion of OIL. The contractor was not entitled to the fixed charges for any tool or equipment for the period the same was out of action except in cases where the same was due to the hole condition or the negligence of the company or its sub-contractors. 14. OIL had undertaken as alluded hereinabove the liability to pay the customs duty on the equipment, tools and machinery to be imported off shore in the interest of the services to be rendered. In face of the above binding stipulations, the appellant-company thus was obliged to utilise its equipment, tools and machinery wholly for the services under the contract and scrupulously in terms of the clauses thereof. Though the ownership and the possession of such equipment remained with the appellant-company, it was denuded of its liberty and authority to handle the same as desired by it. The operation and the utilisation thereof were to be in rigorous compliance with the contract subject to the superintendence and inspection of OIL's representatives. The covenant requiring 24 hours service demonstrates in no uncertain terms that those equipment were to remain engaged for OIL's services and not liable to be either removed from their location(s) or engaged for other works. Realisation of the rental charges therefor, by the appellant-company and the payment of the customs duty by OIL therefor are suggestive of the charge the latter had thereon during the period of the contract. Absolute authority of OIL in the use of the equipment is thus writ large. In all, the right to use the equipment for the services to be rendered during the contractual period, according to us thus stood transferred to OIL though the ownership and the physical possession thereof remained with the contractor within the meaning of Section 2(33) (iv) of the Act. 15. The Act is a legislation to amalgamate, consolidate and amend the laws relating to levy of tax concerning sale and purchase of goods in the State of Assam. Section 2(33) defines "sale" to mean any transfer of property in goods for cash, deferred payment or other valuable consideration and includes any transfer of the use of any goods under an operating lease. It being the focal point of the debate before us, it is considered expedient to extract the relevant excerpt of the said definition. 2. (33) 'sale' with all the grammatical variations and cognate expressions means any transfer of property in goods by any person for cash, deferred payment or other valuable consideration, and includes- (i) to (iii) ... (iv) Any transfer of the use of any goods under an operating lease; (v) to (vi) ... 16. The provisions defining of "lease" and "operating lease" are also set out hereunder for ready reference: 2. (19) 'lease' means any agreement or arrangement whereby the right to use any goods for any purpose is transferred by one person to another whether or not for a specified purpose for cash, deferred payment or other valuable consideration without the transfer of ownership and includes a sub-lease but does not include any transfer on hire-purchase or any system of payment by instalments; 2. (25) 'operating lease' means a lease other than a financial lease. 17. On a conjoint reading of the above, it is thus manifest that for sale under Section 2(33)(iv) of the Act, there ought to be a transfer of the right to use in any goods by one person to another whether or not for a specified purpose for cash, deferred payment or other valuable consideration without the transfer of ownership and would include a sub-lease but not a transfer on hire purchase or in a system of payment by instalments. The gravamen of the transaction to constitute a sale under Section 2(33) (iv) is thus the transfer of the right to use any goods for any purpose and for a period specified or otherwise for cash, deferred payment or other valuable consideration without the transfer of ownership. The transfer of right to use any goods for valuable consideration therefor is the quintessence of the transaction to be construed to be a sale under the above provision making it exigible to tax under the Act. 18. The words "tax on the sale or purchase of goods" appearing in the preamble of the Act have been provided an inclusive definition in Article 366(29A) of the Constitution of India by the Constitution (Forty-sixth Amendment) Act, 1982. The portion relevant for the present adjudication is quoted hereinbelow: 366 (29A) ... Tax on the sale or purchase of goods' includes (a) to (c) ... (d) a tax on the transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration; (e) to (f) ... and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made; 19. A concept of deemed or extended sale has thus been introduced to broaden the tax base. A transaction of sale for the purposes of the Act, therefore, comprehends transfer, delivery or supply of goods to any person for cash, deferred payment or other valuable considerations in various eventualities detailed in Section 2(33). An expansive perception of sale has been statutorily recognised and prescribed. Any interpretation thereof irrefutably has to be in conformity with the object of the legislation to effectuate the purposes thereof. A constricted and literal approach having the potential of frustrating the legislative intendment logically has to be eschewed. The concept of sale under the Act, the root whereof lies in the constitutional amendment referred to above must be permitted a full play, the underlying purpose of the extended connotation thereof being to make it all comprehensive to include all conceivable transactions involving transfer, delivery and supply of goods as well as the transfer of right to use of any goods under an operating lease. We are thus of the view that no exact analogy of a deemed sale conceptualised in the Act with a sale in common parlance is permissible. The provisions of the Act, therefore, call for an interpretation to further the notion of deemed or expanded sale visualised thereby. A brief survey of the authorities cited at the Bar would be essential at this stage. 20. In Rashtriya Ispat Nigam Ltd. [1990] 77 STC 182 (AP), the petitioner for the purpose of its steel project allotted different works to contractors. To facilitate the execution of the works, the petitioner undertook to supply its machinery to the contractors for the purpose of being used therefor for which it (petitioner) realised charges. The provisional assessment levying tax on the hire charges under Section 5-E of the Andhra Pradesh General Sales Tax Act, 1957, was successfully challenged before the jurisdictional High Court. The statutory provision involved required that every dealer transferring the right to use goods for any purpose whatsoever for a period specified or otherwise to any lessee or licencee for cash, deferred payment or other valuable consideration in course of his business would be liable to pay tax at the prescribed rate on the amount realised or realisable by him on such transfer. While observing that the terms of contract in each case would determine whether there had been a transfer of the right to use or not, the same being a question of fact, the High Court concluded that on a close reading of all the contract conditions it was obvious that the contractor was entitled make use of the machinery only for purposes of execution of the works of the petitioner and that there was no transfer of right to use as such in favour of the contractor. The fact that the effective control of the machinery had remained with contractor was taken note of in arriving at this conclusion. 21. This view was affirmed by the apex court in State of Andhra Pradesh v. Rashtriya Ispat Nigam Ltd. [2002] 126 STC 114 on the same analogy of reasonings. The facts as obtained in the reported decision are distinguishable from those in hand. Whereas in the above case, the petitioner-company, owner of the machinery had handed over the same to the contractor for the execution of its works, in the instant case, the contractor had placed its equipment at the disposal of OIL for rendering the services envisaged under the contract. The appellant-company had detailed its equipment, plants and machinery for the benefit of OIL against hire charges. The two eventualities are not identical. It is logical that the petitioner in Rashtriya Ispat Nigam Ltd. , having handed over the same to the contractor for the operation thereof only for its works, no transfer in the right to use the same could be comprehended. Not only the situation is different in the present case, the contractual provisions construed as a whole establish that the appellant's right to use the equipment involved had been transferred for valuable consideration in favour of OIL within the meaning of Section 2(33) of the Act. 22. In Aggarwal Brothers , the appellants used to supply shuttering to builders and contractors on hire to be used in the construction of buildings. The hire charges were assessed to tax under the Haryana General Sales Tax Act, 1973. The challenge thereto failed. Referring to the definition of "sale" provided in the Act envisioning transfer of the right to use of goods for any purpose for cash, deferred payment or for other valuable consideration, the apex court repelled the contention that for a deemed sale under the said statute, there ought to be a legal transfer of goods or that the transaction must be akin to a lease. It held, the transfer of the shuttering on hire charges to the builders and building contractors on hire charges in the facts of the case constitutes a sale of goods for consideration. Nothing much turns on this decision as the definition of "sale" in the legislation involved therein is not in pari materia with the one we are seized of. 23. A Constitution Bench of the apex court in 20th Century Finance Corporation Ltd. [2000] 119 STC 182 : [2000] 6 SCC 12, while dwelling on the controversy as regards the competence of the State Legislature to levy sales tax under Clause (29-A)(d) of Article 366 of the Constitution of India on the transfer of right to use any goods held that on a plain construction of Sub-clause (d) of Clause (29A), the taxable event is the transfer of right to use the goods regardless of when or whether the same are delivered for use. It held that the existence of the goods was essential so that they may be used and that a contract in respect thereof is executed. The locus of deemed sale is the place where the right to use them is transferred whether the goods are transferred and that the situs of the goods is of no relevance. It ruled that Article 366(29A)(d) envisages levy of tax on the transfer of the right to use goods and not on the use thereof. The apex court was categorical in declaring that the delivery of goods cannot constitute the basis for the levy of tax on the transfer of right to use the same. 24. The above view found reiteration in Bharat Sanchar Nigam Ltd. [2006] 145 STC 91 : [2006] 3 SCC 1, where the apex court in clearest terms expounded that actual delivery of the goods was not necessary for effecting the transfer of right to use the same but those must be available and deliverable at the time of transfer and delivered at some stage. In the supplementary judgment of honourable Laxmanan J., the essential attributes of a transaction to constitute the transfer of right to use the goods were prescribed in para 97, which is quoted hereunder : (para 98 in STC) 97. To constitute a transaction for the transfer of the right to use the goods the transaction must have the following attributes: (a) there must be goods available for delivery; (b) there must be a consensus ad idem as to the identity of the goods; (c) the transferee should have a legal right to use the goods- consequently all legal consequences of such use including any permissions or licences required therefor should be available to the transferee; (d) for the period during which the transferee has such legal right, it has to be the exclusion to the transferor-this is the necessary concomitant of the plain language of the statute, viz., a 'transfer of the right to use' and not merely a licence to use the goods; (e) having transferred the right to use the goods during the period for which it is to be transferred, the owner cannot again transfer the same right to others. 25. In State of Tripura v. Tripura Bus Syndicate [2001] 122 STC 175 (Gauhati), the respondent was a registered trade union of vehicle operators in the State of Tripura. During the Parliamentary elections in 1989, a large number of vehicles belonging to the members of the respondent were requisitioned by the concerned District Magistrate. A division Bench of this Court while noticing the contextual facts held that as during the period of requisition, the vehicles had been under the control of the election authorities and were plied in accordance with their directions and instructions, there was a transfer of the right of use of the vehicles by the owners/operators to the said authorities and hire charges having been realised therefor, the transaction was a sale under Section 2(g) (ii) of the Tripura Sales Tax Act, 1976. 26. The judicially evolved principles to identify a transaction involving the transfer of right to use goods to be a sale under the Act clearly exclude the indispensability of delivery of physical possession thereof as an essential pre-condition. The other ordained features of such a transaction are, in our considered opinion, present in the instant case. The equipment, plants and machinery were available and identified by the parties. Under the contract, OIL derived the legal right to use the goods having hired the same on payment of charges. Customs duty had also been paid by it on the equipment imported by the contractor for executing the works. Under the stringent contractual terms, the contractor was bound to keep the equipment engaged exclusively for the works. The fact that the same had been operated by its technically qualified personnel does not militate against the element of exclusiveness in the use thereof for the services and benefit of OIL. During the subsistence of the contract, the appellant-company was neither authorised nor permitted to transfer the equipment or detail the same for others. The parties consciously limited the tax liability to the rental component only. 27. The provisions of the contract understandably have to be construed in the context of the service accorded to be rendered. The transfer of right to use the equipments has to be perceived in the context of the nature, manner and extent of engagement thereof. The retention of physical possession thereof by the appellant-company cannot be decisive. The parties entered into the contract understanding the implications of each and every provision thereof, which according to us, demonstrate an obvious dominion and control of OIL over the equipment used by the appellant for the execution of the works during the period of the contract. We, thus, have no hesitation to hold that the transaction in question involved transfer of right to use the equipment, plants and machinery under the lease within the meaning of Section 2(33)(iv) of the Act. 28. On a careful reading of the judgment and order impugned before us, no error of fact or law is discernible. We find ourselves in agreement with the conclusions recorded therein, however, for the reasons alluded hereinabove. 29. The appeal, being without any merit, is thus dismissed. No costs.

Author: A Roy

Hls Asia Ltd. vs State Of Assam And Ors. on 10 November, 2006

Gauhati High Court

[Section 2(1)] [Section 2] [Complete Act]

Central Government Act

Gujarat High Court Case Information System Print SCA/27969/2007 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 27969 of 2007 ========================================================= PARAM COOPERATIVE HOUSING SOCIETY LTD - Petitioner(s) Versus THE GUJARAT INDUSTRIAL DEVELOPMENT CORPORATION & 2 - Respondent(s) ========================================================= Appearance : MR BY MANKAD for Petitioner(s) : 1, MR MB GANDHI for Respondent(s) : 1 - 2. MR CHINMAY M GANDHI for Respondent(s) : 1 - 2. MR PRAKASH K JANI for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 25/02/2010 ORAL ORDER1. By way of this petition, the petitioner has prayed for the following reliefs; (A) Your Lordships may be pleased to hold and declare that the action and inaction on the part of the respondent authorities of not allotting the plot at the prevailing rate, vide GIDC Policy dated 01.04.2003 to be illegal, arbitrary and unconstitutional. (B) Your Lordships may be pleased to hold and declare that despite availability of the plot, non-sale and allotment to the petitioner and not deciding the applications made by the petitioner to be illegal, arbitrary, unconstitutional and therefore, null and void. (C) ....... ....... 10(A) ....... 2. Looking to the facts and circumstances of the case and without entering into the merits of the case, it is observed that if the petitioner is found eligible for the allotment of plots and if the respondent-Corporation has plots available with it, then the respondent-Corporation shall consider the case of the petitioner in accordance with its rules and regulations as also its policy prevailing at the relevant point of time. 3. With the above observations, the petition stands disposed of. [K.S.JHAVERI, J.] Pravin/*     Top

Author: Ks Jhaveri,&Nbsp;

Param vs The on 25 February, 2010

Gujarat High Court

JUDGMENT Prakash Krishna, J. 1. Both these revisions were heard together as common question of law and facts are involved and relates to the assessment year 1981- 82 (Central) and 1982-83. The assessee is the same and issues are also the same, though the order of the Tribunal is different. Learned counsel for the parties have (sic) agreed that both the revisions may be disposed of by a common judgment. 2. The facts are given with reference to the assessment order 1981- 82 (Central) and it arises out of Second appeal No. 418 of 1987 decided by its order-dated 30-11-1991. Second appeal No. 314 of 1990 connected with 380 of 1990 and 381 of 1990 for the assessment year 1982- 83 (Central) decided on 30-11-1991. 3. The opposite party is a dealer and deals in the manufacture and sale of C.I. Casting pipes and pipefitting. It disclosed taxable turnover at Rs. 124,52,578.63 for the assessment year 1981-82 (Central). The disclosed turnover was not accepted by the assessing authority. It also partly rejected the case of stock transfer and the plea of job work. The Tribunal by order under revision has accepted both the pleas. 4. Aggrieved against the order of the Tribunal present revisions have been filed. The following identical two questions of law have been framed in the Memo of revision.: "Whether on the facts and in the circumstances of the case the Sales Tax Tribunal was legally justified to hold that: (i) The impugned branch transfer amount is exempt despite the facts that goods (Initial) were found to be written on the transfer vouchers which relates to specific buyers of Delhi establishing the fact that inter state sales were made instead of stock transfer. (ii) The impugned supply is a job work despite the facts terms of contract do not contain any provision of job work and Central sales Tax is to be charged on such supplies?" 5. Heard learned counsel for the parties and perused the record. 6. First, I take up the case of stock transfer. The assessing authority has rejected the claim of stock transfer after scrutinizing the books of account minutely. It has discussed in detail the nature of transaction as recorded in the books of account. Striking feature of the case as noticed by the assessing authority is that the dealer has used code word in the bills alleged to be the stock transfer, while transferring the goods to the branch office at Delhi. It has claimed discount. A reply was called for to explain the code word and the reasons for claiming discount to the goods transferred to the branch office. On page 4 of the assessment order the assessing authority has given details i.e. bill number, date, code language used therein, the value of the goods, discount and price etc. in a tabuler form. Opportunity was given to the dealer to decode the code language used in the bills. Inspite of opportunity afforded to the dealer, the dealer choose not to explain the meaning of the code word. Learned counsel for the dealer before me submitted that the code word might have been used by the dealer for various reasons. It may be true, but it I for the dealer to maintain the books of account in such a fashion so that the department may be able to decipher the two nature of transactions. The Tribunal without adverting to this aspect of the matter which has been dealt with in great detail in the assessment order has accepted the claim of stock transfer in a mechanical manner. It proceeded that the case of dealer was that the goods were dispatched by the assessee for delivery to its branches and necessary expenses were borne by the branches and the goods are received by the branches. Thereafter the Tribunal observed " nothing contrary to it has been brought on record by the department. Thus, the goods worth to Rs. 453860.33 transferred to the branches can not be held as inter State sale." This conclusion of the Tribunal is not correct in view of Section 6A of the Central Sales Tax Act. Section 6A of the Central Sales Tax Act lays burden of proof in the case of transfer of goods claimed otherwise than by way of sale, on the dealer. The said burden of proof has been laid on the dealer statutorily. The dealer opposite party claimed that he is not liable to pay tax under Central Sales Tax Act in respect of goods moved from State of U.P. to Delhi. The burden of proving that movement of goods was so occasioned is on the dealer. Learned counsel for the dealer could not show me any provision of law to justify the order of the Tribunal laying burden upon the department to disprove the claim of stock transfer. The order of the Tribunal has been passed by wrongly placing the burden of proof on the department and is contrary to Section 6A of the Central Sales Tax Act, therefore can not be sustained. The Tribunal shall re examine the matter in the light of Section 6A of the Central Sales Tax Act and the material available on record on this issue. Therefore the findings of the Tribunal on this issue for both the assessment years are set aside and the matter is remanded for fresh consideration. 7. The next issue is with regard to the claim of job work. This matter has been dealt with by the assessing authority on page 7 of the assessment order for the assessment year 1981-82. The assessing authority in order to verify the claim of job work of the dealer himself visited Delhi and inquired the matter from the Executive Engineer, Delhi Development Authority, Delhi. It then transpired that a contract for supply of items mentioned in the agreement No. 33/EE/HD/111/80/81 with respect to items enumerated in the contract at the agreed rate was entered into by the dealer opposite party. The contract money for supply is Rs. 16,14,000/-. The contract is dated 16-1-1981. There is another contract for supply of Cast iron dated 30-1-1982. The total contracted amount of the two contracts is about Rs. 1,02,40,000/-, as noticed in the assessment order. As against this the dealer has disclosed Central sales at a much lower figure. The assessing authority concluded that for the assessment year the dealer has concealed turn over of sale at Rs. 13,12,364. 68 to the Delhi Development Authority, Delhi. The assessing authority has also taken pain to find out real turn over of the dealer and for that purpose he visited Delhi Sales Tax Office and contracted the Sales Tax Officer Sri B.P. Singh. On the basis of inquiry conducted by the assessing authority he found huge suppression of sale and also recorded a finding that the claim of job work is bogus claim and, as a matter of fact, it is a case of supply of goods. That is the reason for using the Code language in the bills. The Tribunal has dealt with this matter in para 7 of its order. The order of the Tribunal being one of reversal it was expected from it to deal all aspect as were dealt with by the authorities below before recording a finding of reversal. The Tribunal has proceeded on the footing that certain quantity of Iron was purchased by the Delhi Development Authority, Delhi from the Steel authority of India, which was used by the assessee in production of Pipes and pipefitting for Delhi Development Authority. Therefore, the Tribunal concluded that since the goods were supplied as raw- material to the dealer and the dealer produced the goods out of the raw material supplied and charged only labour charges. Therefore it is a case of job work. This finding of the Tribunal is hardly satisfactory. The Tribunal being the last fact-finding court was expected to examine the facts of the case in great detail. In the order of the Tribunal there is no whisper about the terms and conditions of the two contracts entered into by the dealer opposite party. Without considering the terms and conditions of the contract acceptance of claim of job work cannot be sustained. It was for the dealer to prove that he carried on the work on labour charges. The assessing authority has examined the matter in great detail. In case of disagreement with the finding of the assessing authority or of the first appellate authority, the Tribunal should have dealt with that aspect of the case on which the authorities below had placed reliance. It is open to the Tribunal to take a different view but not without taking into consideration those aspect of the case which were taken into consideration by the authorities below. Therefore the finding of the Tribunal on this issue for both the assessment years are liable to be set aside. 'The matter is remanded to the Tribunal for reconsideration in the light of observations made above as well as in the light of facts on the record of the case. 8. In the result both the revisions are allowed and the two orders of the Tribunal both dated 30-11-1991 with respect to assessment year 1981- 82 and 1982- 83 (Central) on the aforesaid two points are set aside. The Tribunal shall decide the issue afresh, as indicated above.

Author: P Krishna

The Commissioner, Sales Tax vs S/S Doneria Pvt. Ltd. on 22 April, 2004

Allahabad High Court

ORDER A.K. Banerji, J. 1. By means of this writ petition, the petitioner, M/s. Hi-Tech Flexo Text (P) Ltd. has inter alia prayed for a writ of certiorari for quashing the impugned order dated 23-8-1995 (Annexure-7) passed by the Customs, Exicse and Gold (Control) Appellate Tribunal, New Delhi (the Tribunal in short) by which the said Tribunal disposed of the application filed by the petitioner for waiver directing them to pre-deposit Rs. 2 lakhs. The petitioner has also sought a writ in the nature of mandamus directing the Tribunal to decide the petitioner's appeal without insisting on any pre-deposit and to stay the recovery of the adjudged amount of duty during the pendency of the appeal. 2. The petitioner's case in brief is that the petitioner is engaged in manufacture of narrow woven elastic tape, which is used by the manufacturers of under garments. The petitioner claimed benefit of exemption from Central Excise Duty under Notification No. 1 of 1993, dated 28-2-1993. The Assistant Collector vide order dated 7-12-1994 did not grant the benefit of the said Notification to the narrow woven tapes and demanded the differential duty amounting to Rs. 7,77,025.44 for the period April, 1994 to October, 1994. Aggrieved, the petitioner filed an appeal before the Collector (Appeals), Ghaziabad, which was dismissed vide order dated 28-4-1995. The petitioner, thereafter, filed an appeal before the Tribunal along with a stay-cum-waiver application. The said application was disposed of vide order dated 23-8-1995 directing the petitioner to deposit Rs. 2 lakhs within eight weeks from the date of the receipt of the order. The deposit of the balance amount was waived. The petitioner has challenged the aforesaid order by means of the present writ petition. 3. I have heard Sri A.P. Mathur, learned Conusel for the petitioner and Sri Vikram Gulati, learned Counsel appearing for the respondents at the admission stage. The writ petition is being finally decided with the consent of the learned Counsel for the parties. 4. The main contention of Sri Mathur is that the Tribunal has failed to consider the prima facie merits of the case while considering the stay-cumwaiver application. He has further contended that the Tribunal has failed to consider the financial position of the petitioner in the right manner as contemplated under Section 35F of the Central Excises and Salt Act, 1944. However, the petitioner is not in a position to deposit the amount of Rs. 2 lakhs during the pendency of the appeal and the same will effect its business. 5. Having heard the learned Counsel for the parties and having carefully perused the orders passed by the Tribunal, I do not find any merits in the said submission. So far as the merits of the case is concerned, learned Counsel for the respondents has contended that the controversy involved in this case has been set at rest by the Supreme Court. Consequently, the submission on merits by the petitioner cannot be sustained any more. However, so far as the merits of the appeal is concerned, it will not be proper for this Court to make any observation with regards to the same as the matter will be considered on meirts by the Tribunal. So far on the question of waiver of pre-deposit is concerned, I am unable to agree with the learned Counsel that the Tribunal has failed to consider the financial position or the hardship suffered by it. I find that the Tribunal had applied its mind to the said fact and has observed that having regard to the totality of the circumstances, the applicant (petitioner) be directed to deposit Rs. 2 lakhs within eight weeks from the date of the receipt of the order and it had waived the deposit of the balance amount which was over Rs. 5,77,000/-. I am unable to agree with the learned Counsel that the judicial discretion exercised by the Tribunal is in any way illegal or improper or calls for any interference by this Court. 6. There is another aspect of the matter. On 9-11-1995, this Court had while granting time to the learned Counsel for the respondents had fixed 9-1-1996 for the purpose of Admission of this writ petition. The Court had also passed an interim order operative till the date fixed. The case was not heard on 9-1-1996 and no effect has been made by the petitioner to get the interim order extended. Therefore, the interim order passed by this Court stand exhausted and there is no stay for the last two years. 7. Consequently, this writ peititon lacks merits and the same is dismissed. However, as the Court has been informed that the appeal filed in the year 1995 before the Tribunal is still pending, it would be desirable that the same be disposed of as expeditiously as possible preferably within two months of the pre-deposit of Rs. 2 lakhs as directed in the order dated 23-8-1995.

Author: A Banerji

Hi-Tech Flexo Text (P) Ltd. vs Cegat on 6 January, 1998

Allahabad High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl No. 5356 of 2007() 1. KRISHNAMOORTHY @ M.D.K.BABU, S/O.MANI, ... Petitioner Vs 1. THE STATION HOUSE OFFICER, ... Respondent For Petitioner :SRI.MANSOOR.B.H. For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice R.BASANT Dated :07/09/2007 O R D E R R.BASANT, J. ---------------------- B.A.No.5356 of 2007 ---------------------------------------- Dated this the 7th day of September 2007 O R D E R Application for anticipatory bail. The petitioner is the husband of the de facto complainant. He faces allegations inter alia under Section 498A I.P.C. The crime has been registered on the basis of a private complaint filed before the learned Magistrate and referred by the learned Magistrate to the police under Section 156(3) Cr.P.C. Investigation is in progress. The petitioner apprehends imminent arrest. Marriage took place on 6/7/2006. There is some strain in the matrimony. The learned counsel for the petitioner submits that because of such strain in matrimony, the de facto complainant/wife is raising fanciful and exaggerated allegations against the petitioner. The petitioner does not deserve to endure the trauma of arrest and incarceration in prison. Anticipatory bail may, in these circumstances, be granted to the petitioner, prays the learned counsel for the petitioner. 2. The learned Public Prosecutor does not oppose the prayer for anticipatory bail. I reckon that as an informed and reasonable stand taken by the learned Public Prosecutor. Arrest and incarceration of the petitioner in custody will mar all possibilities of a  B.A.No.5356/07 2 harmonious reconciliation of the spouses in the infant marriage, appropriate conditions to facilitate a harmonious settlement of the dispute can of course be imposed. 3. In the result, this petition is allowed. Following directions are issued under Section 438 Cr.P.C in favour of the petitioner. i) Petitioner shall surrender before the learned Magistrate having jurisdiction at 11 a.m on 14/09/2007. ii) He shall be released on regular bail on condition that he executes a bond for Rs.25,000/-(Rupees twenty five thousand only) with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. iii) The petitioner shall make himself available for interrogation before the investigating officer between 10 a.m and 3 p.m on 15/09/2007 and 16/09/2007 and thereafter on all Mondays between 10 a.m and 12 noon for a period of two months and subsequently as and when directed by the investigating officer in writing to do so. (iv) If the petitioner does not appear before the learned Magistrate as directed in clause (i), directions issued above shall thereafter stand revoked and the police shall be at liberty to arrest the petitioner and deal with him in accordance with law, as if these directions were not issued at all. B.A.No.5356/07 3 (v) If he were arrested prior to 14/09/2007, he shall be released from custody on his executing a bond for Rs.25,000/- (Rupees twenty five thousand only) without any sureties, undertaking to appear before the learned Magistrate on 14/09/2007. (R.BASANT, JUDGE) jsr  B.A.No.5356/07 4  R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007 

Krishnamoorthy @ M.D.K.Babu vs The Station House Officer on 7 September, 2007

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 15677 of 2007(N) 1. THE MANAGER, ST.AUGUSTIN'S ... Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY ... Respondent 2. THE DEPUTY DIRECTOR, EDUCATION, 3. DISTRICT EDUCATION OFFICER, 4. THE HEADMISTRESS,ST.AUGUSTIN'S HIGH 5. SRI.NAVEEN CHRISTOPHER, 6. SMT.BEAULA FATHIMA LOPAS, For Petitioner :SRI.P.SANTHOSH KUMAR (PANAMPALLI NAGAR) For Respondent :SRI.GOPAKUMAR R.THALIYAL The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR Dated :18/08/2009 O R D E R T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos.15677/2007-N & 17240/2007-B - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of August, 2009. JUDGMENT These writ petitions are at the instance of the Manager of a school and the newly appointed clerk who is seeking approval of appointment. The relevant facts for the disposal of the writ petitions are the following: 2. The 6th respondent in W.P.(C) No.15677/2007 was working as a Clerk in the school. She requested for voluntary retirement from service with effect from 1.9.2006. The request was duly forwarded by the Headmistress to the Accountant General. After completing the process and after getting sanction of the Accountant General, by Ext.P3 sanction was accorded by the second respondent after accepting the voluntary retirement. The same came into effect on 1.9.2006. In the said vacancy, the 5th respondent who is the petitioner in W.P.(C) No.17240/2007 was appointed. Later on, after several months, the second respondent issued Ext.P5 directing not to proceed with Ext.P3. Ext.P6 is the consequential order passed by the second respondent withdrawing the sanction for voluntary retirement. These are under challenge in these writ petitions.  wpc 15677/07 & 17240/07 2 3. The apparent reasons shown in Exts.P5 and P6 are that the Headmaster reported that the 6th respondent has availed a number of loans from various concerns and she is also a surety to certain other loanees. She is an indebted person and her pensionary benefits are not sufficient to compensate these liabilities. 4. Learned counsel for the petitioners submitted that the second respondent has no power to recall the order sanctioning voluntary retirement. The 6th respondent had not withdrawn her application for voluntary retirement before the sanction was granted. Even if there is a withdrawal, that can be made only before the acceptance of the voluntary retirement. Herein, the said question therefore does not arise. It is further pointed out that merely because the 6th respondent is indebted to private parties and co-operative societies in respect of certain loans, that cannot be a ground to recall the sanction for voluntary retirement. It is pointed out that the second respondent has acted arbitrarily and illegally in passing such an order. Learned counsel for the 6th respondent and learned Govt. Pleader were also heard. In the counter affidavit filed by the 6th respondent, the case pleaded is that she was cheated by the Manager in seeking voluntary retirement. His son is appointed in her place. She has no case that the application seeking voluntary retirement was withdrawn at any time.  wpc 15677/07 & 17240/07 3 Her plea can only be an after thought. 5. A reading of Ext.P3 shows that when the application for voluntary retirement was given by the 6th respondent, the proposal was forwarded to the Accountant General for verification and the same was approved. Accordingly, sanction was ordered to effect voluntary retirement from 1.9.2006. This order is dated 26.12.2006. It is pointed out in the writ petition that the 6th respondent had rendered service beyond 1.9.2006 for a period of two months till the receipt of the order Ext.P3 and the salary claimed for the said period was also refunded. 6. Thus, it is a case where the voluntary retirement of the 6th respondent has become final and had taken effect. Hence, the question of recalling or cancelling the said order does not arise at the hands of the second respondent who had sanctioned voluntary retirement. The reasons stated in Exts.P5 and P6 are that she has several number of loans from various concerns and is a surety to various transactions. The details have been shown in Ext.P6. The creditors are certain service co-operative banks and she has also dues in certain chitty transactions. Significantly, even though she was given an opportunity for hearing, she did not go back on the application for voluntary retirement. Thus, the action by the 2nd respondent is perfectly without jurisdiction. It is mentioned in Ext.P6 itself  wpc 15677/07 & 17240/07 4 that the 6th respondent submitted that all outstanding balance will be remitted by her from her pensionary benefits which is reiterated in her counter affidavit also. But the second respondent went on to state that the pensionary benefits are not sufficient to clear all the dues and therefore the sanction has to be withdrawn. The said reason is not one germane to the issue. It is beyond the scope of the scheme for grant of voluntary retirement also. Once the voluntary retirement has been sanctioned in terms of the application of the 6th respondent, there was no reason for the second respondent to recall and cancel the same for a reason like the one pointed out in Exts.P5 and P6. If she is indebted to other private parties and co- operative banks, it is their look out to realise the amount from her. It is not a case where there had been any dues to the Government also. Therefore, the second respondent was not actually concerned with the main question whether the pensionary benefits are sufficient to satisfy the debts. Once voluntary retirement has been accepted and the 6th respondent retired from service, she could not have been ordered to be reinstated in service based on a report by the Headmaster. It is clear from Exts.P5 and P6 that the 6th respondent never wanted withdrawal of the application for voluntary retirement also. It is well settled by various decisions of this court and that of the Apex Court that even a withdrawal can be made only before  wpc 15677/07 & 17240/07 5 acceptance of the same. Therefore, the impugned orders Exts.P5 and P6 in W.P.(C) No.15677/2007 are quashed. 7. Hence, both the writ petitions are allowed. There will be a direction to the District Educational Officer to consider the approval of appointment of the petitioner in W.P.(C) No.17240/2007 in terms of the appointment order. Appropriate orders shall be passed within a period of six weeks from the date of receipt of a copy of this judgment. Consequential benefits also will be sanctioned to the petitioner therein. 8. Learned counsel for the 6th respondent submitted that she had rejoined duty pursuant to Ext.P6 and therefore she is entitled for grant of salary and other benefits. This is opposed by the learned counsel for the petitioner who submitted that in the light of the interim order, the said contention cannot be accepted. At any rate, the said contention cannot be accepted since she has accepted voluntary retirement from 1.9.2006. Therefore, such a claim cannot be countenanced at all and the plea is rejected. The writ petitions are disposed of as above. No costs (T.R. Ramachandran Nair, Judge.) kav/ 

The Manager vs State Of Kerala on 18 August, 2009

Kerala High Court

Gujarat High Court Case Information System Print LPAST/870/2008 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL (STAMP NUMBER) No. 870 of 2008 In SPECIAL CIVIL APPLICATION No. 2714 of 2008 ========================================================= SR DIVISIONAL MANAGER & 3 - Appellant(s) Versus DANATANI JITENDRA GIRISHBHAI - Defendant(s) ========================================================= Appearance : MR AK CLERK for Appellant(s) : 1 - 4. None for Defendant(s) : 1, ========================================================= CORAM : REGISTRAR (JUDICIAL) Date : 11/09/2008 ORAL ORDER Office objections to be removed on or before 10.10.2008, failing which, matter may be placed before the Hon'ble Court for passing an appropriate orders. (G.K. Upadhyay) Registrar(Judicial) Nabila     Top

Sr vs Danatani on 11 September, 2008

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.10152 of 2011 MURARI PANDEY Versus THE STATE OF BIHAR ----------- Shageer ( Dinesh Kumar Singh, J) 02. 19.04.2011 Heard learned counsels for the petitioner, informant and the State. Petitioner is apprehending his arrest in a case registered under Sections 364, 365/34 of the I.P.C. The accusation is of taking away the grand son of the informant for extortion purposes. It is submitted by learned counsel for the petitioner that for the alleged occurrence of 11.08.2001 the complaint was filed on 21.08.2001 which got registered as police case on 24.08.2001. It is submitted by learned counsel for the petitioner that during investigation the accusation was found false and final form was submitted but differing with the same, cognizance has been taken in the matter. It is further submitted that the informant subsequently retracted form his initial version and has filed a petition to that effect before learned Court below. It is submitted by learned counsel for the informant that in 164 Cr.P.C. statement the victim has supported the accusation and there are evidences in the case diary. Considering the fact that considering the 164 Cr.P.C. statement of the victim and other evidence the police submitted final form treating the accusation false, let the petitioner namely Murari Pandey, in the event of his arrest or surrender before the Court below within a period of 12 weeks from today, be released on anticipatory bail on furnishing bail bond of Rs. 10,000/- (ten thousand) with two sureties of the like amount each to the satisfaction of Additional Chief Judicial Magistrate, Naugachia in connection with Gopalpur P.S. Case No. 137 of 2001(G.R. No. 425 of 2001).

Murari Pandey vs The State Of Bihar on 19 April, 2011

Patna High Court - Orders

Central Information Commission CIC/AD/A/09/00286 Dated April 15, 2009 Name of the Applicant : Mr.Natvargiri Shivgiri Goswami Name of the Public Authority : Dept. of Post, Bhavnagar Background1. The Applicant filed an RTI application dt.28.6.08 with the CPIO, DoP, Bhavnagar. He stated that he had performed duties as Branch Post Master Piprali B.O under A/c jurisdiction of Dhola SO in the year 1991 to 1993 on temporary basis. He wanted to know the exact period of performance of his continuous duty as Branch Post Master. The CPIO replied on 13.10.08 stating that his application dt.28.6.08 was not received by his office, but from the acknowledgement due receipt it transpires that the same was delivered to the DSP's Office. He also denied information u/s 8(1)(h) of the RTI Act. Not satisfied with the reply, the Applicant filed an appeal dt.6.11.08 with the Appellate Authority. On not receiving any reply from the First Appellate Authority, the Applicant filed a second appeal dt.nil before the CIC. 2. The Bench of Mrs. Annapurna Dixit, Information Commissioner, scheduled the hearing for April 15, 2009. 3. Mr. S.Y.I Patel, Sr. Supdt. of Post Offices, Bhavnagar & CPIO and Mr. G.R. Bhanani, ASP(V),O/o PMG, Rajkot represented the Public Authority. 4. The Applicant was not present during the hearing. Decision 5. The Commission noted that the CPIO had not provided any reason for denying the information to the Appellant except rejecting disclosure u/s 8(i)(h). As per the Appellant's letter to the Appellate Authority dated 6.11.08, there is no ongoing investigation on any issue involving the Appellant and therefore rejection of information u/s 8(i)(h) by the CPIO is in no way justified. The Commission accordingly directs the CPIO to provide the information sought by the Appellant by 5th May, 2009 and also to show cause as to why a fine of Rs. 250/- per day should not be imposed on him for denying information u/s 8(i)(h). The response to reach the Commission within 10 days of receipt of this Order. 6. The appeal is disposed off. (Annapurna Dixit) Information Commissioner Authenticated true copy: (G.Subramanian) Asst. Registrar Cc: 1. Mr.Natvargiri Shivgiri goswami Vill : Piprali Taluka : Umrala Bhavnagar District 2. The CPIO & Sr. Supdt. of Post Offices Department of Post Bhavnagar Division Bhavnagar 364 001 3. The Appellate Authority & Director of Postal Services Department of Post O/o Post Master General Rajkot Region Rajkot 4. Officer in charge, NIC 5. Press E Group, CIC

Mr.Natvargiri Shivgiri Goswami vs Dept. Of Post, Bhavnagar on 15 April, 2009

Central Information Commission

ORDER V.P. Gulati, Member (T) 1. This appeal is against the order of the Collector of Central Excise, Kochi. Under the impugned order the lower authority has decided three issues against the appellants (i) eligibility to the money credit relatable to the by-product manufactured by the appellants in respect of Neem oil used in terms of Notification 46/89 dated 11-10-1989 issued in terms of Rule 57K of the Central Excise Rules, 1944, (ii) manufacture of goods without licence and (iii) clearance of the goods without approval of classification list. The learned lower authority has also confiscated the neem antifeedant and allowed the same to be redeemed on payment of fine of Rs. 10,000/-. A penalty of Rs. 5,000/- has also been imposed on the appellants for violation of Rule 173Q of the Central Excise Rules, 1944. 2. Shri J.B. Koshy, the learned Counsel for the appellants pleading in regard to the money credit scheme relatable to the quantity of neem antifeedant produced from Neem oil, pleaded that neem oil contains gummy material which ultimately does not form part of the soap which is manufactured in the appellants' factory and gets removed during the process of filteration and the oil from which the neem antifeedant is removed continues to be a minor oil. He pleaded that since the appellants had subsequently found that the gummy materials contained in the neem oil can be used as pesticides they removed the gummy materials from the neem oil before it is used in the manufacture of soap. He pleaded that in this background so far as the benefit of Notification issued under Rule 57K is concerned, whether the gummy material is removed during the process of manufacture of soap or after it is extracted from the neem oil in the beginning is immaterial when the fact remains that neem oil has been used in the manufacture of soap. He, therefore, prayed for extending the benefit of the money credit scheme denied to the appellants. He pleaded that there is nothing in the order of the learned lower authority to show as to how the lower authority has denied the benefit, when neem oil as such has been used in the manufacture of soap. 3. In regard to the manufacture of neem antifeedant without applying for a Central Excise Licence and its clearance without approval of the classification list, he pleaded that the appellants had filed classification list on 8-1-1991. He pleaded that this classification list was approved by the Department provisionally. In regard to the date on which they applied for the licence, the learned Counsel pleaded that he is not able to say as to the date of approval to the classification list provisionally. He pleaded that the goods have been seized on 15-2-1991 and by this time the appellants had already made a number of clearances and it should be presumed that they had applied for the licence and the classification list had been approved by them. However, he is not able to produce any evidence in regard to the date of application for licence and also provisional approval of the classification list. 4. Shri P.R. Prasad, the learned SDR pleaded that the appellants have admittedly manufactured two products viz., neem antifeedant to be used as pesticides and also soap and the gummy substance used as neem antifeedant has been removed before the manufacture of soap and not during the process of manufacture of soap and for that reason the appellants have been rightly denied the benefit of the money credit scheme in respect of the goods manufactured by them. In regard to the manufacture of the goods without a licence and clearance of the same without approval of the classification list, he pleaded that the appellants have not put forth any evidence to substantiate their plea regarding manufacture of the goods after their application for licence and also that clearances have been effected after approval to the classification list. He, therefore, pleaded that the lower authority's order is maintainable in law. 5. I have considered the pleas made both the sides. In regard to the benefit of the money credit scheme, I observe that the same is allowed in terms of Rule 57K read with Rule 57M of the Central Excise Rules. Rule 57M is reproduced below for convenience of reference : Credit not to be denied or varied in certain circumstances. (1) Credit of money in respect of any inputs shall not be denied or varied on the ground that part of the inputs is contained in any waste, refuse or byproduct arising during the manufacture of the final products, whether or not such waste, refuse or by-product is exempted from the whole of the duty of excise leviable thereon or is chargeable to nil rate of duty or is not specified as final product; and (2) Credits of money allowed in respect of any inputs shall not be denied or varied on the ground that any intermediate product has come into existence during the course of manufacture of the final products and that such intermediate products are for the time being exempted from the whole of the duty of excise leviable thereon or is chargeable to nil rate of duty: Provided that such intermediate products are used within the factory of production in the manufacture of final products on which duty of excise is leviable whether in whole or in part. 6. I observe that the gummy substance forms part of the neem oil and the same gets removed as it is during the process of the manufacture of the soap as pleaded and there is no plea contra, and the removal of the gummy substance therefrom, appears to be a technical necessity and it does not matter if it is removed before or during the process of manufacture of soap. Inasmuch as the gummy substance has to be removed from the neem oil for the manufacture of the final product viz. soap, in view of the above, I hold that in terms of Rule 57M, the benefit of money credit has been wrongly denied to the appellants by the lower authority. I, therefore set aside that part of the order of the lower authority in this regard and hold that the appellants would be eligible to the money credit scheme. 7. In regard to the manufacture of neem antifeedant the lower authority has held that no evidence has been produced in regard to application for licence for the manufacture of the same. The appellants have also not produced any evidence in regard to approval to the classification list for clearance of the goods. In view of the above, the Ld. lower authority's action for violations of the provisions of Rule 174 read with Rule 173Q of the Central Excise Rules, 1944 is maintainable in law. 8. Taking into consideration the facts and circumstances, I hold that so far as the redemption fine of Rs. 10,000/- is concerned, the same cannot be considered as excessive and I confirm the same. However, I hold that ends of justice would be served if the penalty is reduced to Rs. 3,000/- (Rupees Three thousand). Except for the above modifications, the appeal is otherwise dismissed.

Tata Oil Mills Co. Ltd. vs Collector Of Central Excise on 29 October, 1994

Customs, Excise and Gold Tribunal - Tamil Nadu

IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl Rev Pet No. 45 of 2008() 1. C.SULAIMAN,S/O. KADER ... Petitioner Vs 1. M.A.ASSOO,MUSTHAFA MANSIL, ... Respondent 2. STATE OF KERALA For Petitioner :SRI.C.V.MANUVILSON For Respondent : No Appearance The Hon'ble MR. Justice V.RAMKUMAR Dated :08/02/2008 O R D E R V.RAMKUMAR, J. ................................................. Crl.R.P. No. 45 of 2008 ................................................ Dated, this the 8th day of February,2008. O R D E R V. RAMKUMAR, JUDGE css/  CRL.R.P.45/2008 4  In this Revision filed under Section 397 read with Sec. 401 Cr.P.C., the petitioner who was the accused in C.C.No.15/1999 on the file of the Judicial First Class Magistrate, Thalassery challenges the conviction entered and the sentence passed against him for an offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). 2. I heard the learned counsel for the Revision Petitioner and the learned Public Prosecutor and also the learned counsel for the complainant. 3. The learned counsel appearing for the Revision Petitioner re-iterated the contentions in support of the Revision. The courts below have concurrently held that the cheque in question was drawn by the petitioner in favour of the complainant on the drawee bank, that the cheque was validly presented to the bank, that it was dishonoured for reasons which fall under Section 138 of the Negotiable Instruments Act, that  CRL.R.P.45/2008 2 the complainant made a demand for payment by a notice in time, in accordance with clause (b) of the proviso to Section 138 of the Negotiable Instruments Act and that the Revision Petitioner/accused failed to make the payment within 15 days of receipt of the statutory notice. Both the courts have considered and rejected the defence set up by the revision petitioner while entering the above finding. The said finding has been recorded on an appreciation of the oral and documentary evidence. I do not find any error, illegality or impropriety in the finding so recorded concurrently by the courts below. The conviction was thus rightly entered against the petitioner. 4. What now survives for consideration is the question as to whether what should be the proper sentence to be imposed on the revision petitioner. Having regard to the facts and circumstances of the case, I am inclined to modify the sentence imposed on the revision petitioner. In the light of the recent decision of the Supreme Court in Ettappadan Ahammedkutty v. E.P. Abdullakoya rendered on 3-8-2007 in Crl.Appeal 1013 of 2007, default sentence cannot be imposed for the enforcement of an order for compensation under Sec. 357 (3) Cr.P.C. Accordingly, for the conviction under  CRL.R.P.45/2008 3 Section 138 of the Act, the revision petitioner is sentenced to pay a fine of 50,000/- (Rupees Fifty thousand only). The said fine shall be paid as compensation under Section 357 (1) Cr.P.C. The revision petitioner is permitted either to deposit the said fine amount before the Court below or directly pay the compensation to the legal representatives of the deceased complainant within five months from today and produce a memo to that effect before the trial Court in case of direct payment. If he fails to deposit or pay the said amount within the aforementioned period he shall suffer simple imprisonment for three months by way of default sentence. In the result, this Revision is disposed of confirming the conviction entered but modifying the sentence imposed on the revision petitioner.

C.Sulaiman vs M.A.Assoo on 8 February, 2008

Kerala High Court

JUDGMENT D.N. Jha, J. 1. This is defendant's second appeal directed against the iudg-ment and decree passed by Additional District Judge, Lucknow dismissing the defendant's appeal and upholding the judgment and decree passed by the Additional Civil Judge, Lucknow. 2. Plaintiff who is the respondent in this appeal filed a suit for arrears of rent and ejectment against the defendant-appellant. In brief, the case of the plaintiff was that defendant was a tenant on monthly rent of Rs. 8.75 in the shop with 'ahata' appurtenant to it. The tenancy was to commence from the 1st day of each calendar month and ended with the last day of each calendar month. The plaintiff was in arrears of rent from 1-5-1964 to 12-4-1967. The arrears of rent claimed was Rs. 317.43 till the date of filing of the suit. Pendete lite interest and future damages has also been claimed coupled with the relief of ejectment. Plaintiff sent the notice by registered post on 9-3-67 but was refused by the defendant-appellant on 13-3-1967 and, therefore, the suit was filed. The suit was resisted by the defendant. He denied receipt of the notice. He further stated that the rent was tendered to the landlord, but was refused and, therefore, it was deposited. 3. The learned Civil Judge, who tried the case after considering the evidence held that the notice was served by refusal and the rent was not paid by the defendant to the landlord. On these findings the learned trial court decreed the suit. Defendant feeling aggrieved went up in appeal but the same was dismissed on 5-12-1972 after recording a finding that the notice in question was tendered for delivery to the defendant-tenant and that she refused the same. This is how the defendant feeling aggrieved has come up before this court by means of this second appeal. 4. I have heard the learned counsel for the parties. The sole contention raised by the learned counsel for the appellant is the same which was urged before the appellate court viz., that the notice was not duly served and, therefore, decree passed by the court below suffered from legal infirmity. Learned counsel in support of his contention placed reliance on Meghji Kanji Patel v. Kundanmal Chamanlal Mehtani (AIR 1968 Bom 387), wherein it was held:-- "Where an ex parte decree is passed after the writ of summons has been sent to a defendant by registered post and the cover containing the summons has been returned with the postal endorsement "refused", it is undoubtedly for the defendant to satisfy the court that the letter was not tendered to him. But the defendant can only do so by making a statement on oath. This must usually remain uncontroverted, unless the postman, who tendered the letter to him, is summoned and makes a statement that he tendered the cover containing the summons to the defendant and after cross-examination, his evidence is believed." This division has been confirmed by the Supreme Court in Pawada Venkateswara Rao v. Chidamana Venkata Ramana (AIR 1976 SC 869). 5. In the instant case the notice was sent by registered post. The receipt of notice was denied. The plaintiff in order to prove his case examined herself and the postman. The learned courts below have accepted that the letter addressed to the defendant and sent by registered post was duly tendered but had been refused bv the defendant. The learned counsel in order to overcome this finding argued that the courts below did not consider the evidence of the postman in its true perspective. He maintained that the postman had catgorically stated that he could not identify the defendant who had been produced before him in this Court. Therefore, he argued that presumption of refusal by the defendant could not legitimately be inferred. In my opinion, the argument though fascinating, but is devoid of substance. The statement of the postman does not show that he had not gone to the place of addressee or that it had not been refused by the adressee. In the circumstances, if he failed to identify after a lapse of time, any adverse inference cannot be drawn to nullify the effect of endorsement made on the letter. The learned appellate court has referred to a decision of this Court Dwarka Singh v. Ratan Singh Ahuja (1969 ALJ 849 (869)) wherein Section 27 of the General Clauses Act and Section 114 of the Evidence Act have been drawn for the rescue in such case like the one in hand. I see no error in the approach made by the learned appellate court. The trial court as well as the appellate court after considering the oral and the documentary evidence proceeded to record a finding that the notice in question was tendered for delivery to the defendant and that she refused the same. Nothing could be shown to dislodge the finding. I, therefore, see no error of law or of procedure committed by the court below so as to warrant interference with the judgment under appeal. No other point has been Dressed. 6. In view of the aforesaid discussion the appeal fails and is accordingly dismissed. I, however, make no order as to costs. If there is any stay order, it stands vacated.

Author: D Jha

Smt. Ram Shree vs Smt. Khadija Bibi And Anr. on 1 May, 1980

Allahabad High Court

Gujarat High Court Case Information System Print CA/9307/2009 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION No. 9307 of 2009 In LETTERS PATENT APPEAL No. 1599 of 2009 In SPECIAL CIVIL APPLICATION No. 5466 of 2008 ========================================= STATE OF GUJARAT & 4 - Petitioner(s) Versus NARENDRABHAI JETHABHAI SOLANKIC/O MANJULABEN KANTI HARIJAN & 1 - Respondent(s) ========================================= Appearance : GOVERNMENT PLEADER for Petitioner(s) : 1 - 5. None for Respondent(s) : 1 - 2. ========================================= CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA and HONOURABLE MR.JUSTICE MD SHAH Date : 10/05/2010 ORAL ORDER(Per : HONOURABLE MR.JUSTICE D.H.WAGHELA) RULE returnable on 28.06.2010. Ad interim relief in terms of para 4(b). [D.H.WAGHELA, J.] [M.D.SHAH, J.] Jyoti     Top

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

State vs Narendrabhai on 10 May, 2010

Gujarat High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 13541 of 2009(K) 1. SHAJI, S/O.KUMARAN, AGED 38 YEARS, ... Petitioner Vs 1. THE DISTRICT COLLECTOR, ... Respondent 2. THE SUB INSPECTOR OF POLICE, For Petitioner :SRI.P.M.ZIRAJ For Respondent : No Appearance The Hon'ble MR. Justice V.GIRI Dated :12/05/2009 O R D E R V.GIRI, J ------------------- W.P.(C).13541/2009 -------------------- Dated this the 12th day of May, 2009 JUDGMENT Petitioner claims to be the owner in possession of a Mini Lorry, which was seized by the second respondent for the alleged unauthorized transportation of river sand without requisite pass. Petitioner has moved the District Collector for appropriate orders regarding the release of the vehicle as per Ext.P1 and the same is pending consideration. I heard learned Government Pleader also. In the result, writ petition is disposed of directing the first respondent to consider and pass orders on Ext.P1, in accordance with law, within four weeks from the date of receipt of a copy of this judgment. V.GIRI, Judge mrcs 

Shaji vs The District Collector on 12 May, 2009

Kerala High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.19148 of 2010 MD.TABARAK Versus STATE OF BIHAR ----------- Shail ( Mandhata Singh, J.) 5/ 18.08.2010 In view of the Court's order, husband (petitioner) and wife (complainant) are personally present in Chamber and both express their desire to live together peacefully with love, care and affection. Put up this case at the top of the list on 03.11.2010. In the meantime, no coercive action be taken against the petitioner in connection with Complaint Case No. 2219 of 2009 pending in the Court of C.J.M., Araria.

Md.Tabarak vs State Of Bihar on 18 August, 2010

Patna High Court - Orders

Gujarat High Court Case Information System Print SCA/10948/2010 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10948 of 2010 ========================================================= HARDIK BHUPENDRABHAI PATEL - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR UMANG K CHOKSI for Petitioner(s) : 1, MR AMIT PATEL AGP for Respondent(s) : 1, None for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 13/09/2010 ORAL ORDER1. Heard learned advocate Mr.Umang Choksi for petitioner and learned AGP Mr.Amit Patel for respondent No.1. 2. In present petition, the petitioner has challenged the order dated 28.2.2005 (Annexure-A). Learned advocate Mr.Choksi submitted that notice dated 5.6.2004 is not received by petitioner and not served by authority to petitioner. 3. If that be so, let petitioner may approach to Dy. Collector, Stamp Duty Office, Part-1, Ahmedabad by detailed representation in respect to fact as to whether notice dated 5.6.2004 is served to petitioner or not, within a period of one month from date of receiving copy of present order. 4. As and when respondent No.3 - Dy. Collector, Stamp Duty Office, Part-1, Ahmedabad receives such representation from petitioner, it is directed to respondent No.3 - Dy. Collector, Stamp Duty Office, Part-1, Ahmedabad to consider such representation which has been made by petitioner and find from original record as to whether notice dated 5.6.2004 issued by Collector Stamps is received by petitioner or not and whether such notice was served to petitioner at original correct address or not and thereafter, to pass appropriate reasoned order in accordance with law, within a period of four months from date of receiving such representation from petitioner and communicate the decision to petitioner immediately. 5. In view of aforesaid observations and directions, present petition is disposed of without expressing any opinion on merits. (H.K.RATHOD,J.) (vipul)     Top

Author: H.K.Rathod,&Nbsp;

Hardik vs State on 13 September, 2010

Gujarat High Court

In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.1952/2011 Smt. Ranjana Sain Versus State & Ors Date of Order ::: 14/02/2011 Hon'ble Mr. Justice Ajay Rastogi Mr. PS Sharma, for petitioner. Counsel is directed to place on record xerox copy of order dt.02/10/2010 referred to by learned Tribunal in its order dt.07/02/2011 (Ann.3). List on 18/02/2011. (Ajay Rastogi), J. K.Khatri/p1/ 1952CW2011Feb14-Adj.do

Smt Ranjana Sain vs State Of Raj & Ors on 14 February, 2011

Rajasthan High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11328 of 2006 Ghanshyam Prasad Versus The Bihar State Housing Board& ----------- 2 28.06.2011 No one appears on behalf of the petitioner. Put up day after tomorrow retaining its position. Spd/- ( Dr. Ravi Ranjan, J.)

Ghanshyam Prasad vs The Bihar State Housing Board& on 28 June, 2011

Patna High Court - Orders

ORDER P. Venkatarama Reddi, J. 1. Aggrieved by the order passed by the Divisional forest Officer, Kamareddi confiscating the lorry belonging to the first respondent under Section 44 (2-A) of A.P. Forest Act, the first respondent preferred an appeal to the District and Sessions Judge, Nizamabad. The Divisional Forest Officer, Kamareddi held that the owner of the lorry had prior knowledge of transport of timber for the benefit of A.4 and despite the same, he did not take necessary precautions to ensure that illicit timber was not transported by the driver. He further held that the owner and driver connived with A.4 to facilitate the transport of illicit timber. Hence, he ordered confiscation of the lorry. Admittedly, the lorry was seized on 13-1-1987 when it was carrying on 104 timber logs which were obtained by felling trees in the reserve forest area, On the short ground that an opportunity of compounding the offence was given to the appellant-owner, the District Sessions Judge, Nizamabad before whom criminal appeal was filed allowed the appeal partly. The appellant was directed to pay the amount equivalent to the value of the forest produce i.e. Rs. 12,810/- as a condition for the release of the vehicle. It is against this order, the present writ petition is filed by the Forest Range Officer, Gandhari, Nizamabad district. 2. It is seen from the impugned order that there is no discussion of the material aspects at all. Whether the appellant (owner of the lorry) also had the knowledge of the use of the vehicle for carrying illicit timber and whether he had taken reasonable precautions to see that the vehicle was not used for the said purpose, have not been discussed. If the owner had knowledge or is deemed to have had knowledge and he failed to take reasonable precautions, the owner cannot disown his responsibility and it will have a definite bearing on the question whether confiscation is warranted and if not to what extent the confiscation has to be made. If on the other hand, the owner had no knowledge and he had taken reasonable precautions, the vehicle may still be liable for confiscation if the driver or the person-in-charge had knowledge or connived in the offence. But in the latter case, the punishment to be meted out to the owner of the vehicle by way of confiscation need not be of the same magnitude. It was held in a recent Full Bench decision rendered by two of us and K.S. Srivastav, J., that the authorised officer in exercise of power of confiscation under Section 44(2-A) can confiscate whole of the vehicle or depending upon the circumstances. He may confiscate part of the value of the vehicle and the same principle will apply in appeal without any discussion and without consideration of relevant facts and circumstances, the learned Judge directed to pay an amount equivalent to value of the forest produce. That order was purportedly passed under Section 59 of the Act. The Full Bench held that the power of compounding cannot be exercised by the appellate Court or even by the Forest Officer, but in fixing the quantum of value to be confiscated, the Court can have regard to the scale of compounding fee as a measure and that while it is within the province of the Forest Officer and the appellate Court to direct confiscation of the entire vehicle, still the said officer or the Court has to judiciously exercise its discretion so as to fix a reasonable amount liable for confiscation, in case the confiscation of the entire vehicle is found to be unwarranted. As already noted, the appellate Court without discussion of relevant facts and circumstances having a material bearing on the determination of the amount to be confiscated, arbitrarily fixed a sum of Rs.12,810/-. 3. We, therefore, set aside the impugned order and direct the District Judge, Nizamabad to dispose of the appeal afresh in the light of the observations made above. The appeal shall be numbered as a Civil Miscellaneous Appeal as held by this Court in Nehrulal Makadia v. State of A.P., 1987 (2) APLJ 59 and the District Judge has to hear the appeal. The writ petition is allowed subject to the above directions. No costs.

Author: P V Reddi

Forest Range Officer, Gandhari, ... vs K. Raju And Others on 17 July, 1998

Andhra High Court

In the Central Information Commission  at New Delhi File No: CIC/AD/A/2011/001039 Date of Hearing :  August 9, 2011 Date of Decision :  August 9, 2011 Parties: Appellant Shri Omprakash Kashiram H.No. 03/16, Amol Apartment, Waldhuni, Kalyan 421 301 The Appellant was not present .  Respondents Ministry of Railways  Railway Board, Rail Bhawan New Delhi Represented by: Shri Mukund Kumar Sinha, Director and Shri Sanjeev Sharma, Joint Director Information Commissioner :   Mrs. Annapurna Dixit ___________________________________________________________________ In the Central Information Commission  at New Delhi File No: CIC/AD/A/2011/001039 ORDER Background 1. The Applicant, through his RTI­application dated 29.12.2010, filed with the PIO, Railway Board, New  Delhi, wanted to know the total income of Railways (financial year wise) from all the sources available  throughout the country since 1947 to 2011 in   a particular format which he had enclosed with his  application. Since the Applicant did not receive any response from the PIO, he filed his 1st­appeal  dated 03.02.2011 with the Appellate Authority. The PIO, thereafter, on 04.03.2011, forwarded the  requested information--as supplied by its holders--to the Appellant which the Appellant has now  challenged before the Commission through his 2nd­appeal dated 20.03.211 calling it incomplete. He  also complained that documents supplied to him by the PIO are unattested.      Decision 2. During   the   hearing,   the   Respondents   informed   the   Commission   that   they,   on   04.08.2011,   have  supplied  the  attested  copies  of information to the Appellant in response to his 2nd­appeal to the  Commission and that the information provided by them to the Appellant is complete one. They also  placed on record a copy of complete set of information they had sent to the Appellant. 3. After  perusing  the  information  furnished to the Appellant and on hearing the submissions of the  Respondents, I find that the Respondents have given complete information to the Appellant and that  there  is   nothing   which  the   Appellant  has  stated  in  the  present  petition  that  derogates  from  that  position. 4. Appeal lacks merit, closed.   (Annapurna Dixit) Information Commissioner Authenticated true copy  (G.Subramanian) Deputy Registrar  Cc: 1. Shri Omprakash Kashiram H.No. 03/16, Amol Apartment, Waldhuni, Kalyan 421 301 2. The Appellate Authority­IX & Addl. Member (Fin) Ministry of Railways  Railway Board, Rail Bhawan New Delhi 3. Public Information Officer­IX & ED (A) Ministry of Railways  Railway Board, Rail Bhawan New Delhi 4. Officer in charge, NIC

Mr.Omprakash Kashiram vs Ministry Of Railways on 9 August, 2011

Central Information Commission

Gujarat High Court Case Information System Print CR.MA/9093/2010 4/ 4 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 9093 of 2010 ====================================== AJIT MANGALDAS SACHDE - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ====================================== Appearance : MRS SHILPA R SHAH for Applicant(s) : 1, MR MR MENGDEY APP for Respondent(s) : 1, ====================================== CORAM : HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 31/08/2010 ORAL ORDERThe present application has been filed by the applicant for grant of anticipatory bail under section 438 of Code of Criminal Procedure, 1973. The applicant is charged with having committed offences under sections 409, 465, 467, 468, 471, 120(B) read withs section 114 of Indian Penal Code for which First Information Report being I-C.R.No.177 of 2010 has been registered with Nakhtrana Police Station. Learned advocate Mrs.Shilpa Shah for the applicant accused submitted that applicant is Talati-cum-mantri and there is no offence in fact as stated in the impugned order it was an attempt. He further submitted that allegation is about wrongly passing of the bill which have not been sanctioned and only attempt of misappropriation has been made. She has submitted that the applicant being Talati was required to supervise other bills also and he may not have the total supervision with regard to the scheme and, therefore, present application may be allowed. Learned Additional Public Prosecutor Mr.Mengdey resisted the application. He referred to the statements of witnesses and submitted that some of the amount has also been deposited in account of Post Office as cane be seen from the statements. He, therefore, submitted that the present application may not be allowed. In view of the rival submissions, it is required to be considered whether the present application can be entertained or not. Though the grant of anticipatory is discretionary power which is required to be used with circumspection, in view of the guidelines with regard to exercise of discretionary power, present application deserves to be allowed. Accordingly, the present application is allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with I-C.R.No.177 of 2010 registered with Nakhtrana Police Station in respect of the offence alleged against his on his executing bond of Rs.10,000/- (Rupees Ten thousand only) with one solvent surety of the like amount, by him, by the concerned Police Officer and on conditions that he shall; a) remain present before the trial Court regularly as and when directed on the dates fixed; b) remain present at the concerned Police Station on 06.09.2010 between 11.00 a.m. and 4.00 p.m; c) make himself available for interrogation by Police Officer between as and when required; d) not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the Court or to any Police Officer; e) not to obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police; f) at the time of execution of bond, furnish his address to the Investigating Officer and the Courts concerned, and shall not change his residence till the final disposal of the case or till further orders; g) not leave India without the permission of the Court and if having Passport, shall deposit the same before the trial Court within a week; h) It should be open to the Investigating Officer to file an application for remand if he considers it proper and just; and the learned Magistrate would decide it on merits. This order will hold good if the applicant is arrested at any time within 90 days from today. The order for release on bail will remain operative only for a period of ten days from the date of his arrest, during which it will be open to the applicant to make fresh application for being enlarged on bail in usual course which when it comes before the competent Court, will be disposed of in accordance with law, having regard to all the attending circumstances and the materials available at the relevant time uninfluenced by the fact that anticipatory bail was granted. Rule is made absolute to the aforesaid extent. Direct service is permitted. [RAJESH H.SHUKLA, J.] Amit     Top

Author: Rajesh H.Shukla,&Nbsp;

Ajit vs State on 31 August, 2010

Gujarat High Court

JUDGMENT R. Jayasimha Babu, J. The assessee is engaged in the business of manufacture and fitting of bus and truck bodies. It undertakes that work on the chassis with the engine and controls brought to it by its customers. What rolls out at the end of that process is a commercial vehicle, complete in all respects, though the assessee is not the manufacturer of the chassis on which the body is built, nor is the assessee the owner of the chassis. The assessee's claim in the assessment year 1977-78 that it is entitled to investment allowance under section 32A(2)(b), as according to it, it is engaged in the business of manufacture or production of 'commercial vehicles' being Item No. 14 of the Ninth Schedule to the Income Tax Act, having been negatived by the Income Tax Officer as also by the appellate authority and the Tribunal, the following question has been brought before us, at the instance of the assessee : "Whether, on the facts and in the circumstances of the case, the decision of the Tribunal that the business carried on by the assessee in the manufacture of bus and truck bodies cannot be regarded as production of commercial vehicles falling under item 14 of the Ninth Schedule to the Income Tax Act and that the assessee, is not entitled to investment allowance on the machineries installed therefor under section 32A of the Act, is lawful ?" 2. Learned counsel for the assessee submitted that the purpose of allowing investment allowance is to encourage fresh investment on plant and machinery required for the manufacture or production of articles or things set out in the Ninth Schedule as it then stood and referred us to the decision ot this court in the case of CIT v. K.S. Venkataraman & Co. (2000) 243 ITR 377 (Mad) wherein it was observed that section 32A of the Act, which confers the benefit of investment allowance is a provision, which is obviously meant to encourage industries to instal new plant and machinery, where such plant and machinery is utilised for the manufacture or processing of articles or goods. The ownership of the industry is not the material factor. It is the bringing in the existence of the manufactured article with the aid of plant and machinery that is material. Such manufacturing activity is required to be carried out by an industrial undertaking. The two things are inter- connected. 2. Learned counsel for the assessee submitted that the purpose of allowing investment allowance is to encourage fresh investment on plant and machinery required for the manufacture or production of articles or things set out in the Ninth Schedule as it then stood and referred us to the decision ot this court in the case of CIT v. K.S. Venkataraman & Co. (2000) 243 ITR 377 (Mad) wherein it was observed that section 32A of the Act, which confers the benefit of investment allowance is a provision, which is obviously meant to encourage industries to instal new plant and machinery, where such plant and machinery is utilised for the manufacture or processing of articles or goods. The ownership of the industry is not the material factor. It is the bringing in the existence of the manufactured article with the aid of plant and machinery that is material. Such manufacturing activity is required to be carried out by an industrial undertaking. The two things are inter- connected. 3. That the object of section 32A is to encourage new investment in the industries engaged in the manufacture or production of any of the articles or things mentioned in the Ninth Schedule is evident from the section itself. That Schedule, which was part of the statute from 1-4-1975 to 1-4-1978 and contained 32 items sets out broad categories and does not, unlike the Sales Tax Act or the Central Excise Act, particularise the items under each head. That schedule does not contain its own dictionary defining the terms used therein. The items set out therein have to be construed literally and in a sense which would advance the legislative intent of providing the benefit of investment allowance to those who had installed machinery required for the production or manufacture of the articles or things enumerated in that schedule. 3. That the object of section 32A is to encourage new investment in the industries engaged in the manufacture or production of any of the articles or things mentioned in the Ninth Schedule is evident from the section itself. That Schedule, which was part of the statute from 1-4-1975 to 1-4-1978 and contained 32 items sets out broad categories and does not, unlike the Sales Tax Act or the Central Excise Act, particularise the items under each head. That schedule does not contain its own dictionary defining the terms used therein. The items set out therein have to be construed literally and in a sense which would advance the legislative intent of providing the benefit of investment allowance to those who had installed machinery required for the production or manufacture of the articles or things enumerated in that schedule. 4. The entry "commercial vehicles", evidently refer to vehicles which are used for or capable of being used for commercial purposes. To begin with, they must be vehicles be mobile and be capable of carrying goods or passengers and must further be suited for commercial use. Such a vehicle would, therefore, at the minimum comprise of a chassis on which body suitable for the intended use. can be built. The other parts of a commercial vehicle such as the glass wind shield or the handle used for opening the doors or the numerous nuts and bolts which are used to hold the parts together or individual parts such as the steering wheel, the brake pedal or parts of the engine cannot by themselves be regarded as "commercial vehicle". The chassis and the body built thereon are undoubtedly essential in order to render the vehicle a commercial vehicle. The nature of the body to be built on the vehicle will depend upon the intended purpose for which the vehicle is to be used. 4. The entry "commercial vehicles", evidently refer to vehicles which are used for or capable of being used for commercial purposes. To begin with, they must be vehicles be mobile and be capable of carrying goods or passengers and must further be suited for commercial use. Such a vehicle would, therefore, at the minimum comprise of a chassis on which body suitable for the intended use. can be built. The other parts of a commercial vehicle such as the glass wind shield or the handle used for opening the doors or the numerous nuts and bolts which are used to hold the parts together or individual parts such as the steering wheel, the brake pedal or parts of the engine cannot by themselves be regarded as "commercial vehicle". The chassis and the body built thereon are undoubtedly essential in order to render the vehicle a commercial vehicle. The nature of the body to be built on the vehicle will depend upon the intended purpose for which the vehicle is to be used. 5. Section 32A does not require that the ownership of the whole of the product that emerges after the manufacturing activity carried out by the assessee should belong to the assessee. There is no requirement that in case of commercial vehicles the chassis on which the body is built should belong to the manufacturer of the body before such a manufacturer can claim the benefit of investment allowance in respect of machinery installed for building the bodies. 5. Section 32A does not require that the ownership of the whole of the product that emerges after the manufacturing activity carried out by the assessee should belong to the assessee. There is no requirement that in case of commercial vehicles the chassis on which the body is built should belong to the manufacturer of the body before such a manufacturer can claim the benefit of investment allowance in respect of machinery installed for building the bodies. 6. If a manufacturer of the chassis of the vehicle itself builds the body on that chassis, such a manufacturer would undoubtedly be eligible for investment allowance not only on the machinery installed for the manufacture of a chassis but also on the machinery installed for the making of the body built thereon When the activity of body building is separated from the activity of manufacture of chassis, such separation by itself would not be decisive on the question of eligibility of the manufacturer of the bus body for claiming the benefit of investment allowance. The body to be built on the vehicle must necessarily be built on the chassis. The chassis may belong to the customer of the body builder, who has purchased the same from a manufacturer of the chassis, or the chassis may belong to the manufacturer of the bus body, which may itself manufacture or buy the chassis and build the body thereon and then offer the vehicle for sale. In both cases, what comes out is a chassis with the body and which is a commercial vehicle. 6. If a manufacturer of the chassis of the vehicle itself builds the body on that chassis, such a manufacturer would undoubtedly be eligible for investment allowance not only on the machinery installed for the manufacture of a chassis but also on the machinery installed for the making of the body built thereon When the activity of body building is separated from the activity of manufacture of chassis, such separation by itself would not be decisive on the question of eligibility of the manufacturer of the bus body for claiming the benefit of investment allowance. The body to be built on the vehicle must necessarily be built on the chassis. The chassis may belong to the customer of the body builder, who has purchased the same from a manufacturer of the chassis, or the chassis may belong to the manufacturer of the bus body, which may itself manufacture or buy the chassis and build the body thereon and then offer the vehicle for sale. In both cases, what comes out is a chassis with the body and which is a commercial vehicle. 7. There can be no doubt that the body built on the chassis is itself an item of manufacture. That position is also not rightly disputed by the revenue. The bone of contention is as to whether it is implicit in section 32A and the entries in the Ninth Schedule that the ownership of the whole of the article or thing set out in the Ninth Schedule be with the assessee which claims that benefit of section 32A at the time the article is complete in all respects. Section 32A itself does not set out such a requirement nor does the Ninth Schedule make such ownership essential. 7. There can be no doubt that the body built on the chassis is itself an item of manufacture. That position is also not rightly disputed by the revenue. The bone of contention is as to whether it is implicit in section 32A and the entries in the Ninth Schedule that the ownership of the whole of the article or thing set out in the Ninth Schedule be with the assessee which claims that benefit of section 32A at the time the article is complete in all respects. Section 32A itself does not set out such a requirement nor does the Ninth Schedule make such ownership essential. 8. A manufacturer of bus bodies, when it manufactures the body to the requirement of its customer on the chassis brought to the body builder by the customer, is clearly engaged in the making of a major part of the commercial vehicle and what leaves the factory of the body builder is the whole commercial vehicle. The term "commercial vehicles" used in the Ninth Schedule is not to be understood as being applicable only to a commercial vehicle, which is complete in all respects. Any such construction would render the manufacturer of a chassis ineligible to be regarded as a manufacturer of commercial vehicle. Without the chassis there can be no commercial vehicle. It is the essential base and it is that chassis with the other things included therein viz. the engine, the wheels, the steering mechanism, etc., that provides the mobility required in order to qualify it for being regarded as vehicle. The body built thereon is essential in order to make the vehicle usable for the purpose for which the vehicle is intended to be used as a commercial vehicle, whether it be for purposes of carrying loads or for carrying people. 8. A manufacturer of bus bodies, when it manufactures the body to the requirement of its customer on the chassis brought to the body builder by the customer, is clearly engaged in the making of a major part of the commercial vehicle and what leaves the factory of the body builder is the whole commercial vehicle. The term "commercial vehicles" used in the Ninth Schedule is not to be understood as being applicable only to a commercial vehicle, which is complete in all respects. Any such construction would render the manufacturer of a chassis ineligible to be regarded as a manufacturer of commercial vehicle. Without the chassis there can be no commercial vehicle. It is the essential base and it is that chassis with the other things included therein viz. the engine, the wheels, the steering mechanism, etc., that provides the mobility required in order to qualify it for being regarded as vehicle. The body built thereon is essential in order to make the vehicle usable for the purpose for which the vehicle is intended to be used as a commercial vehicle, whether it be for purposes of carrying loads or for carrying people. 9. The separation of the activity of manufacture of chassis from that of the manufacture of bus body does not, therefore, disentitle either the manufacturer of the chassis or the manufacturer of the body from claiming investment allowance for the machineries installed by them for the purpose of manufacturing the chassis or the body, as the case may be. It is wholly irrelevant for the purpose of section 32A as to who the owner of the chassis is on which the body is built by the body builder, as what comes into existence as a result of the body being built on the chassis is a commercial vehicle and that is all that is required to be ascertained for the purpose of section 32A and the Ninth Schedule. The machineries used for the purpose of manufacturing the body of the chassis, as the case may be, would be eligible for investment allowance. 9. The separation of the activity of manufacture of chassis from that of the manufacture of bus body does not, therefore, disentitle either the manufacturer of the chassis or the manufacturer of the body from claiming investment allowance for the machineries installed by them for the purpose of manufacturing the chassis or the body, as the case may be. It is wholly irrelevant for the purpose of section 32A as to who the owner of the chassis is on which the body is built by the body builder, as what comes into existence as a result of the body being built on the chassis is a commercial vehicle and that is all that is required to be ascertained for the purpose of section 32A and the Ninth Schedule. The machineries used for the purpose of manufacturing the body of the chassis, as the case may be, would be eligible for investment allowance. 10. Investment allowance is granted with reference to the machinery installed for the purpose of manufacture. What matters is the installation and the use of the machinery for the purpose of manufacture or production of the articles or things mentioned in the Ninth Schedule. In this case, there is no dispute about the fact that the assessee is indeed the owner of the machinery installed by it, and with reference to which investment allowance is claimed. It is also not in dispute that that machinery is used for the manufacture of bus bodies and such bus bodies are built on the chassis brought to it by its customers and after completion of that process what exits the manufacturing facility of the assessee is a complete commercial vehicle. 10. Investment allowance is granted with reference to the machinery installed for the purpose of manufacture. What matters is the installation and the use of the machinery for the purpose of manufacture or production of the articles or things mentioned in the Ninth Schedule. In this case, there is no dispute about the fact that the assessee is indeed the owner of the machinery installed by it, and with reference to which investment allowance is claimed. It is also not in dispute that that machinery is used for the manufacture of bus bodies and such bus bodies are built on the chassis brought to it by its customers and after completion of that process what exits the manufacturing facility of the assessee is a complete commercial vehicle. 11. Learned counsel for the assessee invited out attention to a decision of the Allahabad High Court in the case of Bajoria Halwasiya Service Station v. The State of Uttar Pradesh & Anr. 26 STC 108 which it was held that bus body is not a spare part and that it is an article of manufacture sold as such. 11. Learned counsel for the assessee invited out attention to a decision of the Allahabad High Court in the case of Bajoria Halwasiya Service Station v. The State of Uttar Pradesh & Anr. 26 STC 108 which it was held that bus body is not a spare part and that it is an article of manufacture sold as such. 12. Learned counsel also invited our attention to the decision of the Supreme Court in the case of S.S.M. Bros. (P) Ltd. & Anr. v. CIT (2001) 243 ITR 418 (SC) wherein the Apex Court held, while considering a claim for development rebate, that if the machinery or plant is required to be utilised for the production of textiles, which is one of the items mentioned in the Fifth Schedule, the assessee would be entitled to development rebate. While so holding, the court observed thus : 12. Learned counsel also invited our attention to the decision of the Supreme Court in the case of S.S.M. Bros. (P) Ltd. & Anr. v. CIT (2001) 243 ITR 418 (SC) wherein the Apex Court held, while considering a claim for development rebate, that if the machinery or plant is required to be utilised for the production of textiles, which is one of the items mentioned in the Fifth Schedule, the assessee would be entitled to development rebate. While so holding, the court observed thus : "It is not disputed, fairly, that if the assessee had been producing the embroidered cloth starting from scratch, that is, by starting with cotton, this machinery would have been entitled to be considered for the purpose of such development rebate. We are of the view that it makes no difference that in the particular case the assessee buys the cloth and then processes it, using the machinery, by embroidering it and, in some cases, by dyeing it. The assessee utilises the machinery in the production of processed textiles." 13. What was said by the Apex Court in the context of the claim for development rebate would also apply to a claim for investment allowance as both these are incentives for encouraging investment in plant and machinery used for the manufacture or production of the things or articles enumerated in the relevant Schedule. 13. What was said by the Apex Court in the context of the claim for development rebate would also apply to a claim for investment allowance as both these are incentives for encouraging investment in plant and machinery used for the manufacture or production of the things or articles enumerated in the relevant Schedule. 14. We, therefore, answer the question referred to us in favour of the assessee and against the revenue. 14. We, therefore, answer the question referred to us in favour of the assessee and against the revenue. OPEN

Author: R J Babu

Sundaram Industries Ltd. vs Cit on 19 November, 2001

Madras High Court

CENTRAL INFORMATION COMMISSION Club Building (Near Post Office) Old JNU Campus, New Delhi - 110067 Tel: +91-11-26161796 Decision No. CIC/SG/C/2009/001686/6645 Complaint No. CIC/SG/C/2009/001686 Complainant : Mr. Rajendra Gupta Editor-Abhi Tak Crime Times, 704, G.T.Road, Shahadara, Delhi-110032 Respondent : Public Information Officer O/o the Assistant Commissioner Municipal Corporation of Delhi Shahadara North Zone, Keshav Chowk G.T.Road, New Delhi-110032 Facts arising from the Complaint: Mr. Rajendra Gupta had filed a RTI application with the PIO, MCD, Shahadara North Zone on 13/05/2009 asking for certain information. However on not having received the information within the mandated time, the Complainant filed a complaint under Section 18 of the RTI Act with the Commission. On this basis, the Commission issued a notice to the PIO, MCD, Shahadara North Zone on 11/12/2009 with a direction to provide the information to the Complainant and further sought an explanation for not furnishing the information within the mandated time. The Commission has neither received a copy of the information sent to the Complainant, nor has it received any explanation from the PIO for not supplying the information to the Complainant. Therefore, the only presumption that can be made is that the PIO has deliberately and without any reasonable cause refused to give information as per the provisions of the RTI Act. Failure on the part of the PIO to respond to the Commission's notice shows that there is no reasonable cause for the refusal of information. Decision: The Complaint is allowed. The PIO is directed to provide the correct and complete information in regard to the RTI Application dated 13/05/2009 (copy enclosed) to the Complainant before 22/02/2010.Proof of dispatch of information should be sent to the Commission before 01/03/2010.The PIO's action clearly amounts to denial of information without any reasons. The PIO is therefore, asked to submit a written explanation to show cause as to why penalty should not be imposed and disciplinary action be recommended against him under Section 20 (1) & (2) of the RTI Act before 01/03/2010. If the information has already been supplied to the complainant, furnish a copy of the same to the Commission with your written submission. 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, 2005. Encl: RTI Application dated 13/05/2009. Shailesh Gandhi Information Commissioner 01/02/2010 (In any correspondence on this decision, mention the complete decision number.)(SP)

Mr. Rajendra Gupta vs Municipal Corporation Of Delhi on 1 February, 2010

Central Information Commission

Court No. - 19 Case :- CELEING No. - 51 of 2010 Petitioner :- Dhiraj Singh S/O Late Mamlendra Bhushan Singh Respondent :- Prescribed Authority/S.D.M., Tehsil Salon, Raibareli & Ors.Petitioner Counsel :- Y.K. Pandey Respondent Counsel :- C.S.C.,R.N. Gupta Hon'ble S.C. Chaurasia J. As prayed by learned counsel for petitioner, list after two weeks in order to enable him to file a supplementary affidavit. Order Date :- 4.8.2010 psd

Dhiraj Singh S/O Late Mamlendra ... vs Prescribed Authority/S.D.M., ... on 4 August, 2010

Allahabad High Court

Court No. - 50 Case :- CRIMINAL MISC. WRIT PETITION No. - 12710 of 2010 Petitioner :- Subhash Chandra Yadav Respondent :- District & Sessions Judge & Another Petitioner Counsel :- Ajeet Srivastava Respondent Counsel :- Govt. Advocate Hon'ble Ashok Kumar Roopanwal,J. Put up on 3.8.10 as a fresh case. State may file the counter affidavit, if so likes. Order Date :- 19.7.2010 T. Sinha

Subhash Chandra Yadav vs District & Sessions Judge & ... on 19 July, 2010

Allahabad High Court

1. 2. 3. -------------------------------------------------------------------------------- 1 ... ... 2 ... ... 3 ... ... 4 ... ... 5 ... ... 6 ... ... 7 ... ... 8 ... ... 9 ... ... 10 ... ... 11 ... ... 12 ... ... 13 ... ... 14 ... ... 15 84-31 Paper making machi- nery and component parts thereof. 16 ... ... 17 ... ... 18 ... ... 19 ... ... -------------------------------------------------------------------------------- Sl. No. Chapter No., in the First Schedule Description to the Customs Tariff Act, 1975. of the goods -------------------------------------------------------------------------------- (1) (2) (3) -------------------------------------------------------------------------------- 1 ... ... 2 ... ... 3 ... ... 4 ... ... 5 ... ... 6 ... ... 7 ... ... 8 ... ... 9 ... ... 10 ... ... 11 ... ... 12 84 Goods falling under Heading No. 84.66 13 ... ... 14 ... ... 15 ... ... 16 ... ... 17 ... ... ORDER Nainar Sundaram, J. 1. These Writ Petitions coming on for hearing on Wednesday, 2nd and Thursday the 3rd days of September, and upon perusing the petitions and the respective affidavits filed in support thereof the order of the High Court, dt 831983 & 1141983 respectively and made herein, and upon hearing the arguments of Mr. B.R. Dolie Advocate for the petitioner, in all the petitioners and of Mr. P. Narasimhan, Senior Central Government standing counsel on behalf of the Respondents in all these petitions, and having been posted this day for orders the Court made the following order: In these four writ petitions, the petitioner is one and the same. In three writ petitions namely W P. Nos. 2054. 3257 and 3258 of 1983, the petitioner prays for writs of mandamus directing 'the respondents to permit the petitioner to clear the imported items of machinery without payment of auxiliary duty under the Customs law. In the fourth writ petition, namely, W.P. No. 2055/83 the petitioner prays for a writ of mandamus to direct the Union of India to grant exemption to the petitioner under Section 25 of the Customs Act 1962 with regard to payment of auxiliary duty on items of machinery imported by it The petitioner has no grievance with regard to the payment of basic customs duty on the items of machinery imported by it. 2.The petitioner has imported the concerned items of machinery pursuant to specific contracts registered under Heading 84.66 to the First Schedule to the Customs Tariff Act, 51/1975. The petitioner has enjoyed the concessions annexed to the imports made pursuant to such contracts with regard to basic customs duty and additional duty. The problem presented to the petitioner and equally so, to the Revenue is with reference to the auxiliary duty on the items of machinery imported by the petitioner. According to the petitioner, specific items "paper making machinery and component parts thereof" failing under Heading 84.31 imported by it have been totaly exempted from auxiliary duty as per Notification 62/83, Customs, dt. 1.3.1983. According to the Revenue, since the above items are also those imported pursuant to the specific contracts registered under Heading 84.66, they have to bear the auxiliary duty to the extent of 20% of the value as per the Notification 61/83, Customs, dt. 1.3.1983. The body of the Notification 62/83, Customs, dt. 1.3.1983 and the relevant item of the Table relatable to Heading 84.31 are extracted as follows: In exercise of the powers conferred by Sub-section (1) of Section 25 of the Customs Act, 1962 (52 of 1962), read with Sub-clause (4) of clause 45 of the Finance Bill, 1983, which clause has by virtue of the declaration made in the Bill under the Provisional collection of Taxes Act, 1931 (16 of 1931), the force of law, the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the goods specified in column (3) of the Table annexed hereto and falling under Heading No. or sub-heading No. , of Heading No. of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), specified in the corresponding entry in column (2) of the said table, when imported into India, from the whole of the auxiliary duty of Customs leviable thereon under Sub-clause (1) of Clause 45 of the said Finance Bill. TABLE -------------------------------------------------------------------------------- Heading No., or sub-heading No., of Sl. No. heading No. , of the First Schedule to Description the Customs Tariff Act, 1975. of goods -------------------------------------------------------------------------------- The body of the Notification 61/83, Customs, dt. 1.3.1983 and the relevant item of the Table relatable to Heading 84.66 read as follows: In exercise of the powers conferred by Sub-section (1) of the Section 25 of the Customs Act, 1962 (52 of 1962 read with Sub-clause (4) of Clause 45 of the Finance Bill, 1983, which clause, has, by virtue of the declaration made in the said Bill under the Provisional Collection of Taxes Act, 1931 (16 of 1931), the force of law, the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the goods specified in column (3) of the Table annexed hereto and falling within the Chapter of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) specified in the Corresponding entry in column (2) of the said table, when imported into India, from so much of the auxiliary duty of customs leviable thereon under Sub-clause (1) of Clause 45 of the said Finance Bill, as is in excess of the amount calculated at the rate of twenty per cent of the value of such goods as determined in accordance with the provisions of Section 14 of the first mentioned Act. -------------------------------------------------------------------------------- 3. Two salutary principles come to the aid of the petitioner to sustain its prayers with regard to total exemption from auxiliary duty. Mr. B.R. Dolia, learned Counsel for the petitioner, has pressed forth only these principles to bring conviction to the mind of this Court with regard to the tenability of the claim of the petitioner. The first principle is generalia specialibus non derogant ; its plain meaning being "General words do not derogate from special provisions or special provisions will control general provisions." In other words, where there is a conflict between a special Act, and a general Act, the provisions of the Special Act prevail. The maxim was also applied while considering the operation of two statutes or laws or rules, enacted simultaneously The maxim has been frequently applied to resolve apparent conflicts between provisions of the same statute or of different statutes of the same date. In this behalf, learned Counsel for the petitioner placed reliance on the following pronouncements in support of the above principle: J.K. Cotton Spinning & Weaving Mills Company Limited v. State of Uttar Pradesh : U.P. State Electricity Board v. Hari Shankar Jain [1978 (II) LLJ 399 at pages 404/405]; Superintendent, Central Excise, Surat v. Vac Met Corporation Private Limited . Atul Glass Industries Private Limited v. Collector of Central Excise. 4. The second principle which helps the case of the petitioner is the rule of construction of fiscal law. Whenever there is an ambiguity on the question of construction of fiscal law, it is well-settled that it has got to be resolved in favour of the tax payer rather than in favour of the Revenue. If the case could be brought within either of two provisions, it is the right of the tax-payer to claim and equally so, the duty of the Court to accord him the benefit of the provision which leaves him with a lighter burden. Even if it is a doubt as to which of the provisions should be applied, the Court should apply only that provision, which is favourable to the tax-payer and even if the result would be to confer a double advantage on him. In this behalf, I feel obliged to refer to the following pronouncements cited by Mr. B.R. Dolia, learned Counsel for the petitioner: Commissioner of Income-Tax v. Bosotto Brothers Limited [(1940) 8 ITR 41 at page 48]; Central Provinces and Berar Provincial Co-operative Bank Limited v. Commissioner of Income Tax (1946) 14 ITR 479; Commissioner of Income-Tax v. Kulu Valley Transport Company Private Limited ; Commissioner of Income-Tax v. Belapur Sugar and Allied Industries Limited . 5. Here, we find on the same day two Notifications have come to be issued. Notification No. 61/83 imposed levy of auxiliary duty to the tune of 20% of the value of goods falling under Heading 84.66. Notification No. 62/83 took away specified items "paper making machinery and component parts thereof" falling under Heading 84.31 from the burden of the whole of the auxiliary duty. Paper Making machinery and component parts thereof could also come under Heading 84.66. But the special Notification 62/83 has called out those specified items to come within its ambit. There is nothing to indicate that Notification No. 62/83 excluded those specified items from its benefit on the ground that those items could also fall under the general Heading 84.66 covered by Notification No. 61/83. In the absence of such express exclusion, there is no warrant to deny the petitioner the benefit of the special Notification no. 62/83. 6. In this connection, learned Counsel for the petitioner, also laid stress on the Rules for Interpretation of the First Schedule to the Act and in particular Clause 3 thereof which reads as follows: 3. When for any reason, goods are prima facie classifiable under or more Headings, classification shall be effected as follows: (a) The Heading which provides the most specific description shall he preferred to Headings providing a more general description. Merely because "paper making machinery and component parts thereof" coming under Heading 84 31 and covered by Notification No. 62/83 would also come within the general Heading 84.66 covered by Notification No. 61/83, it is not possible to deny the petitioner the benefit of the exemption accorded in Notification No. 62/83. The principles discussed above amply and forcibly support the case of the petitioner the rule generalia specialibus non derogant should apply to the present case. 7. Even on the second principle urged by the learned Counsel for the petitioner covering reliefs at the hands of this Court, i find that the case of the petitioner stands on a strong footing. The Notification 62/83 is unambiguous and it specifically refers to "paper making machinery and component parts thereof" coming within Heading 84.31 without any exclusion on the ground the said items namely "paper making machinery and component parts thereof" could also come within the ambit of the general Heading 84.66. Even assuming that there is an ambiguity and conflict between the two Notifications, I am obliged to apply the principle that any ambiguity in the matter of construction of fiscal law should be resolved in favour of the tax payer rather than the Revenue. 8. It is a well-settled rule that on the question of exemption in a fiscal law though a strict construction should be applied, yet what is expressly granted shall not be denied to the tax-payer by falling back upon some other provision found elsewhere. The exempting provisions must always be regarded as paramount. At the risk of repetition, it must be stated that Notification No. 62/83 is specific and has clearly given the exemption with reference to "paper making machinery and component parts thereof" falling under Heading 84.31, without any exclusion expressed on the ground that it could also come within the general Heading 84.66. Maxwell on the Interpretation of Statutes, Twelfth Edition, page 256 quotes the observations of Rowlatt, J that "In a Taxing Act, one has to look merely at what is clearly said; there is no room for any intendment; there is no equity about a tax; there is no presumption as to a tax ; nothing is to be read in ; nothing is to be implied ; one can only look fairly at the language used." 9. The contention of Mr. Narasimhan, Senior Central Government Standing Counsel for the respondents is that the petitioner had the benefit of certain concessions in respect of the items of machinery it imported, pursuant to the specific contracts under Heading 84.66 and therefore, the petitioner could have only those concessions without in any manner having them enlarged even if there is a specific Notification to that effect. This submission ignores the principles discussed above. Applying the two principles, pressed forth by the learned Counsel for the petitioner, 1 have to countenance the prayers projected in W.P. Nos. 2054, 3257 and 3258 of 1983 and accordingly the said writ petitions are allowed. 10. Coming to W.P. No. 2055 of 1983, the petitioner's purpose has been served by the other three writ petitions being allowed. It is true, learned Counsel for the petitioner stated that the Notification 62/83 is the result of the General agreement on Tariffs and Trade (GATT) and the Union Government is bound by it and this must oblige the Union Government to grant exemption. There is no need to dwell upon the aspects urged in this writ petition because I have sustained the case of the petitioner with regard to three writ petitions on the two principles discussed above. As a result, W.P. No. 2055 of 1983 is dismissed. There will be no order as to costs in all the writ petitions. 11. I am told that pursuant to orders of this Court pending writ petitions the petitioner did pay auxiliary duty to a certain extent and furnished bank guarantees for the rest with reference to the items of machinery imported by it. Now the petitioner has succeeded, the petitioner is entitled to refund of the auxiliary duty paid and the bank guarantees furnished shall stand cancelled. Time for refund of the auxiliary duty paid by the petitioner is three months from today.

Author: N Sundaram

Tamil Nadu Newsprint And Papers ... vs The Appraiser, Appraising ... on 7 September, 1987

Madras High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.42585 of 2010 ASHOK CHOUDHRY son of Late Pulkit Choudhry, Village-Rajhat Banmankhi, P.S.-Banmankhi, District-Purnea. Versus THE STATE OF BIHAR ----------- Md.S. ( Rakesh Kumar, J.) 2. 17.1.2011. Heard learned counsel for the petitioner and learned Additional Public Prosecutor for the State. The petitioner, who is in custody in connection with Murliganj P.S. Case No.143 of 2010 for the offences under sections 379, 411 and 34 of the Indian Penal Code, has prayed for grant of bail. The informant in the present case has disclosed that on 5.8.2010 while he was going to somewhere on a Magic Vehicle, a public carrier, he had kept his bag on the top of the vehicle. However, the petitioner, who was sitting besides the complainant and his two friends, who were on the top of the vehicle had stolen Rs.14,000/- and some articles from the bag of the complainant. After two days, he again went in search of the accused persons. However, on being identified by the Driver of the Magic Vehicle, the petitioner and his two friends were apprehended and on search being conducted in the house of the accused persons a total sum of Rs.2,500/- was recovered from the house of the petitioner. It was submitted that the petitioner is in custody since 8.8.2010. It was further submitted that the petitioner is having clean antecedent. Learned Additional Public Prosecutor for the State has opposed the prayer for bail of the petitioner. 2 Keeping in view the nature of accusation and the period of custody, let the petitioner, above named, be released on bail on furnishing bail bond of Rs.10,000/- with two sureties of the like amount each to the satisfaction of Chief Judicial Magistrate, Madhepura in connection with Murliganj P.S. Case No.143 of 2010.

Ashok Choudhry vs The State Of Bihar on 17 January, 2011

Patna High Court - Orders

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl..No. 6307 of 2009() 1. KUMARAN, ... Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY THE ... Respondent For Petitioner :SRI.V.K.SUNIL For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice V.RAMKUMAR Dated :23/03/2010 O R D E R V. RAMKUMAR, J. ......................................... B.A. No. 6307 of 2009 .......................................... Dated this the 23rd day of March, 2010. ORDER Petitioner who is the accused in Crime No. 396 of 2009 of Pala Police Station for offences punishable under Sections 323 and 354 IPC and Section 3(1)(x) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, seeks anticipatory bail. 2. The learned Public Prosecutor opposed the application. 3. Anticipatory bail cannot be granted in a case of this nature. But at the same time, I am inclined to permit the petitioner to surrender before the Investigating Officer for the purpose of interrogation and then to have his application for bail considered by the Magistrate having jurisdiction. Accordingly, the petitioner shall surrender before the investigating officer on 26-3-2010 or 27-3-2010 for the purpose of interrogation and recovery of incriminating material, if any. The petitioner shall thereafter be produced on the same day before the Magistrate concerned. On being convinced that the petitioner has been  B.A. No. 6307/2009 -:2:- interrogated by the police, the Magistrate shall release the petitioner on bail on the petitioner executing a bond for Rs. 25,000/- (Rupees twenty five thousand only) with two solvent sureties each for the like amount to the satisfaction of the Magistrate and subject to the following conditions:- rv 

Kumaran vs State Of Kerala on 23 March, 2010

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM RP No. 539 of 2004(N) 1. STATE OF KERALA, REPRESENTED BY ITS ... Petitioner 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, 3. THE DEPUTY DIRECTOR OF EDUCATION, 4. THE DISTRICT EDUCATIONAL OFFICER, 5. THE ASSISTANT EDUCATIONAL OFFICER,IRITTY Vs 1. A.M.HARIDASAN, HEADMASTER, ... Respondent For Petitioner :GOVERNMENT PLEADER For Respondent :SRI.BABU JOSEPH KURUVATHAZHA The Hon'ble MR. Justice A.K.BASHEER Dated :16/07/2007 O R D E R A.K. BASHEER, J. -------------------------- R.P. NO.539 OF 2004 IN O.P. NO. 22819 OF 2001 --------------------- Dated this the 16th day of July, 2007 O R D E R Having heard learned counsel for the review petitioners and having perused the judgment and the grounds urged in the review petition, I do not find any merit in the contentions raised in this review petition. No grounds have been made out warranting a review of the judgment. Though the review petition is filed with a delay of 232 days, I am satisfied that the delay can be condoned. But since there is no merit in the review petition, it is dismissed. A.K. BASHEER, JUDGE vps  A.K. BASHEER, JUDGE OP NO.20954/00 JUDGMENT 1ST MARCH, 2007  

State Of Kerala vs A.M.Haridasan on 16 July, 2007

Kerala High Court

:«;; nsr THE HIGH com? or KAR2~IA'I'AKA AT _ DATEB THE 23:4 mm' or' FEBMRfiAR'.E"':2fl:i'Q: Q BEFORE THE H{}]'§'BLE am. JUSTEQE H;a:;%a:;mmr; f A MISCELLANEOUS FIRST N9. 735:.] L12}? BETWEEEEN ; § pm. }--...A , §V}£;~(u'x}X£3 'I:3§Z-§Ei' f3i?i$'ARf~IA AZEZ. V . 5.-3,19ABDLIL§§Hsg£);3R.V;:%EA§§3' - ' ' AGED AB<.mr'_;26'--&*:+;Ar<«s--...,. ' _ R/A }{HAD;ER'iBL;_QCBT' .. ' i",)E}'ifI :%z'A<:;A:§"iHOL:§:s:'i?;, " ' ~ . E{.ARI{ALA - " ._ " " UDL3P£"TAL_LIK 52; - % _ ' APPELLANT (BY SR} §<;;A;'C1AifIAF~¥.Vi)V£?'_;§;f5;};iEKAIQA, ADVOCATE} 'Si/I:3%'§s:;<3A;¥$:--67%%0I+aw£. su¥?ARNA :\('.Z+ED AEQ§5T :29 YEEARS R/A KALYANAPIAI 1% sawim-1. £<',-}{AT'I"E PUTTUR TALUK * I;§D§.3.P1 DIS'I'R£«:?r'11 : fag BAJAJ ALLIANZE {}EN;E';RAL iFéS[§RA§_\E€?E: (fig/.l£;TD,, COPY Agsistant Regs 1'3 __ my 51" (_:gs_1f'I", Of Kamataka '.~_:2f!2'_?l]r0'i'€ ~ 550 90'- NIFA NC),?3;'§-M99 2 REPRESENTED BY YFS MANAGER BRANCH OFFICE, RESIDENCY ROAD, Bf'sN{3rALORE. T This Misccflaneous First: A}3§1e:a1_.f11€d" 17.'?5 f}:) Act against file judgment and a\:cza1:i'V'§ii2{§.€:l__u2?f"Cx§f2L§C¥8 'passc{i in MVC NOJ935/£2006 on Judge (Sr.Dfl) 6:. Additionai MAUI', £1.13 claim p¢::ti1:io:1 for cc:«1r::1]:_;i:>:'2$»':1:V:-":i«@11:3._ 0f cerngxtnsationi This ii}§_is(:§;l1aiieé:=12s§iFi:$t_§sppea} coming on for erders this day, the C.'e<:n.1r'£.A m12i{ie th'-2*. §¥f.;3;s9§iif11E1"L 15290 wesks failing which the appeai sizuttds ziismifiséii ' Sdl -- JUDGE: COPY t'~"% ), L2 Assistarit Registrar High Com'! of Eiamataka Bangakrre ~ 560 002 \ V-/1%,

Author: H.G.Ramesh

Aziz vs Jagadesh Suvarna on 23 February, 2010

Karnataka High Court

JUDGMENT M.L. Singhal, J. 1. In pursuance of Notification No. 2766/D-2 dated 25.2.1977 Under Section 4 of the Land Acquisition Act (Act 1 of 1894) as declared vide Notification No. 3708/D-2 dated 10.3.1977 Under Section 6 thereof, published in the Gazette of Haryana Govt., dated 15.3.1977, and measuring 604 kanals 19 marlas situated in village Daha, Tehsil and District Karnal, was acquired for public purpose namely Extension of Haryana Armed Police, Campus Madhuban, Karnal. Land acquired was of different kinds. It was Chahi, Nehri, Barani Jhur, Gair Mumkin Khal, Gair Murnkin Tube-well, Wells and Makans, Gair Mumkin Rasta, Malkiati, Gair Mumkin Rasta. Land Acquisition Collector gave Award awarding Rs. 10,000/- per acre for Chahi and Nehri Land.. He awarded Rs. 10,000/- per acre for Gair Mumkin Khal, Gair Mumkin Tube-wells, Wells and Makans and Rs. 8,000/- per acre for Barani Land and Rs. 3,200/- per acre for Gair Mumkin Rasta. He awarded no amount for 46 Kanals 4 Marias of Gair Mumkin Rasta Land as it was used as Rasta by the public uninterruptedly as per entries in the revenue records. Not satisfied with the award and the amount of compensation and the justness of the methodology adopted for evaluating the land acquired, land owners sought references Under Section 18 of the Land Acquisition Act, 1894 to the District Judge, Karnal and claimed compensation at higher rate. 2. Additional District Judge, Karnal, disposed of the reference No. 92/4 of 1979 and 102/4 of 1979 vide common judgment dated 20.5.1980, awarding compensation at the rate of Rs. 20,000/- per acre for Nehari and Chahi land and Rs. 11,200/- per acre for barani Land. He awarded solatium and interest on the amount of enhanced compensation. 3. Not satisfied with the amount of compensation awarded by the Additional District Judge, Karnal, vide judgment dated 20.5.1980, Raja Ram and others (land owners) of land Acquisition case No. 92/4 of 1979 came up in appeal to this Court namely R.F.A. No. 1604 of 1980. Likewise, Gugan deceased represented by his legal Representatives in land acquisition Case No. 102/4 of 1979 came up in appeal to this court namely R.F.A. No. 2453 of 1980. The learned Single Judge disposed of both these appeals by one common judgment recorded in R.F.A. No. 2453 of 1980. He dismissed the appeals so far as the question of enhancement of the valuation of the acquired land was concerned, but allowed benefit of the provisions of Section 23(1-A), 23(b) and 28 of the Land Acquisition Act incorporated by amendment Act No. 68 of 1984. Still not satisfied, Raja Ram and others have filed this L.P.A. No. 510/1989 under Clause X of Letters Patent. Similarly, not satisfied Tikka Ram and others, L.Rs. of Gugan deceased have filed L.P.A. No. 1295 of 1988. We have heard the learned counsel for the appellants and the learned D.A.G. Haryana in both these appeals and have gone through the records. It has been submitted by the learned counsel for the appellants that the learned Additional District Judge, Karnal and also the learned Single Judge, of this Court have failed to notice the potentiality of the land for residential buildings and commercial complexes, in view of the fact that it is situated adjoining the G.T. Road (National Highway No. 1). The land belonging to Raja Ram and other is situated at a distance of 1/2 Km. from the Municipal Octroi Post and the building of the Haryana Armed Police Complex is located adjoining to their land. Haryana Armed Police Complex, Madhuban was already there. Similarly, the land belonging to Gugan Ram was equally, suitable for developing the residential buildings and commercial complexes. It has further been submitted that this factor has not been considered by them that the entire industrial activity has spread along the G.T. Road from Karnal towards Delhi side on the G.T. Road and big industrial units have come up in the close proximity of the land acquired. There is a Temple situated adjoining to these lands and number of shops are there since long around this Temple. In our opinion, these submissions can be given no weight. The acquired land is situated at three places. One piece of the land adjoins the G.T. Road and the other two are situated away from the G.T. Road. Some land is lying out side the municipal limits of Karnal. The Municipal Octroi Post is at a distance of 1/2 Km . from the acquired land. Raja Ram P.W.I stated that the acquired land belonging to them is situated by the side of one of the banks of Bhakra Canal and across the said canal, there is a very big temple. There is no bridge by the side of his land to cross the canal. One has to cover a distance of 200 feet in order to approach the temple, via a bridge on the G.T. Road. The acquired land belonging to Raja Ram and others is situate on both sides of the G.T. Road. Khasra Nos. 9, 11/3, 12/2, 11/2, 19/2, 2/2 of Rectangle No. 45, are at a distance of 7 Killas from the G.T. Road, Khasra No. 22 to 22 of Rectangle No. 45 are at a distance of 7-8 Killas from the G.T. Road, Khasra No. 21 of Rectangle No. 35 is at a distance of 3 killas from G.T. Road, Khasra No. 1 of Rectangle No. 48 is at a distance of 3 killas from the G.T. Road. Madan Singh P.W. 5 has stated that the acquired land is in three strips. One strip of the acquired land adjoins the G.T. Road which belonged to Raja Ram and his brothers. The buildings of Haryana Armed Police are situated near the said acquired land of Raja Ram. There are some shops as well on the land of Vijay Pal, situated close to the said acquired land. A Mandir and a Petrol Pump are also situated nearby. There are two factories at a distance of 1/2 killa from the land of Raja Ram towards Karnal side. There are some shops opposite the Mandir as well. The land is out side the Municipal limits of Karnal and the octroi post is at a distance of 1/2 km. from it. Railway Station is also at a distance of 1/2 km. from the other two pieces of the acquired land. Railway Station Bazida Jatan is at a distance of 1/2 Kms. from the acquired land. In his cross examination he has stated that abadi of Karnal is situated at a distance of 8-9 Kms. from the land of Raja Ram. Ram Dev P.W. 6 stated that vide sale deed dated 26.3.1974 he and Madan Singh purchased land measuring 3 Kanals 14 Marias (copy Ex. P5) for Rs. 13,000/- from one Narsing Dass. The land is situated in village Daha. The acquired land is in three pieces, two of which are situated on the right hand side of the G.T. Road and one piece is situated on the left hand side of the G.T. Road. If one goes from Karnal towards Delhi. Villages Daha and Kharkali adjoin each other. The acquired land situated on the right side of the G.T. Road belonging to the land owners adjoins some land of village Kharkali which was also acquired by the Govt. vide the same notification of the same date. If the Haryana Armed Police Complexes have come up in the vicinity prior to the acquisition and also that there is a temple situate in the close vicinity and also some shops have been built around this temple and weekly fair is also held at the temple, in our opinion, these circumstances are not sufficient to show that the acquired land had the potential of coming up as residential buildings and commercial buildings. Abadi of Karnal town is at a distance of 8-9 Kms. from the acquired land. The acquired land is situated out side the municipal limits of Karnal. Close to the acquired land there is no town either big or small. It is not known as to how the building of Haryana Armed Police Complex will help in the coming up of residential buildings or commercial buildings in the acquired land. If there is a temple, we fail to understand how the temple will help in the coming up of residential buildings in its neighbourhood. If some shops have come up in the vicinity of temple they have come up with a view to catering to the needs of the people who visit the temple for making offerings at the Temple. 10. The learned Single Judge did not take into account the sale instance covered by Exh. P-5 dated 26.3.1974 pertaining to the sale of 3 Kanals 14 Marias for evaluating the land acquired as there is sale instance Exh. R-6 which is dated 24.5.1974 disclosing a rate of Rs. 2000/- per acre and that too subsequent to the date of Exh. P-5. Sale transaction Exh. R-6 relates to the sale of 4 kanals of land situated at village Daha for a sum of Rs. 1000/- on May 24, 1974. In our opinion, the learned Single Judge has justifiably refused to rely upon sale instance covered by sale deed Exh. P-5 regarding 3 kanals 14 marlas of land for Rs. 13,000/-. The learned Additional District Judge as well as the learned Single Judge justifiably relied on sale instance Exh. P-1 which was forming part of the acquired land. Vide sale deed Exh. P-1 Hukam Chand purchased 8 Kanals of land for a sum of Rs. 20,000/- on February 23, 1973. In our opinion sale deed Exh. P-1 is the true index for determining the value of the land acquired. 11. For the reasons given above, these appeals fail and are dismissed.

Author: M Singhal

Tikka Ram And Ors. vs The State Of Haryana, Through The ... on 18 August, 1997

Punjab-Haryana High Court

[Article 312] [Constitution]

Central Government Act

JUDGMENT G.K. Misra, J. 1. Plaintiff despatched 629 baskets of mangoes from Ellore station on 11-6-57 to Cuttack Station. The consignment in a whole wagon reached Cuttack on 20-6-57. Plaintiffs' case is that the usual time for arrival of the consignment was 5 days. Though the consignment was booked in good condition, at the time of delivery they were found to be rotten and unfit for human consumption. An open delivery was taken and the Station Master, Cuttack, granted a certificate showing damage of mangoes at sixty per cent. The damage was due to unusual delay in the arrival of the consignment. Defendant was responsible for the damage caused by the delay. The suit was for recovery of Rs. 3924/4/-. The defence case is that the goods were sent at owner's risk. It was clearly stated in the railway-receipt that the goods were liable to perish, in transit. The distance between Ellore to Cuttack is 477 miles and the usual period of transit cannot be less than 7 days. The Courts below concurrently found that the delay was unreasonable and it was responsible for the damage. They decreed the plaintiffs' suit for an amount of Rs. 3890/7/-. The defendant has filed the second appeal. 2. There is no dispute that there was sixty per cent damage of the mangoes. The only point for consideration is whether the defendant was responsible for the damage. The findings of the lower appellate Court are that the consignment was despatched at the risk of the owner, the usual time for a consignment of mangoes to reach from Ellore to Cuttack is 4 to 5 days, the consignment reached Cuttack in 9 days, the delay of 4 to 5 days was unusual and was responsible for the damage, and the goods were sent in good condition at the time of loading. 3. Exhibits 7 and 8 show that consignments of mangoes from Ellore to Cuttack reached Cuttack within 4 and 5 days respectively. D. W. 2, the goods clerk at Cuttack, deposed that the normal time for arrival of mango wagons from Ellore to Cuttack was 5 to 6 days. This evidence is not, however, enough to hold that the delay was unreasonable or unusual. 4. The inter se liabilities of the parties depend upon the construction of Sec. 74-C (3) of the Indian Railways Act, prior to its amendment. In Second Appeal No. 276 of 1962 (Ori), Fagumani Khuntia v. Union of India this section was considered and the Court observed thus- "The onus is on the plaintiff not only to prove that there was delay in transit but also to prove that the delay was not unusual and unreasonable that it amounts to negligence or misconduct on the part of the railway administration or of any of its servants and that such negligence or misconduct was responsible for the deterioration," In that particular case, the delay was of 3 days. There was no further proof that the delay was of such unusual character that it caused deterioration and that the goods could not have been deteriorated even during the normal period of transit of 9 to 10 days as claimed in that case. 5. Rule 49, Sub-rule (14) of the Goods Tariff No. 29 in force from 1st June, 1954, (General Rules for acceptance, carriage and delivery of goods) deals with contraband goods like arms and ammunition etc. It says that in every case when a consignment of any kind of arms, ammunition or military stores fails to reach the destination station within a reasonable period from the date of booking, as shown by the Invoice or Way-bill, the Station Master of the station to which such ammunition or arms is booked must report the facts by wire to the Station Master of the Booking Station, junctions concerned, if any, District Tariff/Divisional Superintendent and Superintendent of Railway Police in whose jurisdiction booking and destination stations are situated. A reasonable time may be assumed to be an allowance of 100 miles per day in the case of goods trains and 250 miles per day in the case of passenger trains, plus two days for necessary formalities of booking and destination stations. In terms this rule has no application to the booking of perishable goods. It, however, gives an idea as to what a reasonable time is. A reasonable time is certainly not necessarily always the actual time for the consignment to reach the destination. In Fact sometimes the consignment might reach the destination earlier and sometimes later. To assess reasonable time one is not to be guided by the actual time taken by similar consignments in respect of identical goods. Rule 8 of the above Tariff Rules accordingly lays down that railways do not guarantee the dispatch of goods by any particular train nor will they be responsible for the arrival of goods at any station within any definite time. The distance between Ellore and Cuttack is 477 miles. If the reasonable time for any goods carried by goods train is 100 miles per day, then it would take a little less than 5 days only for transit. Further 2 days more is necessary for the formalities of booking and destination stations. The reasonable time in this particular case therefore would be 7 days. The delay was hardly by 2 days. The Courts below committed an error of law in depending upon the time taken in Exts. 7 and 8 as the reasonable time for the arrival of the consignment from Ellore to Cuttack. It is not known whether Exts. 7 and 8 were despatched at owner's risk or were subject to special contract, on account of the nature of the perishable goods consigned thereunder. If 7 days is the reasonable transit time for a whole mango wagon consignment from Ellore to Cuttack, the delay of 2 days cannot be said to be unreasonable. Moreover there is no assertion or proof that the man-oes despatched from Ellore would not have been damaged and were not in fact damaged during the reasonable time of 7 days required for transit. The delay was also not so unusual and unreasonable that a presumption under Section 114, Evidence Act, is to be drawn that the damage was due to the delay of those 2 days. 6. From time to time this Court has been laying down the strict standard of proof in cases of this nature. Plaintiff conducted the case in an unsatisfactory manner and the necessary elements for discharging (he onus were not established. 7. On the aforesaid conclusion the judg ments of the Courts below are set aside and the plaintiffs' suit is dismissed. The second appeal is allowed; but in the circumstances, parties to bear their own costs throughout.

Author: G Misra

Union Of India (Uoi) vs Bhagaban Rout on 23 August, 1968

Orissa High Court

Court No. - 3 Case :- MISC. SINGLE No. - 4321 of 2010 Petitioner :- Arun Kumar Shriwastava S/O Parameshwar Nath Shriwastava Respondent :- State Of U.P. Thru District Magistrate/Collector,Faizabad & Petitioner Counsel :- D.N. Tripathi Respondent Counsel :- C.S.C.,Vinay Shanker Hon'ble Shri Narayan Shukla,J. Heard Mr.D.N. Tripathi, learned counsel for the petitioner, learned Standing counsel for opposite parties 1 to 3 and Mr. Vinay Shankar, learned counsel for the opposite party no. 4. The petitioner is aggrieved with the certificate of recovery dated 10th of June, 2010 to show a amount due as Rs. 3,29,583/-. Though the petitioner does not dispute the liability of loan, but since he is not capable to pay the whole amount in lump sum, he seeks permission of this court to pay the same in instalments. Considering the facts and circumstances of the case, I stay the recovery proceedings initiated against the petitioner, provided the petitioner deposits 1/4 of the aforesaid amount within a period of three months from today and rest of the amount shall be deposited in six quarterly instalments. The first instalment shall become due on 3rd of February, 2011 and accordingly the petitioner shall continue to deposit the rest of the instalments with up to date interest with the Bank. On payment of last instalment, the bank concerned provide the statement of account regarding the balance amount, which shall be paid by the petitioner within next three months. After deposit of ¼ of the amount as provided here-in-above, in case the petitioners' tractor has been attached in the recovery proceedings, the same shall be released forthwith. In case the petitioner has made certain payments, and the adjustment of which has not been made in the amount demanded, it will be open to the petitioner to give proof of the same to the Bank and if such a proof is given, the Bank shall adjust the said amount. In case the petitioner commits any default in complying with any of the aforesaid conditions, the benefit of this order would not be available to the petitioner and it will be open to the opposite parties to realize the entire amount due in accordance with law. With the above directions, the writ petition is disposed of finally. Order Date :- 3.8.2010 Amit

Arun Kumar Shriwastava S/O ... vs State Of U.P. Thru District ... on 3 August, 2010

Allahabad High Court

Gujarat High Court Case Information System Print SCA/15659/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 15659 of 2011 ========================================================= AASHIF ALAMBHAI PARMAR - Petitioner(s) Versus COMMISSIONER OF POLICE & 2 - Respondent(s) ========================================================= Appearance : MR JAYENDRA M SHAH for Petitioner(s) : 1, None for Respondent(s) : 1, 3, GOVERNMENT PLEADER for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 18/10/2011 ORAL ORDER Heard the learned Advocate for the petitioner and the learned AGP for the respondents. RULE. Learned AGP waives service of Notice of Rule for the respondent No. 3. Direct service is permitted for respondents No.1 & 2. Office is directed to list the matter for final hearing in seriatum according to the actual date of detention. (Z.K.SAIYED, J.) sas     Top

Author: Z.K.Saiyed,

Aashif vs Commissioner on 18 October, 2011

Gujarat High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2814 of 2010 1. SHIV KUMAR PRASAD S/O SRI BALDEO YADAV R/O VILL- DEOKALI, P.S MANPUR, DISTT- NALANDA 2. RAM ISHWAR PRASAD S/O LATE RAMBRIKSH PRASAD R/O VILL- TARAPUR, P.S DEEPNAGAR, DISTT- NALANDA Versus 1. THE STATE OF BIHAR 2. DIRECTOR GENERAL OF POLICE, GOVT.OF BIHAR,PATNA 3. INSPECTOR GENERAL OF POLICE, GOVT.OF BIHAR,PATNA 4. PRESIDENT, SELECTION PARISHAD BOARD NO.2, NORTH ZONE, POLICE FORCE,MUZAFFARPUR CUM COMMANDANT, BIHAR POLICE FORCE-6, MUZAFFARPUR 5. DISTRICT COMMANDANT BIHAR HOMEGUARD POLICE, NALANDA ----------- Snkumar/- (Navin Sinha,J.) 2. 26.08.2010 Heard learned Counsel for the petitioner and the learned Counsel for the State. The petitioner claims to be an applicant in response to advertisement no. 1/2004 for appointment as Constable under the 50% seats reserved for Home Guard. There are no allegations of marks obtained by him, any person with lesser marks having been appointed or merit panel having been violated. Only because the respondents may have sought verification of his claim of Home Guard status per se does not create any right in him. Only if the petitioner files a representation making detailed disclosure of hostile discrimination, arbitrariness and violation of the merit panel with full details of the name of the candidates in that event alone the respondents are required to consider his representation and dispose it of expeditiously in accordance with law. The writ application stands disposed.

Shiv Kumar Prasad &Amp; Anr vs The State Of Bihar &Amp; Ors on 26 August, 2010

Patna High Court - Orders

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl..No. 3673 of 2008() 1. SUMESH N.AYYAPPAN ... Petitioner Vs 1. S.I. OF POLICE, MULANTHURUTHY, ... Respondent For Petitioner :SRI.R.KRISHNA RAJ For Respondent :PUBLIC PROSECUTOR The Hon'ble MRS. Justice K.HEMA Dated :11/06/2008 O R D E R K. HEMA, J. ------------------------------------------ Bail Appl.No. 3673 of 2008 ------------------------------------------ Dated this the 11th day of June, 2008. ORDER Petition for bail. 2. According to prosecution, the petitioner allegedly raped a minor girl who is his close relative and she became pregnant. Learned counsel for the petitioner submitted that the petitioner is innocent of the allegations made. He was having an affair with another girl and their marriage is fixed and at this stage, the alleged victim's father, made a false complaint against the petitioner that too, after expiry of one year of the alleged incident. It is also submitted that the victim's marriage was fixed but it fizzled out on allegation against her chastity and this also persuaded de facto complainant to pressurise the petitioner to marry her. 3. This petition is opposed. Learned Public Prosecutor submitted that investigation is at the preliminary stage and the victim is only a minor. In the above circumstances, granting of bail will adversely affected the investigation. I am satisfied of the submissons made. This petition is dismissed. K. HEMA, JUDGE. Krs.

Sumesh N.Ayyappan vs S.I. Of Police on 11 June, 2008

Kerala High Court

Court No. - 20 Case :- MISC. BENCH No. - 6786 of 2010 Petitioner :- Brahma Shanker Respondent :- State Of U.P., Thru. Secretary, Home & Others Petitioner Counsel :- Amit Chaudhary Respondent Counsel :- G.A. Hon'ble Ra° Mani Chauhan,J. Hon'ble Virendra Kumar Dixit J. Learned A.G.A. prays for and is granted one week's time to seek instructions. List on 04.08.2010. Order Date :- 21.7.2010 Renu

Brahma Shanker vs State Of U.P., Thru. Secretary, ... on 21 July, 2010

Allahabad High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA FA No.68 of 1980 RAM PARIKHA RAI & ORS Versus RAJ DEO SINGH & ORS ----------- 23. 20.09.2010. Heard the learned counsel appearing on behalf of the appellant on I.A. No.7947 of 2009. This I.A. has been filed for substituting the legal representative of the deceased respondent No.1. This application is within time. Accordingly, this Interlocutory Application No.7947 of 2009 is allowed. The legal representatives of the deceased respondent No.1 as mentioned in detail in paragraph 1 of the substitution application are substituted in place of the deceased respondent No.1, namely, Rajdeo Singh. The appellant shall take steps for appeal notice on the newly substituted respondents in ordinary process within 2 weeks failing which the Appeal shall stand dismissed as against the concerned respondents. ( Mungeshwar Sahoo, J.) Sanjeev/

Sona Devi &Amp; Ors vs Raj Deo Singh &Amp; Ors on 20 September, 2010

Patna High Court - Orders

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Misc.1305-M of 2007 DATE OF DECISION : AUGUST 19, 2008 RAJENDER SINGH ....... PETITIONER(S) VERSUS STATE OF HARYANA .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr.Anand Kumar, Advocate, for the petitioner(s). Mr. Narender Sura, AAG, Haryana. AJAI LAMBA, J. (Oral) August 19, 2008 ( AJAI LAMBA ) Kang JUDGE Learned counsel for the petitioner wants to withdraw this petition so as to take all the pleas taken in this petition before the trial court at the appropriate stage. Dismissed as withdrawn with liberty as prayed for.

Rajender Singh vs State Of Haryana on 19 August, 2008

Punjab-Haryana High Court

4. On the aforesaid conclusion, no offence either under Section 283 or under Section 290, Indian Penal Code is committed. The accused is entitled to an acquittal. 5. In the result, the judgment of the learned Magistrate is set aside and the conviction and sentence passed on the petitioner are quashed. The Revision is allowed. Fines, if paid, should be refunded. ORDER G.K. Misra, J. 1. The petitioner has been convicted under Section 290, I. P. C., and sentenced to pay a fine of Rs. 30, in default to undergo simple imprisonment for 7 days. On 13-3-65 the Officer-in-charge of Gangapur P. S. in the district of Ganjam found that the petitioner had stacked some logs on the public Danda (road) causing obstruction in the movement of the public. The petitioner admitted stacking of the logs, but claimed that the site belonged to him and was not a public place. The learned Magistrate held : (i) The site where the logs were stacked was a paramboke. (ii) The width of the entire paramboke site was 36 links and the logs had been stacked on a space of 10 links in width. (iii) The public were feeling inconvenience in their movement and as such the logs caused obstruction to the public as deposed to by P. Ws. 1 and 3. 2. It may be noted that for such an offence the accused could be convicted under Section 283. I. P. C., and the residual Section 290 I. P. C., has no application. The word "public nuisance" has been defined in Section 208, I. P. C., which says ; 'A person is guilty of public nuisance who does any act, or is guilty of an illegal omission, which causes any personal injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right ' The finding of the learned Magistrate that the site where the logs were stacked was a public place and the members of the public had occasion to use it as of right, is not challenged. 3. The only contention advanced by Mr. Misra is that the finding that there was some inconvenience to the public and that the inconvenience amounts to obstruction is contrary to law Admittedly the road is 36 links equal to 24 ft. and the logs were stacked on a place of 10 links (about 7 ft. wide). Even if the space where the logs were stacked be excluded from the total width of 36 links a balance space of 26 links remains for use of the public as Rasta. 2 bullock carts can safely pass on the residual portion thereof. There is no evidence for the prosecution that there was any obstruction or that it was likely to cause obstruction to the user of Rasta. Every obstruction must engender inconvenience. But the converse is not true Every inconvenience need not necessarily arises out of obstruction In the facts of this case, the inconvenience, whatever it may be. cannot amount-to an obstruction within the meaning of Section 263, 1. P C. There is no finding or evidence that the stacking caused injury, danger or annoyance. It is a matter of common experience that for temporary purpose the villagers stack logs and fuels on the Danda. This is a case of that type where logs were stacked temporarily and did not cause any obstruction to the user of the public road.

Author: G Misra

Moochia Naik vs State on 13 December, 1965

Orissa High Court

Gujarat High Court Case Information System Print CR.MA/8023/2008 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 8023 of 2008 ====================================== AIYUBBHAI SALUBHAI SHAIKH Versus STATE OF GUJARAT ====================================== Appearance : MR HASHIM QURESHI for the Applicant Mr RC Kodekar, APP for the Respondent ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD Date : 25/06/2008 ORAL ORDER Rule. Mr R.C.Kodekar, learned Additional Public Prosecutor for the State waives the service. This application has been preferred for regular bail under Section 439 of the Criminal Procedure Code, 1973 in connection with the offence registered with Mahuva Police Station being Crime Register No.I-82 of 2008 for the offences punishable under Sections 394, 397 and 450 of the Indian Penal Code. Having heard the learned counsel for both the sides and looking to the facts and circumstances of the case, this application is allowed. The applicant is ordered to be released on bail in connection with offence registered with Mahuva Police Station being Crime Register No.I-82 of 2008 on his executing a bond in the sum of Rs.5,000/- (Rupees five thousand only) with one surety of the like amount to the satisfaction of the lower Court and subject to the conditions that he shall, [a] not take undue advantage of or misuse liberty; [b] maintain law and order and should co-operate with the investigating officer; [c] not act in a manner injurious to the interest of the prosecution; [d] surrender his passport, if any, to the lower court within a week; [e] not leave the local limits of the State of Gujarat without prior permission of the Sessions Judge concerned; [f] shall mark his presence before the concerned Police Station on every 1st day of English Calendar month between 9.00 a.m. and 5.00 p.m.; [g] furnish the address of his residence at the time of execution of the bond and shall not change the residence without prior permission of this Court. The authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower court having jurisdiction to try the case. This application is allowed. Rule is made absolute. D.S. Permitted. (Bhagwati Prasad, J.) *mohd     Top

Author: Bhagwati Prasad,&Nbsp;

State vs Mr Rc Kodekar on 25 June, 2008

Gujarat High Court

ORDER S.S. Nijjar, J. 1. The plaintiffs have filed this summary suit under the provisions of Order XXXVII, Rule 2 of the Civil Procedure Code claiming that the defendants be ordered and decreed jointly and severally to pay to the plaintiffs a sum of Rs. 9,48,000/- as per particulars of the plaintiffs claim together with further interest at the rate of 18 per cent per annum on the aggregate principal sum of Rs. 7,37,857/- from the date of filing of the suit till the judgement and thereafter at the same rate till payment or realisation. 2. The plaintiff is a Company registered under the Companies Act, 1956 doing business of manufacturing tin plate, containers iron scraps etc. The defendants are carrying on business of tin and/or metal containers. Defendant No. 1 is a partnership firm registered under the Indian Partnership Act, 1932. Defendant Nos. 2 to 5 are the partners thereof. According to the plaintiffs, pursuant to the orders placed by the defendants from time to time the plaintiffs sold and delivered to the defendants goods from time to time. In particular pursuant to the order the plaintiffs sold and delivered goods to the defendants as follows. Date Bill No. Amount (Rs.) 7-2-92 124 2,53,925.00 25-2-92 130 2,56,690.00 27-2-92 131 1,93,800.00 27-2-92h 132 1,87,530.00 8,91,945.00 The defendants have received the goods mentioned in the aforesaid invoices as well as other invoices. It is further stated that on repeated demand the defendants issued cheque for Rs. 1 lakh bearing No. 935634 dated 8th June, 1992 drawn on Syndicate Bank towards part discharge of the aforesaid debts. The Cheque, however, was not honoured and was returned unpaid containing the reasons "referred to drawer". Consequently the plaintiffs were ultimately constrained to file criminal complaint in the Court of Additional Chief Metropolitan Magistrate, 11th Court at Kurla, Bombay under the provisions of section 138 of the Negotiable Instruments Act. It is accepted by the parties that the defendants have been convicted in the said complaint and punished. A decree came to be passed against the defendants on 12th September, 1995. The present Notice of Motion has been taken out under Order XXXVII, Rule 4 for setting aside the said decree. The present suit was filed on 27th September, 1993. Writ of Summons was served upon the defendants on 29th November, 1993. On 8th December, 1993, the defendants entered appearance through Mr. Bagwe, Advocate. Vakalatnama was filed by Mr. Bagwe on 8-12-1993. On 16th December, 1993 the plaintiffs took out Summons for judgment No. 770 of 1993. No application for leave to defend was taken out by the defendants. Therefore, Summons for judgment were made absolute and decree was passed on 12th September, 1995. On 5th October, 1995 the plaintiffs lodged with the decree department draft of the decree. 3. In the affidavit in support of the Notice of Motion it is stated that the decree came to be passed on account of the lapse of the Advocate. It is stated that defendant is a lay person and he was always informed by the Advocate that the plaintiffs had not yet given inspection of the documents. Every time he enquired from the Advocate the same answer was given that he is awaiting inspection to be given by the plaintiffs. On the basis of the voluminous pleadings it is further submitted that the Advocate was justified in asking for inspection of the documents as the entire defence depended on the genuineness of the document on which the plaintiff's suit has been filed, ft is further submitted that the suit itself was not maintainable as it is based on running accounts. There is a dispute as to whether or not the goods under the invoices have been received by the defendants. It is submitted that the challans which have been filed along with the plaint contain blanks and do not have any details which are necessarily required. Furthermore, goods have started from Silvassa to the State of Maharashtra. Lorry number given is of a lorry which belongs to the defendant. This lorry does not have a licence to travel outside Maharashtra. Apart from this, the maximum load permitted in the said lorry is not more than 11 tons whereas the weightage of the goods shown in the various invoices and challans is 14 tonnes. The goods are said to have been received by the defendants on the basis of a signature which is stated to have been that of one S. Sayed. This person is neither a partner in the business nor is he an employee of the defendants. Even the stamp evidencing receipt of the goods is totally dissimilar to the stamp which is used by the defendants, it is further submitted that no consignments can possibly come from Silvassa without the accompanying documents evidencing payment of octroi, consignment notes, weighment slips etc. Even the certified copies of the bills taken from the Court of the Magistrate did not tally with the original bill. On the basis of the above it is submitted that the decree ought to be set aside firstly on the ground that the leave to defend was not taken due to the lapse of the Advocate and secondly because the defendants have a very good case on merits. 4. The Notice of Motion came up for hearing on 2nd November, 1995. The application for stay of the execution of decree was refused, it was observed that defendants were admittedly served with the Writ of Summons as well as Summons for Judgement. No affidavit in reply was filed for a period of one year and nine months. The defendants were duly served with the Summons for Judgement in December, 1993. The decree was passed on 12th September, 1995. In view of the Rules of this Court as well as the provisions of the C.P.C. the defendant were obliged to file an affidavit in reply within 10 days from the service of Summons. Therefore, it was ordered that if the defendants are willing to deposit the entire decretal amount, the defendants are at liberty to renew this application. This order was carried in Appeal No. 11 of 1996 before the Division Bench. By an order dated 6-2-1996 parties had agreed that if the defendants deposit a sum of Rs. 9,48,000/- then the application for stay of the execution before the Single Judge can be renewed. In view of the above, the defendants have deposited a sum of Rs. 9,48,000/- as ordered by the Division Bench. On the basis of this also it is submitted by the Counsel for the defendant that not only there are special circumstances for setting aside the ex parte decree but the defendants are very keen that the matter should be decided on merits. Their bona fides have been established by deposit of Rs. 9,48,000/- which was only about Rs. 2 lakhs short of the decretal amount at the time when the order was passed by the Division Bench. Counsel for the plaintiffs has vehemently opposed the grant of this relief on various grounds. Firstly it is submitted that this Notice of Motion itself is not maintainable as the only remedy open to the defendants is to file an appeal under Clause 15 of the Letters Patent of this Court. Furthermore it is submitted that the claim put forward by the plaintiff has been justified and that the defendants have been convicted on the same facts and cirqumstances by the Court of Additional Chief Metropolitan Magistrate. The defendants therein had made statements under section 313 of the Criminal Procedure Code in which they had admitted that a sum of Rs. 27,07,857/- was due to the plaintiffs. The defendants, however, thereafter tried to resile from the said statement and claimed that it was a typographical error in that the statement which ought to have been made as follows. "It is not true that the plaintiff Company supplied the goods at Rs. 2,77,857/- towards the Bill Exhibit C-1 Colly." The statement actually recorded was as follows : "It is true that Complainant Company supplied goods valued at Rs. 27,7,857/- towards bill Exhibit C-1 Colly." The plea put forward by the defendants has been negatived by the Criminal Court and their application for review has been dismissed. 5. In replying to the aforesaid submissions, Counsel for the defendants has submitted that the Notice of Motion is maintainable. In support of his submissions Counsel has cited a number of judgements of this Court and other High Courts. However, in my view, the proposition has been squarely answered by two Division Bench judgements of this Court. First in point is the Judgement of P.N. Films Ltd. v. Overseas Films Corporation Ltd. wherein it has been held that Order XXXVIl, Rule 4 is a self contained order which deals not only with the right of the defendant to appear in a summary suit in which a decree has to be passed if leave to defend is not given to him, but also with the procedure to be followed if the defendants wishes to have a decree, passed in a summary suit, set aside. It has been held that the power is not similar to the power which is vested in the Court under Order IX, Rule 13 which applies to setting aside of ex parte decree. In paragraph 3 of the judgment Chagla, C.J., speaking for the Court has observed as under: "It is then urged by Mr. Gupte that even assuming the present application of the appellant does not fall under O, 9, R, 13 and even assuming that no ex parte decree was passed as contemplated by O. 9, R. 6, Art. 164 does not in terms limit the application covered by that Article to an application made under O. 9, R. 13 and Mr. Gupte says that although the decree that we have before us may not be an ex parte decree within the meaning of O. 9, R. 6 it is still an ex parte decree as generally understood and there is no reason why the connotation of an ex parte decree in Art. 164 be restricted and limited to an ex parte decree as understood by O. 9, R. 6. Now that seems to be a little more difficult contention to decide. It is true that in one sense the decree was passed against the defendant in his absence, but that absence was an enforced absence and it was enforced by law. In our opinion, even giving to the expression 'ex parte' its plain natural meaning, the expression 'ex parte' does carry with it the connotation that a Court or a Judge or a Tribunal has proceeded in the absence of other party when it could have had the other party before it or when it was not prevented by law from having the other party before it. But perhaps it is better to decide this point on the other aspect of the matter. Both the Law of Limitation and the Civil Procedure Code are procedural laws and we must try and give the same meaning to expressions used in these two laws. If the Civil Procedure Code has understood an ex parte decree in one particular definite sense, there is no reason why we should take the view that the Limitation Act has understood it in a different sense. Apart from that, the Limitation Act must always be construed strictly against the party who sets up the plea of limitation. The Limitation Act deprives a party of a valuable right and unless the provision in the Limitation Act was clear and beyond doubt, a benevolent construction, a construction favourable to the party whose valuable right is being taken away, must always be given and therefore in our opinion Art. 164 does not apply to an application made by a defendant against whom a decree has been passed in a summary suit when he was precluded from appearing by reason of the fact that leave to defend was not given. In our opinion, such an application falls under O.37 R. 4 and the Limitation Act has not dealt with any such application. Therefore, the article that would apply would be the residuary Art. 181. Similar view is taken by another Division Bench of this Court in the case of Ramchandra Dhondu Dalviv. Vithaldas Gokuldas, . The complete answer to the submissions made by the Counsel for the plaintiff is given in paragraphs 4 and 5 of the said judgment. The said paragraphs 4, 5 and 6 read as under : "4. No one can deny the fact that the provisions of Order 37 are made in the general interest of the public with a desire to speedy disposal of simple suits. Consistent with this object, it cannot be denied that such decrees, if once made, ought not lightly to be set aside. Yet the words are of wide application and must be given their natural meaning. There can be no reason to restrict their meaning by construction unless the language used in the rule justifies such a construction. As stated above, it is clear that Order 37 deals only with the summary procedure. If leave is granted and the condition complied with, if it is conditional leave, the defendant becomes entitled to defend the suit and then, the suit ceases to be a summary suit and roust be transferred to the regular list, in which case there is no question of the application of any of the other rules contained in O. 37 Rule 4 must apply to a suit as has resulted into a decree under the summary procedure and it enables the Court to set aside "the decree" which must mean " the decree" made under Rule 2. Rule 2 contemplates two circumstances under which a decree can be made- one, where the defendant fails to obtain leave to defend, and second where having obtained such leave, he does not appear and defend the suit in pursuance of the leave. On satisfaction of either of these conditions, the consequence provided by sub-rule (2) of Rule 2 must follow and result into a decree. The words are 'after decree the Court may' in Rule 4; they must mean after such decree as is made under Rule 2. The word 'decree is applicable' to a decree obtained in either eventuality and in the absence of anything else either kind of decree can be set aside by the Court if conditions laid down in the rule are satisfied. (5) Mr. Jadhav for the plaintiff relies on the words' and may give leave to the defendant to appear to the summons and to defend the suit,..........and on such terms as the Court thinks fit'. He says that these words can apply to only one eventuality under which the decree was made i.e. where the defendant had not appeared in answer to the summons and therefore the rule must be construed to be limited in scope. This is not so. What the rule means is that the power is general to set aside the decree and any of the other things including the granting of leave may be done if necessary. The power given to the Court is discretionary and the words could not have been intended to limit the power of the Court to set aside decrees only as are made in the absence of the defendant in answer to the summons. The Court while setting aside the decrees may exercise any of the several powers which it thinks fit. If the decree is made in the absence of the defendant in answer to the summons, then only the Court may consider whether he is entitled to leave in terms of Rule 3 and either refuse it or grant it on such conditions as it deems necessary. In a case where (conditional leave is granted, but the conditions are not complied with and if the Court sets aside the decree, the suit must be proceeded with from the stage it was, and the Court cannot review the earlier decision, rule of res judicata applying. Of course while setting aside the decree the Court is entitled to impose such terms as it deems fit. In our view there is nothing in the rule itself which limits the power of the Court to set aside the decree only if it is made against a defendant, who has failed to appear in answer to the summons. 6. In the above case the learned Judge observes that if the construction adopted by us above were accepted it would produce startling consequence. Reference is to the judgement of Chandrachud, J., in Mrs. Ramaben Bhagubhai Patel v. Hindustan Electric Co. Ltd., He says that in a case where conditional leave were granted but the defendant tailed into comply with the same and a decree followed, it the decree were set aside, it would be open to the Court not only to set aside the decree, but also the conditional leave which cannot be done except by the High Court in its revisional jurisdiction and that too in exceptional cases. With respect, it is not possible to accept that such result must necessarily follow. As pointed out above the power to give leave to defend has to be exercised only, if necessary, as the other power of staying the suit or setting aside the execution of the decree and not otherwise. If, therefore, a case arises where conditional leave is granted and the condition is not complied with and the decree follows, and if the Court is satisfied that there are special circum-stances which require the setting aside of the decree then it has to set aside the decree, and the only effect would be to enable the Court to extend the time for complying with the condition, which it otherwise has under section 148 of the Civil Procedure Code, if an application were made before the expiry of the period. If the ambit of the rule is to be limited we have necessarily to add words qualifying "the decree" which the Court cannot do. Additions to the language of the statute would be permissible only when it is meaningless or absurd. When the language is clear the Court cannot import limitations on the basis of supposed intentions of the legislation. With respect we must therefore differ from the interpretation of the learned Judge and hold that, Rule 4 applies to all decrees which are made under Rule 2 and the Court can pass such orders as required by the circumstances of the case as indicated by us above." The above observations have been made with reference to the question of law formulated by the Court viz. "Whether the power of the Court to set aside a decree is limited to a case in which the defendant has failed to appear in answer to the summons for judgement or is wider?" To be fair to Mr. Fadia, he has relied upon two judgements of Justice Kapadia given in (Notice of Motion. No. 2707 of 1995 decided on 4th November, 1997), and (Notice of Motion No. 3234 of 1995 decided on 7th November, 1997). A perusal of the said judgements would show that the two aforesaid judgements of the Division Bench were not brought to the notice of Justice Kapadia. This Court is bound by the judgements given by the Division Bench. In view of the above I hold that the Notice of Motion is maintainable under Order XXXVII, Rule 4. 6. Coming now to the question of whether or not there are any special circumstances for setting aside the ex parte decree. The Criminal Court has virtually decided the same issue as has been agitated in the present suit. This apart, examining the facts and circumstances of this case independently 1 am of the considered opinion that the defendants have been wholly remissed in pursuing the matter. The defendants were admittedly served with the writ of summons as well as Summons for Judgement. No affidavit in 'reply was filed for a period of one year arid nine months. The defendants were duly served with the Summons for judgement in December 1993 and the decree was passed by this Court on 12th September, 1995. A perusal of the order dated 12th September, 1995 also shows that the (sic) stated by the defendants for non-appearance or not seeking leave to defend are altogether bona fide. In the said order it is noticed that one Mr. Mirajkar made a statement that Mr Bagwe, the advocate retained by defendants has not received any instructions from the clients and he wants to intimate his clients and also wants to withdraw the appearance On this ground the adjournment was refused. It is only thereafter that the 'ex parte' decree carne to be passed. However, keeping view the observations made by the Division Bench in Ramchandra's case (supra) in paragraph 6, I am of the view that the interest of justice require that the defendants be permitted to defend the case on merits. This leave can only be granted if the defendants are prepared to deposit the entire decretal amount in Court to be calculated by the Decree Department on the last date for the deposit of the same. The defendants shall, however, deposit only the difference between the total decretal amount after deducting the amount already deposit which is Rs. 9,48,000/- with accrued intarest. The defendants are three months time to deposit the said amount. Upon the deposit being made, the 'ex parte', decree shall stand set aside. Conditional leave is granted in the aforesaid terms. Written statement to be filed within a period of eight weeks after the last date of deposit. The matter be transferred to the list of commercial causes. The plaintiffs' shall be permitted to withdraw a sum of Rs. 9,48,000/- along with the accrued interest on furnishing Bank guarantee/security to the satisfaction of the Prothonotary and Sr. Master. Notice of Motion is made absolute in the aforesaid terms with no order as to costs.

Author: S Nijjar

Saraswati Tin Containers Pvt. ... vs Meta Cans And Others on 5 December, 1997

Bombay High Court

(b) ... (c) Bobbins, spools, cops, cones, reels or similar supports, of any material (for example Chapter 39, 40, 44 or 48 or Section XV) (d) ... (e) ... (f) ...etc. Heading Sub-Heading Description of article No. No. ------------------------------------------------------------------------------- 1 2 3 ------------------------------------------------------------------------------- 84.46 Weaving machines (looms) 8446.10 - For weaving fabrics of a width not exceeding 30 cm. 8446.21 ... 8446.29 - Other 8446.30 ... ------------------------------------------------------------------------------ Chapter 98 Notes: Heading Sub-Heading Description of the article No. No. ------------------------------------------------------------------------------- 1 2 3 ------------------------------------------------------------------------------- 98.06 9806.00 Parts of machinery, equipments, appliances instruments and articles of Chapters 84, 85, 86, 89 and 90. ------------------------------------------------------------------------------- 6. As observed by the Tribunal in the case of Saurashtra Chemicals, Porbander v. Collector of Customs, Bombay, reported in 1986 (23) E.L.T. 283 ORDER P.K. Kapoor, Member (T) 1. This is an appeal against the order passed by Collector of Customs (Appeals) Bombay. Briefly stated the facts of the case are that the appellants imported improved heavy Texolooms along with grippers and bobbins for being used for the production of felts for paper making machines. They claimed assessment of bobbins as parts of the loom system under sub-heading 8446.29 read with Notification No. 59/87 dated 1-3-1987. However, the Customs authorities held that the bobbins were assessable under the Heading 9806.00. The appellants filed a refund claim on the ground that the bobbins should have also been assessed along with the looms under Heading 8446.29. The Assistant Collector, however, rejected their application for refund. The appeal filed by the appellants against the order passed by the Assistant Collector was also rejected by the Collector (Appeals) on the grounds that in terms of Note 1(c) to Section XVI goods such as bobbins and other similar items fell outside the ambit of Section XVI. For this reason and also on the ground that bobbins in question being identifiable parts of looms falling under Chapter 84 were appropriately classifiable under Heading 9806.00 in terms of Note 1 to Chapter 98. 2. On behalf of the appellant, the learned consultant Shri K.R. Mehta appeared before us. He stated that the Collector (Appeals) had erred in holding that parts of machinery specified in Chapters 84 and 85 were assessable under Chapter 98 in term of Note 1 to Chapter 98 since this interpretation had the effect of over-ruling Note 2 to Section XVI of the Customs Tariff. The contended that the view held by the Collector was opposed to the rule of harmonious construction of statutes and had the effect of rendering the sub-headings in Chapter 84 relating to parts of machinery redundant. Shri Mehta added that classification of the subject goods under the residuary Heading 98.06 in preference to the specific Heading under Chapter 84 was contrary to provisions of Rule 3 of the Interpretative Rules and the principles laid down by the Supreme Court in the case of Dunlop India Ltd. v. Union of India - reported in 1983 (13) E.L.T. 1566 . He referred to Note 1 to Chapter 98 which provides that the chapter applies to all goods which satisfy the conditions prescribed therein and contended that the disputed bobbins could not be classified under sub-heading 98.06 in which unlike the other sub-headings of Chapter 98 no conditions had been prescribed. He argued that the Collector (Appeals) had contradicted himself since he had stated that in terms of Note 1(c) to Section XVI, the imported bobbins had to be placed outside the ambit of Section XVI and at the same by treating the disputed goods as identifiable parts of looms falling under Chapter 84, he had held that they were classifiable under Heading 98.06 in terms of Note 1 to Chapter 98. Shri Mehta produced photographs taken inside the appellants factory showing the Texolooms and the disputed large sized bobbins of aluminium being used for feeding the warp yarn onto the loom instead of the conventional beam. 3. On behalf of the Revenue, the learned JDR Shri J.N. Nair, stated that Note 2 to Section XVI of the Tariff on which the appellants had placed reliance in support of their claim for assessment of the disputed bobbins under Chapter 84 as parts of looms had no relevance since in terms of Note 1(c) items such as bobbins were excluded from the purview of Section XVI. He contended that there was no infirmity in the finding of the Collector (Appeals) that the bobbins in question were classifiable under sub-heading 98.01 since Note 1 to Chapter 98 clearly provided that Chapter 98 has to be taken to all goods which satisfied the conditions therein, even when they were covered by a more specific heading elsewhere in the Schedule. He also placed reliance on the decision in the case of Saurashtra Chemicals Porbander v. Collector of Customs - reported in 1986 (23) E.L.T. 283 . 4. We have examined the records of the case and considered the submissions made on behalf of both sides. The only point that arises for consideration is whether the bobbins imported for use along with Texo Looms' meant for weaving wide felts were classifiable as parts of looms under Customs Tariff Heading 8446.29 as claimed by the appellant or under Heading 9806.00 as held by the lower authorities. 5. Since both sides have based their claims on the relevant Section/Chapter Notes in the Customs Tariff, before proceeding with the examination of rival contentions, we consider it desirable to reproduce the relevant Notes to Section XVI and Chapter 98 and also the relevant Headings of the Schedule to the Customs Tariff Act. Section XVI. Notes 1. This section does not cover : (a) ... 2. Subject to Note 1 to this Section, Note 1 to Chapter 84 and Note 1 to Chapter 85, parts of machines (not being parts of the articles of Heading No. 84.84, 85.44, 85.45, 85.46 or 85.47) are to be classified according to the following rules : (a) Parts which goods included in any of the headings of the Chapter 84 or 85 (Other than heading Nos. 84.85 or 85.48) are in all cases to be classified in their respective headings: (b) ... (c) ... ------------------------------------------------------------------------------- 1. This chapter is to be taken to apply to all goods which satisfy the conditions prescribed therein, even though they may be covered by a more specific heading elsewhere in this Schedule. ------------------------------------------------------------------------------- , the relevant headings in the Customs Tariff have to be interpreted and applied in the light of Section Notes and Chapter Notes which being statutory are binding like the headings and have an overriding force. The appellants case is that the disputed bobbin being an integral component of the special Texo loom system was classifiable under Heading 8446.29 in terms of Note 2 to Section XVI. It is also the appellants case that for the classification of the bobbins in question, Heading 8446.29 being specific for parts of looms has to be preferred to the general Heading 98.06. We are, however, unable to agree with appellants since Note 2 to Section XVI of the Customs Tariff Act, which regulates the classification of machinery parts has to be read along with Note 1 which provides that Section XVI does not cover "Bobbins, spools, cops, cones, reels or similar supports of any material (for example Chapter 39, 40, 44 or 48 or Section XV)". The disputed goods are admittedly "bobbins" from which warp ends are fed into the loom. Hence, we do not find any infirmity in the finding of the Collector (Appeals) that the 'bobbins' in question were excluded from the purview of Section XVI. 7. On a plain reading of Note 1 to Chapter 98, it follows that parts of machinery, equipments, appliances, instruments and articles of Chapters 84, 85, 86, 89 and 90 even when covered by a more specific heading elsewhere in the Schedule were to be classified under Heading 98.06. Since the legislature in their wisdom had chosen to provide that parts of machinery, equipments, appliances, instruments and articles of Chapters 84, 85, 86, 89 and 90 even when covered by more specific headings of the Schedule would be classifiable under Heading 98.06, we do not find any force in the appellants contention that in terms of interpretative Rule 3(a) and the principles laid down in the decision of the Supreme Court in the case of Dunlop India Ltd. v. Union of India (supra), parts of machinery falling under Chapter 84 were to be classified under the relevant heading of that Chapter in preference to Heading 98.06. Hence, in our view even if the disputed 'bobbins' were not excluded from the scope of Section XVI, in terms of the statutory provision in Note 1(c) to Chapter XVI they would have been classifiable under Heading 98.06. 8. The learned consultant Shri K.R. Mehta had contended that the Collector (Appeals) had contradicted himself by observing that in terms of Note 1(c) to Section XVI the disputed bobbins could not be deemed as parts covered by Chapter 84 and simultaneously holding that the disputed goods being identifiable parts of looms falling under Chapter 84 were classifiable under Heading 98.06. We have given our earnest consideration to the point made by the learned consultant but we are not inclined to agree with him. In this regard, it is seen that even though in terms of Note 1(c) to Section XVI 'bobbins' were to be excluded from the purview of that section, they were admittedly parts of the imported Texolooms which were classifiable under Heading 8446.29. From a plain reading of Note 1 to Chapter 98 and Heading 98.06, it follows that parts of machinery falling under the specified headings even when covered by any other heading of the tariff would be classifiable under Heading 98.06. For this reason, in our view the goods answered the description of Heading 98.06 and were, therefore, correctly held as classifiable under that heading. 9. Referring to Note 1 to Chapter 98, the learned consultant had contended that classification of the disputed goods under sub-heading 98.06 which did not prescribe any conditions was ruled out since Chapter 98 covered only goods which satisfied the conditions prescribed therein. In this regard, it is seen that the Rule 1 of the Rules for the interpretation of the Tariff Schedule provides that for legal purposes, classification has to be determined according to the terms of the headings and any relative Section or Chapter Notes. Hence, if the description in any sub-heading of Chapter 98 is not further qualified by any condition, then the classification of any goods under that heading will have to be determined only on the basis of the terms of that heading. We, therefore, do not find any merit in the point made by the appellants. 10. In view of the above discussion, the appeal fails and is rejected.

Porrits And Spencer (Asia) Ltd. vs Collector Of Customs on 8 May, 1992

Customs, Excise and Gold Tribunal - Delhi

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 14187 of 2010(W) 1. T.NARAYANAN,AGED 52,S/O.M.G.MENON, ... Petitioner Vs 1. THE REGIONAL TRANSPORT OFFICER ... Respondent 2. THE JOINT REGIONAL TRANSPORT OFFICER, For Petitioner :SRI.P.GOPALAKRISHNA MENON For Respondent : No Appearance The Hon'ble MR. Justice C.T.RAVIKUMAR Dated :11/05/2010 O R D E R C.T. RAVIKUMAR, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P. (C) Nos. 14187 & 14629 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of May, 2010 J U D G M E N T Common contentions have been raised in these writ petitions and hence, they are jointly heard and disposed of by this common judgment. 2. The grievance raised by the petitioners in both these writ petitions is that the Motor Vehicle Tax with respect to their vehicles has not been received by the second respondent on the ground that certain check reports have been pending with respect to those vehicles. The petitioners contend that Motor Vehicle Tax cannot be refused to be accepted citing Exts. P6 and P7 judgments in WP(C)14187/10 and Exts. P5 and P6 judgments in WP(C) 14629/10 of this court. A perusal of these judgments would reveal that under similar circumstances this court passed favourable orders granting prayers of the concerned petitioners. In the circumstances, this writ petition is disposed of with a direction to the second respondent in both these writ petitions, to receive Motor Vehicle Tax due from the petitioners in respect of their vehicles without raising the aforesaid objection. It is made  W.P. (C) Nos. 14187 & 14629 OF 2010 : 2 : clear that this will not stand in the way of finalization of the check reports issued against the vehicles belonging to the petitioners and for which they have submitted their replies. This writ petition is disposed of as above. (C.T. RAVIKUMAR, JUDGE) jma 

T.Narayanan vs The Regional Transport Officer on 11 May, 2010

Kerala High Court

Court No. - 47 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9696 of 2010 Petitioner :- Veer Pal Respondent :- State Of U.P. Petitioner Counsel :- Deepak Kumar Srivastava Respondent Counsel :- Govt Advocate Hon'ble B.N. Shukla,J. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record. Learned counsel for the applicant has contended that injuries suffered by the deceased could not be caused from the distance of 30 paces as shown in the site plan and the place of occurrence is doubtful. The applicant is in jail since 10.4.2007. Learned A.G.A. has contended that this is the second bail application. The first bail application was rejected by this court on 18.8.2009. It is informed that the trial is pending. This is the second bail application. Considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tampering of the witnesses and prima facie satisfaction of the court in support of the charge, the applicant is not entitled to be released on bail. Consequently, the prayer for bail of the applicant Veer Pal is hereby rejected at this stage. However, the trial court is directed to proceed expeditiously with the trial and conclude the same, if possible, within 6 months from the date of the presentation of the certified copy of this order. Order Date :- 16.7.2010 Masarrat

Veer Pal vs State Of U.P. on 16 July, 2010

Allahabad High Court

Court No. - 5 Case :- WRIT - B No. - 42599 of 2010 Petitioner :- Daya Shankar Singh Respondent :- State Of U.P. & Others Petitioner Counsel :- Brajesh Pratap Singh Respondent Counsel :- C.S.C.,Anuj Kumar Hon'ble Sabha°eet Yadav,J. Learned standing counsel is directed to file counter affidavit within four weeks. List thereafter. Order Date :- 23.7.2010 SL

Daya Shankar Singh vs State Of U.P. & Others on 23 July, 2010

Allahabad High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 7123 of 2007(W) 1. M.MOHAMMEDKUTTY, SON OF KUNHEETH, ... Petitioner Vs 1. SUB INSPECTOR OF POLICE, ... Respondent 2. SUPERINTENDENT OF POLICE, KOZHIKODE. 3. THE KAKKODI GRAMA PANCHAYAT, For Petitioner :SRI.M.P.MOHAMMED ASLAM For Respondent : No Appearance The Hon'ble MR. Justice J.B.KOSHY The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR Dated :15/03/2007 O R D E R J.B.KOSHY & T.R.RAMACHANDRAN NAIR, JJ. ------------------------------------- W.P.(C)No.7123 OF 2007 ------------------------------------- Dated 15th March, 2007 JUDGMENT Koshy,J . This is a petition for police protection. Government Pleader submitted that there are some objections that a madrassa is being constructed in the guise of a residential house. Counsel for the petitioner submitted that he is not constructing a madrassa or religious institution. On condition that, at any point of time, petitioner shall not convert the building to a madrassa or religious institution at all and it will be used only for residential purpose, protection shall be granted unless there is any prohibitory orders of statutory authority or court. The writ petition is disposed of accordingly. J.B.KOSHY JUDGE T.R.RAMACHANDRAN NAIR JUDGE tks 

M.Mohammedkutty vs Sub Inspector Of Police on 15 March, 2007

Kerala High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.828 of 2010 Md. Aftab Alam Versus Sri Mahendra Singh ---------------------------------- N.H./ ( Rakesh Kumar,J.) 9. 16.9.2011. As jointly prayed, list this appeal in the 3rd week of October,2011.

Md. Aftab Alam vs Sri Mahendra Singh on 16 September, 2011

Patna High Court - Orders

JUDGMENT I.A. Ansari, J. 1. This appeal has arisen out of the order, dated 7-9-2001, passed by the learned Additional Deputy Commissioner, West Garo Hills, Tura, Meghalaya, in Succession Case No. 56/98. 2. The facts giving rise to the present appeal may, in brief, be set out as follows:- (i) The appellant herein, namely, Sonabala Barman made an application under Section 372 of the Indian Succession Act, on 22-6-98, in the learned Court below, seeking grant of a succession certificate in respect of the debts and securities left by deceased Bimal Prasad Barman, the case of the petitioner-appellant being, in brief, thus : The petitioner married, in accordance with the Hindu rites and customs, Bimal Prasad Barman (since deceased) on 19-12-1972 and, upon marriage, they stayed together as husband and wife till the said deceased, who was, originally, a resident of village Katalbari under Phulbari Police Station, Tura, died on 27-11 -1997, leaving behind, as his heirs, the petitioner and their 4 years old son, namely, Konal Barman. The said deceased also left behind 3 near relations, namely, Sushil Barman, Dhiren Barman and Smt. Ratna Sangma, (i.e., the respondent herein). (ii) Based on the above application, Succession Case No. 5G/98 aforementioned was registered and, on receiving notice, the respondent herein, namely, Ratna Sangma, filed her objection, in writing on 28-6-98, in Succession Case No. 56/98 aforementioned, her objection being, in short, that she was married, on 25-12-1972, to the said deceased according to Christian Marriage Act and remained wedded to the said deceased till his death, the petitioner-appellant being the mistress of the said deceased and that the said deceased had left behind, besides the objector's 5 children born out of his wedlock with the objector, all the said 5 children live with the objector, there was no divorce or judicial separation between the objector and the said deceased and she (i.e., the objector), being the legally married wife of the said deceased, was the best person entitled to the grant of succession certificate in respect of the debts and securities of the said deceased described in the annexure to the petition aforementioned. (iii) After hearing the learned counsel for the parties, the learned Court below passed the order, dated 7-9-2001, aforementioned granting succession certificate in favour of the objector (i.e., the respondent herein). 3. I have heard Mr. U. S. Bhattacharyya, learned counsel for the petitioner-appellant, and Mr. S. R. Sen, learned senior counsel, assisted by Mrs. P.D.B. Baruah, appearing on behalf of the objector-respondent. 4. Upon perusal of the materials on record and after hearing the learned counsel for the parties, what clearly transpires is that the objector-respondent's statements made in her above objection petition to the effect that the said deceased was the husband of the objector, their marriage having been solemnized, according to Christian Marriage Act, as far back as on 25-12-1972 and that out of their wedlock, the couple had 5 children, who were all living with the respondent, were not disputed by the petitioner-appellant. At the same time, the fact that while remaining wedded to the objector-respondent, the said deceased underwent a marriage with the petitioner-appellant and that out of his relationship, which the said deceased so maintained with the petitioner-appellant, the said minor child, namely, Konal Barman was born also remained undisputed. 5. In view of the fact that according to the materials on record, when the said deceased allegedly underwent marriage with the petitioner-appellant, he already stood wedded to the objector-respondent, his marriage with the objector-respondent having, admittedly, not been dissolved, the logical conclusion is that the respondent was the legally wedded wife of the said deceased, the petitioner-appellant was not legally wedded wife of the said deceased. However, the child born out of the void marriage between the said deceased and the appellant, i.e., the said Konal Barman was an illegitimate chid left by the said deceased for the purpose of succession to the debts and securities left behind by the said deceased. (See Rameshwari Devi v. State of Bihar, AIR 2000 SC 735, wherein the Supreme Court has held that the children born out of void marriage are legitimate and are entitled to succession certificate to the estate of the parents.) 6. What further logically follows from the above discussion is that while the petitioner-appellant was not entitled to succeed to the said debts and securities left by the said deceased, her minor child, namely, Konal Barman was entitled to succeed to the said debts and securities in equal proportion along with the objector-respondent and her 5 children. In short, thus, altogether 7 persons, namely, the objector-respondent, her 5 children and the said minor child left by the said deceased, namely, Konal Barman were entitled to succeed to the debts and securities aforementioned left by the said deceased in equal proportion. 7. In view of the fact that though separate succession certificates can be granted, under Section 373 of the Indian Succession Act, in respect of different debts and securities, the fact remains that separate succession certificates or more than one succession certificate cannot be granted in respect of the same debt or a portion thereof. 8. In view of the fact that the amount in respect of which the succession certificate was sought for is barely Rs. 45,897.02P, it will not be just and proper to direct the parties to obtain necessary declaration from the Civil Court for obtaining succession certificate. 9. In the facts and circumstances of the present case, I am of the view that subject to an undertaking to be given, in writing, by the objector-respondent that she will pay the share of the said minor child, namely, Konal Barman, which amounts to 1/7th portion of the total sum of Rs. 45,897.02P, succession certificate ought to have been granted by the learned Court below on payment of necessary Court-fees. Viewed from this angle, the impugned order, dated 7-9-2001, is not entirely correct and must, therefore, be suitably interfered with. 10. Faced with the situation as indicated hereinbefore, Mr. S. R. Sen, learned senior counsel, agrees that the objector-respondent will submit an undertaking, in writing, in the learned Court below to the effect that she will pay 1/7th share of the said debts and securities left by the said deceased to the petitioner-appellant to be received by the latter on behalf of the said minor child, namely, Konal Barman, if the succession certificate in respect of the debts and securities is granted in favour of the objector-respondent. 11. Considering, therefore, the matter in its entirety and in the interest of justice, this appeal is partly allowed. 12. The learned Court below is hereby directed that if the objector-respondent gives an undertaking as indicated hereinabove, the objector-respondent shall be granted succession certificate in respect of the debts and securities aforementioned and, upon realising the amounts covered by the debts and securities aforementioned, the objector-respondent shall forthwith deposit the share of the said minor child namely, Konal Barman in the learned Court below and on such deposit, the learned Court below shall allow the petitioner-appellant to withdraw the same, on behalf of her minor child, namely, Konal Barman, by giving acknowledgment, in writing in this regard. 13. With the above observations and directions, this appeal shall stand disposed of. No order as to costs. 14. Send back the LCR with a copy of this judgment.

Author: I Ansari

Smt. Sonabala Barman vs Smt. Ratna Sangma on 21 September, 2004

Gauhati High Court

Gujarat High Court Case Information System Print SCA/1423/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1423 of 2010 ================================================= MADHAVPURA MERCANTILE CO OPERATIVE BANK LTD & 1 - Petitioner(s) Versus RESERVE BANK OF INDIA & 2 - Respondent(s) ================================================= Appearance : NANAVATI ASSOCIATES for Petitioner(s) : 1 - 2. NOTICE SERVED BY DS for Respondent(s) : 1, 3, MR SN SOPARKAR, SR. ADVOCATE with MR AMAR N BHATT for Respondent(s) : 1, MR KAMAL TRIVEDI, ADVOCATE GENERAL with MS DHARMISHTA RAVAL for Respondent(s) : 2, ================================================= CORAM : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 21/06/2011 ORAL ORDER(Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA) Reply affidavit has been filed by the Reserve Bank of India in response to the counter affidavit filed by the Apex Bank. The learned Advocate General appearing on behalf of the 2nd respondent - Deposit Insurance & Credit Guarantee Corporation prays for and is allowed two weeks' time to go through the affidavit and file affidavit in response to the same. Post the matter on 22nd July, 2011. [S. J. MUKHOPADHAYA, CJ.] [J. B. PARDIWALA, J.] Sundar/PPS     Top

Author: Mr.S.J.Mukhopadhaya, Mr.Justice J.B.Pardiwala,

Madhavpura vs Reserve on 21 June, 2011

Gujarat High Court

IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 281'?! DAY OF AUGUST 20:39; PRESENT THE HON'BLE MR. JUSTICE V. MQOPADAOOIIIDA ~ _ _: A' AND M THE I-ION'BLE MR. JUSTICE ARA:'V'I1\§3l)4A WRIT APPEAL NO.20S 1"/200"5' ~.!+1'~MVT']" WRIT PETITION 1_\IO.51452 22 004 {T913/IV' L11' IN WRIT APPEAL NO.2cAS'I«/2005 % BETWEEN A A MARIO 52 YEARS, " ~ M/S PAUL TRAV"£L~S';LII .. SEAGULL-HQUSE RACE COURSE ROAD I I3ANOALORE* ' " ~ APPELLANT A Achar 8: Sri A. Srikanth, ACIVSJ S_I ';I'I~1EV.DEi3UTY COMMISSIONER POR AA TTRAIISPORTS "BANGALORE DIVISION * ~-BANGALORE~1 2 REGIONAL TRANSPORT OFFICER BANGALORE (C) BDA COMPLEX KORAMANGALA BANGALORE--34 (BY SR1. MANJUNATIIA. REsPONDEN'I¥S;. " THIS WRIT APPEAL IS FILED U/s¢_" OE THE KARNATAKA HIGH CQURT PRAYING-..ITO SET ASIDE THE ORDER PASSEI) I1\IV'[*HF;""'NRIT PETITION NO.34342--343/2004 DATED 1'-5.}'12/2004';-. IN WRIT PETI'I?IiOI\;fA'P1\'I_{)I§__1é3c€5é /2_4fV_1CIv14O(iVI'v":1'} MARIO P_AR_E * S/O EPEREIRA I " AGED ABOUT 45V'YE;'§}{S"'-- A PROP /s PAI.;LOfPRAVELs _ SEA~:~.C.'gULL HOUSE, I RACE COURSE ROAD' EB. f ~e~GAII,OREI,"PEP. BY P.A. "I-IOII,,DEI2;<B.s;PA;.IAGOPAL PETITIONER {BY M R V ACHAR 82: SR1 A. SREKANTH, ADVSJ 1 REGIONAL TRANSPORT OFFICER AND TAX OFFICER (C) KORAMANGALA BANGALORE 2 THE DEPUTY COMMISSIONER FOR TRANSPORT BANGALORE [BY SR1. MANJUNATHfX;..AGIA.) * F' THIS WRIT PETITION IS FII;ED UN'D_ER.AR'1TICLES 226 AND 227 OF THE CO_NSTITU_TION*«.QF INDIA PRAYING TO SET ASIDE THE 'I--MP_UGNED ORDERS UNDER ANNEX.G. DT." vI31.8;20;04,S"--I,NfRESPECT OF VEHICLE NO.GA--O1--Z--7999,._A1\INEX;'HL DT..i-3.8.2004 IN RESPECT OF VEHICLEH"1\}Q.KA§DQ1--C--«8?79 AND OF ANNEXJ. DT.:_' 332004 =iIN" RESPECT OF VEHICLE NO.KA--O 1--AA+'9"27.7'8.. .. PASSj_ED._ BY 'R1 AND THE ORDER PASSED BY RE.SPO'DJD'ENT'g No.2 IN APPEALS NO.TAXw~.84/2.004' 6.12.2004 AS PER THE)' THE PETITION HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 1--7--2Q{38_COM1N'G" ON FOR PRONOUNCEMENT OF V..."v.-JVUDGMENTRTHIS./DAY, SR1 ARAVIND KUMAR. J. " D'E.LIV'§'+2.RED_'i~'.§_IE FOLLOW1N--G: JUDGMENT wnic' apped Ne.2081/2005 is directed against the 0f"ti1e learned Single Judge dated 15.12.2004 in WP No.34342--34343/2004 and Connected IE' with 'NP Nos.34432--485/2004 {T«~MVT) where under the Writ Petitions filed by the petitioners therein dies dismissed by the learned Single Judge. Petitioners in W.P. 34432-435/2005_.~--have challenged the order dated 15»12;t2o0ézadd%'same'T become final in so for as they.Vcenee_r1"1ed. 2. WP Ne.51452/2094 ttieipettttoner seeking quashing of 1_d:n:dAernu'_Annex1n"e~G No.R'I'O.BNG(C)y'E§i§;jG4--t§A5 in respect of Vehicle it it Annexure--H in respect of vehicle and of Annexure--J No.RTC}.BI_\iG:(C)d/SR;04965: dated 3.8.2004 in respect of tfehieleéi. passed by the respondent the said Writ Petition i.e. WP "'iii.-Ti,"V"«.__5'*i452/2064 was being heard, it was brought to the it nieticejioté.-'of the learned Single Judge about the order 13 accidents from the restriction of being garaged within the State of Karnataka and accordingly, sought. dismissa}. of the Writ Petition. 10. We have heard the 1eai'ne¥§1 coitldrisdels-ij' for the Writ Petitioners "also the 1 ..1Vea:J:'r1'ed'i Government Advocate appea1°in'gT_V'forVV We have given our raised by the learned the records in provisions of the the notification that has been Writ Petitions. Relevant Provisions '*-__o'f _ thea"trtloristitution, Act. Rules and _ ;\Iotiiidatio11. readifollows: .1, .1f¥;i1tI§r:t""No.57 of List 11 of the Constitution of Taxes on vehicles, whether mechanicaily propelled or not, suitable for use on roads, including tramcars subject to the provisions of Entry 35 of L' t--III." IS V. HI. notification or directs that the notification shall not have effect, the notification shall thereaftier_V have effect only in such modified form no effect as the case may be." Rule 34 and Rule 34A, [8 and-:':?"'ofiT.'~3f38}4_":w', reads as under "£34. Vehicies eztenigpted h"from_fVta:E~.;V'i111£i'er Section 16 «- (1) pe_r__so'n__c1_aiIningf_:e;s:enhption from payment of ta:.>{j'.1_nder;V-'anynotification issued under Section 16 vehicle, shall applyuin t'rip1icate, to the Regional' .Wwithin Whose jurivsdictiopn for use is kept, togietherfff' particulars as that authority rnay obtain a [taxation card and the necessary...«endorsement thereon} after satisfying V.'the_Regionai Transport Officer that the if « , _pVfyiehihcie_hjisyexempted from payment of the tax. if " "{(2)h'If--"."the:=.V'I5tegionaJ Transport Officer is satisfied ""':that:ti1e"'vehic1e is exempted from payment of tax, n _he 'shall issue a tax free taxation card with the v._p_'.\'>ig*ord "Exempted" endorsed in such taxation card specifying the period of exemptionzi E6 [3] The application under sub--rule {1} sha.l1""'be made to the Regional Transport Officer, in .4 of any vehicle kept outside the State ~ entry of such vehicle into the State an(i"ini:the"Vcase it of any vehicle kept within the State, _ days of the expiry of the [period. for.y;ph'ich endorsement has been l'Ii.'¢';a~€,' in the ts.xatio'n"'ca1~d,] if any, last issued in respye_ct'o_f such hyehiclef [[4] The fee for the "Fpree taxation card shall be' Rs. 5;] [5] the payrnent of for any purpose or operationlvin'feolitfayention of Rule 36, the tax, as the lcaselrnayl :_fo«rTt1i.e quarter, half year or the year in4""which'.'--snché"contravention took place shall within---.--a«period not exceeding fifteen days A " ~ _fro1'n*the'date of such contravention] ,__"'{%34-fit.'intimation of nomuse of vehicles - (1) llntiniiation of non~»use of motor vehicles granted V * 'exemption from payment of tax under sub~cIause V' -{ii} of clause (a) of sub--section (1) of Section 16 of the Act, shall be in Form No.30.] " V E 1-.5 {2} For every intimation of no11--use of vehicle, affee of rupees one hundred shall be paid Form 30. For every application, for extehsioii1'tj'ot~-- period of non--use, a renewaylmpfee of-"rup:ees'~~.onpe it hundred shall be paid by the iapplicantl "I " IV. Notification dated 6.8.20C:'fV3__v"'*».ride "NOTIFICATION UNDER 1sIoToR"t*t~:1i1ci.Es AC;i',..195'If'[ ; '4 V dd _ Q :,A:tofi:'i:f1cAi1iof§i":. --- No. HTD 3? tlatejd an: August. 2003 Kamataka ipi1, dated 27-os-2003 In by sub--c1ause (ii) of clause [a) of 16 of the Karnataka Motor Vehic1es_'i'axatio.n "Act;-_ 1A95>7'~~--{1Karnataka Act 35 of 1957], and of"tNotj.fication No. HTIZ) 95 TMT 77{ii), dated I~94i980,_vti1e"ffiomgrnment of Karnataka being of the opinion that it is AIie~ciessa'ryfin public interest so to do, hereby exempt motor yehicleds registered in the State of Karnataka and not used on froth' the payment of tax under the said Act for a period of it ,o1i.eVfu1.1'quarter, half-year or one year, as the case may be, during DJ" E8 which such vehicles are not used on roads, subject to the following conditions. namely« 1. Nonmuse of the motor Vehicle shall be intimated.:"in."'.4A person or by Registered Post Aciinowledgemeiit ~ before the commencement of the quarter'i1aIf~ye'a.r'or one year as the case may be», in «3Qlas"per"Ru_le=:;;a A 34--A of the Karnatakau Motorhttfifehicles Rules, I957 along with'tl1e:._Vf'ee_prescrib'eQ:Q; ' KARNATAKA CIVIL seamen (sf? iit'I'LEs,2oo3 2. The Registration Card and permitqjf any, 1i'1o«s;o§:j'vehicle shall be sni're11deAr_ed.'V kligg -.Regional"'vVVll'ransport officer __ theityapifalication. Pros{ide__d-- .w«h_e1'e»s'nch...do.cuments are seized or retained by any.V_a'uthorityV, obtained from such authority regatrdinagsuicli esheiznretor retention shall be produced. x In caseamotor vehicle covered by hypothecation or 3 _ agreement of lease agreement. If the vehicle is seized by the financier and the document relating to it are not with the applicant, the non--use shall be intimated to the concerned Regional Transport Officer with a declaration of non--availability JEN? Vv l l of documents in Form 30 with the prescribed fees. Before release of the motor vehicle, the financiershall produce the original documents or fresh registr:a'tio'n certificate of the vehicle. Address proof or consent letter_of thehgaragelwhere the vehicle is intend to be 3 f non--use shall be produced for "p_lfiy'sical " the vehicle. ' V V. H Except the vehiclpes "-a.ccident.fparked for repair purpose all other mot9.r« the State of Kar1rat._a'kVa--':'_Vin jurisdiction of any registering .... --.au'ti;o'rit;j}*1 :;x_ ,_ Tried periods o't'anor1_«use of vehicle shall not exceed f rvmore ljfearsxlfrorn the date of declaration in ' V _ Form. The 'authorities are empowered to take action to Hmcancel the registration certificate after .. vefar;}:':;g the condition of the vehicle. motor vehicle shall not be removed during the period of exemption from the place where the motor vehicle is kept without the prior permission of the concerned Regional Transport Officer. 21 the nonwuse of the Vehicle with copy of the First information Report issued by the concerned Police Officer. 2. If any motor vehicle is confiscate or sei;:e--d.'_"by9_i' the' Central or State Government, the non--i1se he-.1 intimated for the purpose of '¢1a:'mu_1g.' exernfpfion payment of tax. The matter Alshotild be >c'o_nIi~:'_rn€d the concerned authorities"m3_gardiiig_ seizure an(i"r~eIease " of the Vehicle. _ The First informationffiiep-ogfit" vA.fi'¢;r__'_'.the purpose of claiming exerzifjtionlfrom V V come' into force with effect from--the in ..the Official Gazette." 11 'Clause'5"f5f*th'e..notification is the one which is the subject"ma'tterv._foi:_consideration and the entire issue around "clause 5 of the notification dated ciause 5 is extracted herein below V'-by the" petitioners. for pfl.1f;'i-gzsles of considering the arguments advanced ii "WmWm-.:«u»,=._N 22 "5. Except the vehicles involved in accident, parked for repair purpose or Body building purpose. all other motor should be kept within the State of ~ the jurisdiction of any registeringat;tilijoritjr.47fV it 12. The said notification ishissued in __exei*cise".olf=. the powers conferred in sui:«._--_ciauseV' (ijlof "e1a--use"--a of 'V Subsection 1 of Section.' 16 Tihe said notification is a and hence, it should be the§..e13i.:c1Vtf:3.VorVV'o%fl a purposive interpretation until and unless it Vio1ates"the"right': petitioners as per the provisions of India. in this regad, the above saidV_V'enti"--y iI"~»ioV.'."3'"i? of List-Ii of the Constitution "of In.ciia.,'-e~.mandates"'that "taxes could be imposed on i"ireh.icies"-fiaviietlier mechanically propelled or not suit:s_ble.for"..use on roads including traxncars subiect 'go theiirovisions of Entrv 35 of List-III". This pre« that any Vehicle which is not used on roads gt 'V' 24 Karnataka Vs. K. Giopalakrishna Shenoy reported in AIR 3987 SC 1911 which ultimately came to-_be upheld. 13. Section 18 empowers _the_Statemto" "' reduce whether prospectively-or retrospecti've§Vy,';:Hthejg payable in respect of any niotoirilvellifaicles or motor Vehicles not ~ Whenclause 5 of the notification is [.'oackground, it could be seen: to exempt from payn1ent__oi trehicles garaged in the State that any sort of misuse can be avoided' 'on of said factor unable to be monitored continuously. Thus, contention of the »ptetitionVe1*s'«.that granting exemption in respect of the 'Vehiclesv ' in the State of Karznataka for the purpcsefiofl repairs and denying the same to the vehicles V' ll..j;_:,;AaragedVl outside the State of Karnataka would amount ' to discrimination does not hold water inasmuch as the 51% V 25 vehicles garaged in the State of Karnataka and the Vehicies garaged outside the State form distinctiand separate classes and they cannot be compar'e'cl.'.V'_t--oj: _ equals and same treatment cannot be 2 thereby leading to consequentialVexeniption,' -EXen§pt_iont A' under Section 16 of the K1\»WT__Act2 i-sxa con;ce.ssi.Q1jV1 not a right. Hence, when intetnretation is given to the notificatio'nV:,A'it 'found fault With and it would 1e:;td_. to the same class of by the learned Government" ' 'S be practically impossible éifot of Motor Vehicles to keep a watch iiigaraged outside the State of Ka3jri'at§ii§o __as teifritorial jurisdiction of these officers 'ca:nn.ot'V_be :ve)§:er.cised by the Inspector of Motor Vehicles outside of Karnataka. Thus, the vehicles 'v..»garageti}_0ntside the Karnataka cannot be monitored ":i:"_cont'inuous1y as to whether they are being used or not. iv 'ii 26 14. The Hon'ble Supreme Court while considering the scope and effect of Section 3(1) of the Mysore"Ni_'o_tor4 Vehicles Taxation Act 1957 has held to the ' effect. é "Sections 3 and 4 are ._ and the liability to pair the Vad'§fa1ice.VViVs..3not dependant upon the vehic:le_ubeing by a Certificate of fitness Eaten ifvvlthe vehicle was not in a roadxivorthyi'conditio.n' -and could not be put touse the necessary repairs 7_};)eing__. carried out,. V 'the'""owner or person having p_o§3ses'sio_nf't- control of a vehicle is enjoliriedjto taitllvonvlvéthe Vehicle and then seek' :a' "principle underlying the Ta2rati_on_ACt motor vehicle issued a Certificated of llegistration is to be deemed a V-i-*'po'ten'tial usefof the roads all through the time the of Registration is current and therefore '".*1i;i'r;iet¢~;1:ay tax under s.3(i) read with s4." The learned Single Judge in interpreting the or3f'wgrd~«gg.'vehic1es' in WP No.5i452/2004 has held that in it plural it signifies situations more than one and hence, it :'"\ Iv if Q :13 27 is not merely the vehicle involved in the accident requiring repairs or body building, but also the vehicle garaged for repair purpose and body building to be included for granting exemption be l purposive interpretation which can be pgiven':tovclau-sel5_.p f This would not be the situation insofar asrV»the,:vehii;:le's parked out side the State or body building purpose other _ than Vehicles involved in accident inasmuch Judge while examining regardhto""the punctuation namely cpomznia-after.'ihetyyordaaocident' as held in para 14 and;_l5_ tothe'~~folloWing_effect: xA_'C:o1n:inaVis put as per the Rules of Gramrnarr indicates a slight pause or break {between of a sentence. It is well es.tab;1is}1ed that a punctuation is a minor l. the construction of a statute. It cannot be regarded as controlling element for determining the meaning of a statute. In the "_«case of Lewis Pugh Evans Pugh Vs. Ashutosh Sen and other [AIR 1929 1'-'.C. 69] it is held that W 23 commas are no part of the statute. In the case of Ashwind Kumar Ghose and another Vs. Arabinda Bose and another (AIR 1952 sceegsss) the Apex Court has held that cannot be allowed to control the ' of a text. It is held as follows; "punctuation is after alEl..ajj.niinor'----elc111_entgf in the construction ofe..a:"statut'e:,g$;nd little attention isfi"~paid.V'lt~o 'it: 'l_)y'"'~--.TE"r1glish ' i Courts. '__Whengp_...aff.statute carefully punctuated._..§'sI3Adi_V_ doubt about its meaning, a_urveigli'tVshouideiindoubtedly be V to the» i . I Punctuation irnayg uses iii) some cases, but it ____ H _ i regarded as a _ controii.i'ng:V:V"'~«elentent and cannot be i the plain meaning of a text.' A the present case, the plain .._of the text is very clear and the use neither adds to it nor detracts from its ordinary meaning. In my view, it does not disclose any legislative intention of providing Viiflexemption in respect of vehicles kept outside ;'"\ 3 "x4 t e 18. Hence we are of the View that View expressed by the learned judge in WP. 51452/ 2004 is erroneous and we agree with the View expressed by judge in WP 34342-343/2004. _ circumstances, we are of the View tha.t----»of:der"~.:()f-the W 'V learned Single Judge passed in does not call for interferen-e;e.___andh"aeéordi;'1$1y;:dx2t3"e that c1ause--5 of the I10tif'iCatifi{%jv«.V'(v;:1ig¢t§.C1 not impose a restriction of vehicles and thus dismiss the writ:ap;aea1Vand_ dismiss the Writ Pe'titib11s\.:; _ Ne7'}Vb'rderVV.:as toxecists. Sd/- JUDGE sel- EUDGE

Author: V.Gopalagowda And Kumar

Mario Pereira vs The Deputy Commissioner For ... on 28 August, 2009

Karnataka High Court

[Section 28] [Complete Act]

Central Government Act

JUDGMENT R.S. Sodhi, J. 1. Criminal Appeal No. 807 of 2000 seeks to challenge judgment and order of Additional Sessions Judge, Kakardooma Courts, Delhi in Sessions Case No. 161 of 1993, arising out of F.I.R. No. 427 of 1991, registered at Police Station Bhajan Pura, whereby the learned judge vide her judgment dated 11.12.2000 has held the appellants, Ram Kumar and Rambir @ Lilu, guilty for offence under Section 302/34 IPC. Further vide her orders dated 11.12.2000 and 14.12.2000, has sentenced the appellants to life imprisonment together with fine of Rs. 10,000/- each and in default of payment of fine, simple imprisonment for five months each under Section 302/34 IPC. 2. Brief facts of the case as have been noted by the learned Additional Sessions Judge in the judgment under challenge are as under: At about 11:30 AM information was received at the police station Bhajan Pura about some incident at House No. C-71/12, Gali No. 1, Bhajan Pura on which Asstt. Sub Inspector on emergency duty along with the police constable reached the spot of occurrence. Satpal who was fatally injured was sent to the GTB hospital along with Ct. Jeet Singh, where he was declared dead. On the basis of statements of two eye witnesses and other evidence collected on investigation the police challaned four persons namely Ram Kumar, Lilu @ Rambir, Naval and Jai Karan. During the pendency of trial, Jai Karan and Naval expired. All the four were charged with murder punishable under Section 302/34 IPC. All the four of the accused pleaded not guilty. 3. The prosecution in order to establish its case examined as many as 19 witnesses. It is argued by learned Counsel for the appellants that the prosecution has miserably failed in bringing on record any credible evidence to hold the appellants herein guilty of the offence. He contends that Naval and Jai Karan died during the trial and therefore, the role attributed to them could not be established during the trial. The material witnesses, according to the counsel, are PW-1, Constable Jeet Singh, PW-2, Constable Yashpal, PW-4, SI Rajpal, PW-10, Dr. L.K. Barua, PW-14, Sheela, PW-16, Dharam Pal, PW-17, Sushila and PW-19, Inspector Balkishan. 4. From the evidence on record, counsel submits that there is no credible witness who can be relied upon as being the eye-witness to the occurrence and that PW-16, Dharam Pal, has wrongly been relied upon by the trial court. Learned Counsel for the State contends that PW-16 is a natural witness. His presence at the spot cannot be doubted and that this witness has supported the prosecution's case. The witness has rightly been relied upon by the trial court. 5. Having heard counsel for the parties, we have carefully examined the material available on record. We find PW-1, Constable Jeet Singh stating in court on oath that on 5.9.1991, he was posted at Police Station Bhajan Pura. On that date, SI Rajpal took him to the place of occurrence, i.e., Gali No. 1, C-71/12, Bhajan Pura, Delhi, where they found Satpal lying with injuries on the head. He along with Yashpal took the injured to the hospital in a TSR. Satpal was declared dead by the doctor at the hospital. In cross-examination, it has been elicited from the witness that when he reached the spot along with ASI Rajpal, he found Yashpal, brother of the injured and one lady at the spot. 6. PW-2, Constable Yashpal, has not supported the prosecution and in cross-examination, the witness states that he did not see the accused persons present in court at the place of incident and that the accused persons did not cause any injury to the deceased as they were not present there. He claims that his signatures were obtained on documents in the police station and were not prepared in his presence. This witness even in his examination-in-chief does not state that PW-16, Dharam Pal, was present at the spot. PW-4, SI Rajpal, states that on receipt of DD No. 5A on 5.9.1991 at about 11:30 a.m., he reached the house No.C-71/12, Gali No. 1, Bhajan Pura, along with PW-1, Constable Jeet Singh. He sent the injured, Satpal to GTB Hospital along with Constable Jeet Singh and PW-2, Constable Yashpal. Satpal was declared brought dead at the hospital. This witness also neither named PW-16, Dharam Pal, being present at the spot nor does he recorded the statement of PW-16 under Section 161 of Code of Criminal Procedure. 7. PW-10, Dr. L.K. Barua, conducted the postmortem on the body of Satpal and opined that the injuries were ante-mortem in nature and were caused by blunt force impact. Death was due to concussion resulting from head injury. In cross-examination, the witness admitted that the injuries could be caused by fall of a wall on the person of the deceased. PW-14, Sheela, is the sister-in-law of the deceased. She does not support the prosecution case. She was cross-examined but nothing material could be elicited. This witness is also totally silent regarding the presence of PW-16, Dharam Pal, at the spot. 8. PW-16, Dharam Pal, who appears to be the star witness of the prosecution alleges that he is an eye-witness. He states that on 28.7.1991 in the evening, Lilu, Ram Kumar, Jai Karan and Naval, who were already known to him, came to the plot of his brother, Satpal, at about 7:30 p.m. and began demolishing structures standing on the spot. They also forcefully tethered buffaloes on the spot. They attacked and assaulted some women who were present there. About one and a half months thereafter, the accused persons again picked up a quarrel, i.e., on 5.9.1991. His brother, Satpal, was repairing demolished wall when at about 11 or 11:30 a.m., Ram Kumar, Jai Karan, Naval and Lilu came to the house of Satpal at Gali No. 1, Bhajan Pura. The witness claims to be inside the house and Satpal was outside. At that time, accused Naval and Jai Karan caught hold of Satpal while Ram Kumar gave lathi blow and Lilu gave hockey stick blow on the head of Satpal. He also suffered injuries on his chest as well as his head. On hearing an alarm raised by the deceased, he came outside but was prevented from coming out by PW-2, Constable Yashpal and his relatives inside the house. Satpal died on the spot and was removed to the hospital in a TSR by Constable Yashpal and his relations. He has been confronted with his previous statement Exhibit PW 16/DA and a large number of improvements were noticed. He even goes on to depose that the police had not reached the spot till Satpal was taken to the hospital by Constable Yashpal. 9. PW-17, Sushila, wife of the deceased, Satpal, does not narrate as to what happened on 5.9.1991. PW-19, Inspector Balkishan is the Investigating Officer who admits that he did not verify whether PW-16, Dharam Pal, was present at the time of the incident. He admits that the witness Dharam Pal was not joined in the investigation by the investigating agency. He further admits that Dharam Pal was not present in the hospital when he first visited the hospital and that the deceased was not taken to the hospital either by Dharam Pal or Sheela. 10. The trial court, in order to arrive at its conclusion, based its judgment holding that PW-16, Dharam Pal, was a credible eye-witness, who could be relied upon and went on to convict the appellants accordingly. On re-evaluation of the material placed before us, we find that none of the witnesses corroborate the presence of PW-16, Dharam Pal at the spot at the time of the incident. On the contrary, he himself suggests that the deceased was taken to the hospital by Constable Yashpal before the police had arrived at the spot while contemporary document as also statement of witnesses suggest that it was PW-1, Constable Jeet Singh and Constable Yashpal who took the deceased to the hospital. It is also in evidence of Investigating Officer that Dharam Pal was neither associated with the investigation at any stage nor did he verifies to the presence of Dharam Pal at the spot and at the time of the incident. 11. In view of the nature of statement made by Dharam Pal and in view of the fact that his presence is not corroborated by any witness nor by any contemporaneous document, we feel it would be highly dangerous to base conviction on a testimony of this nature. His presence at the spot and his deposition as an eye-witness does not inspire confidence. Dharam Pal does not intervene in the quarrel. He did not take the deceased to the hospital. His statement under Section 161 of Code of Criminal Procedure was not recorded as an eye-witness by the Investigating Officer shortly after the incident. Dharam Pal has not joined the investigation and contradicts the prosecution's case when he accuses Naval of giving a lathi blow on the head of the deceased. Having found PW-16 not a reliable witness, there is nothing on record to connect the accused with the commission of the crime. 12. In these circumstances, the prosecution has failed to prove its case beyond doubt. The judgment of the trial court which is based on the statement of PW-16, Dharam Pal, cannot be sustained. We, therefore, set aside the judgment under challenge dated 11.12.2000 as also the orders on sentence dated 11.12.2000 and 14.12.2000. We acquit the appellants, Ram Kumar and Rambir @ Lilu, of all the charges framed against them and allow Criminal Appeal No. 807 of 2000. Criminal M.B. No. 1660 of 2003 also stands disposed of. Appellants, who are in custody, shall be released forthwith if not required in any other case.

Author: R Sodhi

Ram Kumar And Anr. vs State (Nct Of Delhi) on 23 July, 2007

Delhi High Court

JUDGMENT Sadasiva Ayyar, J. 1. The defendants Nos. 3 to 6 are the appellants before us. The suit was by a reversioner for a declaration that the two alienations of 1881 and 1889 made by a widow, Aramvalarthammal, under Exhibits I and II (b) respectively, are invalid against the minor plaintiff. Aramvalarthammal died in 1899, and the next reversioners are her daughters, defendants Nos. 1 and 2. The plaintiff is the adopted son of the first defendant, having been adopted in May 1903. The suit was brought in 1907 within five years of the plaintiff's adoption but more than 12 years from the dates of the alienations by the plaintiff's maternal grandmother, Aramvalarthammal. The Lower Appellate Court decreed the plaintiff's suit on the following findings and reasonings: (a) The alienations under Exhibits I and II (b) were not made for purposes binding on the reversioner. (b) Though the sale under Exhibit I was attested by the next presumptive male reversioner (Aramvalarthammal's brother) and though the next presumptive female reversioners, the daughters, assented to the alienation, and though the male reversioner, Chinna Aiyavu Ayyar, who attested Exhibit I, owned the land next to the alienated land and was using the well on the land sold, it cannot be held that there is anything to show affirmatively that Chinna Aiyavu Ayyar understood or considered the merits of the sale-deed, Exhibit I, and hence his mere attestation is useless to show that he consented to the alienation. (c) Exhibit II (6), the alienation of the plaint properties in 1889 by Aramvalarthammal, is not attested by the next male reversioner though acquiesced in by the female reversioners, the daughters. But the alienee under Exhibit II (6) resold the land and a house-site to Aramvalarathammal and her daughter, the second defendant, in 1893 under Exhibits B and II (a), and the site alone was sold under Exhibit II in 1894 by the second defendant to the third defendant. The plaintiff's first witness who was the male presumptive reversioner on the date of Exhibit II has attested it. He has been examined as a witness and the learned District Judge remarks that the inference from his attestation is stronger than the inference from the attestation of Chinna Aiyavu Ayyar to Exhibit I and that nothing directly impairing the effect of this attestation was suggested to him by the plaintiff or elicited from him. The attestation of Exhibit II, which alienates only the site, by the plaintiff's first witness does not however involve an inference that the plaintiff's first witness ratified the previous alienation under Exhibit II (6) of both the land and the site mentioned in the second schedule to the plaint. Even as regards the site it is not established that his consent was with full notice and appreciation of the facts. Hence even as regards the site in the second schedule, the alienation is invalid. 2. The Lower Appellate Court did not deal with the question of limitation, but the District Munsif held: (a) that Article 125 of the Limitation Act does not apply because it relates to a suit filed during the life of a female alienor by the nearest reversioner and in this case, Aramvalarthammal had died before this suit was brought; (b) that the article applicable is Article 120, which prescribes a period of 6 years from the date on which the right to sue accrues; (c) that though the alienations took place in 1881 and 1889, the right to sue accrued to the plaintiff only when his adoption took place and he became the daughter's son and next male reversioner in 1903, and that the suit brought in 1907, within 6 years, is therefore not barred. The District Munsif further remarked that the plaintiff derived his title as reversioner directly from the last male owner (his maternal grandfather) and not through his adoptive mother, the first defendant. 3. The defendants Nos. 3 to 6 who are the appellants before us contend- (1) that the suit is barred by limitation as the cause of action for all reversioners, even though they may not have been in existence, arose on the date of alienation and all had only either 12 years or 6 years from the date of alienation to bring their suit (2) that the attestation of the next presumptive reversioner in Exhibit I in 1881 should, in the circumstances, be treated as his having consented to the alienation and hence the alienation is valid against the reversioner, (3) that the attestation of Exhibit II by the plaintiff's first witness validates the alienation under Exhibit II (b) of both the site and the land mentioned in the second schedule, and (4) that such attestation of Exhibit II in any event validated the alienation of the site sold under Exhibit II (and alienated under Exhibit II (6) along with another land) as against the plaintiff. 4. First on the question of limitation; this devides itself into three sub-heads- (a) whether Article 125 is applicable, (b) whether Article 120 is applicable, and (c) when did the cause of action arise to the plaintiff, whether under Article 125 or under Article 120. 5. As regards the first sub-head, it is clear that the plaintiff does not come under the designation of a person who sues to have an alienation of a land made by a Hindu female declared to be void, while being himself the person who, if the female died on the date of instituting the suit, would be entitled to the possession of the land. Article 125 therefore does not apply to the present case on two grounds, viz., that the suit is not brought during the life of the alienating female and again that the plaintiff was not entitled to the possession of the land at the date of instituting the suit, as his mother and his aunt were alive. The next question is what other article applies to the plaintiff's suit. As no other specific article applies, Article 120 must apply. The last question under this heading of limitation is, when does the right to sue accrue under the third column of Article 120? Now it has been finally decided that (unless, as in the exceptional case of Muthuswami Mudaliar v. Masilamani (1910) I.L.R., 33 Mad., 342, the presumptive reversioner brings the suit expressly on behalf of all the reversioners), no succeeding presumptive reversioner claims under a deceased earlier presumptive reversioner and that each reversioner has got his own separate cause of action to set aside the widow's alienation. The latest case in which many of the authorities have been considered and the above proposition has been re-affirmed is Gajjala Veerayya v. Gajjala Gangamma (1912) M.W.N., 912. But it is argued that there is a dictum in the Full Bench case of Chiruvolu Punnamma v. Chiruvolu Perrazu (1906) I.L.R 29 Mad., 390 at p. 411, that "an unauthorised alienation by a qualified owner gives rise to a cause of action for a declaratory suit from the date of the alienation to all the reversioners." In the first place, the dictum is clearly obiter because the question referred to the Full Bench in that case was only whether the decree in a suit by the presumptive reversioner to set aside an adoption is res judicata against succeeding presumptive reversioners. In the second place, the dictum that an unauthorised alienation by a qualified owner gives rise to a single cause of action to all the reversioners cannot be considered to mean that it gives a" cause of action to remote or presumptive reversioners who were not in existence on the date of the alienation, though, as regards remoter reversioners who were alive on the date of alienation, their causes of action also might have arisen on such date. In Gajjala Veerayya v. Gajjala Gangamma (1912) M.W.N., 912, Sundara ayyar, J., and myself held that, as the remoter reversioner was a minor on the date of the alienation, though he was in existence, he had three years from his attaining majority (reading Article 125 and Section 7 of the Limitation Act together) to bring his own suit to set aside the alienation by the widow, though his father, who was the next presumptive reversioner on the date of the alienation, might have been barred from bringing such a suit. As said by Mukerjee, J., in Abinash Chandra Mazumdar v. Harinath Shaha (1905) I.L.R., 32 Calc., 62, "It is only reasonable to hold that the right of any reversioner to sue for a declaration cannot accrue before he is born. This view is in accord with that taken in Govinda Pillai v. Thayyammal (1904) I.L.R., 28 Mad., 57; S.C. 14 M.L J., 209." Thus even holding that: the obiter dictum of the Full Bench in Chiruvolu Punnamma v. Chiruvolu Perrazu (1906) I.L.R., 29 Mad., 390 should be followed, it might properly be restricted to cases where the reversioner who brings a suit to set aside the alienation was in existence on the date of the alienation. See also Govinda Pillai v. Thayyammal (1904) I.L.R., 28 Mad., 57; S.C. 14 M.L J., 209, which followed Bhagwanta v. Sukhi (1900) I.L.R., 22 All., 33. II; might be argued that if each presumptive reversioner who was not in existence on the date of the alienation had six years from the date when his right to sue accrued (i.e., when he came into existence) to set aside the alienation, numerous suits might be brought as each such presumptive reversioner came into existence. Practically, however, it is very unlikely that, during the remainder of a widow's life-time after the date of her alienation, more than a very few distinct sets of presumptive reversioners who were not in existence on the date of her alienation would come into existence. As I have said in Garikapatti Paparayudu v. Rattammal (1912) M.W.N. 1176 at p. 1179: "The very object of allowing a suit by a contingent reversioner has been unfortunately (if I may be permitted to say so) defeated to a very large extant by the decisions which are binding on us to the effect that the decree passed in favour of, or against such, a reversioner is not binding on a remoter reversioner. I might be permitted to hope that the Legislature might see fit to enact that the decree in a suit bond, fide brought and litigated by the then nearest reversioner is binding on the remoter reversioner." But so long as the law treats each presumptive reversioner as having a separate right to sue in respect of setting aside alienations by the widow, the inconvenience of allowing different suits by separate sets of reversioners cannot be avoided. We must therefore hold that the plaintiff's suit is not barred by limitation. 6. The next question which I shall take up is whether the attestation of Exhibit II by the plaintiff's first witness validated the alienation of only the site to which it relates or whether it also validated the alienation of the land which along with the house site had been alienated under Exhibit 11(6). This, of course, assumes that the attestation by the plaintiff's first witness is proof of ratification by him of the alienation under Exhibit II(b) of the site alone or of the site and the land. The question of the effect of an attestation will be reserved for consideration later on. In Raghupathi v. Ramamma Second Appeal No. 507 of 1911, decided in August 1912, I considered the Bull Bench case of Rangappa Naik v. Ramti Naik (1908) I.L.R., 31 Mad., 366 (F.B.), and Kuppier v. Kotta Chinnaramier (3) (1912) M.W.N., 758, and came to the conclusion that consent to an alienation by the next reversioner and a ratification of past alienations stand on the same footing. In this case, the plaintiff's first witness by attesting Exhibit II could be held to have ratified the alienation of only the house site affected by Exhibit II and cannot be held to have ratified the alienation of the land not affected by Exhibit II, though the alienations of both the site and the land were made by a single document, Exhibit 11(6) in 1889 to Meenakshisundaram Ayyar who afterwards sold the site alone under Exhibit II in 1894. The only remaining questions left for consideration are whether the attestations of the next presumptive reversioners in Exhibits I and II are sufficient proof under the circumstances of their consent to and ratification of the alienations of the respective properties dealt with in those two documents. In Kandasami Pillai v. Rangasami Nainar (1912) 23 M.L.J., 301 at p. 306, it is said "that, having regard to the ordinary course of conduct of Indians in this Presidency, attestation by a person who has or claims any interest in the property covered by the document must be treated prima facie as a representation by him that the title and other facts relating to title, recited in the document, are true and will not be disputed by him as against the obligee under the document." I do not think that the above observation is against the dictum laid down by the Privy Council in Raj Lukhee Dabea v. Gokool Chunder Chowdhry (1869) 13 M.I.A., 209 at p. 229. In that case, their Lordships clearly found that it was not proved that, at the date of the execution of the deed in question, the attestor Juggut Earn was the next hair and reversioner, and they further state that the defendant who relied upon the alleged concurrence of Juggut Earn "did not by any suggestion in his written statement or otherwise put forward the concurrence of Juggut Earn" in the alienation sought to be supported. They treated Juggut Earn as merely a remote relation not proved to have any interest in the property alienated and their Lordships said that "the mere attestation of such an instrument by a relative does not necessarily import that he attested in order to give consent or concurrence to the alienation." On the contrary, in the later case of Vadrevu Ranganayakamma v. Vadrevu Bulli Ramayya (1879) 5 C.L.R., 439 at p. 447, the Privy Council approvingly say, "but it frequently occurs in native (Indian) documents that a man signs as a witness to show that he is acknowledging the instrument to be correct." I may respectfully add that, in my pretty long experience as a Judicial Officer, if the attestor of the document his an existing interest in the property dealt with in the document, it has been always the case that this attestation has been taken in order to bind him as to the correctness of the recitals therein. In Gopaul Chunder Manna v. Gour Monee Dossee (1866)6 W.R.,(C.R.), 52, the learned Judges clearly decided that a reversioner attesting a conveyance by a Hindu widow cannot impeach the sale afterwards, thus treating the attestation as tantamount to assent. In short, they say that the effect of his being an attesting witness to the conveyance shows the acquiescence on his part in the act of the widow. This case is a direct authority upon the point now being considered. In Matadeen Boy v. Mussodun Singh (1868) 10 W.R. (C.R.), 293, the judgment of two very learned Judges Sir Barnes Peacock, C.J. and Dwarakanath Mitter, J., contains the following observations: "When the plaintiff put his name as a witness to his brother's signature to a deed conveying the whole of the property, the Court might reasonably infer that he knew that his brother was selling the whole of the property. If ho knew that his brother was selling the whole of the property as his own, and allowed him to do so without objection, it would be evidence against him either that the whole property did belong to his brother or that he was acquiescing in his brother's act of selling the whole." This again is a clear authority for the proposition that attestation by a person, who has an interest, raises the prima facie presumption that he knows the contents and acquiesces in the disposition of the property by the deed he attests. In Abhoy Churn Ghose v. Attarmoni Dassee (1908) 18 C.W.N., 931, Stephen, J., refused to treat the attestation of the presumptive reversioner as acquiescence on the ground that the attestor "was a mere boy studying at college and had no idea of the effect of the deed in question" and that the boy's evidence, that, till he saw the deed in Court, he did not know that he had attested the document, should be believed in the circumstances. In Ahmedabad United Printing and General Agency Company, Limited v. Ardesir Kavasji (1912) I.L.R., 36 Bom., 515, the learned Judges say "We have, however, the fact that be (Eruohsha) was an attesting witness. He was a Government servant who must have understood the effect of the deed which he was attesting and which was executed by his brother who was in vahivat of all the family properties." And then the learned Judges held that, considering the surrounding circumstances, he was bound by the mortgage-deed which he had attested, The effect of the attestation was also considered in Chunder Dutt Misser v. Bhagwat Narain Thakur (1898) 3 C.W.N., 207, and the learned Judges held that, under the circumstances of that case, the party's attestation may support the inference that ho was a consenting party, the attestor in that case not being a mere remote relative as in Raj Lukhee Dabea v. Gokool Chunder Chowdhry (1869) 13 M.I.A., 209, but the next presumptive reversioner. 7. On the whole, I see no sufficient reason to recede from the opinion I expressed in Kandasami Pillai v. Rangasami Nainar (1912) 23 M.L.J., 901, that a presumption is raised, when an adult man of full mental capacity attests a deed and when such a man has admittedly a tangible interest in the property affected by the deed, that his attestation has been taken as a proof of his consent to and knowledge of the correctness of the recitals in the deed and it lies upon the person, who contends that such an attestor did not know all the recitals in the deed and did not consent to the alienation made by the deed, to prove the contrary. I do not intend to lay down that the attestation of a casual witness who had then no interest in the property affected by the deed must estop him for all time and when he afterwards acquires an interest in the property affected by the deed. In the present case, the circumstances clearly raise the presumption that the next reversioners did consent to the respective alienations under Exhibits I and II. As regards Exhibit II, the reversioner who attested it has been examined in the case and the District Judge says 'the inference from the attestation is so far stronger as regards Exhibits II and 11(6) that the attestor has been examined and that nothing directly impairing the effect of his attestation was suggested to him or elicited." Instead of, however, giving the natural effect to the attestation, the learned District Judge says that it was for the fourth defendant to have elicited that the attestation also involved the conscious assent on the part of the attestor. I think the burden of proof lay on the other side. Not only this, the learned District Judge overlooked the fact that the attesting witness, the plaintiff's first witness, says: "The third defendant asked me to attest Exhibit II and I attested it as he said that he would build a house thereon next to mine which would be a security to my house." This conclusively shows his knowledge of the contents of the deed and that he gave even his consent to a substantial house being built upon the site alienated by Exhibit II. I therefore hold, differing from the District Judge, that the alienation of the property in the first schedule and of the site in the second schedule to the plaint cannot be questioned by the plaintiff as those alienations were consented to and ratified by the then presumptive male reversioners and by the female reversioners. The District Judge's decree should be modified by allowing the plaintiff's claim only as regards such of the plaint properties as are not covered by Exhibits I and II. As it appears that there are no properties in the plaint schedules not covered by Exhibits I and II, the suit will stand dismissed. The parties will bear their respective costs in all the Courts. Sankaran Nair, J. 8. I agree. The reversioner who is really prejudiced by the widow's alienations will be ascertained only after the death of the widow and on the death of the last surviving daughter. Nevertheless it has now been settled that all persons who may possibly live to succeed her have a right of suit, under certain circumstances, to declare the alienation invalid and that one possible reversioner does not represent another in such suits. The plaintiff is admittedly such a reversioner and his right to sue as such is not denied, though he became a member of this family by adoption only after the alienations. If he has the right of suit, it is obvious that limitation can run against him only when he could sue. 9. As to the effect to be given to attestation by a witness, it will depend upon the facts of each case. In this case I agree with my learned colleague as to the inference to be drawn from it

Author: S Ayyar

Narayana Aiyar And Three Ors. vs Rama Aiyar And Two Ors. on 30 April, 1913

Madras High Court

Court No. - 54 Case :- APPLICATION U/S 482 No. - 1658 of 2010 Petitioner :- Shahid Respondent :- State Of U.P. And Another Petitioner Counsel :- Raja Singh,Rajesh Kumar Respondent Counsel :- Govt. Advocate Hon'ble Ravindra Singh,J. Heard learned counsel for the applicant and learned A.G.A. It is contended by the learned counsel for the applicant that this case may be sent to Mediation Centre for the purpose of settlement between the parties for which the applicant is ready to deposit the cost. Considering the submission made by the learned counsel for the applicant, it is directed that applicant shall deposit Rs. 10,000/- within two weeks from today in the account head of Registrar General, Mediation and Conciliation Centre, Allahabad High Court, Allahabad. In case, the aforesaid amount is deposited the notice shall be issued to O.P. No.2 returnable within a period of four weeks. The three fourth of the above mentioned deposited amount shall be paid to O.P. No. 2 as expenses. This case shall be sent to Mediation Centre for further proceedings. After proceedings of the Mediation Centre, list this case before this Court on 5.4.2010. Till then no coercive step shall be taken against the applicant in Case No. 1896 2009 State vs. Shahid and others, pending in the court of Chief Judicial Magistrate, Kashi Ram Nagar in case, the receipt of the aforesaid deposited amount is filed before the court concerned. List on 5.4.2010 for orders. Order Date :- 22.1.2010 Su

Shahid vs State Of U.P. And Another on 22 January, 2010

Allahabad High Court

IN THE HIGH COURT OF KARNATAKA AT BAN DATED THIS THE tam DAY OF JULY ~ ma HONBLE Mr. Jusaixcéi AJKM T WRIT PETITION No.9299 ()3 f£$O8f(}.1¥irK'SR} BETWEEN : Kamamka Ragya Prathamiké' ' Shale Shikshakar Saragha ('.Re:'gr}V.)""-.': AA _ Represented by its G6neraiS'¢CI%et2}zy,v S1'iV.M.NaI*a.yanaSWa1xiyg:" " V' V' ' 5th Main, 4th,.c:-ass, A - " ' Gandhinaga1'?, ~ A BaI1ga1or€§-56Cr0i§9.. ...PE'{'I'I'IONER (Sri SM 41"). V Aiivs.) AND: L A 1 % E. Tht; Disfriqt Rc_%gS"L-réi":of Societies, Biangtcalere Urban District, & ''MV;G,''{€<'oag1, Bangéi1ore~560 001. ' _ fiajya Prathamik Shale '- A Shikshakiyar Sangha, No.2_16/23;, Varalakshmi Nivas, Rézmarx Maharshi Road, Sadashivanagar, Bangalore. » AA Rvsspmsented by its President, V' ~Smt.Ram,adevi. . . .i'?ESPONDENTS V% Subramanya Bhat, Adv. for M/ssubbarao & (.30., for R2; Sri N.B.VishWanath, AGA far R I) This W1? is flied under Articles 226 and 227 of the Constitution of India praying to direct '(ha respondent tohold enquiry on the representation made by the: V%e§3etiereftionvv"of A the second respondent society is ' izi-%:191is writ petitien. . .7wV1:i_.tio:t1ei' submits that having regard to the similarity of 1:53, Section 7 of the Karnataka Societies ""Re§'s'e'ation. Act would be attracted. He submits that he mtitioner and take action to canoe} the registrafion of the association of the R2. 7 This W.P coming on for preiJ'mina1'y _ «Group this day, the Court made the followirxgf . "' 'A -- ' The petitioner claims A. associafion of V' Shikshakar Sangha. rm and female teachers' in It is their case that it is a Suffice it to say that also made an applieeejoo T' the first respondent. The styled as Kamataka Rajya Praemmm s:1a1e%'e shikéhakar Shikshakiyara sangna. 2.\__"B;I-sifjfihagwat, learned counsel appearing for the has fjed repIesenta1;ior1s/ objections, copy of which is produced at Annexures E and E3'. Notvvifihstandiilg the . I X petitioner that would meet the ends of justice. Needless to say that the unsuccessful party before the.___f1rst respondent is required to have its rights aéjucii{:?a"t:e(§"'in a competent civil Court and not in a Article 226 of the Constitution (3:f'Ii}t:i'ia, Consequently, the foIIoWi111g.(}fii_e:9V is: Petition stands .._of. Represefiiéifioxis at" ' Axmexures E and F' be"ecj1:sidered ir1'~aeC0rda.nce with law. AGA is permitted to file mains bf four weeks. Sd/S , Hag";

Author: Ajit J Gunjal

Karnataka Rajya Prathamika Shale ... vs The Distict Registrar Of ... on 6 July, 2009

Karnataka High Court

HIGH COURT OF JUDICATURE FOR RAJASTHAN JODHPUR S.B. Criminal Miscellaneous Bail Application No. 5932/2020 Pinky ----Petitioner Versus State ----Respondent For Petitioner(s) : Mr. Vikas Bijarnia (through VC). For Respondent(s) : Mr. M.S. Bishnoi, PP. HON'BLE MR. JUSTICE ARUN BHANSALI Order 19/10/2020 Learned counsel for the application prays for time to get the charge-sheet page numbered. Needful may be done before the next date. List on 05.11.2020. (ARUN BHANSALI),J 6-pradeep/- Powered by TCPDF (www.tcpdf.org)

Pinky vs State on 19 October, 2020

Rajasthan High Court - Jodhpur

Court No. 1 Writ Petition No. 170 (MB) of 2010 Kasimpur Sanyukt Sahakari Krishi Samiti Limited, Kanpur and others. Vs. State of U.P. and another. Hon'ble Pradeep Kant, J. Hon'ble Ritu Raj Awasthi, J. Heard the learned counsel for the parties. The petitioners' grievance is that despite the fact that request for holding the elections of Committee of Management has been made by the present Committee as per the statutory rules before the term had expired, but the Registrar has not taken any steps for holding the elections with the result that the term of the Committee of Management is to come to an end even under the amended Act, i.e. of two years and as a consequence the Administrator would be appointed for no fault of the petitioners. Their further submission is that in all the co-operative societies, where the term stood expired because of the introduction of the Ordinance No. 34 of 2007, replaced by the Act No. 46 of 2008 and also where the term had not expired, the elections have not been held by the Registrar till date. Submission is that in view of Section 29 sub-clause 5, the power cannot be allowed to be abused by the State or the Registrar only for the purpose of superseding the present Committee and taking control by appointing the Administrator. We are satisfied that the provisions of Section 29 sub-clause 5 cannot be used as a tool for replacing the elected body of a Committee of Management by Administrator nor it permits the State Government or the Registrar to sit tight over the matter, despite the request being made by the Committee of Management within time, for holding the elections and then under the purported exercise of power under the aforesaid provision, appointing the Administrator and take its own time for holding the elections. We, therefore, dispose of the writ petition with the consent of the parties counsel, with the direction that the elections be held within three months from the date of receipt of a certified copy of this order and if the Administrator has not been appointed yet, the present Committee of Management shall continue till the elections are held by the Registrar. As soon as the elections are held, the functioning of the present Committee of Management shall cease and it will hand over the charge to the elected committee. 11.1.2010 MFA

Kasimpur Sanyukt Sahakari Krishi ... vs State Of U.P. Thru Prin. Secy. ... on 11 January, 2010

Allahabad High Court

Gujarat High Court Case Information System Print SCA/9308/2011 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9308 of 2011 ========================================================= POOJABEN RAJKUMAR ATMARAM TAMAICHE (CHHARA) THROUGH HUSBAND - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR NR KODEKAR for Petitioner(s) : 1, MS ML SHAH AGP for Respondent(s) : 1, None for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 29/07/2011 ORAL ORDER Heard the learned counsel for the petitioner. Rule. Learned AGP waives service of notice of rule for respondent jail authority. Office is directed to list the matter for final hearing in seriatim according to the actual date of detention. Direct service is permitted to the rest of respondents. (ANANT S. DAVE, J.) *pvv     Top

Author: Anant S. Dave,

Poojaben vs State on 29 July, 2011

Gujarat High Court

Item Nos.9 & 10: BEFORE THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI Appeal No. 59 of 2017 (SZ) With Appeal No. 80 of 2017 (SZ) (Through Video Conference) IN THE MATTER OF: D. Sulif ... Appellant(s) Versus The Government of India, Rep. by its Director, Ministry of Environment and Forest, New Delhi and Others. ...Respondent(s) With Conservation of Nature Trust ... Appellant(s) Versus The Secretary, Ministry of Environment and Forest, New Delhi and Others. ...Respondent(s) Date of hearing: 14.06.2021. CORAM: HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER HON'BLE MR. Dr. K. SATYAGOPAL, EXPERT MEMBER Page 1 of 3 Appeal No.59/2017: For Appellant(s): None. For Respondent(s): Mr. L. Suryaprabhu represented Mr. G.M. Syed Nurullah Sheriff for R1, R3, R8. Mr. C. Kasirajan through Ms. D. Ashwini for R7. Appeal No.80/2017: For Appellant(s): Ms. Niveditha S Menon represented Mr. M. Murali. For Respondent(s): Mrs. M. Sumathi for R1. ORDER 1. The above cases are posted to today for consideration of report and objections, if any, to the report. 2. When the matter came up for hearing today through Video Conference, there is no representation for the appellant in Appeal No. 59/2017 and Ms. Niveditha S Menon represented Mr. M. Murali, the learned counsel appearing for the appellant in Appeal No.80/2017. Mr. L. Suryaprabhu represented Mr. G.M. Syed Nurullah Sheriff, counsel for respondents 1, 3 & 8 in Appeal No.59/2017, Mrs. M. Sumathi represented 1st respondent in Appeal No.80/2017 and Mr. C. Kasirajan through Ms. D. Ashwini represented 7th respondent in Appeal No.59/2017. Page 2 of 3 3. The learned counsel appearing for the appellant in Appeal No.80 of 2017 wanted some more time for filing their objection to the report. 4. Considering the circumstances, we grant time to the appellant in both the cases to file their objection to the committee report and they are directed to submit their objections to this Tribunal on or before 28.06.2021 by e- filing in the form of Searchable PDF/OCR Supportable PDF and not in the form of Image PDF along with necessary hardcopies to be produced as per Rules. 5. The parties are at liberty to file their written submissions, if any, before this Tribunal before the next hearing date, so that hearing of appeals can be expedited. 6. For filing objections, consideration of report and also for hearing the appeals, post on 15.07.2021. Sd/- ................................J.M. (Justice K. Ramakrishnan) Sd/- ..........................E.M. (Dr. K. Satyagopal) Appeal No.59/2017, Appeal No.80/2017 14th June, 2021. Mn. Page 3 of 3

Conservation Of Nature Trust Rep. ... vs The Secretary Moef on 14 June, 2021

National Green Tribunal

* IN THE HIGH COURT OF DELHI AT NEW DELHI + ITA No.211/2008 % Date of decision: 17.10.2008 COMMISSIONER OF INCOME TAX DELHI (CENTRAL) II ...APPELLANT Through: Mr. R.D. Jolly, Advocate. Versus USHA MARKETING (PVT.) LTD. ...RESPONDENT Through: Mr. Prakash Kumar, Advocate. CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON‟BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? No 2. To be referred to Reporter or not? No 3. Whether the judgment should be No reported in the Digest? SANJAY KISHAN KAUL, J. (Oral) OCTOBER 17, 2008 MOOL CHAND GARG, J. dm ITA No.211/2008 Page 5 of 5 1. The respondent-company is dealing in sale and transfer of shares. In the assessment year 1986-87, the Assessing Officer permitted the conversion of certain shares from investment to stock-in-trade. In the Assessment Year 1987-88 (Assessment Year in question), the respondent-company booked certain business loss. The Assessing Officer, however, came to the conclusion ITA No.211/2008 Page 1 of 5 that the loss could not be treated as a business loss and this Order was upheld by the CIT(A) as also by the Tribunal. 2. The Tribunal in its Order dated 31.10.2001 in the quantum proceedings came to the conclusion that merely because the Assessing Officer in the Assessment Year 1986-87 had permitted the conversion of shares from investment to stock-in-trade could not ipso facto imply that the Assessment Officer for the year 1987-88 would be precluded from going into the real facts about the shares and determining whether the shares were held as investment or stock-in-trade. It was held that the shares could not be treated as stock-in-trade but had to be treated as investment. 3. The material observations of the Tribunal are that the transaction in shares which resulted in loss were not necessitated on account of any business requirement or any business decision but were the exigencies of the group companies determined by the group strategy. The respondent as an Assessee-Company was thus held as a tool of the group and the transfer of shares was made in pursuance thereto. It is in these circumstances that the loss was not held to be genuine and was held to be simply a book loss and not a real loss. ITA No.211/2008 Page 2 of 5 4. The present appeal arises from the impugned Order of the Tribunal dated 01.06.2007 in the penalty proceedings where the Tribunal has held that the present case is not one for imposition of penalty. The transactions which resulted in the loss have been looked into to come to the conclusion that each of the transactions was at market value, shares were transferred and money received. It is in these circumstances, that the Tribunal has observed that the explanation 1 to Section 271(1)(c) of the Income Tax Act, 1961 („the said Act‟ for short) was not attracted. 5. The sub stratum of the plea of the learned counsel for the appellant/Department is that a substantial question arises in the present appeal on account of the fact that the two aforesaid Orders of the Tribunal have come to completely different conclusions on the same set of facts. 6. We are unable to accept the plea of the learned counsel for the appellant/Department for the reason that we are unable to derive the aforesaid conclusion on a reading of the two Orders. The Order in the quantum proceedings of the Tribunal shows that the only conclusion reached is that the transfer of shares could not be booked as a business loss as this was not necessitated by any business necessity but on account of a decision of the group as a whole and as a group strategy. The order of the Tribunal in the penalty proceedings has come to the ITA No.211/2008 Page 3 of 5 conclusion that the transactions in respect of the shares on the basis of which business loss was caused were genuine inasmuch as they were at market value and actual transfer of shares took place with the money passing. Learned counsel for the appellant/Department cannot seriously dispute that it is not as if every addition made by the Assessing Authority would result in a penalty being imposed. Unless the parameters of explanation 1 to Section 271(1)(c) of the said Act are attracted, the penalty would not be the result. The observations of the Tribunal in the impugned order which have cogently dealt with this aspect are re-produced as under: 7. We are in full agreement with the aforesaid observations of the Tribunal and thus no question of law arises in the present appeal. 8. Dismissed. SANJAY KISHAN KAUL, J.

Author: Sanjay Kishan Kaul

Commissioner Of Income Tax Delhi ... vs Usha Marketing (Pvt.) Ltd. on 17 October, 2008

Delhi High Court

In the Punjab and Haryana High Court,at Chandigarh. Crl.Misc. No.M-8972 of 2008 Decided on July 15,2008. Sunil Kumar --- Petitioner vs. State of Haryana ---Respondent.July 15,2008 (Rakesh Kumar Jain) RR Judge Present: Mr. Rajesh Bansal,Advocate, for the petitioner. Mr.S.S.Gorupuria, DAG,Haryana. Rakesh Kumar Jain,J: This is a petition under Section 439 Cr.P.C. for regular bail in a case bearing FIR No. 449 dated 26.12.006 under Sections 376/506 of IPC, registered at Police Station, Model Town, Panipat. Counsel for the petitioner contends that the prosecutrix, her father Bachan Lal and her mother Rupa have already been examined as Pws 11,10, and 12 and they have not supported the case of the prosecution as all of them in unison say that no rape has been committed by the petitioner with the prosecutrix. Counsel for the State does not controvert the aforesaid position. In view of the above, without expressing any opinion on the merits of this case, this petition is allowed and it is directed that the petitioner shall be released on bail on his furnishing bail bonds to the satisfaction of the trial Court.

Sunil Kumar vs State Of Haryana on 15 July, 2008

Punjab-Haryana High Court

JUDGMENT Jyoti Balasundaram, Member (J) 1. For reasons recorded below we dispense with the pre-deposit of duty and penalty and proceed to dispose off the appeals themselves with the consent of both sides as the issue in dispute is covered by various decisions of the Tribunal. Duty is alleged to be short-paid by adopting normal price as Rs. 1,000/- per metric ton which was found to be the minimum cost of molasses as per Chief Sugar Technologist of the Vasantdada Sugar Institute, Pune. Against the 4 independent orders of the Adjudicating Authority, the appellants preferred appeals before the Commissioner (Appeals), who directed pre-deposit of the duty and penalty in all cases. An application for modification was filed before the Commissioner (Appeals); who rejected the same; a fresh application for modification was filed which was also rejected and the appeals were dismissed on the ground of non-compliance with the statutory requirement of Section 35F of the Central Excise Act, 1944. Hence, these appeals along with stay applications. 2. On hearing both sides and noting that the Tribunal in the case of Agasti Sahakari Sakhar Karkhana Ltd. v. CCE, Aurangabad [2001 (44) RLT 810], has held that ex-factory prices is required to be adopted unless it is established that it is manipulated price and also noting the case of Morinda Co-op. Sugar Mills v. CCE, Chandigarh [2001 (45) RLT 613] wherein it has been held that transaction value is acceptable and in such a situation the sale price of comparable goods is not to be adopted, we waive pre-deposit requirement and remand the case for decision on merits to the Commissioner (Appeals), who shall pass fresh orders after extending a reasonable opportunity to the appellant of being heard, without insisting on pre-deposit. 3. The appeals are thus allowed by remand. (Pronounced in Court)

Purna Sahakari Sakhar Karkhana ... vs Commissioner Of Central Excise, ... on 4 December, 2001

Customs, Excise and Gold Tribunal - Mumbai

JUDGMENT C.M. Nayar, J. 1. The present petition is directed against the respondents for issuance of a writ of certiorari to quash the order dated August 4, 1983 passed by the Customs, Excise and Gold (Control) Tribunal, New Delhi upholding the orders dated May 24, 1980 and 20th February, 1981 respectively passed by the Assistant Collector of Central Excise and the Appellate Collector, Central Excise, New Delhi. 2. The petitioner No. 1 is a private limited company incorporated under the Indian Companies Act, 1961 with its registered office and Headquarters situated at Jaipur. Petitioner No. 2 is the Director of petitioner No. 1 company. In this petition the challenge is made to the levy of excise duly on the product manufactured by the petitioners, namely, woollen felt as an excisable item under Tariff Item No. 68 of Schedule I of the Central Excise and Salt Act (hereinafter referred to as 'the Act'). Earlier the petitioner company was being charged excise duty on woollen felt under Item 21 as if it was a woollen fabric. It was challenged on the ground that woollen felt did not fall under the term woollen fabric. The relief in the present petition is claimed in the form of exemptions as granted by the above said Item No. 68 particularly the Small Scale Units. The petitioner company has sought the relief on the basis of the Exemption Notification No. 176/1977 dated June 18, 1977 which grants exemptions to those small scale units in which the investments on plant and machinery does not exceed Rs. 10 lakhs from levy of Excise Duty and further provided the total value of excisable goods cleared for home consumption by the manufacturer does not exceed Rs. 30 lakhs in preceding financial year. The relevant Notification is stated in the writ petition and reads as follows : "Notification No. 176/1977-CE dated 18.6.1977 as amended by Notification No. 244/1977-C.E. dated 15.7.1977. In exercise of the powers conferred by Sub-rule (1) of Rule 8 of the Central Excise Rule, 1944 the Central Government hereby exempts goods falling under Item No. 68 of the First Schedule to the Central Excise and Salt Act, 1944 (1 of 1944), and cleared for home consumption on or after the first day of April, in any financial year, by or on behalf of a manufacturer from one or more factories from the whole of the duty of excise leviable thereon, if an officer not below the rank of an Assistant Collector of Central Excise is satisfied that the sum total of the value of the capital investment made from time-to-time on plant and machinery installed in the industrial unit in which the goods, under clearance are manufactured, is not more than rupees ten lakhs : 'Provided that this exemption shall not be applicable to a manufacturer if the total value of all excisable goods cleared by him or on his behalf in the preceding financial year had exceeded rupees thirty lakhs.' 'Provided further that the exemption contained in this Notification shall apply to the first clearances for home consumption by or on behalf of the manufacturer referred to in this Notification, from one or more factories upto a value not exceeding rupees thirty lakhs during a financial year subsequent to 1977-78 and upto a value not exceeding rupees twenty-four lakhs during the period commencing on the 18th day of June, 1977, and ending on 31st day of March, 1978. Explanation-I. For the purposes of determining the value of any capital investment, only the face-value of such investment at the time when such investment was made shall be taken into account.' Explanation-II............. 3. The petitioners have next submitted that the gross clearing of the petitioner's company during 1977-78 was Rs. 21,04,237.46 and, as such, the petitioner company was entitled to exemption from payment of excise duty on clearance of goods upto the value of Rs. 30 lakhs in the year 1978-79. The gross clearance for the subsequent year 1978-79 was stated to be Rs. 29,37,047.01 and as it was considered to be less than the prescribed limit of Rs. 30 lakhs the petitioner company claimed that it was entitled to get the benefit exemption from payment of excise duty in the year 1979-80 as provided in the above said Notification. Respondent No. 5 wrongly calculated the clearance of the company for Ihe year 1978-79 as more than Rs. 30 lakhs and issued a show-cause notice to the company. Reply to the same was filed and it was pleaded that actual gross clearance of the petitioner company in 1978-79 was Rs. 29,37,047.01 only which does not exceed the prescribed limit of Rs. 30 lakhs. The petitioner company did not deny the gross sale of Rs. 34,42,961.17 but claimed that out of this amount a sum of Rs. 5,05,914.16 cannot be considered as clearance because of the reasons and details which have been stated in the following manner : "(i) Rs. 2,39,866.50 Documents pending with Bank in respect of which delivery of goods covered by them were not taken by the buyers and the goods were received back. (ii) Rs. 1,05,938.57 Bill discount (being cash discount) allowed to one party only. (iii) Rs. 1,60,109.00 Bill discount @ 5% on sales as per agreement." 4. The Assistant Collector examined the matter and considered the contentions of the petitioners which were raised in the following manner : "Shri N.K. Mishra, Chief Accountant of M/s. S. Zoraster & Co. Ltd., Jaipur appeared on behalf of the unit and further argued about the above deduction as below : 1. Rs. 2,39,966.50. This relates to the value of goods which were despatched to the customers in year 1978-79 but were not received back in the same year. Since the goods have not been received back the question of deduction of this amount from the gross sale is not relevant for consideration. 2. Rs. 1,05,938.57. This cash discount was given to M/s. A.K. Shah, Chaura Rasta, Jaipur as the cash facilities award during the year. This amount of discount was said to be calculated monthly i.e. at the end of the month. But the party was unable to produce any document/ agreement in support of their version. Thus this is also not relevant for deduction. 3. Rs. 1,60,109.00. This is a bill discount @ 5% on the total sale which is covered by an agreement according to one of the conditions of the agreement. The party shall pay commission @ 5% for the services rendered in connection with the sale of the goods and this commission will be included from the sale price. In support of their version the party was asked to furnish some sale invoices which was produced on 14.3.1980. From the perusal of the sale invoices submitted by the party it was observed that no commission whatsoever which was likely to be paid to M/s. A.K. Shah, Chaura Rasta, Jaipur has been deducted at the time of sale and thus the commission which is said to have been paid to M/s. A.K. Shah, Chaura Rasta, Jaipur is included in the sale prices." 5. The above pleas were duly considered and the following conclusions were rendered which read as follows : "I have examined the facts of the case and the submission put forth by M/s. S. Zoraster & Co. Jaipur in their written reply furnished on 1.2.1980 and plea advanced on 12.3.1980 the date on which the case was heard. From the perusal of the sale vouchers issued by the unit, it will appear that the party has charged full value of the goods including the commission which was to be paid to M/s. A.K. Shah, Chaura Rasta, Jaipur and had also paid sales tax as per invoices value. Thus it will appear no amount has been deducted in form of discount at the time of sale of the goods. Even in the agreement dated 30th June, 1973 produced by the unit para 6 save that in consideration of the services to be rendered the company shall pay a commission @ 5% in net sale. Thus the commission paid by the unit to M/ s. A.K. Shah, Chaura Rasta, Jaipur is in form of a remuneration to them for the services rendered and thus this payment cannot be abetted or deducted because it was not a trade discount nor duty as laid down in the explanation to Section 4 of the Central Excise & Salt Act. Keeping in view the circumstances explained above the plea of M/s. S. Zoraster & Co., Jaipur for deduction of Rs. 5,05,914.16 from the total gross sale of Rs. 34,42,961.17 cannot be deducted and the unit will have to pay Central Excise duty at appropriate rate on value of the goods Rs. 4,42,961.17 cleared in excess of Rs. 30 lakhs in the year 1978-79 and also pay excise duty at appropriate rate for the goods cleared from the factory right from 1.4.1979 in the year 1979-80. The amount of duty has been calculated as follows which may be paid immediately by M/s. S. Zoraster & Co., Jaipur. 1. Sale of goods in excess of Rs. 30 lakhs from 1.4.1978 to 28.2.1979 comes to Rs. 2,70,742.53 and duty calculated @ 5% comes to Rs. 13,537.13. 2. Sales of goods in March, 1979 comes to Rs. 1,72,218.64 and duty calculated @ 8% ad valorem comes to Rs. 13,777.50. 3. Sale of goods during the year 1979-80 comes to Rs. 15,46,936.99 and duty calculated @ 8% ad valorem comes to Rs. 1,23,754.96. Thus total duty to be , paid by M/s. S. Zoraster & Co. (Supplies), Jaipur comes to Rs. 1,51,069.59." 6. The matter went in appeal and once again the contention of the petitioners were repelled by the findings as recorded below : "The argument that in case of goods which were not taken delivery of by the customers, the value of the goods should not be added, does not have much reliance in the context of the nature of Central Excise. It is well established that in order to attract excise duty. It is not necessary that the articles must have actually been sold, that would equate to a sales tax, whereas excise duty is a tax on manufacture. Therefore, the argument that the appellant's goods were not actually sold would not in any way exclude it from the levy of Excise duty once it is held to be an excisable item. As regards the deductions on account of cash discount in respect of M/s. A.K. Shah, as also regarding the bill discount at 5% allowed to M/s. Rajasthan Enterprises Pvt. Ltd. consideration of their admissibility have to be seen in the light of criteria for allowing such a discount within the ambit of Section 4 of the Central Excise and Salt Act, 1944. It is observed that trade discount admissible for abatement under Section 4 of the Act, is that which is outright at the time of removal of the goods from the place of manufacture. On principle, the quantity discount is permissible provided it is granted as indicated above. In case of the appellant, the discount or abatement are seen to be based on a contingency and could not have been said to be outright at the time of removal of goods. It may be recalled that identical principle was adopted by the Government of India regarding admissibility of trade discount in Revision Order No. 1364 of 1977 dated 11.7.1977." 7. The petitioners filed an appeal before the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi to impugn the findings of the Assistant Collector as well as of the Appellate Collector raising the same pleas which have already been referred to in the earlier part of the judgment. The contentions were rejected and earlier orders were affirmed by the Tribunal. The only" question which arises for consideration is as to whether the petitioners were entitled to Exemption Notifications in the facts and circumstances of the case. The deductions as claimed by the petitioner were rejected by the Authorities on cogent grounds, such as, that it was not proved that the goods were received back for the amount as claimed to be deducted from the total amount of Rs. 34,42,961.17. The question of deduction from the sale consideration could not be relevant for consideration and as the parties were also unable to produce any document/ agreement in support of the cash discount given to M/s. A.K. Shah the amounts could not be validly permitted to be deducted from the amount for the gross sale price. There is no infirmity in the findings given by all the Authorities to the effect that the Central Excise is levied on manufacture and not on sale of excisable goods and the department was concerned with the levy of Central Excise duty till the stage of clearance from the factory gate. Once the goods were cleared from the factory, the Department had nothing to do with such goods or how they were utilised by the parries and to whom they were sold or supplied. The question of exclusion of the amounts from the gross sale price has been disposed of by concurrent findings of facts by all the Authorities to the effect that petitioners were not able to prove the amounts which were claimed to be deducted from the total value of excisable goods as cleared by the petitioners to enable them to get benefit of the Exemption Notifications. There is, therefore, no illegality in the Orders nor the Authorities have exercised jurisdiction which is not permissible in law. The present writ petition is, therefore, dismissed. There will be no order as to costs.

Author: C Nayar

S. Zooraster And Co. (Supplies) ... vs Union Of India (Uoi) And Ors. on 16 July, 1999

Delhi High Court

PETITIONER: THE LAND ACQUISITION OFFICER & SUB-COLLECTOR, GADWAL. Vs. RESPONDENT: SMT. SREELATHA BHOOPAL & ANR. DATE OF JUDGMENT: 21/04/1997 BENCH: K. RAMASWAMY, D.P. WADHWA ACT: HEADNOTE: JUDGMENT: O R D E R Though hotices have been served, respondents are not appearing either in person of through counsel. Leave granted. Notification under Section 4(1) of the Land Acquisition Act, 1894 (for short, the `Act') was published on September 26, 1981 for public purpose, namely, establishment of Bus Depot/Stand in Gadwal Town of Mehaboobnagar District in State of Andhra Pradesh. The Land Acquisition Officer in his award dated December 27, 1983 awarded compensation at the rate of Rs.8.000/- per. On reference, the Civil Court by its award and decree dated November 15, 1985, enhanced the compensation to Rs.20/- per sq. yd. On appeal, the Division Bench of the A.P. High Court in Appeal No.2391/86 by judgment and decree dated August 8, 1996 has confirmed the same. Thus, this appeal, by special leave. The High Court has relied upon Ex.A-4 the sale wherein related to a small piece of land, and accordingly confirmed the market value @ Rs.20/- per sq. yd. It is now well settled legal position that small pieces of land cannot offer the same market value when a large track of land is purchased in an open market by a willing and prudent purchased in an open market by a willing and prudent purchaser. It is settled legal position that the Court has to put itself in the armchair of a prudent purchaser and put the question to itself whether the land, in the given circumstances, would fetch the same market value as is likely to be determined by the court when small piece of land would be offered for sale. Unfortunately, the High Court has not adopted that principle; it has merely proceeded to rely upon sale deed relating to a small piece of land. We have gone through the award of the Collector. The Collector referred to various sale deeds and ultimately he relied upon a sale transaction and held that the lands in the sale deed at Sl. No. 120, pertaining to survey Nos.854, which fetched the rate of Rs.4,519-77 as on the date of the sale, namely, December 27, 1978 was comparable one. The Land Acquisition Officer noted that the lands therein were converted into non-agricultural lands and the lands in question still remained to be agricultural lands and were adjacent to Gadwal Town. Under these circumstances, he awarded the market value at the rate of Rs.800/- per acre. It is settled legal position that the burden is on the claimant to prove by adducing acceptable evidence for higher compensation. Having rejected Ex.A-4 relied on by High Court, though the award of Land Acquisition Officer is not evidence stricto sensu with a view to do substantial Justice. We looked into it and considered the material collected therein. Having regard to the state of evidence and large extent of the land in question as also and the facts, we think that the appropriate market value would be Rs.20,000/- per acre and would be just and reasonable compensation. The appeal is accordingly allowed. The order of the reference Court as confirmed by the High Court is set aside. Instead, the award shall be substituted by Rs.20,000/- per acre with usual solatium at the rate of 30% and interest on enhanced compensation at the rate of 9% per annum from the date of taking possession to the date of payment of such enhanced compensation and at the rate of 15% thereafter till deposit of enhanced compensation into the court. No orders as to costs.

The Land Acquisition Officer & ... vs Smt. Sreelatha Bhoopal & Anr on 21 April, 1997

Supreme Court of India

Court No. - 28 Case :- CRIMINAL REVISION No. - 44 of 2010 Petitioner :- Ankur Dwivedi Respondent :- State Of U.P. Petitioner Counsel :- S.C. Misra Respondent Counsel :- Govt. Advocate Hon'ble Alok K. Singh,J. List in the next week as fresh as requested. Mere pendency of this revision shall not be treated as an impediment in further proceeding with the case by the learned court below. Order Date :- 2.2.2010 PAL/

Ankur Dwivedi vs State Of U.P. on 2 February, 2010

Allahabad High Court

Gujarat High Court Case Information System Print CR.A/635/2010 9/ 9 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 635 of 2010 ========================================================= STATE OF GUJARAT - Appellant(s) Versus KHUSHBUBEN KANTILAL PATEL - Opponent(s) ========================================================= Appearance : MR. H.L. JANI, LD. ADDL. PUBLIC PROSECUTOR for Appellant(s) : 1, None for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 09/12/2010 ORAL ORDERThe appellant-State of Gujarat, has preferred the present appeal under Section 378 of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 27th March 2009 passed by the learned Additional Principal Judge, Court No.2, Ahmedabad in Criminal Appeal No.75 of 2008, whereby the learned Judge has quashed and set aside the judgment and order of conviction dated 08th August 2008 passed by the learned Metropolitan Magistrate, Court No.11, Ahmedabad in Criminal Case No.174 of 2005, and acquitted the respondent-accused of the charges levelled against him. The short facts of the prosecution case is that on 19th December 2004 original complainant-M.D. Waghela, Police Sub Inspector, Immigration, Sardar Vallabhbhai Patel International Air Port, Ahmedabad was on duty. It is the case of the complainant that on checking, one passenger of Flight No.A.I. 121 found with British Passport No.492668057, who was residing at Belgium. When it was inquired as to how he had obtain British Passport, he explained that by giving 2000 Euro he had obtained British Passport from one Pakistani citizen. It is the case of the complainant that said Shri Rameshbhai Patel had used the said Passport and came to India from Paris on 10th December 2004 and on 19th December 2004 while he tried to go to Paris, said Shri Patel was stopped at Mumbai. It is also the case of the complainant that on inquiry it was found that the Passport was bogus. Thus, by using bogus Passport, the respondent-accused had obtained Indian Visa and tried to go to Paris from Ahmedabad. Therefore, FIR being C.R. No.I-318 of 2004 came to be registered with Sardarnagar Police Station for the offences punishable under Sections 120(B), 201, 420, 465, 467, 468 and 471 of the Indian Penal Code and under Sections 10(3)(f) and 12 of the Indian Passport Act. On the basis of complaint, investigation was carried out. On completion of the investigation, since the Investigating Officer found prima-facie case against the respondent-accused, charge-sheet came to be filed before competent court and was registered as Criminal Case No.174 of 2005. Thereafter, charge was framed against the respondent-accused by the learned Metropolitan Magistrate, Court No.11, Ahmedabad. Thereafter, charge was read over and statement of respondent-accused came to be recorded wherein the respondent-accused pleaded not guilty and claimed to be tried. The prosecution has examined 63 witnesses and relied upon their oral evidence. The prosecution has also produced 52 documents to prove the case against the respondent-accused. Thereafter, when the prosecution has filed closing pursis, the learned Magistrate recorded further statement of the respondent-accused under Section 313 of the Code of Criminal Procedure, 1973. The respondent-accused denied the case of the prosecution and submitted that he has been roped in a false case. Thereafter the trial was conducted before the learned Magistrate. After hearing both the sides, the learned Magistrate by his order dated 08th August 2008 convicted the respondent-accused for the offences punishable under Sections 465, 467, 468 and 471 of the Indian Penal Code and sentenced him to undergo simple imprisonment for a period of one year and also imposed fine amount of Rs.05,000/-, and in default of payment of fine, ordered to undergo simple imprisonment for a further period of one month. The learned Magistrate also convicted the respondent-accused for the offences punishable under Section 10(3)(f) and 12 of the Indian Passport Act and sentenced him to undergo simple imprisonment for a period of three months and also imposed fine of Rs.01,000/-, and in default of payment of fine, ordered to undergo simple imprisonment for a period of 15 days. Being aggrieved by and dissatisfied with the said Judgment and Order of conviction and sentence dated 08th August 2008 passed by the learned Metropolitan Magistrate, Court No.11, Ahmedabad in Criminal Case No.174 of 2005, the present respondent-accused has preferred Criminal Appeal No.75 of 2008 before the learned City Sessions Court, Ahmedabad wherein the learned Additional Principal Judge, Court No.2, Ahmedabad by his order dated 27th March 2009 was pleased to set aside the judgment and order of conviction and sentence dated 08th August 2008 passed by the learned Metropolitan Magistrate, Court No.11, Ahmedabad in Criminal Case No.174 of 2005 and was pleased to acquit the present respondent-accused. Being aggrieved and dissatisfied with the said Judgment and Order of acquittal dated 27th March 2009 passed by the learned Additional Principal Judge, Court No.2, Ahmedabad in Criminal Appeal No.75 of 2008, the appellant-State of Gujarat, has preferred the above mentioned Criminal Appeal. Heard Mr.H.L. Jani, learned Additional Public Prosecutor, appearing on behalf of the appellant-State and Mr.R.C. Jani, learned counsel for the respondent-accused. I have also gone through the papers and the Judgment and Orders passed by both the Courts below. Mr.H.L. Jani, learned Additional Public Prosecutor for the appellant, has taken me through the evidence of prosecution witnesses and the documentary evidence and submitted that from the above evidence it is established that the prosecution has successfully proved its case beyond reasonable doubt. He has contended that the the learned Magistrate has properly appreciated the facts of the case and has passed absolutely just and proper order of conviction and sentence. He has also contended that the learned Additional Principal Judge has not properly appreciated the case of the prosecution and has acquitted the respondent-accused. He has also contended that the learned Judge has not given sufficient opportunity to the prosecution to examine material witnesses. He has further contended that the respondent-accused has failed to produce on record any evidence. He has also contended that there is no reason to disbelieve the evidence and statements of witnesses produced on record by the prosecution. He, therefore, contended that the order dated 27th March 2009 passed by the learned Additional Principal Judge, Court No.2, Ahmedabad may kindly be quashed and set aside. Mr.R.C. Jani, learned counsel for the respondent-accused has vehemently opposed the present appeal and argued that the order of acquittal passed by the learned Additional Principal Judge is absolutely just and proper. The learned Judge has after appreciating all the evidence and statements produced on record, acquitted the respondent-accused. I have gone through the judgment and order of the trial Court as well as Sessions Court. I have also perused the reasons assigned by both the Courts below. At the outset it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr, reported in (2006)6 SCC, 39, the Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the Courts below. Even in a recent decision of the Apex Court in the case of State of Goa Vs. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75, the Court has reiterated the powers of the High Court in such cases. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled. It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgment or to give fresh reasoning, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417. Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary. I have gone through the judgment and order passed by the trial Court as well as of the Sessions Court. I have also perused the oral as well as documentary evidence led before the Courts below and also considered the submissions advanced by the learned counsel for the parties. After appreciating the oral as well as documentary evidence, the learned Additional Principal Judge has observed that the learned Metropolitan Magistrate has improperly come to a conclusion that there was a contravention of the provisions by the respondent-accused on the basis of an uncorroborated fax message and that too a xerox copy of such fax message without any supporting evidence whatsoever being relied upon by the prosecution in that regard. It is also observed by the learned Additional Principal Judge that the learned Metropolitan Magistrate has wrongly come to a conclusion that contravention as contemplated under Section 10(3)(f) of the Indian Passports Act was committed by the respondent-accused without examining any expert or relevant witnesses from the British High Commission in that regard. It is also observed that the prosecution has failed to prove beyond reasonable doubt the case against the respondent-accused. The learned Additional Principal Judge has observed that there are serious lacuna in the oral as well as documentary evidence of prosecution. Nothing is produced on record of this appeal to rebut the concrete findings of the Court below. Thus, the appellant could not bring home the charges against the respondent-accused in the present appeal. The prosecution has miserably failed to prove the case against the respondent-accused. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. Mr.H.L. Jani, learned Additional Public Prosecutor, is not in a position to show any evidence to take a contrary view in the matter or that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that Court below has ignored the material evidence on record. In above view of the matter, I am of the considered opinion that the learned Additional Principal Judge has completely justified in acquitting the respondent-accused of the charges levelled against him. I find that the findings recorded by the learned Judge are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Additional Principal Judge, Court No.2, Ahmedabad in Criminal Appeal No.75 of 2008 whereby the learned Judge has quashed and set aside the judgment and order of conviction dated 08th August 2008 passed by the learned Metropolitan Magistrate, Court No.11, Ahmedabad in Criminal Case No.174 of 2005, and acquitted the respondent-accused of the charges levelled against him. Hence, the present appeal is hereby dismissed. Bail bond, if any, shall stands cancelled. Record and Proceedings, if any, be sent back to the concerned trial Court, forthwith. (Z. K. Saiyed, J) Vahid     Top

Author: Z.K.Saiyed,&Nbsp;

State vs The on 9 December, 2010

Gujarat High Court

[Section 36(2)] [Section 36] [Complete Act]

Central Government Act

IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (DB) No.1095 of 2010 SUKDEO RAVIDAS @ SUKHDEO RAVIDAS Versus STATE OF BIHAR with CR. APP (DB) No.1045 of 2010 BHUNA SAO Versus STATE OF BIHAR with CR. APP (DB) No.1101 of 2010 DAYA @ DAYA KISHORE RAVIDAS Versus STATE OF BIHAR ----------- 3/ 22.11.2010 Appellants Sukdeo Ravidas alias Sukhdeo Ravidas, Bhuna Sao and Daya alias Daya Kishore Ravidas are alleged to have come in police dress at the house of the informant in the dead of the night and giving their wrong introduction as police personnel, got the door opened, entered into the house and searched for Bhola, the husband of the informant Dulari. Thereafter, all these appellants are said to have kidnapped Bhola, asked for ransom money, one of the accused Mahesh subsequently came for giving reminder for ransom money and since it was not paid, Bhola was killed. This story of the prosecution has been supported by each and every prosecution witnesses, who are family members including the informant. Considering this fact, prayer for bail on behalf of the appellants is rejected. Anil/ (Mridula Mishra, J.) ( Dharnidhar Jha, J.)

Bhuna Sao vs State Of Bihar on 22 November, 2010

Patna High Court - Orders

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 3491 of 2006(N) 1. T.L. DEVAKI AMMA, ... Petitioner Vs 1. THE DISTRICT COLLECTOR, KOLLAM. ... Respondent 2. THE TAHSILDAR, 3. THE SENIOR GEOLOGIST, 4. CHANDRASEKHARAN PILLA, For Petitioner :SRI.V.PREMCHAND For Respondent :SRI.PREMCHAND R.NAIR The Hon'ble MR. Justice KURIAN JOSEPH Dated :24/09/2008 O R D E R KURIAN JOSEPH, J. ---------------------------------------------- W.P.(C) No.3491 of 2006 ---------------------------------------------- Dated 24th September, 2008. J U D G M E N T Petitioner approached this court with certain grievances regarding the alleged illegal excavation of clay and sand. There is already an interim order dated 27.3.2006 to that effect. The writ petition is disposed of in terms of the said interim order. KURIAN JOSEPH, JUDGE. tgs  KURIAN JOSEPH, J ---------------------------------------------- W.P.(C) No.3491 of 2006 ----------------------------------------------

T.L. Devaki Amma vs The District Collector on 24 September, 2008

Kerala High Court

JUDGMENT Deb, J. 1. This is an appeal from an order dated November 9, 1970, staying the suit filed in this Court under Section 10 of the Code of Civil Procedure in view of an earlier suit filed by the respondents against the appellant in the Court of Civil Judge, Ferrukhabad, being Civil Suit No. 61 of 1969. 2. The respondent firm was appointed by the appellant as its dealer to sell certain goods in the district of Ferrukhabad. The respondents' case in the Ferrukhabad suit is that the said dealership agreement was cancelled by mutual agreement and thereafter certain transactions were entered into between the parties and in respect of those post contract transactions the respondents became entitled to certain sums of money from the appellant, which sums the respondent is seeking to recover in that suit. 3. The defence of the appellant in that suit is that, though some new arrangements were entered into between the parties, the respondents are not entitled to receive any money from the appellant. It has also been denied in that written statement that the dealership agreement was terminated by mutual consent as alleged by the respondents in, that plaint. It has further been pleaded by the appellant in that suit that the respondents have wrongfully repudiated the said dealership agreement and the said wrongful repudiation was accepted by the appellant. 4. During the pendency of the Ferrukhabad suit, the appellant has filed this suit No. 3661 of 1969 in this Court claiming damages for wrongful repudiation of the dealership agreement by the respondents and the acceptance of such wrongful repudiation by the appellant resulting in the damages suffered by the appellant with an additional claim arising out of the new arrangements pleaded by the respondents in the Ferrukhabad suit. 5. In these circumstances, the respondents have made the application under Section 10 of the Code and it was allowed by the learned Judge, who has, inter alia, said as follows : "The main issue in both the suits are common, namely, what the terms of the contract of dealership between the parties are and who has committed the breach of the said dealership agreement, and though apart from that issue the subject-matters in both the suits are different, and yet the result in both the suits will depend mainly on the decision of the issue as to who committed default of the dealership contract between the parties." 6. In staying the suit the learned Judge followed a decision of the Division Bench of this Court in the case of Shorab Merwanji Modi v. Mansata Film Distributors to which reference will be made later on. 7. In support of this appeal it has been contended by Mr. Somenatb Chatterjee, the learned counsel for the appellant, that the field of controversy in both the suits are entirely different, because the Ferrukhabad suit is founded upon a new arrangement entered into between the parties after the dealership agreement came to an end; whereas the Calcutta suit is based on the breach of contract. 8. The contention of Mr. Bachawat, the learned counsel for the respondents, on the other hand, is that the field of controversy between the parties is substantially the same in both the suits. He has argued that it does not matter whether Ferrukhabad suit is on the new arrangement or Calcutta suit is on the dealership agreement, in view of the decision of Chakaravartti, C. J. in the case already cited. He has also drawn our attention to another Division Bench decision of this Court in the case of Arun General Industries Ltd. v. Rishabh Manufacturers Pvt. Ltd., , in support of his contention that if the principal issue in both the suits is the same, it must be held that the matters in issue in both the suits are primarily and substantially the same. 9. We have already stated the nature of pleadings in the Ferrukhabad suit. In the Calcutta suit the respondents have not yet filed any written statement, but we may assume that their defence would not be contrary to what has been stated in the plaint in the Ferrukhabad suit. 10. Question now is whether the matter in issue in both the suits is directly and substantially the same so as to satisfy one of the most essential requirements of Section 10 of the Code. It is true that the learned Chief Justice has said that the "fact that one is a suit under the agreements entered into by the parties and the other is a suit de hors the agreements does not make a substantial identity of the subject-matter per se impossible" in the case of Shorab Merwanji Modi v. Mansata Film Distributors, (supra), at page 734 of the report, but his Lordship has qualified his own statement by using the expression "per se impossible." The question as to whether the entire field of controversy in both the suits is the same must be determined on the construction of the pleadings in both the suits and, therefore, no new principle has been laid down in that case by the learned Chief Justice. 11. The learned Chief Justice has further said at p. 734 of the report that "the principal matter in issue" in both the suits must be the same so as to attract Section 10 of the Code and this view has been followed in the case of Arun General Industries Ltd. v. Rishabh Manufacturers P. Ltd.. (supra), and speaking for this Court, at p. 139 of the report, in that case Mitra, J. says this : "The matter for determination in the case of an application for stay under Section 10 of the Code is not what the basis of the claim in the two suits is but what is the matter in issue in the two suits." 12. In our opinion, the expression "principal matter in issue" used by the learned Chief Justice and followed by Mitra, J., should be read, understood and construed in consonance with and subject to the following statement of Sir Ashutosh Mookerjee in the case of Bepin Behari v. Jogendra Chandra, reported in 24 Cal LJ 514 at p. 515 = (AIR 1917 Cal 248 at p. 249) of the report : "What then is the meaning of the expression 'the matter in issue.' The defendants invite us to hold that the expression is equivalent to 'any of the questions in issue.' The obvious answer is that if that had been the intention of the framers of the section, appropriate words might have been used to bring out such sense. We are of opinion that the expression 'the matter in issue' has reference to the entire subject in controversy between the parties. The object of the section is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue." 13. One of the most essential conciliations of Section 10 is that the matter in issue in the later suit which is sought to be stayed must be directly and substantially in issue in the earlier suit which is pending in the same or in any other court of concurrent, jurisdiction. A mere identity of some of the issues in both the suits is not sufficient to attract this section in view of the law laid down by Sir Ashutosh Mookerjee. Unless the decision of the suit operates as res judicata in the other suit it cannot be said that the matter in issue is "directly and substantially" the same in both the suits. In other words, the decision in one suit must non-suit the other suit before it can be said that the matter in issue in both the suits is directly and substantially the same. 14. The attention of the learned Judge was, however, not drawn to the issues framed in the Ferrukhabad suit. In that suit no issue has been settled relating to the terms and conditions of the dealership agreement between the parties nor there is any issue as to who has committed the breach of the said dealership agreement. Therefore, the finding of the learned Judge cannot be supported and we overrule the contentions of Mr. Bachawat. 15. It is well-settled that unless an issue is framed and decided by the Court ft cannot operate as res judicata in a subsequent suit between the same parties or their privies. It is true that the written statement in the Ferrukhabad suit has raised some of the questions which are also present in the plaint of the Calcutta suit, but unless in both the suits the entire subject-matter in controversy between the parties are substantially and directly the same it cannot be said that the matter in issue in both the suits is the same. There being no issue in the Ferrukhabad suit as to the terms and conditions of the dealership agreement nor as to its breach, in my opinion, it cannot be said that the matter in issue in both the suits is substantially and directly the same. Hence, the judgment under appeal cannot be supported. 16. In this view of the matter, we allow this appeal and set aside the judgment and order under appeal. The respondents will pay the costs of this appeal to the appellant. The application for stay under Section 10 is dismissed and the costs of that application will be cost in the Calcutta suit. 17. Liberty is given to the respondent to take appropriate directions from the Interlocutory Court with regard to the filing of the written statement. Dipak Kumar Sen, J. Speaking for myself I respectfully agreed with the judgment just now delivered by my learned brother. I only wish to point out that in the Ferrukhabad suit, the original dealership contract and its alleged termination have been no doubt, pleaded as part of a historical narrative but both the matters in issue and the cause of action in the Ferrukhabad suit arise mainly on the subsequent transactions and/or arrangement alleged to have been entered into by and between the parties. 18-19. The Ferrukhabad Court is not necessarily called upon to determine the rights and liabilities of the parties flowing from the original dealership agreement and/or its termination. In the manner the issues have been framed and the suit is being proceeded with in Ferrukhabad it is not impossible that the rights and liabilities of the parties, inter se, following from the subsequent alleged transactions may be determined while keeping the earlier rights and liabilities flowing from the earlier dealership agreements undetermined. Therefore, in any event, the matters which will be in issue or in controversy in the Calcutta suit may not be matters in controversy in issue in Ferrukhabad.

Author: Deb

Shaw Wallace & Co. Ltd. vs Bholanath Mandanlal Sherawala ... on 8 April, 1975

Calcutta High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.530 of 2008 GODHAN SINGH & ORS Versus RAMA SHANKER MISHRA & ORS ----------- ahk (Jyoti Saran, J.) 2. 14.7.2010. After some argument, Mr. Ashok Kumar Dubey, learned counsel appearing on behalf of the petitioners seeks permission to withdraw this civil revision application to take recourse to remedy as may be available to him, in law. The Civil Revision application stands dismissed as withdrawn.

Godhan Singh &Amp; Ors vs Rama Shanker Mishra &Amp; Ors on 14 July, 2010

Patna High Court - Orders

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2310 of 2010 AJAY KUMAR SINGH Versus THE STATE OF BIHAR & ORS ----------- P.K. (Navin Sinha, J.) 02. 16.08.2010 As prayed, four weeks time granted to file counter affidavit, so that the writ petition may be disposed at the stage of admission, if possible.

Ajay Kumar Singh vs The State Of Bihar &Amp; Ors on 16 August, 2010

Patna High Court - Orders

ORDER Lakshmanan, J. 1. The main writ petition has been filed by the petitioner college through its Honourary Secretary for the following relief : To issue a writ of certiorari or any other appropriate writ, order or direction, calling for the records from the 1st respondent in G.O.Ms. No. 561, Education, dated 15.6.1992, conveyed to the petitioner in the proceedings of the 2nd respondent in Rc. No. 25393/ Ha.8/92 dated 17.6.1992 and quash the same. 2. The writ petition was admitted by this Court on 26.6.1992 and notice was ordered to the respondents on the same date in W.M.P. No. 11880 of 1992. The prayer in W.M.P. No. 11880 of 1992 is as follows : To stay the operation of the impugned G.O.Ms. No. 561, Education, dated 15.6.1992 in so far as it relates to B.Com. and B.A. (Corporate) courses for Jain students in the petitioner college pending disposal of the writ petition. 3. The petitioner college is registered under the Societies Registration Act. It was founded in the year 1952 and primarily meant for the benefit of the young men of the Jain Community, but is open to the young men of the Jain Community, but is open to the young men of all communities. In W.P. No. 1 149 of 1975, this Court has held that Sri S.S. Jain Educational Society, which is conducting the petitioner college, is a minority institution within the meaning of Article 30(1) of the Constitution of India. By G.O.Ms. No. 549, dated 6.4.1988, Education Department of the Government of Tamil Nadu, the petitioner college has been declared as a minority institution on the basis of the order of this Court in W.P. No. 1149 of 1975, and that the privileges provided in the Tamil Nadu College (Regulation) Act, 1967, and the rules framed thereunder are allowed to the petitioner college. 4. It is also an admitted fact that the Jain community in Madras, Tamil Nadu, is a religious and linquistic minority and is a educationally backward community. Besically, it is a community engaged in trading, business and industry. From the beginning of the college, education in commerce and business related subjects were taught to the Jain students with a view to encourage them to undergo college education at least in commerce and business related subjects, since the Jain Community in Madras is basically engaged in trading, commerce and industry. The petitioner college was one of the very few colleges from the beginning which had the B.Com. course. The object was to encourage Jain students, who were otherwise reluctant to undergo college education due to the general educational backward character of the community, to undergo B.Com. course which will be useful for their business career. 5. In the year 1992, admission, 124 Jain students have already been admitted to B.Com., (Evening College) as against the capacity of 150 seats. Similarly, the Day College also for the year 1992, more number of Jain students have applied than the seats available and the Principal was instructed to issue provisional admission cards to 103 Jain students. It is also stated that the non-Jain students are not totally denied admission in B.Com. and B.A. (Corporate) courses and they do get admitted on merit in B.Com. and B.A. (Corporate) courses. But, Jain students are given preference to meet the specific and peculiar need of the Jain community students. 6. While so, the petitioner received from the office of the 2nd respondent Proceedings Rc. No. 25393/ Ha.8/92, dated 17.6.1992 enclosing therewith a copy of G.O.Ms. No. 561, Education, dated 15.6.1992 for necessary action. G.O.Ms. No. 561, Education, dated 15.6.1992, referred to the judgment of the Supreme Court dated 6.12.1991 in St. Stephen's College v. The University of Delhi . It is pertinent to extract or reproduce the relevant portion in that judgment. The Minority Aided Educational institutes are entitled to prefer their community candidates to maintain the minority character of the institution, subject, of course, to conformity with the University standard. The State may regulate the intake in this category with due regard to the need of the community in the area which the institutions is intended to serve. But, in any case, such intake shall not exceed 50% of the annual admission. The minority institution shall make available atleast 50% of annual admissions to members of communities other than the minority community. The admission of other community candidates shall be done purely on the basis of merit. 7. After referring to the Supreme Court judgment, the impugned G.O. directs as follows: (i) The minority aided colleges are permitted to admit their community candidates subject to the conditions that in case such intake shall exceed 50% of the annual permitted strength in each Branch/Faculty; and (ii) The aided minority educational institutions shall make available not less than 50% of the annual permitted strength in each Branch/ Faculty to the members of the community other than the minority community and such admissions shall be done purely on the basis of merit subject to the rules of reservation of the Government in force. The impugned G.O. further states that it comes into force with effect from the academic year 1992-93. The said G.O. is challenged in the main writ petition. 8. I have heard Mr. R. Krishnamurthi, learned Senior Advocate for the petitioner, as instructed by Mr. Surana, Advocate, and Mr. P. Shanmugham, learned Additional Government Pleader, for the respondents. 9. Mr. R. Krishnatmurthi, learned Senior Advocate states, that the decision dated 6.12.1991 of the Supreme Court of India in the case of Sr. Stephen's College v. The University of Delhi, only states that (1) That State may regulate the intake of students of the minority community with due regard to the community in the area which the institution is intended to serve; and (2) This intake shall not exceed 50% of the annual admission. The balance of 50% of the annual admission should be made available to the members of the communities other than the minority community. He further submits that more than 50% of the total number of seats in the petitioner college every year (annual admission) arc allowed to non-Jains and that the petitioner college is prepared to abide and is abiding by the decision of the Supreme Court of India, which stipulates that the intake of the students belonging to the minority community shall not exceed 50% of the annual admission. Mr. R. Krishnamurthy also submits that the Supreme Court only refers to 50% of the annual admission (total) and that annual admission can only mean that total annual admission in all the courses in the college put together and does not refer to each Branch/Faculty/Course offered by the college. According to him, however, the impugned G.O. directs that 50% of the admission for each branch/faculty should be from the members of the other communities. It also restricts admission of Jain students in each branch/faculty to 50% and that such a restriction is beyond the scope of the Supreme Court judgment and as such ultra vires. 10. It is useful to refer to the decision of the Supreme Curt in this context. The Supreme Court says, the minority aided educational institutions are entitled to prefer their community candidates to maintain the minority character of the institutions, subject, of course, the conformity with the University standard. It further states that the State may regulate the intake in this category with due regarded to the need of the community in the area which the institution is intended to serve. But, in no case, such intake shall exceed 50% of the annual admission. The minority institutions shall make available at least 50% of the annual admission to members of communities other than the minority community and that the admission of other community candidates shall be done purely on the basis of merit. 11. Mr. P. Shanmugham, learned Additional Government Pleader reiterates the points raised by the 2nd respondent/Director of Collegiate Education, in his counter affidavit. According to Mr. P. Shanmugham, the petitioner is mis-interpreting the judgment of the Supreme Court and if the contention of the petitioner is conceded, the spirit of the judgment will be lost. Strong reliance was placed on paragraph 78 of the judgment of the Supreme Court in St. Stephens College case. He also placed reliance on paragraph 81 of the said judgment. Referring to paragraphs 78 and 81 of the judgment, Mr. P. Shanmugham submitted that segregated faculties or universities for imparting general secular education are undesirable and that they may undermine secular democracy, which would be inconsistent with the central concept of secular and equality embedded in the Constitution. 12. I am of the prima facie view that the interpretation now made by the State Government of the Supreme Court judgment in St. Stephens College case is not proper and appropriate. However, it is. a matter for decision ultimately in the main writ petition. The Supreme Court states that the State may regulate the intake of students from the minority community with due regard to the need of the community in the area which the institution intended to serve. The petitioner college, in my view, is undoubtedly intend to serve the Jain community in Madras, Tamil Nadu. As already stated, the Jain students in Madras generally and basically join B.Com. and B.A. (Corporate) course and not in other courses. The impugned G.O. restricting intake of minority community students to 50% in each Branch/Faculty affects the Jain community students in B.Com and B.A. (Corporate) courses also. This will very adversely affect the Jain community people in Madras, which the petitioner college intend to serve, and this also violates the law and the judgment of the Supreme Court. It will also violate Article 30(1) of the Constitution of India. In my opinion, the impugned G.O. is trying to stretch the Supreme Court judgment beyond its scope and intends and lays down fresh rule which interfere with the right guaranteed under Article 30(1) of the Constitution of India. 13. In the concluding part of his argument Mr. P. Shanmugham submits that the institutional preference for admission based on religion is violative of Article 29(2) of the Constitution of India : He further submits that the petitioner college shall not prefer or deny admission to candidates on grounds of religion. Any preference given to the religious minority candidate in their own institution, in my view, cannot be a discrimination falling under Article 29(2) of the Constitution of India. The institution in question is established for the benefit of the Jain community and if they are prevented from admitting their own community candidates, the very purpose of establishing the institution would be defeated. In my view, minority institutions are entitled to admit their candidates by preference or by reservation. They are also entitled to admit them to the exclusion of all others, and that right, in my view, flows from administer the educational' institutions guaranteed under Article 30(1) of the Constitution of India. In my view, the State can lay down reasonable conditions for obtaining and for admission of students in their institutions but the State has no right to compel the minority institutions to give up their right under Article 30(1) of the Constitution of India. 14. Admittedly, the institution is a minority institution, which is entitled to protection under Article 30(1) of the Constitution of India. Of the 14 courses/faculties offered by the institution, the students from Jain community, for whose benefit the institution was originally founded, seek admission only to B.Com., and B.A. (Corporate) courses. Therefore, when the students of the minority community seek admission to a particular course, it will not be fair on the part of the State Government to compel the management to admit them in some other course, having in mind the fact that the institution is for their benefit and development. 15. Even the Apex Court in paragraph 102 of the judgment St. Stephen's College v. The University of Delhi , has observed as follows: In the light of all these principles and factors, and in view of the importance which the Constitution attaches to protective measures to minorities under Article 30(1), the minority aided educational institutions are entitled to prefer their community candidates to maintain the minority character of the institutions subject of course to conformity with the University standard. The State may regulate the intake in this category with due regard to the need of the community in the area which the institution is intended to serve. But in no case such intake shall exceed 50 per cent of the annual admission. The minority institutions shall made available at least 50 per cent of the annual admission to members of communities other than the minority community. The admission of other community candidates shall be done purely on the basis of merit. [Italicised is mine] 16. The language used by the Apex Court, in my considered opinion, should be interpreted by to reason that 50% of the total number of seats in the annual admission of the institution should made available to students of other communities and not 50% in each Branch/Faculty as directed by the State Government in the impugned G.O. 17. It is also seen that applications have been received in large number from the students of the minority community only for B.Com., and B.A. (Corporate) courses. It is also slated that admission cards have already been issued to the minority students. Therefore, at this juncture, it would be unfair and unjust to unsettle the process of admission adopted by the management all these years. 18. It is also pertinent to note that the petitioner has sought stay of the impugned G.O. in so far as it relates to B.Com., and B. A.(Corporate) courses alone. Hence, all the other courses are available for students of other communities. Hence, I feel that the management has made out a prima facie case for grant of stay. The balance of convenience is also in favour of the management. Hence, there shall be a stay of the operation of the impugned G.O.Ms. No. 561, Education, dated 15.6.1992, in so far as it relates to B.Com., and B.A. (Corporate) courses for the Jain students of the petitioner college. However, the petitioner management is directed to consider the applications of the students from other communities for filling up the seats in B.Com., and B.A. (Corporate) courses, which are available after admitting the Jain community students, who have applied prior to the passing of the impugned G.O. It is made clear that the stay granted above is with reference to the petitioner college alone. The Supreme Court in St. Stephen's College v. The University of Delhi , while issuing rule nisi in the writ petition by St. Stephen's College, had stayed the operation of the impugned Circular in that case and permitted the college to continue to follow its own admission policy, modality and schedule in the succeeding years - vide para 11 of the judgment of the Supreme Court. Hence, I feel justified in staying the impugned G.O. in the instant case, as prayed for. 19. For the fore-going reasons, there will be stay of the impugned G.O., as indicated above.

Author: Lakshmanan

A.M. Jain College By Honorary ... vs Government Of Tamil Nadu And Anr. on 14 July, 1992

Madras High Court

* E.~ EN THE HEGH COURT OF KARE\§A"ii'AI{A AT BANGALORE DATED1}fiSTHE ufifi DAycHP0cT0BER2011 BEFORE THE;KxwBm3MRgUsTKmnxsPAcHHAPfiR§, CRL.A'PPEAL NO. 1037/20 10,- ' ' if * ffiKHNEEN: *w '" LT. COL. BIKRAM JIT. ~ S/O CHETRAM ' R/AT NO275 RMV EXTENSION 157-'H MAIN, 8'?" A CROSS SADASHIVANAGAR ' _ A BANGALORE~80. _ '=..,_..A1?PI«;:L1.,AN'T ( BY SR1 s.N.As}awA'f:4:Q9;n?~:A--:§Ay.A1\i2x%[.jg.;{xDV0cA'1*E) AND: RAJE:N'1::=RA2i{3':*.éi'A.R%AGRAWAL S/O §\£IJR;'»\LIL.¢;L' R;A§g¥2%£ MAJORV", " _ 2 C / RAJ8' £3;E;1'~:.I:':RA1; STORES M31iN'BAZAAR;..'fOI{LV'1', SIMLA " 1, E-:1MA.c.12«iA:, PRAEESH .., RE;Sz>oNDE.:\'"§ . ""§i§§i:ée¢;:<.PE:AL ES FILES UN:>§::R 333.40} $39.3. 1" - %;;x:'1TH;a.''E>Rs&;2*§«:£< T0 SE'? ASEDE 'Ems: JUE}%C£v1E:\J'T' §>A'i"E:I} ;Z'%_L1.{)3 {N C§{L.A.NO.498;'Q§ COFEFEREVEENG THE JUD{3E3gi§'Z§'§E'§' EZ>A'§"E"§E} 24.262008 REESEEZEE EN C.C,§'§'"62;'G3 :«:':'{:':,___ i~ "§5%'§iS :'%§3F*'§§5*xL C{}?.'v§§NG FGEQ. GREEEZEES 9% 'E.'§-HS D.?iY§ ';E"E4§§*-3 CQEEKE" .E'~.!§A{)E'; TE-"Eff: E-'Q L§.,OW'EN$: ORDER '?£'hé:~ E<3a.rr1€=r.:E $911356} fag' the a§3p€Ha:':i £31435; 3. meme Seekiizgg perf:miss3i0n {,0 re1;.ire:--:/~ fr<:»m Ehe cases; As couééfi be sjyimflw, _2_ $6611 from the ac<:0n1panying documents to the memo filed. notice is not sent to the respondent. Hence, request for reiire::31er11. is rejected. Tile rnatter is of §h::~:~ yea? 2010. It was adjourned far office objections on 12 OCC?£1SSiO}'},-'ES... ""._ O,ffiC€ objectiions are not complied with. I"-ferzce, dismissed for non compliance of office c)bje::.*:i0._fi;~3.. .

Author: A.S.Pachhapure

Lt Col Bikram Jit vs Rajendrakumar Agrawal on 15 October, 2011

Karnataka High Court

ORDER C.N.B. Nair, Member (T). 1. The respondent is a manufacture of telecom equipment. The basic issue raised in these appeals of the Revenue is whether freight and insurance should form part of the assessable value of the equipment. Commissioner (Appeals) held that the sale of the goods had taken place prior to their transport and therefore, place of removal cannot be taken as the buyer's premises so as to include freight and insurance in the assessable value. While reaching that decision, he was guided by the decision ot the Apex Court in the case of M/s. Escorts JCB Ltd. v. C.C.E., Delhi-11 - 2002 (146) E.L.T. 31 (S.C.). 2. We have perused the record and heard the submissions made on behalf of both the sides. A perusal of the sale invoices produced by the respondent (No, 1040 for e.g.) clearly shows that the goods had been sold (DE OCB Installation, Telephone Bhavan, Saifabad; Hyderabad in the case of No. 1040) before their sales. The cost of the machine and transport charges are also separately shown. Such invoicing makes it clear that the goods had been sold prior to their transport. In such a situation, the Revenue is not justified in contending that place of removal is the place of the purchaser. The Commissioner (Appeals)'s order cannot be faulted at all. The present appeals lack completely in any merit. They fail and are rejected. The respondents shall be entitled to consequential relief.

Commissioner Of Central Excise vs Alcatel India Ltd. on 26 March, 2004

Customs, Excise and Gold Tribunal - Delhi

[Complete Act]

Central Government Act

ORDER V.K. Agarwal, Member (T) 1. The issue involved in this appeal filed by Revenue is whether capital goods credit under Rule 57Q of the Central Excise Rules is available in respect of winding wires of copper used for rewinding the electric motor which in turn was used to run the spinning machines and in respect of spare parts of static converter. 2. Shri Y.R. Kilania, learned D.R., submitted that Assistant Commissioner had disallowed the capital goods credit in Adjudication Order dated 13.7.1997 holding that winding wires were used for repairing electric motors which themselves did not bring about any change in the manufacture of yarn; that similarly static converter was used to convert Alternating Current into Direct Current and as such did not bring about any change in the final product; that the Commissioner (Appeals) allowed the capital goods credit on winding wires and static converter following the decision in CCE, Meerut v. Modi Xerox 1996 (86) ELT 530 (T). He, further, submitted that both the impugned items were not capital goods as per Explanation to Rule 57Q as these items were not used for producing or processing or bringing about any change in any substance for the manufacture of the final products and the amendment made by Notification No. 14/96-CE, dated 23.7.1997 (sic) is not available to the capital goods received in the factory before 23.7.1996. He finally submitted that the issue regarding eligibility of wires and cables for capital goods credit has been referred to the Hon'ble High Court in the case of Nova Udyog Ltd. 1997 (97) ELT 229 (T). 3. Shri R. Pal Singh, learned Advocate, submitted that the issue involved in the present appeal stands decided by the Larger Bench of the Appellate Tribunal in the case of Jawahar Mills Ltd. v. CCE, Coimbatore . 4. I have considered the submissions of both the sides. The Larger Bench of the Tribunal in Jawahar Mills case, supra, considered the scope of capital goods eligible for capital goods credit under Rule 57Q of the Central Excise Rules. The Tribunal after referring to the Supreme Court's decision in CCE v. Indian Farmers Fertilizer Coop. Ltd. , J.K. Cotton Spg. and Wvg. Mills Co. Ltd. v. I.T.O. 1997 (91) ELT 34 (SC) and Gujarat High Court's decision in Industrial Machinery Manufacturing (P) Ltd., held that "it will not be possible and correct to construe the expression used for producing of any goods for the manufacture of the final product' as synonymous with 'used for bringing about any change in any substance for the manufacture of the final product'....The said expression would not, to use the language of the Supreme Court in J.K. Cotton Spg. & Wvg. Mills Co. Pvt. Ltd., be limited to ingredients or commodities used in the process or those directly and actually needed for turning out or the creation of the goods." Appellate Tribunal, therefore, held that wires and cables would be covered by the expression plant' being an item necessary for the assessee to carry on his business. Applying the test laid down by the Tribunal in Jawahar Mills case, the oil circuit breaker is an item necessary for the appellants to carry on his business and is thus elegible item for availing capital goods credit under Rule 57Q of the Central Excise Rules. 5. The Larger Bench in Jawahar Mills case further held "the issue as to whether the amendment effected in Notification 11/95 dated 16.3.1995 under Rule 57Q and Notification 14/96-CE dated 23.7.1996 is retrospective, becomes academic. We have to decide the matter according to the language of the provision as it stood at the material time. We are required to examine Explanation 1(a) as it stood in 1994-95 and 1995-96 and we, therefore, see force in the contention of the assessee that the items which are recognised as eligible to capital goods credit by Notification 14/96 are items covered by Explanation 1(a) and it cannot be contended by the Revenue that these items are not covered by the Headings mentioned in Notification 14/96 or that the items are not capital goods whether the meaning of Explanation 1(a) under Rule 57Q as it stood during the relevant period." The Appellate Tribunal in Jawahar Mills case held control panels, cables, welding electrodes as eligible items for capital goods credit as per Explanation to Rule 57Q as it stood in 1994-95 as these are used for producing or processing the goods. Following the ratio of this decision of the Larger Bench, I hold that static converter and electric motors are eligible capital goods and their spare parts and components will also be eligible items for the purpose of availing the capital goods credit under Rule 57Q of the Central Excise Rules. Accordingly, the appeal filed by Revenue is rejected. (Pronounced in the court).

Cce vs Technologicals Institute on 16 June, 1999

Customs, Excise and Gold Tribunal - Delhi

JUDGMENT Swatanter Kumar, C.J. 1. The Petitioner has filed the present Public Interest Litigation under Article 226 of the Constitution of India with the following prayers :­ (A) That this Hon'ble Court may be pleased to issue writ of mandamus or writ in the nature of mandamus or such other appropriate writ, direction or order directing to Respondent No. 1 to 3 and Hon'ble Small Causes Court, Bombay not to proceed to declare 2nd highest votes obtainer to be winner and/or hold Bye election for Municipal Councilor from Municipal Ward No. 114 at Surya Nagar, Chandan Nagar, Godrej Colony, Vikhroli East and West, Bombay 400 083, until the final disposal of the petition. (B) That pending the hearing and final disposal of this Writ Petition, the Respondents Nos. 1 to 3, their respective agents, servants and all the officer/authorities acting for them or Hon'ble Small Causes Court, Bombay or any of them be restrained by an order and injunction of this Hon'ble Court from any manner whatsoever by declaring the 2nd highest votes obtainer to be winner and/or holding the Bye election of the Municipal Councilor from Municipal Ward Number 114 at Surya Nagar, Chandan Nagar, Godrej Colony, Vikhroli East and West, Bombay 400 083, until the final disposal of this petition. (C) That ad­interim/interim relief's in terms of prayer (b) above. (D) Cost of the petition be provided for, and (E) Such other and further relief's as this Hon'ble Court may deem fit and proper may also be granted. 2. The necessary facts may be noticed at the very outset to appreciate the worth of the prayers made by the Petitioner who appears in person in the present Petition. The State Election Commission had declared Municipal General Elections, 2007, to be held on 1st February 2007. According to the Schedule, Ward No. 114 was declared as a reserved seat for O.B.C. women category in the Municipal elections. As per Schedule, the election was held, the result of which was declared on 2nd February 2007 and Smt. Rashmi Ramesh Pahudkar was declared as elected from the said Ward. The correctness of the caste certificate submitted by her was challenged before the Caste Verification Committee, which was invalidated by the order dated 12th April 2007 of the Competent Authority. This order was challenged by Smt. Rashmi Ramesh Pahudkar on 25th April 2007 by filing Writ Petition in this Court being Writ Petition No. 3563 of 2007. The Division Bench of this Court vide its Order dated 28th June 2007 found that there was no merit in the Writ Petition and the Rule was discharged. However, the Bench observed that since the Petitioner had contested the elections bona fide, she could not be prosecuted for obtaining a false caste certificate. In the mean while, vide order dated 27th November 2007, the State Election Commissioner, Respondent No. 1, had directed the bye elections in Ward No. 114 and the Petitioner in this Petition in the garb of the Public Interest Litigation has in fact prayed that the said order should be set aside and neither the second highest vote obtainer should be declared as winner nor bye elections should be held from Ward No. 114. 3. As is evident from the above narrated facts, the present Petition filed under the garb of Public Interest Litigation in fact is intended to serve a personal cause in favour of Smt.Rashmi Ramesh Pahudkar. The prayers made in the present Petition are also contrary to law as the Small Causes Court, Bombay, while exercising its powers as an Election Court cannot be restrained in law from exercising a jurisdiction lawfully vested in it. The present Petition in fact is an abuse of process of law and does not satisfy the basic essentials spelt out under various judicial dictum as a Public Interest Litigation. The Petitioner, in fact, has attempted to over­reach the normal process of law contemplated under the special Statute relating to elections to the Municipal Corporation and has filed this Petition with an attempt to obstruct the normal course of law. 4. In the circumstances, we find no merit in this Petition and dismiss the same with costs which are assessed at Rs. 5,000/­ (Rupees Five Thousand only). Costs to be paid to the Maharashtra State Legal Services Authority.

Author: S Kumar

Prakash Kakubhai Rangwala vs Shri Nandlal, The Commissioner, ... on 12 June, 2008

Bombay High Court

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 11/12/2002 Coram The Honourable Mr. Justice V.S. SIRPURKAR and The Honourable Mr. Justice P.D. DINAKARAN Crl. Appeal No.1024 of 1997 Welding Kumar ..... Appellant -Vs- Inspector of Police Thiruvottiyur Police Station Chennai ..... Respondent Appeal under Sec.374(2) of the Crl.P.C. against the judgment dated 25-11-1997 in S.C. No.198 of 1998 on the file of I Addl. Sessions Judge, Chennai !For Appellant :: Mr. A. Babu ^For Respondent :: Mr. Navaneethakrishnan Addl. Public Prosecutor :JUDGMENT V.S. SIRPURKAR, J. This appeal is directed against the finding of conviction recorded by the First Additional Sessions Judge, Chennai against the accused Kumar @ Welding Kumar and sentencing him to suffer rigourous imprisonment for life for the offence under Sec.302 I.P.C. as also one year rigourous imprisonment for the offence under Sec.148 I.P.C. 2. This case has a chequered history. The prosecution case was that on 22-5-1985, the original accused persons, viz. Kumar @ Welding Kumar and Jayaraman, along with other accused persons, formed an unlawful assembly with a common object of assault and murder of one Radhakrishnan and actually assaulted the said Radhakrishnan and committed his murder. This was at about 9.30 p.m. on 22-5-1985 on Thiruvottiyur High Road, coming within the jurisdiction of Thiruvottiyur Police Station. 3. The deceased Radhakrishnan used to run liquor shops and there was enmity between the accused persons and the said Radhakrishnan out of which, the said incident took place. Originally as many as seven persons came to be roped in on the basis of the First Information Report given by Narayanan (P.W.1). They were Babu @ Kozi Babu, Raja, Sampath, Vincent and Das. It was reported by P.W.1, immediately after the incident that while he, Baskar, Radhakrishnan (deceased) were returning to their house, three known persons, viz. Babu @ Kozi Babu, Raja, Welding Kumar and four other unknown persons came, waylaid Radhakrishnan and abused him in filthy language. He was confronted by Kozi Babu, who abusing him filthily and saying as to why he was interfering in the affairs of Kozi Babu. Seeing that the accused persons were armed to the teeth, Radhakrishnan started running towards the Dhall Mill belonging to one Prithiviraj. However, Kozi Babu stabbed him with knife on his right and left chest while accused Raja stabbed on the right side of his stomach and on the left side of the chest. While so, Welding Kumar, the present appellant, stabbed Radhakrishnan repeatedly on his neck. P.W.1 also pointed out that the other accused persons viz. Jayaraman and others were armed to the teeth and they stopped him and the other persons from rescuing Radhakrishnan. Radhakrishnan was taken along with Sampath to the hospital. However, he was declared dead in the hospital. This First Information Report was made at about 11 p.m. on 22-5-1985. 4. On the basis of the complaint given by P.W.1, investigation proceeded. The police party reached the spot, executed spot mahazar, seizure mahazar, etc. and on the basis of the information, arrested the accused persons one by one. Since in the First Information Report, some unknown persons were mentioned as the assailants, after the arrest of the accused persons, an identification parade was held in the jail by the Judicial Magistrate and this was held on 26-6-1985. 5. On completion of the investigation, charge sheet came to be filed as against the seven persons named above. However, before the charge was framed, accused Sampath died while accused Babu @ Kozi Babu was murdered. Accused Raja, Vincent and Dhass absconded during the trial. Thus only two accused persons remained in the field. They being Welding Kumar and Jayaraman. They were charged for the offences under Secs.148, 302 and 147, 302 read with Sec.149 I.P.C. Needless to say that the trial of the other accused persons was separated from the presently mentioned two accused persons. 6. In support of the prosecution case, the prosecution relied on the evidence of P.W.1 Narayanan, who is one other but the brother of the deceased Radhakrishnan. P.W.2 Baskaran was also examined as an eye-witness. However, he turned hostile. 7. The defence of the accused was that of denial. It was suggested by the accused that there were number of enemies to the deceased Radhakrishnan on account of the liquor business that he was running and it was out of that business rivalry that some one must have murdered him. However, the prosecution had failed to prove by sufficient and cogent evidence that the two accused persons, viz. Welding Kumar and Jayaraman had anything to do with it. 8. The defence did not prevail and the first accused Welding Kumar was convicted and sentenced to undergo rigourous imprisonment for life for the offence under Sec.302 I.P.C. and was also awarded one year rigourous imprisonment for the offence under Sec.148 I.P.C. The second accused Jayaraman was, however, acquitted. It is against this verdict that the first accused Welding Kumar comes up before us by way of the present appeal. 9. Learned counsel for the appellant contended that it is within a very narrow conspectus that the prosecution case lies. However, according to him, the evidence of P.W.1 was slipshod, full of contradictions and omissions and there was every possibility of his having deposed out of his loyalty for his brother. According to the learned counsel, he was an “interested witness”. As regards the evidence of P. W.2, the learned counsel pointed out that since he was a hostile witness, his evidence was liable to be thrown out and was rightly thrown out by the trial court. The learned counsel, however, pointed out that it was extremely risky on the part of the learned Sessions Judge to have convicted the accused practically on the basis of the evidence sole eye-witness. 10. The learned counsel further contended that there was insufficient material for convicting the appellant for the substantive offence under Sec.302 I.P.C. as there was nothing on record to suggest that it was the result of the injuries allegedly caused by the accused Welding Kumar that Radhakrishnan died. Learned counsel was at pains to point out that the Doctor had deposed that the death was caused on account of the cumulative effect of the injuries suffered by Radhakrishnan and in fact Radhakrishnan had suffered as many as 19 injuries which were of very serious nature. The learned counsel, therefore, urged that the trial court should have given the benefit of doubt to the present appellant also. 11. In so far as the identification parade is concerned, learned counsel did not address us. 12. It has to be now considered as to whether the prosecution has proved the offence and whether the finding of conviction is right. 13. To begin, we are extremely unhappy with the manner in which the charge is framed. It is very strange that there should not have been a properly worded charge in respect of the formation of “unlawful assembly” and its “common object”. The charge in all is under three heads. They being, firstly for the offence under Sec.148; secondly, for the offence under Sec.302, which is subst antively against the appellant herein; and thirdly, for the offence under Sec.302 I.P.C. read with Sec.149 I.P.C., which is against both the accused persons along with some known persons viz. Raja, Vincent, Dhas, Sampath, etc. and some unknown persons. In fact, if the charge sheet is properly scanned, it will be seen that this was a fit case where a charge under Sec.34 also could have been framed. When we see the language of the second head of the charge, it is obvious that the term “common object” ( ). The accused persons should have been put to the notice that they were the members of the “unlawful assembly”, the “ common object” of which was to murder Radhakrishnan and in furtherance of the common object they had actually murdered Radhakrishnan. We are not at all happy with the slipshod manner in which the charge was framed. However, it is obvious that there is no complaint made against the charge and the accused have all through understood properly the prosecution case and the charge which was sought to be proved against them. It is really strange that even the Public Prosecutor should have remained a mute spectator and should not have suggested the properly worded charge. 14. To add to the list of irregularities, it is very strange that the learned Sessions Judge should have failed to record a finding regarding the formation of unlawful assembly. In a prosecution, where the accused persons are alleged to be the members of an unlawful assembly, it is required of the trial court to give a finding regarding the formation of an unlawful assembly of which the accused persons were members; the reasons and the point of time when the said assembly becomes unlawful; the object of that assembly; and lastly, the acts committed by the members of the unlawful assembly. It cannot be forgotten that the accused persons, who are sought to be roped in with the aid of Sec.149, are made vicariously liable. It is not necessary that every member of the unlawful assembly must have done some criminal act. If he is and remains conscientiously the member of an unlawful assembly then, even if he has not committed any overt act, he becomes liable for the criminal acts done by any of the members of the unlawful assembly, which has the common object of committing an offence. When we see the judgment, at no point of time has the learned Sessions Judge given any finding regarding the formation of unlawful assembly. Though the trial court has convicted the accused for an offence under Sec.148 which offence can never become complete unless and until the accused is member of an unlawful assembly. A conviction cannot be recorded for an offence under Sec.148 or Sec.149 unless there is a finding of there being any unlawful assembly. It is strange, therefore, that the learned sessions judge should not have given any finding in respect of the formation of unlawful assembly. At least, we have not been able to find out any such finding in the judgment. 15. The trial court has convicted the appellant of the substantive offence under Sec.302 I.P.C. It will have to be seen as to whether this conviction is right. The Sessions Judge has proceeded on the ground that it was proved that the accused/appellant inflicted three injuries on the neck of the deceased. The existence of those three injuries has also held to have been proved by the evidence of the Doctor. It is on this short basis that the Sessions Judge has proceeded to convict the accused straight away holding those injuries were covered by “thirdly” of Sec.300 I.P.C. In fact, when we see the evidence of the Doctor, there is no such evidence. On the other hand, the evidence suggests that the death of Radhakrishnan was due to the cumulative effect of all the injuries suffered by him. In our opinion, there could not have been a substantive conviction unless and until it was proved that these injuries individually were also fatal. Indeed, such finding is also wanting. Since we are in appeal, we will have to now take up an exercise of scanning and appreciating the evidence and then find out as to whether the accused/appellant can be held guilty of any of the offences charged. We, therefore, agree with the learned counsel for the defence that the accused could not have been convicted for the substantive offence under Sec.302 I.P.C. However, that does not solve the problem. 16. It cannot be forgotten that all the accused persons were properly charged with the aid of Sec.302 I.P.C. branding them to be the members of the unlawful assembly with the unlawful object of committing the assault and murder of Radhakrishnan. They have also been charged that in pursuance of that they had actually committed the murder of Radhakrishnan and, therefore, all the accused persons were guilty for the offence under Sec.302 read with Sec.149 I.P.C. It has to be seen, therefore, as to whether the accused can be straight away acquitted or can be dealt with as is the contention of the Public Prosecutor. His contention is that even if the accused cannot be convicted substantively for an offence under Sec.302, he could still be booked with the aid of Sec.149 I.P.C., for which there was a proper charge against him. For this purpose, we will have to scan the evidence of the two eye-witnesses, viz. P.W.1 Narayanan and P.W.2 Baskaran. 17. In his evidence, P.W.1 Narayanan has graphically stated that on the fateful day, at about 9.15 p.m., he along with his brother Radhakrishnan, Sampath and Baskar were proceeding to their house after closing the shop. He then deposes that when they came near Thirunagar, as many as seven persons, who were armed with deadly weapons like aruval, knives, etc. immediately came and firstly filthily abused Radhakrishnan, who was walking ahead of him. There can be no dispute and it was not really challenged in the cross-examination that the deceased Radhakrishnan had a shop in a place called Thirunagar at Thiruvottiyur. It would be very natural for the witness to be along with his brother and two others. Some doubt was tried to be thrown that there was no necessity for these persons to go to the bus-stand to go to their house by bus as the deceased Radhakrishnan owned a car as also a jeep. Merely because the deceased owned a car and a jeep, it would not mean that the deceased was not present near the place where he was done away with. It has been amply proved that the attack took place precisely at the place where the witness claimed the same to be. The spot mahazar stands testimony to this. 18. Be that as it may, the witness then goes on to suggest that all the seven assailants were together and were armed and after Kozi Babu firstly filthily abused the deceased Radhakrishnan, they all started assaulting the deceased, the first amongst the assailants was being Kozi Babu. The witness knew the names and identity of only three assailants and did not know the names of the other assailants. Therefore, he had stated in his evidence as well as in the First Information Report that three known persons, viz. Kozi Babu, Raja and Welding Kumar and four some other persons, whose names were not known to him, assaulted his brother Radhakrishnan. There was no cross-examination of the witness on this very important aspect. This witness had later on identified the remaining accused persons. The only use that can be made of the identification parade is that as per the evidence of this witness, there were more than five persons involved in the incident. The names and identity of three of them being known to the witness, the names of the other persons were not known but their identity was known to this witness. Before us as also before the Sessions Judge, the evidence regarding the identification parade was hardly challenged by way of cross-examination or otherwise. Perhaps, because it was felt that these two witnesses were not concerned with the identification. However, the fact remains that if the identification parade evidence is not challenged, the fact that this witness identified about three more persons as the assailants of Radhakrishnan also establishes the fact that at the spot there were more than five persons and thus it was a clear-cut unlawful assembly, the object of which was to assault and murder Radhakrishnan. Unfortunately, the learned Sessions Judge has not paid any attention to this very important aspect. It was for this reason that it was important for him to have written a finding of unlawful assembly. This witness was then brave enough to try to save his brother Radhakrishnan but deposed that he was stopped by the other accused persons. All this has practically gone unchallenged in the cross-examination and some wild suggestions have been thrown at the witness that in fact the said Radhakrishnan was assaulted somewhere and was murdered by some one else. One fails to understand as to why would this witness be interested in naming the accused persons and more particularly the appellant herein as the assailants of his brother Radhakrishnan. It was tried to be suggested that he being the brother of the deceased Radhakrishnan, his evidence has to be appreciated with that caution in mind. We have seen the appreciation of evidence of this witness on the part of the Sessions Judge and we are convinced that the appreciation of the evidence of this witness appears to have been done with that caution in mind. It cannot be forgotten that it was this witness who took the deceased to the hospital and lodged the complaint barely within two hours of the incident. It is difficult to attribute to this witness the kind of intelligence to cook an imaginary story in such a short time. When we compare the evidence on the backdrop of the First Information Report, it is seen that there is hardly any departure from the story disclosed in the First Information Report. 19. Some criticism was made that he had stated in his complaint that at the time of the occurrence, the second appellant and other accused persons started obstructing the buses and other vehicles from approaching the occurrence spot. The learned Sessions Judge has taken note of that but, it must be remembered that that by itself cannot bring the cloud on the main story of murder of Radhakrishnan by as many as seven persons, the appellant being one among them. Very unfortunately, the learned Sessions Judge also used the statements recorded under Sec.161 of Crl.P.C. and has referred to it. It was not possible to use that statement in view of the specific bar under Sec.161(2) of the Code. It was also tried to be suggested that though the other accused person, viz. Jayaraman, who was acquitted, was having and wielding a cycle-chain, the cycle-chain was not recovered. We are not impressed by any such defence. The basic question is as to whether a group, consisting of about seven persons, of which the appellant was a member, had actually committed the assault and murder of Radhakrishnan or not. In his judgment, the learned Sessions Judge has given the benefit of doubt to the second accused, Jayaraman of the fact that he was not identified by the witness Sampath. We have nothing to say regarding the acquittal of Jayaraman since the State has not come up in appeal against the acquittal of Jayaraman. But, we only say that the evidence of this witness has a ring of truth when he describes about the assault by about seven persons on Radhakrishnan. 20. As regards the present appellant, he has graphically described as to how the assault took place and stated that the present appellant assaulted on the neck portion of the deceased and there is a corroboration to this version inasmuch as there were as many as three injuries on the neck region of the deceased. If firstly seven persons came there, who were armed with lethal weapons, it was obvious that the assembly had the purpose to assault somebody. The accused persons could not be expected to parade on the main street being armed to the teeth. That they were in a group has not come in challenge at all. It is obvious that these persons were lying in wait for the deceased which is clear from the fact that Kozi Babu firstly approached the deceased and abused him filthily and then started assaulting. It is to be noted that out of the whole group, it was only Radhakrishnan who was targeted and assaulted. Butt of the assault, therefore, was Radhakrishnan alone. It is, therefore, obvious that a group of seven persons, who were armed with deadly weapons, had the object of assaulting Radhakrishnan and in pursuance of that Radhakrishnan was assaulted and murdered. There can be, therefore, no doubt that an unlawful assembly was formed there and in pursuance of the common object of that unlawful assembly, the members of that unlawful assembly assaulted Radhakrishnan and accomplished their object. We have, therefore, no doubt that this witness is a truthful witness. Though a brother, he has not unnecessarily exaggerated the scene and has graphically described the whole affair. 21. Some effort was made in the cross-examination to take advantage that there may not be an opportunity to see the incident because of absence of light in the area but, that is obviously incorrect because the incident took place in a busy business area on Thiruvottiyur High Road in the city of Madras, with shops on both sides. It is, therefore, unthinkable that at 9.30 p.m. the whole area would be engulfed in darkness. This witness has also graphically described the description of the weapon handled by the present appellant and the manner in which it was done. There is sufficient corroboration for the same in the First Information Report. This brings us to the evidence of P.W. Baskaran. 22. There can be no doubt that P.W.2 Baskaran was declared hostile the moment he refused to state anything against the accused persons. It must be seen that in his evidence, the witness has specifically stated that on 22-5-1985, he along with P.W.1 Narayanan, deceased Radhakrishnan and Sampath was proceeding to their house, after closing the shop owned by Radhakrishnan. According to this witness, P.W.1 was walking about 20 feet ahead of him and at that time he saw Radhakrishnan, who was going ahead of him, was quarrelling with some persons. When the witness went near Radhakrishnan, he found that Radhakrishnan had already fallen having been assaulted by them. Though this witness has refused to state the manner in which Radhakrishnan was assaulted and the names of the assailants who assaulted Radhakrishnan, in his cross-examination on behalf of the prosecution, he has accepted that he had identified as many as about six to seven persons, whose names he gave in the evidence. Therefore, the witness though declared hostile, his whole evidence was not liable to be thrown out as was done by the learned Sessions Judge. In fact, the acceptable portion of the evidence of this witness would be that the witness has admitted that P.W.1 Narayanan and Sampath were on the spot and as such they were also witnesses to the assault on Radhakrishnan and that the incident took place exactly what P.W.1 deposed in his evidence. The only difficulty was in respect of the number of persons who assaulted Radhakrishnan but even there, the witness stated that he had identified seven persons. 23. In the name of his cross-examination, a very strange procedure was observed in the Sessions Court. His whole statement using the words “and further” ( ) was put to him in one blow and he denied the whole statement as incorrect in one simple word. Such cannot be the way of recording the evidence. The learned Sessions Judge should have been careful in that behalf. Cross-examination of a hostile witness by the Prosecution is not an empty formality. We also express our consternation at the casual manner in which the crossexamination seems to have been done by the Public Prosecutor. The presiding officer is not expected to be a mute spectator. If the Public Prosecutor sought to put the whole statement in just one question using the words “and further” ( ), the learned Sessions Judge should have put an end to that and should have asked the Public Prosecutor to ask short but separate questions. It is obvious that the witness could have been confused because of the lengthy question which covers almost one full page. We therefore hold that this witness has provided corroboration to the evidence of P.W.1 at least in respect of the fact that Radhakrishnan was done away with at the spot stated by P.W.1 Narayanan and almost in the same manner. The admission that he had identified seven accused persons as the assailants of Radhakrishnan also goes a long way to support the theory of unlawful assembly. 24. Once the evidence of P.W.1 is accepted as the truthful evidence and duly corroborated by the evidence of P.W.2 Baskaran, there would be no other alternative but to hold that the accused was a member of an unlawful assembly, the object of which was to eliminate the deceased Radhakrishnan and in pursuance of that common object, he along with others did actually assault the deceased, causing his instantaneous death. We need not go into the other questions regarding the injuries as there is very little or no cross-examination of the doctor regarding the nature of the injuries suffered. We have already seen the evidence of P.W.7 Dr. Ravindran that there were three injuries which were ascribable to the assault with knife which has been deposed to by the witness. Those three injuries were injury nos.4 to 6. The handling of these injuries were obviously authored by the appellantaccused. The deceased had in all nineteen injuries, a number of which were caused by the sharp and cutting weapons. This will suggest the intention on the part of the accused as well as that of the members of the unlawful assembly. We have had in the evidence that once Kozi Babu started assaulting the deceased, the accused did not remain behind and started the assault. At the same time, the other accused persons were assaulting and few of them were trying that nobody should come near Radhakrishnan for being rescued. All this goes to suggest that the appellant was undoubtedly a member of the unlawful assembly and he would have to be held guilty for the acts committed by the members of the unlawful assembly or any one of them. Here, when the other persons were assaulting the deceased, the accused-appellant had also remained behind and had assaulted. Therefore, his conviction would have to be under Sec.302 I.P.C. read with Sec.149 I.P.C., which was also the one of the charges against him. We do not see any reason to convict the accused-appellant substantively for the offence under Sec.302 I.P.C. and we have given our reasons for that. The findings of the Sessions Judge in that behalf was clearly incorrect. This takes us to the conviction of the accused-appellant for the offence under Sec.148 I.P.C. 25. The accused-appellant was undoubtedly a member of the unlawful assembly and the unlawful assembly had committed the riot within the definition of the offence of “riot”. The accused-appellant, being a member of the unlawful assembly, armed with deadly weapons, would be squarely covered under Sec.148 I.P.C. We, therefore, confirm the conviction of the accused-appellant for the offence under Sec.148 I.P. C. also. 26. In the result, we would choose to dismiss the appeal, confirming the verdict of the Sessions Judge but for the reasons stated by us in this judgment. Index:Yes Website:Yes Jai 

Welding Kumar vs Inspector Of Police on 11 December, 2002

Madras High Court

Gujarat High Court Case Information System Print CA/8128/2010 1/ 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR BRINGING HEIRS No. 8128 of 2010 In SECOND APPEAL No. 43 of 1987 ========================================= BHANABHAI HARIBHAI PATEL - Petitioner(s) Versus MANGABHAI MITHABHAI HALPATI & 8 - Respondent(s) ========================================= Appearance : MR DHIRENDRA MEHTA for Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4,1.2.5 None for Respondent(s) : 1 - 4, 6, 8, NOTICE SERVED for Respondent(s) : 3.2.1, 3.2.2, 8.2.1, 8.2.2, 8.2.3,8.2.4 DELETED for Respondent(s) : 5, 7, 9, ========================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 09/09/2010 ORAL ORDER1. Though served nobody appears for the respondents. This Civil Application is filed to permit the applicants to bring heirs and legal representatives of deceased respondent no.3 and deceased respondent no.8 on record of Second Appeal No.43 of 1987. 2. Heard learned Advocate for the applicant. 3. Having heard learned Advocate for the applicant, this Civil Application is allowed in terms of para 9 (B), 9(C), 9(D) and 9(E). Civil Application is disposed of. [M.D.Shah, J.] satish     Top

Author: Md Shah,&Nbsp;

Bhanabhai vs Mangabhai on 9 September, 2010

Gujarat High Court

JUDGMENT Bhagwati Prasad, J. 1. The petitioner in this writ, petition claims that he was appointed as Asst. Professor on 03.07.1970 and thereafter, he was promoted to the post of Reader (Associate Professor) on 25.09.1987 and at present, he is Head of the Department of English. 2. The respondent University started an exercise by virtue of which it had come out that promotions will be made under Career Advancement Scheme. Two teachers of the English Department, i.e. Dr. Mrs. Sudhi Rajiv and Dr. Anand Singh Jasol were called for interview which were held on 24.09.2001. 3. The claim of the petitioner is that he had acquired an experience of 34 years of teaching. He has discharged the duties as Reader (Associate Professor) for 14 years. None of the persons working in the Department of English, in the respondent University, has that much of experience. The petitioner has also submitted his Ph.D. thesis and claims that Ex. 3 is a certificate issued by his research guide. The petitioner claims, that U.G.C. i.e. University Grants Commission under U.G.C. Act, 1956 exercising powers under Section 26 of the Act has framed Regulations, 2000. These pertain to minimum qualification for appointment of teachers in Universities and Colleges. Such regulations have been published in the gazette. These regulations are required to be implemented by the Universities. According to the statutory law governing Universities and the pronouncements of Hon'ble Supreme Court, every University should follow the regulations framed by the Commission under Section 26 of the U.G.C. Act. 4. The petitioner has claimed that in Point 2.5.0 of the Schedule enclosed with Regulations, it is provided that promotion to the post of Professor (Promotion) can be made from the post of Reader when such Reader has completed eight years of service. Point 2.5.0 has been quoted for ready reference in the writ petition and the same is being quoted herein below: 2.5.0 Professor [Promotion]--In addition to the sanctioned position of Professors, which must be filled in through direct recruitment through all India advertisements, promotions may be made from the post of Reader to that of Professor after 8 years of service as Reader. 5. Thus, the petitioner's claim is that for appointment of Professor (Promotion), the only requirement is that the incumbent should have completed eight years of service. There is no other requirement. The petitioner had already completed 14 years of service and thus, it was incumbent upon the University to call the petitioner, when University was considering the case for promotion. 6. The petitioner claims that the amendment made in Ordinance 317 has been mis-placed. It should not have been against the provisions of Regulations of 2000. Providing for 8 years experience is in consonance with the Regulations of 2000. But when it comes to providing for Ph.D., the respondent University has exceeded its powers. In the amendment, it has further been provided that if the total number of 17 years service has been rendered then, the Teacher will also be considered for promotion, notwithstanding that he has not completed eight years as Reader. According to the petitioner, the amendments made are not in consonance with the recommendations of the Academic Council and such deviation was even objected by the 34 members of the Academic Council, out of 51 members. 7. Another similarly situated teacher had preferred a writ petition before this Court. He has been ordered to be interviewed by the Board. This being the position, the petitioner also approached the University for being considered in the light of the petitioner, in that case. But he has been refused orally, it was stated by the University, that if the petitioner is ordered to be permitted by the court then only, the University will interview the petitioner. The petitioner has said that the manner in which Ordinance 317 has been amended is not proper. The making of Ordinance has to be in accordance with the provisions provided by the Jai Narain Vyas University Act, 1962 (hereinafter referred to as 'the Act of 1962'). 8. Section 24 of this Act provides that when Syndicate passes a particular Ordinance, then it has to be submitted to Senate and Senate has to consider the same in its next meeting. The Senate can even declare the resolution to be void and can cancel the ordinance, if the Senate does not cancel it, then the Ordinance has to go for the approval of the Chancellor. 9. The petitioner has relied on Section 24 of the Act of 1962. Section 24 of the Act of 1962 is reproduced hereinbelow for ready reference: 24[1] Ordinances shall be made by the Syndicate, but no such Ordinance shall take effect until it has been approved by the Chancellor; Provided that no Ordinance concerning admission to the University, or to its examination, courses of study, schemes of examination, attendance and appointment of examiner shall be considered unless a draft of such Ordinance has been proposed by the Academic Council. [2] The Syndicate shall not have power to amend any draft proposed by the Academic Council under the provisions of Sub-section (1) but may reject or return it to the Academic Council for reconsideration, either in whole or in part, to get with any amendments which the Syndicate may suggest; Provided that no Ordinance affecting the income or expenditure of the University shall be made, amended, repealed or added to, unless prior to consent in writing of the State Government to the draft of such Ordinance has been obtained. [3] All Ordinances made by the Syndicate shall be submitted to the Senate, and shall be considered by the Senate at its next meeting. The Senate shall have power, and shall be considered by the Senate at its next meeting. The Senate shall have power, by a resolution passed by a majority of not less than two thirds of the members voting, to cancel any ordinance made by the Syndicate and such Ordinance shall from the date of such resolution be void." It is claimed by the petitioner that no Ordinance can take effect unless it is approved by the Chancellor, after being approved by the Senate. Thus, the qualifications on which the present selections are being made are void. 10. The petitioner further claims that this amendment pertains to change of condition of service of the petitioner. As and when conditions of service of an employee are changed to its detriment, he is required to be afforded an opportunity. Such conditions are required to be gazetted. Reliance has been placed on a case decided by this Court reported in 1979 ILR 1082 'Ugam Raj Bhandari v. State of Rajasthan'. 11. The petitioner further claims that adding of note of the requirement of a candidate being Ph.D. is illegal and is in violation of Regulations, 2000. Therefore, the petitioner has been illegally excluded from being called. He has a right to be considered for promotion to the post of Professor. The petitioner has further claimed that note appended cannot be applied to those Readers who have completed eight years of experience. The petitioner has further claimed that there is no rationale to differentiate between the post of Reader on the basis of qualification, which is not at all relevant. When person can be appointed as Reader directly on the basis of published work, then denial of promotion on that count is discriminatory and is violative of Articles 14 and 16 of the Constitution of India. 12. It has further been submitted by the petitioner that the selections are being made by keeping everything in dark. It has not been made known as to how many posts of Professor are there, for which the promotions are to be made. It is said in the letter of the State that the same will be decided, after selection list is made available. Such providence is contrary to law. Further, it is claimed by the petitioner that he is the Head of the Department and such person who are working under him, are being called for interview for the post of Professor. The petitioner has been deprived of an opportunity for being considered as Professor. Thus, the petitioner has claimed that he should have been called for interview and selected, being senior most person in the department. Further, the number of posts were not advertised and eligibility list was not published. A direction should be issued by the University and eligibility list should first be prepared and then, the interview should be held. 13. Respondent University has put in appearance and has contested the claim of the petitioner. The stand of the University is that the writ petition is not maintainable. It has been stated by the University that Point 2.5.0 has no application, as far as the petitioner is concerned. The respondent University has replied as under: When Regulations made by the U.G.C. are perused it will be apparent that so called point No. 2.5.0 pertains to appointment by promotion. That has nothing to do with appointment by way of Career Advancement. Provision in regard to career Advancement are available in point 2.0.0 and a bare perusal of point 2.1.2 will go to show that for movement into grades of Reader and above, the eligibility criteria would be Ph.D. and not only this it is further said that those without Ph.D. can go up to the level of Lecturer. 14. Thus, the University has tried to say that Regulation 2000 recognise two categories for promotion--one as Professor (Promotion) and Professor (Career Advancement). One is appointment by promotion and another is appointment under Career Advancement Scheme. Two different categories have been visulised in the reply of the respondent University. 15. It has further been claimed by the University than on the one hand, the petitioner states that the regulations made by the UGC are mandatory and University cannot do anything contrary to it, that being so, how can the petitioner challenge the framing of Ordinance 317 which according to the respondents have been framed strictly in accordance with the regulations. 16. Respondent University is emphatic that before any Teacher is considered eligible to be appointed as Professor, one has to have degree of Ph.D. to his credit, as has been provided in Ordinance 317. The petitioner being not a Ph.D., he would lack in the eligibility criteria and therefore, he is not fit for consideration. The claim of the petitioner is based on erstwhile Ordinance 317. In this published work was provided as alternative to Ph.D. Degree. Such degree can never be an equivalent to any published work. Such published work was considered sufficient earlier but this "equivalent published work" was deleted and the minimum eligibility criteria has been added in the amended Ordinance 317 as Ph.D. Thus, without Ph.D., a candidate cannot be considered. As regards the published work, the stand of the University is as under: It is humbly submitted that actually also equivalent published work cannot be considered to be a substitute for Ph.D. A publication carries name of the person may be result of effort of many, even it may be purchased." It has further been submitted that as regards the doctorate degree, stringent provisions have been made to ensure that the research work was the original work of the student and for which the University has placed reliance on various Ordinance i.e. 216E, 216F, 217A and 218. It is claimed by the answering respondent that even for entering the research work for grant of doctoral degree, as per Ordinance 224, the matter has to go before the Research Board of each Faculty consisting of the Vice-Chancellor, the Dean of Faculty concerned and Heads of the Departments and the majority of the members shall form a quorum and then, after scrutiny by the Research Board, recognition as Research Supervisor is granted and then, after quality of work is considered, Ph.D. is granted. 17. The petitioner's claim is that published equivalent academic work be considered to be equivalent to Ph.D. 18. The University has contested the prayer of the petitioner that the requirement of Ph.D. is causing hardship and therefore, it should be removed. Such a prayer is preposterous. The petitioner having accepted the changed pay-scales, he cannot on any count say that he has been put to any disadvantage. University emphatically stated that the regulation framed by the UGC are binding upon all Universities and Colleges. Such binding effect has also been recognised by Hon'ble Supreme Court. Thus, it is claimed by the answering respondent that the writ petition should be dismissed. 19. The petitioner's claim about Ordinance 317 is sought to be contested by the respondent University on the ground that it is not necessary that the matter was required to go to the Academic Council as per provisions made in Section 24 of the Act and the recommendation of the Academic Council is not necessary for framing of Ordinance 317. 20. A rejoinder to the reply has been filed and it has been made clear by the petitioner that there is no difference between point of promotion as Professor and Career Advancement Scheme. Whatever is contained in Regulations 2000, it only says that Reader with minimum eight years of service is provided in Point 2.2.3 is the only requirement. The interpretation put forward by the respondent University has been contested by the petitioner. The petitioner has further contested that the University has nowhere notified that what would be the mode of promotions. The number of posts sanctioned and eligibility criteria and seniority are missing and thus, the claim of University that the petitioner has mislead the court is wrong. 21. The petitioner has contested the stand of the respondent University that Ph.D. has been prescribed in the Regulations and has submitted that no such qualification has been set as to be the minimum requirement. The only requirement is service upto 8 years. The petitioner has further contested the stand of University regarding purchase of the published work and has stated that: It is incorrect statement that the publication carries only name of the person and it may be purchased and this type of derogatory remarks by the University for the high academician goes to show that those students who got their Ph.D. by purchasing any person has been given projection about the published work of the high academic persons like Head of Department and Readers with more than 10 years of experience and this type of derogatory remarks deserves to be struck down from the pleadings. 22. It has further been submitted by the petitioner as under: The ordinance clearly says that it is the experience of teaching and contributing to the knowledge are essential and Ph.D. is not mark of knowledge because it can be prepared by any body but the published work has got its importance and more over experience of teaching is a sine-qua-non for the promotion to the post of Professor but this aspect has been ignored by the replying respondent while giving the reply. The University has not made any declaration whether these interviews are in the career advancement scheme or in the promotion and as such the whole interview process without even advertising the vacancies and even showing how many vacancies are there in the department and without considering all these facts, the action of the University is arbitrary. 23. In rejoinder, the petitioner has claimed that framing of Ordinance by Syndicate is restricted by following restrictions: (i) That the Draft should be there from the academic council; (ii) After being passed, it should be submitted to the senate; (iii) If pertains to the expenditure or income of the University. 24. The petitioner further claims that Syndicate of the University has almost played a fraud upon the resolution of the Academic Council by adding a note of requirement of Ph.D. and thus, in this background, the writ petition should be allowed. 25. Respondent No. 3 has also filed the reply and have contested the stand of the petitioner and has submitted that the Ordinance 317 has been framed in accordance with law. 26. I have considered the rival submissions and have given my thoughtful consideration. 27. During the course of entire exercise of deciding the cases involving the teachers and University, one thing has prominently come to the force. In the yester years, the teachers of University were appointed by selections. A process where academic excellence was the only criteria which was the basis of appointment. With passage of time when it became difficult for the Government to foot the bill of the University, some methods were devised by the State Government. One of them was stopping recruitment in the services of University. During the course of arguments, it was informed by the counsel for the Teacher that there had been no recruitment in the University for a long time. The counsel for the State has filed a written stand of the State in this regard, which reads as under: I am directed to refer to your letter No. 525, dated 27.9.2002 on the subject cited above and to say that as per conditions of M.O.U. and the Block Grant the University should seek permission of the Government for filling up vacant posts or for any other matter which is likely to create extra financial burden on the Government. Due to its odd financial condition, the Government has restrained from permitting the Universities for filling up vacant posts without rationalisation of staff and assessment or workload as per norms, The Universities could not do this at their level. As per the decision of the Vice-Chancellors' Coordination Committee meeting dated 23.3.2002, it was decided that the workload of teaching staff of the Universities shall be assessed by a team headed by the Secretary, Higher Education. In response to that decision, the exercise of workload assessment has now been completed by the Government. The workload of Jai Narain Vyas University, Jodhpur has also been assessed and permission to fill up the vacant posts has been sought from the Finance Department. As soon as the permission from the Finance Department is received, the University will be permitted to fill up the vacant posts of teaching staff. What stands out prominently from the facts narrated hereinabove is that the stagnation in the University teaching faculty is the result of faculty planning. In the recent past the recruitment has not been done because the concerned have failed to evaluate the relevant workload. 28. The exercise contemplated in the stand of the State was initiated way back in the month of March, 2002. While these lines are penned down in the fag-end of December, it is not known whether any such exercise has actually been undertaken or any result has come. Thus, what becomes more than obvious is that usual mode of recruitment in the Universities i.e. by open selection has been subjected to closure and this kind of treatment to the Universities has given rise to the demands for promotion. 29. Earlier, the concept of promotion in the University services was unknown. May be that due to mishandling of arrangements in the Universities, financial stringency has occurred. This has given rise to a demand for promotional avenues. This may also have been the result of artificially created circumstances. 30. The University is the prominent avenue for higher education teachers. The College Education is another facet of it. Those who could not get selection in the University teaching faculty or had a craving for promotional avenue had gone to the College Education Department. Where regular promotional avenues are available. 31. In Universities academic excellence was prevailing. Those teachers who felt that they are to gain higher status in teaching faculty proved their metal at the selections. As required, open selections were held for the higher posts in the University, When State Government failed in their financial management and Universities were not provided adequate assistance, the stagnation in the cadre was one of its consequences. At that point of time, personal promotion and career advancement like features were devised. 32. Such events may satisfy the teachers who have not been provided opportunity for promotion by selection and claim stagnation. Such features cannot be a substitute for maintaining standards of academic environment in the University. the name Professor sounds so big in its implication, that only those who had professed the subject in its every dimension could only achieve it. Now, the same is being made available/claimed for considerations other than the academic excellence. 33. In the State of Rajasthan the question of stagnation was attended by amending Rajasthan University Teachers and Officers (Selection for Appointment) Act, 1974 (hereinafter referred to as 'the Act of 1974') by introducing personal promotion scheme. At the time, when this was introduced only one such opportunity was conceived. Obviously to guard old values of University Education, which had not known a class of teachers in the University by promotion. 34. While all this has happened in the State of Rajasthan, the University Grants Commission came with an idea of Career Advancement. The University Grants Commission has powers under Section 26(e) & (g) for prescribing qualifications and academic standards. It never had the right conferred on it to device a method of recruitment. But nonetheless in the name of superiority of powers conferred on it the University Grants Commission introduced idea of Career Advancement Scheme. A mode of appointment by promotion. A power which squarely lay with the Universities or Governments. Such power was usurped by U.G.C. The teachers were craving for higher status. Governing bodies of the Universities were full of the teachers. The concept of Career Advancement got currency. Under the pressure of teachers the State Government and the Central Government also agreed for the demand without caring for the values for which the University stood and the idea of academic excellence was permitted to be diluted. 35. During the process of arguments, Regulation 2000 had been the centre point. The Regulation provided for qualifications for the appointment of teachers in regular cadre and in career advancement scheme. Obviously, University Grants Commission could not have provided for anything else but for the powers conferred on it. By the statute, University Grants Commission Act, 1956, the power conferred on U.G.C. was to provide for qualification and measures for standards. No power was vested in the University Grants Commission for providing a mode of appointment. 36. The State Government informed the Universities of its desire to go ahead with the career advance scheme. While writing so, the State Government had not framed any guidelines or rules. In a recruitment or promotion, it is not the qualification alone which is the sole guiding factor. There are other areas which are required to be covered. One of them would be the relationship of promoted teachers with regular cadre. This aspect was subject matter of controversy before the Hon'ble Supreme Court in Dr. Rashmi Srivastava v. Vikram University and Ors. . The Hon'ble Supreme Court then laid down that such promotions can be on ex-cadre post. The Hon'ble Supreme Court has held thus: Merit promotee Professors and Readers form a distinct class of ex cadre or supernumerary appointees as compared to cadre employee, namely, directly recruited Readers and Professors. They are unequals not only because of the source of their appointment but also because of the nature and character of their appointment and of the nature of the posts which they hold. They cannot be treated equally for all purposes and particularly for seniority and promotion if any. For this purpose the nature of work they do is irrelevant. The competition for seniority can only be amongst those who are in the cadre posts. Otherwise, the mandate of Articles 14 and 16(1) would get violated. For these reasons, there would be no occasion to fix inter se seniority of merit promotee Readers and Professors and directly recruited Readers and Professors by treating them as forming one class. Any decision rendered by the University concerned not to discriminate between them in the matter of inter se seniority would be invalid in the absence of any statutory creation of a distinct source of recruitment by promotion by way of amending the parent Act. As the University is governed by the Act which does not contemplate any statutory source of recruitment by way of promotion, whatever sentiments might have been expressed by the Executive Committee of the University for not distinguishing between directly recruited Professors and Readers on the one hand and promotee Readers and Professors on the other hand in the matter of seniority, have no legal efficacy. On the contrary, treating them at par for seniority and promotion is violative of Articles 14 and 16(1) Irony of circumstances here is that the Act of 1974 earlier provided for ex-cadre posts, but the same has now been done away with, by a conscious deletion from the Act of 1974. Nothing to substitute that part of the Act has so far been brought on the statute book, by the State Government. Therefore, the career advancement scheme is being sought to be implemented without there being a scheme. 37. The concept of career advancement alone is sought to be given currency. This fact is not unknown to the University Authorities who have sought to implement career advancement scheme. Though, the University has taken an exercise to amend Ordinance 317 under Section 24(1) of the Jai Narain Vyas University Act, 1962 but while submitting reply to the present writ petition they have chosen to take a stand which is in fact contrary to the stand of the University. Nonetheless is a very important deviation. It says that promotional posts are different than the promotions to be made in career advancement scheme. A portion of the reply showing this stand of the University has been quoted in the judgment hereinbefore. 38. The stand of the University is not only depicting a confusing picture but gives an altogether different dimensions to its stand. It comes out that Professor (promotion) as defined in Ordinance 317 is to be governed by provided qualification, as enumerated in Point No. 2.5.0. Consideration for career advancement scheme is different. If the qualifications provided in Regulation 2000 for the Professor (promotion) are not relevant qualifications for the Professor Career Advancement, then the University though has amended Ordinance 317, which has otherwise been held invalid, also cannot be considered to be a guiding factor for providing qualifications for promotions in the career advancement scheme. The entire selections has been made by the University on the basis of the qualifications provided under Ordinance 317. It forms the basis of the entire selection process for all the departments which has been taken for appointment under career advancement scheme. That would, therefore, be invalid for being done in the light of the qualifications, which according to the University itself has not been provided for career advancement scheme. 39. Therefore, the exercise of promotion in the name of career advancement is without jurisdiction. The whole process of the promotion under career advancement scheme as undertaken by the respondent University is on the basis of qualification as provided under Ordinance 317 which does not provide for anything for Professor (Career Advancement). It provides for Professor (Promotion), which according to University is not relevant. In its pleadings, the University has fallen back on Regulation 2000. The whole exercise, is therefore, on wrong premises and therefore, illegal and invalid. Thus, it is liable to be quashed and is hereby quashed. 40. In service jurisprudence what is so far known is that promotions are made basically on two considerations; one is merit, another is seniority cum merit. To Judge these two dimensions of the work of employees, there are certain parameters which have been designed like Annual Appraisal Report and assessment of Superior Officers. As far as University teachers are concerned, such methodology is not available because the concept of promotion was never conceived as regards teachers of University. Thus, the selections sought to be made for promotion will be based on an interview as suggested by the respondents and assessment of academic work etc. The University and petitioner both have given their points of view about the quality of published work. The University submitted that publication of articles etc. can be purchased without actually writing. The stand of the petitioner is that research work of Ph.D. can be got written by somebody else. 41. Thus, one of the parameters i.e. academic work is full of such vagaries that it cannot be recognized as a valid proposition, on the showing of the parties themselves. That leaves behind only interview, which is too uncertain a process that judicial courts have taken a very cautious view in this regard. A reference in this regard may be made to AIR 2000 SCW 4024 (Praveen Singh v. State of Punjab and Ors.). It has been suggested that only a very limited credence have to be given to it. In the instant case, the most significant part is interview. Thus, there are chances of misusing this facet. 42. The promotions are sought to be made by the University by judging the merit of the candidates, on the basis of an interview and published papers. interview has been adjudicated to be prone to be misused in many cases by the Hon'ble Supreme Court and this Court. The use of published work and Ph.D. is tainted on the showing of the parties, because the possibility of plagiarism, as has been suggested by the parties, in such device. That being the position, it is a hazardous proposition to consider the promotions, on these two parameters only. No other criteria is available to judge the comparative merit of the candidates on record. Thus, placing confidence on such methodology may result into miscarriage of justice. 43. Apart from the aforesaid aspect of method of selection adopted by the University in the present set of circumstances is, limited availability of candidates for selection. The promotion being method of appointment, if is subject to a very limited number of people, without there being valid parameters available, then this will result into discrimination. Infringement of Article 14 is obvious, thus the process does not appear to be safe. There being no guiding factors provided and no parameters defined, only providing for eligibility qualification cannot result into an assessment of candidate properly. The State Government has not considered it prudent to provide for any such methodology which would give such an opportunity to the assessing authorities to judge the comparative merits of the candidates, objectively. Thus, the selections being made without there being defined parameters and methods of assessment, discrimination can be seen. The allegations in the writ petition filed in this regard show, that there is a great possibility of, favourtism being shown to the candidates. 44. In this background, as situations stand presently, a rethinking is required to be done about providing provisions for promotion to the University Teachers. In Government Services, Departmental Promotion Committees sit and take and over-all view of the entire career profile of the person sought to be promoted. Here, nothing like that has been suggested in any Administrative or Legislative guideline. Career profile of University teachers is not maintained progressively. Thus, the present selection being based on unfettered and unguided selection process, which was conceived for direct selection, cannot be considered to be appropriate for promotional avenues. Seniority has always been seen to be a very important consideration for promotion. In the present set of circumstances, that has not only been reglected but there is no room provided for giving any weightage to this aspect of the candidate. The service jurisprudence, as has developed in this country, has seen the selections for promotion, as not an amenable thought. So far known promotional mechanism is different than the one sought to be implemented in the University teachers. There being no inbuilt checks available, this will result into miscarriage of justice. Above all, having not provided for number of posts at the inception, a chance for manipulation has been left open in the whole process of selection. 45. This has also been made clear on behalf of the Teachers during the course of arguments that whatever procedure has been applied for promotion of the teachers in the past in the name of personal promotion and career advancement has not fulfilled the objectives in its entirety. Those teachers who were eligible according to the criteria, prevailing at relevant time, University failed to promote them. This shows that how hazardous and arbitrary are consequences of implementing such devices. There are number of teachers who are part of present set of litigation complaining of discrimination. They were not promoted when they were eligible as alleged. 46. It was neglect and arbitrariness on the part of University that the teachers have raised grievance. As and when they became entitled to be promoted, in view of scheme then prevailing, University has neglected their entitlement for promotion. The Ordinance 317 was promulgated by the University for being implemented in the alleged career advancement. According to the University itself, the post of Professor (Promotion) is not akin to the Professor, Career Advancement. This explanation is misleading, therefore, not justifiable. If qualification is provided for appointment by promotion in point 2.5.0, of Regulation 2000, then saying of the University that this providence has nothing to do with appointment by career advancement, shows that intent and design of the University Administration is, not bona fide. It wants to take advantage of every expression, to do things in a manner, which is based on extraneous considerations. Thus, the amended ordinance, which has already been struck by this Court, can be seen loaded with such possibilities. The stand in University submissions show that it could not only be misused in theory but has been done in practice also. Thus, any selection based on such providence cannot have the semblance of credibility. 47. It is seen that there being no formulation of formal guidelines and rules for making career advancement, the whole process is without application of mind. In this background, unless a considered scheme is evolved, it would not be safe to try adventurism. 48. Initiated only on a letter of the State Government without there being complete rules provided, such a process cannot be sanctified by a judgment of the Court, recognizing its various ingredients. Thus, it is felt that State Government may consider the following points before any further action is taken in this regard: (i) The State Government may consider to restore the process of direct selection immediately so as to provide desirous candidates an opportunity to prove their merit and not feel cheated that their academic excellence is not getting due recognition. (ii) What are the factors which have crept into the process of promotion that has forced the teachers to adopt such a stance, where they have lost the sense of decency and have even not spared judicial institution where they have tried to exercise their influence. A reference to this has been made during one of the hearings in Court. (iii) The State Government may also examine, the certain teachers feel that as and when they had an opportunity of being considered for promotion, in the light of the practices and provisions of yester years, they were discriminated. Such aspects may be investigated and grievance may be attended to. 49. These are the points which are required to be looked into by the State Government and then if needed, a suitable legislative policy be devised. In the present, selections are seen to be hit by Article 14 being discriminatory and also result of non-application of mind. Hence, fails in judicial review. Thus, the entire process of selection in career advancement deserves to be set aside and consequently the same is set aside. The relief claimed by the petitioner cannot therefore be granted as the whole process is seen to be incapable of standing the judicial scrutiny. 50. Consequently, the writ petition is disposed of with the aforesaid directions.

Author: B Prasad

Anil Pathak vs Jai Narain Vyas University And ... on 21 December, 2002

Rajasthan High Court

JUDGMENT T.V.R. Tatachari, C.J. (1) The Lt. Governor, Delhi, has referred the following two questions to this Court under Section 21 of the Bengal Finance (Sales Tax) Act, 1941, as extended to the Union Territory of Delhi (hereinafter referred to as the 'Sales Tax Act') :- "(I)Whether, having regard to the facts and circumstances of the case, the replacement of the parts during the continuance of the warranty entered into by the manufacturer and/or by its authorised dealer with the purchaser would constitute a "sale" within the meaning of Section 2(g) of the Bengal Finance (Sales Tax) Act, 1941 as in force in Delhi which is liable to be taxed under the provision of the Act ? (II)Whether on the facts and in view of the circumstances of this case, if the supply of parts transferred to the purchaser of vehicles in replacement in compliance with the stipulations of the warranty is not "sale" withinthe meaning of clause 2(g) of the Act, the purchase price of the parts purchased on the strength of certificate of registration free of cost or purchased at the concessional rate of tax under the Central Sales Tax Act, 1956, on furnish- Ing 'C' form, is liable to be added to the taxable turnover of the purchasing dealer under the provisions of the second proviso to clause (ii) of sub-section (2) of Section 5, of the Bengal Finance (Sales Tax) Act 1941, as in force in Delhi ?" THErespondent herein, M/s. Prem Nath Motors (P) Ltd. (hereinafter referred to as the 'dealer'), is registered as a dealer under the Sales Tax Act. It carries on the business of sale of motor cars, their spare parts and their accessories For the period of assessment 1964-65, the dealer was assessed to sales tax by an order under Section 11(1) of the Sales tax Act, dated 30th August, 1968. During the afore- said period of assessment, the dealer purchased spare parts of motor vehicles locally on the strength of the registration certificate free of sales tax under the Sales Tax Act. It also purchased spare parts of motor vehicles at concessional rate of tax furnishing Form 'C' prescribed under Section 8 of the Central Sales Tax Act, 1956, to the selling dealers in other States in the course of Inler-State trade of commerce. The dealer transferred the said spare parts to its Service Department, where they were used for replacement purposes in the motor-cars sold under a "warranty". (2) In the period of assessment in question, the dealer included in the "gross turnover" the value of the parts so utilised, but claimed that the value of such parts which were replaced in the motor cars/ vehicles pursuant to the terms and conditions of "warranty" during its operation should be deducted from his "gross turnover". It was first contended that under the terms of the "warranty", it was obliged to carry out replacements or repairs of defective parts, and that such replacements or repairs did not constitute "sales". But, during the assessment proceedings, it was conceded on behalf of the dealer that such replacements of spare parts constituted "sales" within the meaning of the Sales-tax Act, as the goods so utilised were purchased for purposes of re-sale either locally in Delhi free of sales tax on the strength of the local registration certificate or imported from outside Delhi in the course of Inter-State trade of commerce at concessional rate of the tax after furnishing Form 'C' prescribed under Section 8 of the Central Sales Tax Act, 1956. The assessing authority did not, therefore, allow the deductions claimed. (3) Against the said order of the assessing authority, the dealer filed an appeal under Section 20 (1) of the Sales Tax Act. It was contended again in the appeal that the replacements or repairs did not constitute "sales". By its order, dated 6th December, 1969, the Appellate Authority held that the replacements were in the nature of "sales" as admitted by the dealer, and, therefore, such replacements constituted "sales" taxable under the Act. In that view the A Appellate Authority also refused to allow the deductions claimed by the dealer. (4) The dealer then preferred a Revision Petition to the Commissioner under Section 20(3) of the Sales Tax Act. The revision petition B was heard by the Deputy Commissioner. (5) It was pointed out on behalf the dealer that there is a warranty given by the Premier Automobiles Limited, (Manufacturer of Fiat Car) to the dealer who is the first purchaser from the manufacturing company and, again there is a warranty stipulated between the dealer and the buyers-consumers. It was also pointed out that according to the warranty as between the dealer and the buyers-consumers, it applied to two periods, viz., (i) pre-delivery period and (ii) post delivery period. It was explained that in the pre-delivery period, if the dealer feels that any part of the car which is to be supplied to any buyer-consumer needs replacement, it is automatically done by the company and no price extra is charged by the company, and hence the question of any sale having been effected does not arise. As regards the post delivery period, it was explained that in that period, when it is brought to the notice of the dealer by any buyer-consumer that any part or parts of the car needs replacements and the dealer is satisfied with the claim of the buyer-consumer, the dealer is obliged. under the terms of the warranty, to replace it without making any charge from the buyer-consumer. It was contended that even if, for the sake of argument, such replacement was considered to be covered by the definition of the term 'sale' as given in the Sales Tax Act, the question would be as to what would be the "sale price" of such a part replaced by the dealer, as no price was actually charged. It was argued that actually the price of the part replaced by the dealer was already included in the aggrega's consideration for the sale of the car, which has already been subjected to sales tax, and hence there was no warrant for imposition of any further tax. (6) By his order, dated 14th December, 1970, the Deputy Commissioner held that whenever the dealer entertained a claim under the warranty, it simply replaced the parts without recovering anything from the buyers-consumers, that the circumstances under which the said replacement was effected clearly indicated that it could not be treated as "sale of goods",either under the Indian Sale of Goods Act, 1930, or under the Sales Tax Act, as the payment or promise of payment of price which is one of the essential ingredients of a "sale of goods" was lacking, and the transfer of property in the parts so replaced did not involve any valuable consideration, and that otherwise also, when a buyer-consumer who paid the price of the car to the dealer subsequently discovers any defective part and puts up a claim before the dealer on account of breach, of warranty and the dealer replaces that part, the consideration for that part, if at all it can be said to be so, had already been included in the aggregate consideration for which the car had been sold originally, implying thereby that there was no specific consideration for the replacement of the part. In that view, the Deputy Commissioner decided that the replacements of the par:s during the period of operation of warranty were not liable to Sales Tax. (7) The dealer, however, felt aggrieved by the said order for the reason that if the spare parts of the motor vehicles purchased on the strength of the registration certificate free of tax for purposes of re-sale were not sold, but used for replacement in compliance with the terms and conditions of the warranty the purchase price of such parts was liable to be included in the taxable turnover of the purchasing dealer under the second proviso to clause (ii) of sub-section (2) of Section 5 of the Sales Tax Act. It, therefore, preferred a further revision petition to the Financial Commissioner, Delhi, under Section 20(3) of the Sales Tax Act. (8) By his order, dated 8th July, 1971, the Financial Commissioner held that the transfer of property in the parts replaced under the warranty constituted a "sale" and as such the replacement of parts as a consequence of the terms and stipulations of the warranty must be deemed to be a continuation of the original sale, the price of which stood included in the consolidated sale price determined and realized at the time of the transfer of goods in the shape of the car with a warranty. The Financial Commissioner also held that the parts supplied in replacement, free of cost, by the dealer, in terms of the warranty, are sold along with the car for which a consolidated price was realized at the time of the initial transfer and on which sales tax was paid, and the replacement of the parts would be deemed to be a 'sale' not liable to imposition of further sales tax. (9) The Commissioner of Sales Tax, thereupon, filed an application before the Lt Governor under Section 21 of the Sales Tax Act paying that the two questions which we have set out earlier in this judgment be referred to this court. The said questions have since been referred by the Lt. Governor. (10) The precise questions that arise for consideration are as to whether the transfer of the parts replaced in pursuance of the warranty clause amounts to "sale" within the meaning of Section 2(g) of the Sales Tax Act, and whether the sale price of a car which has been subjected to sales tax can be regarded as having included the cost or the value of the spare parts used in the replacement in compliance with the stipulations in the warranty. The relevant portion of the warranty stipulated between the Premier Automobilies Limited and the dealer, as set out in the statement of case, reads as follows:- "THEPremier Automobiles Limited, hereinafter termed the company, warrants each new Fiat sold by the company, to be free from defects in material and workmanship under normal use and service, the Company's obligation under this warranty being limited to making good at the company's factory any part or parts thereof, including all equipment or trade accessories (except electric bulbs, tyres and tubes) supplied by the Company which shall within three hundred and sixty five (365) days after making delivery of such car of the original purchaser/or before such car has been driven sixteen thousand (16,000) kilometers, whichever event shall first occur, be returned to the company with transportation charges prepaid, and which on Company's examination shall disclose to the company's satisfaction to have been thus defective; this warranty being expressly in lieu of all other warranties expressed or implied statutory or otherwise and of all other obligations or liabilities on the company's part, the Company neither assumes nor authorises any other person to assume for the company any other liability in connection with the sale of the Company's vehicles. (11) In the event of the original purchaser selling the car during the warranty period, the second purchaser should inform the Service Department, Premier Automobiles Ltd., the name, address, date of purchase, serial and engine numbers of the car, and the mileage covered. The name and address of the party from whom the vehicle is purchased should also be given. This information is required (within 7 days from the date of purchase) for the purpose of continuance of the balance period of warranty. (12) The company accepts no liability for any loss or damage, direct or consequential or for any accident resulting from defective material, faulty workmanship or otherwise. This warranty shall not apply to any car which shall have been repaired or altered without the approval of the Company or serviced by other than the Company's authorised dealers or which has been subject to negligence, accident, improper use or alterations whatsoever. (13) The company reserves the right to repair defective parts under warranty instead of replacing them whenever, in the company's opinion, such repairs can be satisfactorily carried out. (14) Warranty adjustments will only be made when necessary repairs of parts involved are handled through an Authorised Dealer of the Company. (15) The warranty shall not apply to any particular assembly or components of the vehicle in or to which any part not manufactured and/ or sold by Premier Automobiles Limited, has been affixed, so as to, in the Company's judgment, affect its suitability or reliability". (16) The relevant portion of the warranty as between the dealer and the buyer-consumer, as set out in the order of the Deputy Commissioner, reads as follows:- "DURINGthis period you will not be charged for Fiat replacement parts required because of defective material or workmanship or for labour required to instal these parts. THISwarranty will not supply 1.If parts and/or labour are required due to negligence, accident or improper use. 2.If you have your car repaired by other than an authorised dealer during the warranty period. 3.If any parts are used that are not made by, sold by or approved by the Premier Automobiles Ltd., Bombay. FORyour convenience we have arranged to have any authorised Fiat dealer in India perform the services for your car during the warranty period, should you be touring. You will be expected to furnish proof that your car is within the warranty period. Therefore, we suggest you carry this "owner Service POLICY" with you". (17) It is clear from the facts narrated above that the dealer sold cars along with a warranty under which it agreed that it would replace parts, free of cost, within a stipulated period if the replacement was required because of defective material or workmanship. In other words, each sale was of the car along with a warranty. Section 2(g) of the Sales Tax Act defines "sale" as follows:- "(G)."Sale", with its grammatical variations and cognate expressions, means any transfer of property in goods by one person to another for cash or for deferred payment or for any other valuable consideration and includes a transfer of goods on hire-purchase or other system of payment by Installments, but does not include a mortgage or hypothecation of or a charge or pledge on goods". INthe present case, the sale was of the cars along with a warranty to replace defective parts free of cost, and the price was fixed and paid at the time of the sale. Section 12 of the Sale of Goods Act, 1930, draws a clear distinction between a condition and a warranty. It reads as follows :- "12(1).A stipulation in a contract of sale with reference to goods which are the subject thereof may be a condition or a warrant (2)A condition is a stipulation essential to the main purpose the contract, the breach of which gives rise to a right to treat the contract as repudiated. (3)Awarranty is a stipulation collatoral to the main purpose of the contract, the breach of which gives rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated. (4).Whether a stipulation in a contract of sale is a condition or a warranty depends in each case on the construction of the contract. A stipulation may be a condition, though called a warranty in the contract." THEdistinction between a condition and a warranty essentially lies in that a breach of a condition gives rise to a right to treat the contract as repudiated, while a breach of a warranty gives rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated. A perusal of the warranty between the dealer and the buyer/consumer set out above shows that there was no stipulation empowering the buyer/consumer to reject the car and repudiate the contract if any of the parts is found to be defective. The stipulation was only that the dealer will replace the defective part/parts, free of cost. It is thus clearly a warranty and not a condition. (18) Now, the warranty was to replace the defective part or parts free of cost. When a part is replaced in accordance with the stipulation or warranty, it becomes a part of the car and the property in it stands transferred to buyer/consumer. No separate consideration for the part so transferred is specified. No dealer can reasonably be expected to enter into such a stipulation or warranty which might result in the transfer of the property in the part or parts replaced without consideration for the transfer. In the circumstances, the only reasonable inference is that the consideration or the part or parts that might be replaced under the warranty was not separately specified, because it was included in the price fixed and paid for the car at the time of its sale. In other words, the transfer of the property in the part or parts replaced in pursuance of the stipulation or warranty is a part of the original sale of the car for the price fixed and received from the buyer consumer. The price so fixed and received was a consolidated price for the car and the parts that may have to be supplied by way of replacement in pursuance of the warranty. (19) In this context, Mr. Kirpal, learned counsel for the respondent, pointed out to the observation of the Supreme Court in para 8 of its judgment in Premier Automobiles vs. Union of India, Air 1972 Sc 1690, 1693, that warranty was one of the principal factors considered relevant by the Tariff Commission for the fixation of a fair selling price for Fiat, Ambassador and Standard motor cars. This observation shows, that the idea of taking the warranty into consideration infixing the price of a car is well-known to the manufacturers and dealers of motor cars. The observation supports, in a way the view taken by us that the consideration for the part or parts that might be replaced under the warranty was included in the price fixed and paid for the car at the time of its sale. (20) For the foregoing reasons, we are of the opinion, that the view taken by the Financial Commissioner that the future replacement of the parts in pursuance of the warranty have to be regarded as "sales", the price for which was already paid and on which sales tax was already levied and collected, and that they were not liable to the imposition of further sales-tax, is correct. We, therefore, answer the first question in the affirmative and the second question in the negative. In the circumstances of the case, we make no order as to costs.

Author: T Tatachari

Commissioner Of Sales Tax vs Prem Nath Motors (P) Ltd. on 1 May, 1978

Delhi High Court